Jr 111- Procedural Impropriety and legitimate expectation Flashcards
what is procedural impropriety?
failure to follow a correct statutory procedure.
1) failure to observe procedural statutory rules.
2. duty to act fairly (common law fairness).
how do the courts approach deciding whether a court has failed to observe procedural statutory rules?
look at the consequences of non-compliance with the statutory requirement. Ask whether Parliament could have intended that non-compliance should result in the quashing of the relevant decision.
how do the courts assess whether the decision maker has breached their duty to act fairly? two limbs
- right to be heard- opportunity to present their case.
- rule against bias.
what are the exceptions of the court’s duty to act fairly?
due to other more important countervailing public interest factors e.g issues of national security or emergency public safety cases.
what are the five broad elements of the right to be heard?
- notice of charge against a person.
- right to make representations- BUT there is not an automatic common law duty to hold personal or oral hearings.
- in disciplinary proceedings, oral hearings are likely to be needed. - witnesses.
- legal representation- no general right to be legally represented.
- reasons- not given reasons for the administrative decision taken but no common law duty to do this.
how can the rule against bias be split into two?
- direct bias.
- will invalidate the decision unless this very strong presumption can be rebutted e.g pecuniary interest.
- if taken by a group, any direct bias on the part of any one member will be sufficient to invalidate a decision.
- does not need to be actual bias, just evidence of the pecuniary interest. - indirect bias.
- dependent on the facts.
- whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
- participation in the decision, or even mere presence when the decision is taken, by someone who is biased, may invalidate a decision.
- if a pre-formed opinion= often found to be biased.
what is legitimate expectation?
most recent ground of challenge.
expectation of either a procedure or a benefit, arising from a representation or promise made by a public body, or even an established practice carried out by a public body, may be protected in law.
a) procedural legitimate expectation.
b) substantive legitimate expectation.
how can a procedural legitimate expectation arise?
a) a public body has promised or represented that a particular procedure will be followed before a decision is made.
b) where there has been an established practice for the public body to use a particular procedure.
what is substantive legitimate expectation?
where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit.
will entitle the person to the actual benefit itself.
how do the courts assess legitimate expectation?
- has an expectation arisen? (only generated by or on behalf of a public authority)
- if so, is the expectation legitimate? - based on relevant factors.
- has the public body lawfully frustrated the legitimate expectation?
- was there a sufficient public interest to override the legitimate expectation?
how can an expectation arise?
express promise or regular practice.
must a promise be legal?
yes, it must be within the powers of the public authority making it to fulfil the promise in question.
but an expectation can still be legitimate where the public authority made a promise in the mistaken belief it was under a statutory duty to do what it had promised to do.
who is the burden of proof on?
on the public body to establish the frustration was lawful
has the public body lawfully frustrated the expectation? - courts approach procedural legitimate expectations?
importance of fairness will dictate that the expectation be fulfilled.
however not unlawful if there are compelling public interest reasons.
