Admin - Procedural Impropriety

Question 1

what are the subgrounds under procedural impropriety?

Answer 1

• notice
• consultations
• hearings
• reasons for a decision
• bias

Question 2

what ideas in natural justice are procedural fairness associated with?

Answer 2

• right to be heard
• rule against bias

Question 3

why must notice be given before a decision is made? (incl. 2 cases)

Answer 3

• Doody - so the affected knows ‘the gist of the case’ they have to answer to, ESPECIALLY in situations when there is a deprivation of liberty
• Anufrijeva - so the affected can be ‘in a position to challenge’; it is the right of access to justice

Question 4

what is the general rule about consultations? (incl. case)

Answer 4

there is no general common law duty to consult; it would be for Parliament to introduce such a duty (BAPIO)

Question 5

what are the exceptions as to when there is a duty consult?

Answer 5

• legislation may either require consultations, or give the public authority discretion to hold consultations
• dependent on statutory construction (e.g. “shall”, “must”)

Question 6

what are the ‘Sedley criteria’ for consultation? (incl. case)

Answer 6

ex parte Gunning
1. consultations must take place when proposals are at a formative stage
2. the proposer must give sufficient reasons (why is it choosing certain options and what are the alternatives?)
3. adequate time given for consideration and response
4. things discussed in the consultation must be taken into account before finalising any statutory proposals

Question 7

what are some examples of where there was a specific common law duty to consult? (incl. 4 cases)

Answer 7

• Baker - duty to consult residents of a care home before deciding to close it arising from a legitimate expectation
• Coughlan - duty to consult residents of a hospice before closing arising from a legitimate expectation
• LH - duty to consult regarding the closure of a number of daycares; consultations needed to occur with users of individual centres
• Greenpeace - consultation process was flawed in this case regarding policy changes on nuclear energy

Question 8

legitimate expectations in consultations? (incl. case)

Answer 8

• Moseley - when someone is deprived of a benefit, there is a legitimate expectation to be consulted before the decision is made

Question 9

what is the procedure around hearings? (incl. 2 cases)

Answer 9

• Lloyd v McMahon - there should generally be an oral hearing, or at least the opportunity to make written representations, unless the right is waived by the applicant
• Osborn - hearings (or the opportunity to present one’s case effectively) should especially be given in circumstances where liberty is at stake

Question 10

why are hearings important (incl. case quote)

Answer 10

Sengupta v Holmes - ‘Oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge’

Question 11

what should be considered by the decision maker when deciding to give an oral hearing? (incl. case)

Answer 11

• the nature and circumstances of the decision
• whether all substantive issues of fact could be satisfactorily resolved on the available written evidence (ex parte Anderson)

Question 12

2 cases which consider oral hearings

Answer 12

• R (McLuckie) v SoS for Justice - oral hearing was unnecessary when both parole board and ‘Category A review team’ agreed that a murderer remained a danger to society
• R (Smith & West) v Parole Board - held that oral hearings are not necessary every time a prisoner is recalled after breaching parole conditions, but that the parole board should be ‘predisposed’ to grant an oral hearing

Question 13

when does one have duty to give reasons? (incl. 2 cases)

Answer 13

• when liberty is at stake
• Doody - when it would be impossible for the complainant to mount a successful JR case without being given reasons why the decision went against them
• ex parte Murray - when the decision-maker is fulfilling a judicial role and there is no appeal possible, such as in a court-martial

Question 14

4 cases which consider duty to give reasons

Answer 14

• Dover District Council - reasons are essential to allow effective supervision by the courts to allow individuals to challenge the legality of decisions, especially in cases regarding planning
• McInnes v Onslow-Fane - held that the board making the decision on whether to grant a boxing manager’s license were simply obliged to act fairly, and not also to give reasons
• ex parte Cunningham - court held detailed reasons were required as to the unfair dismissal and low awarding of damages of a prison PE teacher
• ex parte Institute of Dental Surgery - there is no duty to give reasons where to do so would be excessively onerous on the decision-maker because of the complexity of factors and time constraints

Question 15

academic commentary (Bell) - what are the main reasons people challenge under duty to give reasons?

Answer 15

Bell - decision-makers are more likely to be challenged on the adequacy of what reasons they offered, rather than an outright refusal to offer reasons

Question 16

academic commentary (Bell) - what factors are making the courts hesitant to introduce a common law duty to give reasons?

Answer 16

• doubts that introducing a general duty would truly add any practical utility to the current law
• difficulties inherent in developing a general formulation of the kind of reasons required
• a belief that the ‘hortatory’ function a general duty would serve is being better performed by broader developments in the administrative sphere
• weaker adherence on the part of modern judges than many academics to an understanding of administrative law’s nature which puts generality at its core

Question 17

when is bias involved in a case? (incl. case)

Answer 17

Flaherty - decision-maker is biased if they have a ‘predisposition or prejudice against one party’s case or evidence on an issue for reasons unconcerned with the merits of the issue’

Question 18

bias - personal interests (financial) (incl. 2 cases)

Answer 18

• Dimes - a decision-maker is automatically disqualified in instances where they have a personal financial interest
• Locabail - the interest may also derive from that of a family member, provided that the link is ‘so close and direct’ that the family member’s interest is indistinguishable from that of the primary decision-maker

Question 19

personal interest (non-financial) (incl. case)

Answer 19

Pinochet - automatic disqualification of decision makers (can include judges too!) in which they are a party, or may be treated as if a party because they had an interest in the outcome (financial, property or otherwise)
- in this case, Lord Hoffman was associated with a party which intervened in the case procedure (Amnesty International)

Question 20

what was the apparent bias test? (incl. case)

Answer 20

• Gough - whether a “real danger” of bias on the part of a member of a tribunal in the sense that ‘he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him’

Question 21

criticism of Gough (incl. case)

Answer 21

Pullar - the tribunal must be impartial from an objective viewpoint; therefore the danger of bias cannot be ascertained from the POV of the Court

Question 22

what is the test for bias (incl. case)?

Answer 22

Porter v Magill - Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased

Question 23

Requirements of the ‘informed observer’ (incl. case)

Answer 23

• Gillies v SoS for Work and Pensions
• ‘must not be closed minded or unduly suspicious’
• must be ‘in possession of all the facts that are capable of being known by members of the public generally’

Question 24

what is a case in which the porter test was applied?

Answer 24

Helow v SSHD

Question 25

predetermination bias (incl case)

Answer 25

• Georgiou v Enfield London Borough Council - when a decision-maker has closed its mind on relevant factors/considerations because it has already reached a decision/is determined to reach a particular decision
• test for predetermination is also based on the fair-minded and informed observer

Question 26

academic commentary (Havers + Henderson) - what are the problems caused by the Porter test?

Answer 26

• a simpler test should be implemented in place of the Porter test
• two main problems caused by the Porter test:
  1. an agreed set of facts can give rise to very different opinions as to what the ‘fair minded and informed observer’ would conclude
  2. the conflation of bias, predetermination and lack of independence

Question 27

academic commentary (Olowofoyeku) - what is the problem with the Porter test?

Answer 27

• it leaves room for judges to take a subjective view on what constitutes bias
• the judges are the ones making the decisions in court; there is no need for them to hide their decisions behind an artificial construct
• she proposes a return to Gough - in bias cases, conclusions will be based on a judge’s own assessment and value judgments of the facts