Chapter 4: Procedural impropriety Flashcards
1.. Introduction
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)
- Failure to observe procedural statutory rules
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.
2.1 Historic approach
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.
Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury
Mushrooms Ltd [1972] All ER 280
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.
2.2 Modern approach/ Flexible approach
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
Consequences of the non-compliance
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.
R v Soneji
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
2.2.1 Case law
JN (Cameroon) v SSHD [2009] EWCA Civ 307
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.
R (Herron) v The Parking Adjudicator [2011] EWCA Civ 905
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
R v Guraj [2016] UKSC 65
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.
- Duty to act fairly
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.
The right to be heard - ‘audi alteram partem’
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.
The rule against bias - ‘Nemo iudex in causa sua’
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.)
3.1 The right to be heard: when does the duty arise?
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.
Key case: Ridge v Baldwin [1964] AC 40
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
3.1.1 When might the duty not apply?
Professor De Smith pointed to certain situations where the courts have appeared to override the duty or have significantly modified it.
Where there are overriding concerns relating to issues of national security
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.)
In emergency cases, where public safety demands urgent actions:
See for example, R v
Secretary of State Transport, ex parte Pegasus Holdings Ltd. [1989] 2 All ER 481 relating to air transport safety.
Rationing of resources cases
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.
Cases where a person has waived their right to fairness
See Lloyd v McMahon [1987] AC 625 (discussed below
3.2 What is the level of fairness owed?
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.
Durayappah v Fernando [1967] 2 AC 337
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
Lord Bridge stated that:
[…] 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.
3.2.1 The level of fairness in licensing cases
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?
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.)
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.
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.
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.
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.
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.
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 […]
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.
- 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.
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
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
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.
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.
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.
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.
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
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
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.
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
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.
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.
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.
