Chapter 4: Procedural impropriety Flashcards
(117 cards)
1
Q
1.. Introduction
A
The third ground of judicial review identified by Lord Diplock in GCHQ was procedural impropriety. This concerns a public decision-maker’s failure to follow correct statutory procedure and/or to act fairly in a more general sense, as measured against common law standards.
So, procedural impropriety as a concept covers two areas, the second having by far the wider scope:
* Failure to observe procedural statutory rules
* Duty to act fairly (common law fairness)
2
Q
- Failure to observe procedural statutory rules
A
This type of error is essentially an extension of the basic principle of ultra vires, and it is therefore
closely related to the ground of illegality. It requires public bodies to follow requirements of a
procedural nature that have been laid down in statute. It is sometimes called ‘procedural ultra
vires’. We will now briefly consider briefly consider the courts’ historic approach to assessing breach of procedural statutory rules, and then address the modern, more flexible approach.
3
Q
2.1 Historic approach
A
The courts’ approach to assessing the breach of a procedural statutory rule used to involve a
distinction between mandatory procedural requirements and directory procedural requirements.
Breach of a mandatory requirement would invalidate a decision, whereas failure to comply with a directory (or discretionary) requirement would not automatically invalidate a decision.
4
Q
Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury
Mushrooms Ltd [1972] All ER 280
A
For example, in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] All ER 280, the court held that an order issued by the Training Board was
not binding upon the company because it had not been consulted, as required by a statutory provision which was expressed in mandatory terms.
5
Q
2.2 Modern approach/ Flexible approach
A
More recently, the difficulties that can arise in determining whether a statutory requirement is
mandatory or discretionary, particularly when there are several inter-linked requirements, have
led the courts to move towards a more flexible approach
6
Q
Consequences of the non-compliance
A
Following a series of cases, which culminated in the decision of the House of Lords in R v Soneji
[2006] 1 AC 34, the judiciary now focus on the consequences of the non-compliance with the
requirement, and ask whether, in the light of those consequences, Parliament could have intended that the outcome of that non-compliance should be the invalidity of the decision.
7
Q
R v Soneji
A
R v Soneji was a case on procedural requirements for criminal cases, but the test has been applied by the Court of Appeal in administrative law cases
8
Q
2.2.1 Case law
JN (Cameroon) v SSHD [2009] EWCA Civ 307
A
The Court of Appeal held that a deportation
notice that did not specify the country to which JN would be deported, as required by the
Immigration (Notices) Regulations 2003, did not invalidate the decision to deport him. The purpose of the requirement was to assist the person concerned in relation to any appeal, and JN’s ability to present his appeal was not impaired by the omission, particularly where it was clear from the decision reasons that the intention was to deport him to Cameroon.
9
Q
R (Herron) v The Parking Adjudicator [2011] EWCA Civ 905
A
The Court of Appeal upheld the parking adjudicator’s decision that minor irregularities in road signs and road markings in the
Sunderland Controlled Parking Zone did not invalidate the 39 penalty notice charges accumulated in that zone by the claimant
10
Q
R v Guraj [2016] UKSC 65
A
Where it was held that a series of procedural errors
did not undermine the safety of a prosecution. Notably, a serious error had been remedied by the
Crown and the defendant had not suffered unfairness.
11
Q
- Duty to act fairly
A
In all cases, a decision-maker must act in accordance with the principles of ‘natural justice’, now known as the duty to act fairly. There are two central common law rules concerning the duty to
act fairly.
12
Q
The right to be heard - ‘audi alteram partem’
A
Meaning: ‘the other side must be heard’. This means that a person affected by a public law decision should be given the opportunity to present their case. Approach of the courts: The courts consider (i) whether a duty has arisen (ii) what level of duty is owed by the public authority (iii) the content of the duty and whether there is a breach.
13
Q
The rule against bias - ‘Nemo iudex in causa sua’
A
Meaning: ‘no-one should be a judge in their own cause’.
Approach of the courts: The courts will consider the context of a case and determine if there has been direct or indirect bias. (The rule against bias is considered in the second section.)
14
Q
3.1 The right to be heard: when does the duty arise?
A
The historic approach adopted by the courts was a narrow one whereby ‘judicial’ decisions were
subject to the principles of natural justice, but ‘administrative’ decisions were not.
15
Q
Key case: Ridge v Baldwin [1964] AC 40
A
This case was a turning point as the court held that it did not matter whether the decision was judicial or administrative. The question for the court should be the extent of the justice/fairness required in a given situation
16
Q
3.1.1 When might the duty not apply?
A
Professor De Smith pointed to certain situations where the courts have appeared to override the duty or have significantly modified it.
17
Q
Where there are overriding concerns relating to issues of national security
A
See GCHQ, where it was held that the duty to consult the trade union was overridden by national security concerns. (Note that this is a legitimate expectation case.)
18
Q
In emergency cases, where public safety demands urgent actions:
A
See for example, R v
Secretary of State Transport, ex parte Pegasus Holdings Ltd. [1989] 2 All ER 481 relating to air transport safety.
19
Q
Rationing of resources cases
A
The courts frequently find that authorities cannot be expected to put forward a detailed case. See R v Cambridgeshire AHA, ex parte B [1995] 2 All ER 129
where it was found it was not unfair for the authority not to give detailed reasons why it would not fund expensive cancer treatment for a child patient.
20
Q
Cases where a person has waived their right to fairness
A
See Lloyd v McMahon [1987] AC 625 (discussed below
21
Q
3.2 What is the level of fairness owed?
A
Upon establishing that the duty to act fairly applies, the court will assess the level of fairness owed by the authority to the applicant. This will vary depending on the decision and the context of the issues.
22
Q
Durayappah v Fernando [1967] 2 AC 337
A
An early case in which the Privy Council gave guidance on the contextual nature of
the question is Durayappah v Fernando [1967] 2 AC 337.
A more modern approach to the courts’ assessment of the level of fairness was provided by Lord Bridge in Lloyd v McMahon [1987] AC 625
23
Q
Lord Bridge stated that:
A
[…] the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase
which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision, which will affect the rights of individuals, depends on the character of the decision-making body, the kind of question it has to make and the statutory or other framework in which it operates. For a similar approach, see Lord Mustill in R v Secretary of State for the Home Department, ex
parte Doody [1993] 3 WLR 154.
24
Q
3.2.1 The level of fairness in licensing cases
A
Licensing cases provide an instructive example of the courts’ approach to the level of fairness question. For instance, on being refused a licence, does an applicant have the right to a hearing, enabling them to know why they have been turned down and giving them the opportunity to
present counter arguments?
25
3.2.1 The level of fairness in licensing cases
When considering the appropriate level of fairness, the courts have developed a spectrum
approach. (Note that this is not a formal element of a case, but a background contextual judgement considered by the court.)
26
Key case: McInnes v Onslow-Fane [1978] 1 WLR 1520
In this case the applicant had previously held various licences from the British Boxing Board of Control. These were withdrawn in 1973. Between 1972 and 1975 he applied five times for a manager’s licence, failing each time. Applying for the sixth time, he asked for an oral hearing and
notification of any unfavourable points so that he could reply to them. These requests were
refused, and his application failed again.
27
Was there a breach of the duty of fairness? Should the applicant have been given fuller reasons for the decisions and/or an oral hearing?
It was held that there was no breach. The court made some important observations:
(a) The case involved the applicant’s liberty to work, so a duty of fairness applied.
(b) There is a distinction between forfeiture and application cases: in the former, where a licence is being taken away, the holder will usually be entitled to expect that this will not be done without a good reason. (In other words, a higher level of fairness should be expected.) Therefore, notification of changes and of reasons etc. will be appropriate. In application
cases the issue is the general suitability of the applicant, and notification of specific points may not be appropriate or practical.
28
Intermediate category
(c) There is also an intermediate category of ‘legitimate expectation’ cases. These occur where
conditions are laid down for the grant of a licence and an applicant satisfies them, thus entitling him to believe that his application will not be rejected without a good reason.
29
No obligation
(d) Applying these principles to the case in question, it was emphasised that McInnes was a mere
applicant. The British Boxing Board had acted fairly in the general sense and there was no
obligation to provide the applicant with specific reasons for the refusal.
30
R v Gaming Board for Great Britain, ex parte Benaim & Khaida [1970] 2 QB 417 c
Concerned an application for a certificate of consent to apply for a gaming licence under the Gaming Act 1968. The application was rejected, and the applicants argued that they had a right to know the case
against them, including the reasons for the rejection.
31
Lord Denning held that:
[…] the board ought in every case be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair […]
32
Gaming Board should at least have provided the gist
In this case then, even though the applicants were mere applicants, as in McInnes, the court found that the Gaming Board should at least have provided the gist of its reasons for refusing the
application. This apparent inconsistency between the two cases could be explained by the
different contexts. In Benaim, the Board was deciding a defined issue under statute, whereas in
McInnes the situation was more general, and the Board was exercising a very broad discretion.
33
4. The content of the right to be heard
Once the level of fairness owed has been determined, the so-called ‘content’ of fairness needs t be considered. The content relates to the various procedural ingredients that may be relevant in any given case.
34
Right to be heard
The ‘right to be heard’ is a broad, umbrella term – what the claimant may have wanted by way of fairness will clearly vary according to the particular context of the decision in question. However, five broad elements have tended to become the focus of such challenges. These are as follows:
* Notice of the case against a person
* Right to make representations
* Witnesses
* Legal representation
* Reasons
35
4.1 Notice of the case against a person
The most basic element of procedural fairness is the right for a person to have notice of the case against or involving them. A failure to inform a person of the evidence against them, or of a decision taken that affects their interests, will mean that that person is unable to make any
effective representations in response
36
R v Governing Body of Dunraven School, ex parte B [2000] BLGR 494
A lead case in this area is R v Governing Body of Dunraven School, ex parte B [2000] BLGR 494.
‘B’ was permanently excluded from school following the theft of a teacher’s bag, on the basis of the witness statement of another pupil (D). B’s parents were not allowed to see the statement or to
know who had made it.
The court found that it was not fair for the governors to take into account the written statement of D which B and his parents had not seen, nor the oral evidence of D which B and his parents had not heard. B could not prepare his own case without sight of the substance of D’s evidence.
37
Sedley LJ emphasised
Sedley LJ emphasised in ex parte B that what fairness demands will depend upon the particular circumstances of the case.
This basic issue of lack of notice of the case against a person can be exemplified by judgments in the following cases.
38
Errington v Minister of Health [1935] 1 KB 249
In Errington v Minister of Health [1935] 1 KB 249, the Court of Appeal held that there had been a breach of ‘natural justice’, because the minister had in effect heard evidence from one side
without the other side being present.
39
R v Chief Constable of North Wales Police, ex parte Thorpe [1998] 3 WLR 57 (CA)
In R v Chief Constable of North Wales Police, ex parte Thorpe [1998] 3 WLR 57 (CA), the court held that a failure to disclose the full case against the applicants did not render the decisions unlawful because full notice would not have made a material difference.
40
Reasonable amount of time
It is important that once a person has been informed of the case against them, they are then given a reasonable amount of time in which to respond, prior to the actual decision being
made
41
R v Thames Magistrates, ex parte Polemis [1974] 1 WLR 1371
In R v Thames Magistrates, ex parte Polemis [1974] 1 WLR 1371, a ship’s master was summoned to answer a charge under the Control of Pollution Act 1971. He was required to attend the magistrates’ court on the same afternoon to answer the charges. He was convicted, but this was
subsequently quashed due to unfairness
42
Key case: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39
In this case, also referred to in the chapter on unreasonableness, the procedural element of the
challenge to the decision to prevent the bank from operating in the UK revolved around the lack of
notice given to it of the Treasury’s intention to make the direction under the Counter-Terrorism Act
2008.
43
Key case: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39
Although the Act allowed the bank to apply to the High Court to challenge the action taken by the
Treasury, the fact that this could only be done some time after the direction took effect meant that the damage to the bank’s interests had effectively already been done. The direction was therefore quashed on procedural as well as substantive grounds
44
Lord Sumption: Good administration
Related this very strongly to the core ideal of fairness, but also argued that the
significance of proper notice, and therefore of allowing affected parties the opportunity to make
representations and to take part in consultation, was important in upholding the principle of good
administration. Public decision-making was less likely to be effective, as well as transparent and
fair, if relevant parties did not have such an opportunity.
45
4.2 Right to make representations
Another key issue is whether a person should be given the right to make representations as part
of the decision-making process. Whether it is fair for these representations to be confined to written form, or to involve an oral hearing, will depend on the nature of the decision and the process itself.
46
4.2 Right to make representations
It is important to note that there is not an automatic, common law duty to hold personal or oral hearings. There have been several cases where the lack of a hearing has been held not to have affected the fairness of a decision, as for instance in Lloyd v McMahon [1987] AC 625.
47
R v Army Board of the Defence Council, ex parte Anderson [1992] 1 QB 169
A soldier made a complaint of racial discrimination, which was referred to the Army Board. His request for an oral hearing was rejected by the Board.
48
Court of Appeal quashed decision
The Court of Appeal quashed the Board’s decision, because it found (on illegality grounds) that
the Board had fettered its discretion by having an inflexible policy never to hold oral hearings. On
the more specific oral hearing point, Taylor LJ said that such hearings were not necessary in all cases of this nature, and he set out a number of useful criteria to consider, when deciding if oral hearings are required to meet the requisite standard of fairness
49
Required to meet standard of fairness
(a) The subject matter and circumstances of the particular case
(b) The nature of the decision to be made
(c) Whether there are substantive and complex issues of fact that cannot be satisfactorily
resolved on the available written evidence
50
Key case: R (Smith and West) v Parole Board [2005] UKHL 1
In this case, the applicants appealed against a decision upholding the refusal of the Parole Board to hold oral hearings in respect of their opposition to the revocation of their licences.
51
Key case: R (Smith and West) v Parole Board [2005] UKHL 1 Judgement
Held: It was acknowledged that the Parole Board was not required to hold an oral hearing every time a prisoner released on licence resisted his recall to prison.
It was held, however, that where the Parole Board would be assisted in its task of assessing risk by having an oral hearing, for example to assess character or to allow the prisoner the opportunity to raise mitigating factors,
this should be done. The case raised important issues of both common law fairness and the right to a
fair legal process under Article 6 of the ECHR.
52
Key case: Osborn v Parole Board [2013] UKSC 61
In this case Lord Reed emphasised emphasised the central importance of the common law in
upholding core principles such as fairness to the individual, the need to involve individuals in
processes affecting their lives, and the over-arching importance of accountability and
transparency in government. The Supreme Court found unanimously that the refusal by the
Parole Board to allow Osborn and the other two claimants an oral hearing breached the requirements of procedural fairness owed at common law.
53
Lord Reed
Reiterated the previous line that the obligation to have an oral hearing will continue to depend on the context of the given decision, but he appeared to tilt the balance in favour of such elements of fair process, laying out ‘general guidance’ to public decision-makers. Notably, he stated: ‘The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.
54
R (Bourgass) v Secretary of State for Justice [2015] UKSC 54
In R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 Lord Reed reinforced the approach
he pursued in Osborn
55
4.2.1 Multi-stage procedures
It is quite common for public bodies to follow procedures that deal with issues in stages. For
example, an initial investigation, or prima facie assessment, may be followed by a decision at a
later stage. This raises the question: if it is appropriate to have a hearing, when should this take place?
56
Tendencies of administrative courts
The tendency of the Administrative courts in these situations is to conclude that there is no right to be heard in the initial stages, the rationale being that there will usually be a right to be heard at
some later stage in the process.
Simply put, if there is a fair hearing at some appropriate point, the courts may regard this as sufficient, even though the applicant may feel that they are being granted the wrong type of hearing at the wrong time. See Wiseman v Borneman [1971] AC 297.
57
4.3 Witnesses (no automatic need as with hearings)
As with hearings, there is not an automatic common law duty to call witnesses in a case. However, the duty to act fairly may in some circumstances be infringed if a person is not allowed to call witnesses, or to cross-examine witnesses appearing against them.
This will depend on what is at stake for the individuals, the nature of the decision-making body and proceedings in question,
and on whether the court feels that a ‘legalistic’ procedure is appropriate.
58
R v Hull Prison Board of Visitors, ex parte St Germain [1979] 1 WLR 1401
See R v Hull Prison Board of Visitors, ex parte St Germain [1979] 1 WLR 1401 in which prisoners,
charged with breaches of prison discipline during riots, were entitled to have alibi witnesses give
evidence because of the serious punishment that could be imposed by the disciplinary process
(notably loss of remission).
59
4.4 Legal representation (no right to be legally represented)
There is no general right at common law to be legally represented, and it can be seen to be counter-productive (R v Board of Visitors of HM Prison, the Maze, ex parte Hone [1988] 1 AC 379). Case law suggests that, where the rules of the public body in question do not specifically exclude legal representation, the body has discretion to decide whether or not to allow it.
60
4.4 Legal representation
In R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251, the court suggested a number of factors that ought to be considered when considering the right to legal representation. These included: the seriousness of the charge; the likelihood that a point of law may arise; the ability of the person (a prisoner in this case) to conduct his own case; and, lastly, the need for a speedy process.
61
4.5 Reasons (not given reasons for decisions)
An applicant may argue that a decision should be quashed not because of some procedural defect (such as not knowing the case against them or being denied an oral hearing), but because they were not given reasons for the decision taken.
62
R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312.
A duty to give reasons may be imposed by statute. Such a duty is imposed, for instance, by the Tribunals and Inquiries Act 1992 on all tribunals listed in Schedule 1 to the Act. As with other areas of the right to be heard, there is no clear common law duty to give reasons for a decision. This was confirmed in R (Hasan) v Secretary of State for Trade and Industry [2008]
EWCA Civ 1312.
63
Accountability and good administration
However, there appears to be a notable trend towards the desirability of giving reasons for administrative decisions, as part of the general attempt by the courts to promote the values of accountability and ‘good administration’ in public life. In particular, where a fundamental
interest is a stake, fairness would seem to require reasons to be given
64
R v Secretary of State for the Home Department, ex parte Doody [1993] 3
WLR 154
In the leading case of R v Secretary of State for the Home Department, ex parte Doody [1993] 3 WLR 154, Lord Mustill acknowledged that ‘the law does not at present recognise a general duty to give reasons for an administrative decision’. He went on to say that in some circumstances a duty
may be implied (and he endorsed the approach of the Court of Appeal in Reg. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310).
In Doody the court found that fairness required the Home Secretary to give reasons for refusing to allow the release of prisoners who had served their minimum sentences set by the trial judge for the purposes of retribution and
deterrence.
65
ex parte Cunningham
The court had found that the nature of the relevant decision had been an unexpected or ‘aberrant’ one, and so the general rule that there was no duty to give reasons should be departed from. The result of the case had ‘called out’ for reasons to be given.
66
R v Ministry of Defence, ex parte Murray [1998] COD 134
Relating to a court martial, the court provided a summary of the considerations and principles affecting the need to give reasons. For
example, the absence of any right of appeal and the useful role that giving reasons can play in
highlighting errors were seen as positive factors in support of the need for reasons
67
Unduly onerous
The duty to give reasons may not be necessary in circumstances where it would be unduly onerous for a body to do so, because of the complexity of the decision or the range of factors that have to be considered. Thus, in R v Higher Education Funding Council, ex parte Institute of
Dental Surgery [1994] 1 WLR 242, reasons were not required to be given for the refusal to give research grant funding to the Institute.
68
The gist (general overview of the reason)
In some situations, the court may instead decide that the duty of fairness only requires that a
general overview of the reasons for the decision be given (the ‘gist’). See for example the case of R
v Secretary of State for the Home Department, ex parte Al Fayed [1997] 1 All ER 228
69
Article 6 of the ECHR
As with other areas falling under the umbrella term of the right to be heard, Article 6 of the ECHR has impacted upon cases concerning fairness and reasons
70
Stefan v General Medical Council [1999] 1 WLR 1293
See for example, Stefan v General Medical Council [1999] 1 WLR 1293. This case is also illuminative
of the courts’ evolving approach to this aspect of procedural fairness. In his judgment Lord Clyde
stated that cases where reasons are not required are becoming exceptions rather than examples
of the norm.
71
Stefan v General Medical Council [1999] 1 WLR 1293
A further indication, that the courts are moving towards a reversal of the traditional assumption
about the need to give reasons in public law decision-making, was shown in the following case.
72
Key case: Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71
In this case, the local authority granted planning permission for Cambridge City Football Club to
build a new stadium on an area of ‘green belt’ land, contrary to a recommendation by the
council’s senior planning officer. No reasons were provided.
73
Elias LJ provided a
rationale and set of principles
There are powerful reasons why it is desirable for administrative bodies to give reasons for their
decisions. They include improving the quality of decisions by focusing the mind of the decision-making body […]; promoting public confidence in the decision-making process;
providing, or at least facilitating, the opportunity for those affected to consider whether the
decision was lawfully reached […]; and respecting the individual’s interest in understanding - and perhaps thereby more readily accepting - why a decision affecting him has been made.
74
Elias LJ
Also stated that ‘[…] the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so’.
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5. The rule against bias
We have previously focused on one limb of the duty to act fairly, ‘the right to be heard’. In this section we will consider the second limb of the duty, the ‘rule against bias’.
76
R v Sussex County Council, ex parte McCarthy [1924] 1 KB 256
Decision-makers cannot be deemed to act fairly if there is a risk that they may be biased. As Lord Hewart CJ stated in R v Sussex County Council, ex parte McCarthy [1924] 1 KB 256: ‘[…] justice should not only be done but should manifestly and undoubtedly be seen to be done’. The rule against bias disqualifies such a person from deciding a matter and will lead to the quashing of any decision so made. The rule can be divided into two elements:
* Direct bias
* Indirect bias
77
5.1 Direct bias
5.1.1 Forms of interests giving rise to direct bias
Such interests have largely been confined to financial interests on the part of the decision-maker. This is the most common concern based on the principle that one should not be a judge in one’s own cause.
78
5.1.2 Courts’ approach to direct bias. A direct pecuniary interest
The following key principles have been established by the courts:
* The extent of the interest is irrelevant (so long as it is not too remote), as is the extent of the decision-maker’s knowledge.
* If a decision is made by a group of individuals, eg a local authority or committee, a pecuniary
interest on the part of one member will be enough to engage the prospect of direct bias.
* Note that there does not need to be actual bias. A direct pecuniary interest is sufficient.
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5.1.3 Consequences of direct bias
Direct bias will invalidate the decision. This is sometimes referred to as ‘automatic disqualification’.
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5.1.4 Leading case
In Dimes v Grand Junction Canal (1852) 3 HL Cas 759, orders were sought by the GJC company and granted by the Vice-Chancellor. The Lord Chancellor then affirmed the orders. However, he had a large financial interest in the company. Dimes successfully appealed on the basis that the Lord Chancellor should be disqualified for bias and his affirmation of the orders was set aside.
81
5.1.5 Non-financial personal interest
The Pinochet litigation provides a rare example of where a non-financial personal interest was
found to amount to direct bias.
82
Key case: R v Bow Street Metropolitan Stipendiary Magistrate Court, ex parte
Pinochet Ugarte (No. 1) [2000] 1 AC 119
In this second case, a new panel of the House of Lords held by 3 to 2 that the Chilean Senator Pinochet could be extradited from the UK to Spain on an international warrant alleging crimes against humanity. Pinochet had claimed that he enjoyed state immunity because he had been the President and therefore Head of State of Chile at the relevant time.
83
Lord Hoffman
Pinochet’s legal team then discovered that one of the law lords in the majority, Lord Hoffmann, was a Director of Amnesty International’s charitable arm and that his wife had worked for its International Secretariat. This was relevant because Amnesty Int. had been given permission to ‘intervene’ in the case and had made submissions.
84
Pinochet (No 2) [2000) 1 AC 119
In Pinochet (No 2) [2000) 1 AC 119 a new panel of the House of Lords set aside the earlier decision
on the ground that Lord Hoffmann was automatically disqualified. Lord Goff took the view that
Hoffmann was disqualified simply because he was closely connected with a party to the proceedings
85
Lord Browne-Wilkinson’s
Approach was slightly different. He held that Hoffmann was disqualified because his decision would lead to the promotion of a cause in which he was
involved together with one of the parties. Note that there was no contention that Lord Hoffmann
had actually demonstrated bias.
86
5.1.6 Further case law
Helow v Secretary of State for the Home Department [2008] UKHL 62
Lord Mance cited Lord
Browne-Wilkinson’s formulation in Pinochet. He emphasised that mere membership of an
organisation would not satisfy the principle in Pinochet. A judge would have to be actively involved in the organisation and that organisation would have to have been a party to the
impugned proceedings in order for the principle to apply.
87
Bovis Homes Ltd v New Forest District Council [2002] EWHC 483
Ouseley J took the view that that the rule in Pinochet only applies to people exercising judicial
functions and not to members of a local authority. See also the points made below concerning the courts’ more recent views on the House of Lord’s rationale in the Pinochet case.
88
5.2 Indirect bias
In cases where the decision-maker does not have a direct interest, the assessment of bias will
depend upon the particular circumstances of the case.
The law is now governed by the key decision in Porter v Magill [2002] 2 AC (HL) which superseded the old test from the case of R v Gough [1993] 2 All ER 724 (HL). The test in Porter v Magill was set down by Lord Hope.
89
Indirect bias
Indirect bias: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. (Lord Hope). This rule applies equally to all public decision-making bodies, and not just tribunals.
90
Helow v Secretary of State for the Home Department
The appellant was a Palestinian whose
asylum claim was rejected on appeal by Lady Cosgrove in the Scottish Court of Session. It was subsequently discovered that Lady Cosgrove was a member of the International Association of
Jewish Lawyers and Jurists (IAJLJ).
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‘Anti-Palestinian’
The appellant was involved politically with the PLO and she appealed to the House of Lords on the basis that the IAJLJ was, inter alia, ‘anti-Palestinian’ and that its president, an Israeli judge, had made certain loaded political comments in speeches.
92
Lords distinguished this case from Pinochet on the basis that the IAJLJ had not intervened in the proceedings
The Lords distinguished this case from Pinochet on the basis that the IAJLJ had not intervened in the proceedings, whereas Amnesty International had done so in that case. Assessing the case with
reference to the Porter v Magill test, the law lords dismissed the appeal. They stated that, if Lady
Cosgrove had personally expressed the type of views of the nature complained of in the president’s speeches, she would have been disqualified.
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5.2 Indirect bias
However, there was nothing apart from membership of the Association to link her with any of these views. She had been in no different position than any judge, who might or might not have views about issues which came before the court, but who was expected to put them aside and decide the case according to law.
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5.2.1 Pinochet revisited
More recently, in R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168, Rix
LJ expressed scepticism about treating the principles in Pinochet and Porter v Magill as separate
doctrines. He drew on Lord Hope’s observation in Meerabux v Attorney-General of Belize [2005] 2 AC 513 that it is likely that the law lords in Pinochet would have applied the test in Porter v Magill, had it
been available at the time, rather than appearing to extend the remit of direct bias. Rix LJ (in Kaur) thought that it was possible to see Pinochet as a strand of the doctrine in Porter v Magill involving indirect bias.
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5.3 Examples of bias in operation
5.3.1 Unauthorised participation or presence
Participation in a decision, or mere presence when the decision is taken, by someone who may be
biased (even if they are not a member of the decision-making body), may invalidate a decision.
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R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452
A decision taken by a local authority committee to revoke a trader’s market licence, because he had urinated in the street, was
quashed. This was in part because the market manager, who had reported the matter to the committee, was present when the decision was made.
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R (Beeson) v Dorset County Council [2003] HRLR 11
The rule against bias has been strengthened with the development of human rights case law in the UK. In R (Beeson) v Dorset County Council [2003] HRLR 11 a question was raised regarding the compliance of the decision-making process with Article 6(1) of the ECHR, which grants the right to be heard by an independent and impartial tribunal.
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Lack independence
In this case, a review panel on residential care was held to lack independence, because some of its members had already been involved in the case at an earlier stage. The court made it clear that in such cases it was important to consider the decision-making process as a whole.
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5.3.2 View formed in advance
Generally, the courts require bodies to exercise decision-making power fairly and objectively.
Therefore, if in some way the body has already formed a view of the matter in question before
considering its decision, the courts may intervene because this demonstrates the real possibility of
bias having occurred.
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R v Kent Police Authority, ex parte Godden [1971] 2 QB 662
A police authority was considering whether or not to retire a police officer because of disability. Before deciding, the authority was
required to consult a doctor. The doctor chosen was someone who had already examined the
officer in question on an earlier occasion and had concluded that he was suffering from a mental
disorder.
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Court of Appeal Decision
As a result of this, the Court of Appeal held that he should not have been involved in the decision
of the police authority, as he had already formed a view on the matter in question and would
therefore have been unlikely to have advised the authority objectively.
This principle may also be infringed where a number of different bodies are involved in a case,
and the same person is a member of more than one
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Hannam v Bradford City Council [1970] 2 All ER 690
A teacher was dismissed by school governors. A committee of the council was empowered to approve or prohibit her dismissal and decided to approve it. However, this decision was quashed because three out of ten members of the committee (including the chairman) were also governors.
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R v Reading BC, ex parte Quietlyn Ltd. [1987] 85 LGR 387
The principle discussed above does not apply where only a provisional view, as opposed to a definitive conclusion, has been reached. See for example R v Reading BC, ex parte Quietlyn Ltd. [1987] 85 LGR 387.
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Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 the House of Lords
Had to consider whether a member of a disability appeal tribunal (part of the Benefits Agency) was
biased because she had a special interest in and experience of preparing reports for the Benefits
Agency. The House again approved the use of the Porter v Magill test and concluded that there
was no real possibility of bias in this case.
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R (Lewis) v Persimmon Homes (Teeside) Ltd [2008] EWCA Civ 746
Closed Mind
In the case of R (Lewis) v Persimmon Homes (Teeside) Ltd [2008] EWCA Civ 746, the Court of
Appeal effectively stated that a predisposition of local councillors in relation to a planning application was not unlawful: they were entitled to have an opinion and justified in taking a
general political position.
It would only be if they could be shown to have had a ‘closed mind‘ in relation to the specific application (ie that they had actually pre-determined it), that their
decision could be quashed for bias. This case is quite notable as a strong judgment on the need
for the courts to respect the political autonomy of local councillors.
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Localism Act 2011, s 25(2)
The Localism Act 2011, s 25(2) now makes it clear that a decision-maker will not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because they had previously done anything that directly or indirectly indicated what view the decision-maker took (or would or might take) in relation to a matter. (The section only applies to
local authorities, the National Park Authority and the Broads Authority.)
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5.3.3 Policy bias
Allegations of bias may arise where a government department, having formulated a particular
policy, must then hear objections against the policy, as in Franklin v Minister of Town and Country Planning [1948] AC 87. Given the commitment of a department to its policy, how, it might be
asked, can it consider objections impartially? (Note that there is an overlap here with the idea of fettering of discretion, dealt with in Chapter 2 under illegality.)
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Franklin, the House of Lords
In Franklin, the House of Lords said that the only obligation on the part of the department in such
a case is genuinely to consider objections submitted. If this is done, the fact that the department has adopted a particular point of view, because of policy on its part, will not invalidate the
decision. The principle was repeated in Ridge v Baldwin. (Refer to the section relating to the right to be heard.)
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5.3.4 Necessity
In rare cases, the duty to act fairly will have to give way to necessity. For example, if only one person is empowered to decide a question, then they cannot be disqualified for bias, because no decision could then be made.
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5.3.4 Necessity
In Dimes, having set aside the decision made by the Lord Chancellor because of his pecuniary interest in the case, the House of Lords then dealt with the appeal on its merits, and affirmed the decision made by the Vice-Chancellor. However, before the appeal could proceed from the Vice Chancellor to the House of Lords, the Lord Chancellor had to sign an order for enrolment, which no one else was empowered to do. His interest in the case did not, therefore, prevent him signing the order, as otherwise the proceedings could not have progressed further.
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Wilkinson v Barking Corporation [1948] 1 KB 721
In Wilkinson v Barking Corporation [1948] 1 KB 721, a statute gave local authority employees
pension rights under certain conditions. The statute also provided that any dispute should be
decided firstly by the local authority itself and then, on appeal, by the minister. The Court of Appeal, somewhat reluctantly, upheld the power of the authority to decide disputes
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Scott LJ commented on the statute:
[…] its first provision is to subject the duty to pay to the jurisdiction, not of a court, not of a lay tribunal, not even of an impartial third party, but of the debtor himself! That almost converts its right into a mere discretionary privilege. At any rate the local authority is made, purely and simply, a “judge in its own cause”.
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6 Summary
We have considered the following aspects of procedural impropriety:
* Procedural statutory rules:
- The courts’ approach to the assessment of potential breaches, which now centres on the consequence of breach and not on the language in the statute (Soneji; JN (Cameroon))
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* Duty to act fairly (common law fairness):
- When does the duty to act fairly arise? (Ridge v Baldwin)
- What is the level of the duty to act fairly? (Lloyd v McMahon; McInnes) - this will depend on the context of the decision and what is at stake.
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* Duty to act fairly (common law fairness):
- ‘The right to be heard’: The content of the fairness and the courts’ approach to assessing these matters, which includes:
◦ Notice of the case against a person, including oral hearings;
◦ The right to make representations;
◦ The right to call witnesses;
◦ The right to use legal representatives;
◦ The right to receive reasons.
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Common law and general accountability
- The common law does not acknowledge an automatic right to the full range of above ‘content’ – or ingredients of fair process – but we have seen that the courts can invalidate
decisions taken if procedural ‘rights’ have not been allowed.
- The trend is seemingly moving in the direction of greater procedural fairness as part of a general move to promote enhanced government accountability.
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