Grounds of Judicial Review (II): Procedural Impropriety Flashcards
Lecture 4
How does Lord Diplock define procedural impropriety in the GCHQ case?
- “failure to observe basic rules of natural justice or failure to act with procedural fairness”
- “procedural rules that are expressly laid down in the legislative instrument”
What are the different “routes” to procedural impropriety?
1) Procedures required by statute
2) General duty to use fair procedures
3) Frustration of legitimate expectations
4) Bias
What is statutory procedures and why is it significant?
- Procedures required by an AOP
- Examples: requirements to give notice; to consult
- Current approach {R v Soneji): look at intentions of Parliament and circumstances of the case (+ seriousness)
Provide some cases based on statutory consultation and what we can learn from them.
- Ex parte Sharpe (1986): insufficient info given on how to comment on development plans
- Lee v DOE (1967): time to response for giving public notice
- Overall: giving reasoning; allowing adequate time for responses, genuine and open consultation (Moseley case)
From the Plantagenent case, what can we learn from this, specifically on general common law duty?
- “There is no general duty to consult at Common law”
- May be in “exceptional cases” where failure could lead to “conspicuous unfairness”
What are the key requirements set regarding procedural fairness?
1) Set the standard of fairness needed (when is there a duty to act fairly and how fairly?)
2) Apply the standard (what specific procedure/aspect of procedure needed to meet standard of fairness?)
What do courts say regarding the fairness in circumstances?
- “Depends on the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates” {Lord Bridge in Lloyd McMahon [1987]}
- Look to the impact of the decision on the individual
What would a fair procedure look like? List some of the common issues it could relate to.
- Notice/knowing the case against you
- Right to be heard/make representations on your behalf
- Hearing -> right to call witnesses. legal representation
- Duty to give reasons explaining a decision?
Based on the GCHQ how is legitimate expectation defined as?
- “Some benefit or advantage which either he had in the past been permitted” + “he can legitimately expect to be permitted to continue to do”
- “He has received assurance fro, the decision-maker”
What is the difference between procedural and substantive expectations?
- Procedural: expectation about the process {Liverpool Taxi Fleet + GCHQ}
- Substantive: expectation about the outcome {Coughlan - requirements for a legitimate expectation}
Provide reasons why something may be considered as a legitimate expectation.
1) Past practice [must be well-established over a period of time] {GCHQ}
2) Clear Promises [“clear, unequivocal, and unambiguous language”] {Coughlan}
What are the other requirements for legitimate expectation?
- From those with lawful authority to fulfil expectation (can relevant person deliver the promise?) {Bloggs 61 and Begbie}
- Detrimental reliance {“applicant should have relied” - Bancoult No2}
- Should the expectation be fulfilled? (question of balance) {Coughlan}
Provide a quote that defines (actual) bias. {Lord Philips in Re Midcaments No 2 [2001]}
- “An attitude of mind which prevents the judge from making an objective determination”
- “Reason to favour one party”
- “Prejudice”
What is the core principle regarding the rules against bias?
- Justice being done, and being seen to be done
- {R v Sussex Justices [1924] - “even a suspicion that there has been an improper interference with the court of justice”}
What are the different types of bias and its outcomes?
- Direct bias -> automatic disqualification (could be financial interests in outcome or effectively a party could be linked in case)
- Indirect bias -> further test for exclusion, test whether reasonable person would conclude real possibility of tribunal being biased {Porter v Magill [2001]}
