Aside from the substance of the decision that a
regulator ultimately reaches, it is important that stakeholders are confident
that the process used to reach that decision was fair. As such, procedural
fairness (also referred to as natural justice) is concerned with the procedures
used by a decision maker, rather than the actual outcome reached, although it
is also understood that a decision maker following a clear, objective set of
procedures is more likely to reach a fair and correct decision. To ensure procedural fairness, several elements are necessary:1
- A competent, independent and impartial regulatory authority
oversees the process and makes the ultimate decision;
- The regulatory authority exercises its authority within the scope
permitted by its legal powers;
- Clear, published rules of procedure are available and consistently
- Proceedings are open to the public, except where confidentiality
is necessary to protect proprietary information or other confidential
- All parties are treated in a non-discriminatory manner; and
- The decision-making body uses evidence and arguments presented
during the proceedings to justify its ultimate decision.
Procedural fairness provides the foundation of
the public consultation process by offering authorities a better understanding
of the facts and helping to improve the quality of evidence and reasoning on
which the agency bases its enforcement actions and decisions.2 For parties to
the decision, procedural fairness bolsters confidence and belief in a fair
legal system and in those applying the law.
1 OECD, Draft Recommendation on
Regulatory Policy and Governance (May 2011) at http://www.oecd.org/dataoecd/49/43/48087250.pdf.
2 OECD, Procedural Fairness:
Update on Recent OECD Activities, ICC roundtable, Istanbul (Apr. 30, 2010).