JR 3 - Procedural Impropriety and Legitimate Expectation

Question 1

What two areas does procedural impropriety cover?

Answer 1

1. Failure to observe procedural statutory rules (requires public bodies to follow procedural requirements set by statute)
2. Duty to act fairly (common law procedural fairness rules)

Question 2

What will courts focus on when considering if a procedural statutory requirement is mandatory?

1st area

Mandatory meaning a decision should be automatically quashed if the requirement was not followed

Answer 2

The consequences of non-compliance; whether PARL could have intended non-compliance should result in decision being quashed

JN - deportation notice did not specify which country JN would be deported to which was technically required by regulations - court found failure to identify country did not invalidate the decision to deport: requirement’s purpose was to help appeal (JN’s appeal was not impaired by failure to state destination)

Question 3

When does the duty to act fairly arise?

2nd area

Answer 3

Always; universally

Historically only judicial decisions and not administrative but now both

The real question is…

Question 4

What level of duty to act fairly is owed?

Answer 4

Depends on context - but generally the more there is at stake to the individual, the higher the level of fairness they should have been owed

I.e. amount of fairness owed depends on the context!!!

Also depends on character of decision-making body, kind of Q it has to make and statutory/other framework in which it operates

Question 5

What is the spectrum approach (that was used for licensing cases but can be applied to non-licensing cases too)?

From McInnes - applicant had boxing licences withdrawn in 1973 - applied 5 times between 1972-1975 for a manager’s licence failing each time - asked for oral hearing and notice of unfavourable points on sixth time so he could reply to them but requests refused and application failed again

Answer 5

• Higher level of fairness forfeiture cases where licence taken away (notification and reasons necessary)
• Medium level of fairness legitimate expectation cases (applicant satisfies conditions for grant of licence entitling him to believe his application will not be rejected without good reason)
• Mere applicants will not enjoy obligation to provide applicant with specific reasons for refusal

I.e. forfeiture cases v applicant cases very different

Question 6

What counterveiling public interest factors will mean that the duty to act fairly applies in a limited way/not at all?

Answer 6

• Issues of national security e.g. duty to consult civil service trade unions was overriden
• Emergency cases where public safety demands urgent action

Question 7

What are the two central common law rules concerning the duty to act fairly?

2nd area

Rules of natural justice created by the courts themselves, as opposed to PARL

Answer 7

1. The right to fair hearing - person affected by decision should be given opportunity to present case and decision maker should have no interest in the outcome of the decision
2. The rule against bias - decision makers cannot act fairly if there is a risk they may be biased

Question 8

What does the right to be heard cover?

Answer 8

1. Notice of the case against a person
2. Right to make representations
3. Witnesses
4. Legal representation
5. Reasons

Question 9

What does notice of the case against a person require?

Answer 9

Before a decision is made, a person must be:
1. Informed of the case and evidence against them/decision that affects their interests
2. Given a reasonable amount of time in which to respond

E.g. Polemis - a ship’s master summoned to answer pollution charge the same afternoon - was convicted but quashed due to unfairness

Question 10

What does the right to make representations concern?

Answer 10

Whether a person should be given the right to make representations as part of the decision-making process

Whether written or oral depends on the nature of the decision/process

Question 11

Is there an automatic common law duty to hold personal or oral hearings?

Answer 11

No, but should not be refused as a means of saving time, trouble and expense

Question 12

What criteria should be considered when deciding if oral hearings are required to meet the requisite level of fairness?

Answer 12

1. Subject matter and circumstances of case
2. Nature of decision to be made
3. Whether there are substantive issues of fact that cannot be satisfactorily resolved on available written evidence

From Anderson - oral hearing on racial discrimination complaint was rejected by Board

Question 13

What increases the likelihood of a Parole Board holding an oral hearing for prisoners recalled to prison?

Smith and West

Answer 13

Where it would be assisted in its task of assessing risk e.g. to assess character, allow mitigating factors to be raised

Question 14

What will decide whether the duty to act fairly will be infringed if a person is not allowed to call witnesses?

Answer 14

The nature of the body/proceedings and whether court feels a legalistic procedure is appropriate

St Germain - alibi witnesses allowed to give evidence for prisoners who rioted due to serious punishment that could be imposed by disciplinary process (loss of remission)

Question 15

Will the right to be heard automatically be infringed if someone does not have legal representation?

Answer 15

No, there is no general right to be legally represented (body will often have discretion)

Question 16

What factors should be considered when deciding right to legal representation?

Answer 16

• Seriousness of charge
• Likelihood a point of law may arise
• Ability (or not) of person to conduct own case
• Need for speedy process

Question 17

Is there a general duty to give reasons for an administrative decision?

Where not imposed by statute

Answer 17

No

Question 18

What are the exceptions to the general common law duty on reasons?

Answer 18

May be implied where:
* Decision is unexpected/aberrant (crying out for explanation)
* Where fundamental interest at stake e.g. absence of right to appeal
* There is no proper justification for not doing so

Accountability

Question 19

Where would the duty to give reasons not be (fully) necessary?

Answer 19

• If unduly onerous for a body to do so (e.g. complexity of decision like refusal to give reseach grant to institute)
• Where a general overview of reasons will suffice

Question 20

What is the effect of the rule against bias?

Recall - decision-makers cannot act fairly if there is a risk they may be biased

Answer 20

Person disqualified from deciding matter and decision quashed

Question 21

What are the 2 different types of bias?

Answer 21

• Direct bias (e.g. pecuniary interest)
• Indirect bias

Question 22

Will direct bias invalidate a decision?

Answer 22

Automatic disqualification, unless very strong presumption can be rebutted somehow

Question 23

Can direct bias be mitigated by remoteness or the state of knowledge of the decision-maker?

Answer 23

No - unless it is too remote

I.e. direct interest (not corruption) enough to invalidate

Question 24

What if one individual in a group of individuals taking a decision has a direct bias?

Answer 24

This is enough to invalidate a decision

Question 25

How closely connected does a judge have to be to an organisation to have direct bias?

E.g. Hoffman in Pinochet - was director of Amnesty Int’s charitable arm and wife worked for International Secretariat - AI were given leave in case to make submissions against Pinochet

Answer 25

If actively involved in an organisation which is party to the impugned proceedings - membership alone not enough

Only applies to judges - not members of local authority

Question 26

What is the test for indirect bias?

I.e. where decision-maker does not have a direct interest

Answer 26

Whether the fair-minded and informed observer would conclude there was a real possibility the decision-making body was biased

Helow - being part of an organisation, which is prima facie against a cause/group, will not make you biased if you do not personally expressed those same views; membership does not automatically confer bias (as in Pinochet)

Question 27

Does someone (who is biased) have to take part in a decision for it to be invalidated on bias?

Answer 27

No - can merely participate or be present

E.g. Hook - market manager, who reported matter, was present at the decision of revoking a trader’s licence

Question 28

Why does the time of making a decision have relevance in bias?

Answer 28

Pre-formed views/opinions suggest decision-making is not being carried out fairly and objectively

E.g. Godden - authority deciding whether to retire a disabled police officer who had already been examined by a doctor - said doctor was used again (as consultation was required) before they made decision - had already formed a view on the matter and would be unlikely to advise objectively

Question 29

Will a predisposition of decision-makers always be unlawful?

Answer 29

Only if it can be shown they had a ‘closed-mind’ (they had actually pre-determined)

Lewis - local councillors re planning application (important re political autonomy of local councillors)

Question 30

Will bias arise if a GOV dept hears objections about a policy they formulated?

Overlap with fettering of discretion

Answer 30

Not if they genuinely consider submitted objections; the fact a dept has adopted a particular POV because of policy will not invalidate its decision

Question 31

When will the duty to act fairly have to give way to necessity?

Answer 31

If one person/body is empowered to decide a question, they cannot be disqualified for bias

Administrative process would grind to halt

Wilkinson - statute gave local authority employees pension rights and said any dispute should be heard by the local authority itself

Question 32

What is the concept of legitimate expectation as a JR ground?

LEGITIMATE EXPECTATIONS HEREON

Answer 32

An expectation of a procedure/benefit that arises from a representation, promise, or established practice of a public body may be protected in law

Question 33

What are the 2 forms of legitimate expectation?

Answer 33

1. Procedural legitimate expectation
2. Substantive legitimate expectation

Question 34

In what two situations will a procedural legitimate expectation arise?

1st form

Answer 34

1. Public body has promised/represented that a particular procedure will be followed before a decision is made (e.g. Liverpool Taxi - was unlawful for Town Clerk to depart from assurance that licensed taxis would not increase without hearing representations from association first)
2. Where there has been an established practice for the public body to use a particular procedure

Question 35

What is a substantive legitimate expectation and how does it differ from procedural?

2nd form

Answer 35

• Arises where an assurance/promise has led a person to believe they will receive a particular, tangible benefit
• Unlike procedural - if upheld by the court, the person will be entitled to the benefit itself

Relates to the benefit not the procedure

Question 36

What are the 3 steps taken to assess legitimate expectation claims?

Answer 36

1. Has an expectation arisen?
2. If so, is the expectaion legitimate?
3. Has the public body lawfully frustrated the legitimate expectation?

Question 37

What are the 2 ways in which an expectation may arise?

Step 1

Answer 37

• An express promise on behalf of a public authority
• The existence of a regular practice that C can reasonably expect to continue (e.g. GCHQ - long-standing practice that trade unions be consulted before service conditions altered had created a LE)

Can only be created by a public authority e.g. Begbie - spokesman of opposition party did not count

Question 38

What are the 2 kinds of express promises (representations)?

Answer 38

• Specific representation e.g. Coughlan - Health Authority created LE when it promised disabled patients they could live at purpose-built residential facility for as long as they like
• Rerpresentations (contained) in policy e.g. Ng Yuen Shiu - HK GOV had to honour original policy to allow Chinese nationals to put forward case for being allowed to remain in HK

Question 39

Will LEs arising from policy be guaranteed?

Answer 39

Can be controversial - decision-makers must be allowed to change policy (or risk becoming liable for acting illegally or fettering disceretion)

Question 40

If a policy changes, and the applicant had a LE based on the unchanged version, what will an applicant’s claim be based on?

Answer 40

Their particular circumstances means the change/departure requires additional legal protection

Not the changes in general norms to the policy!

Question 41

Can a LE from established practice/conduct be overriden?

Answer 41

Yes in interests of national security (GCHQ)

Question 42

What criteria is used when deciding if an expectation is legitimate?

Step 2

Answer 42

• Clarity
• Legality
• Agency
• Knowledge
• Reliance

Significance of factors will vary depending on the context within which expectation has arisen

Question 43

What clarity is needed for promises/policy and established practice?

Answer 43

• Promises/policy = clear, unambiguous, and reasonably understood by those to whom it was made
• Established practice = evidence that practice was unambiguous, widespread and well recognised as to carry it in a commitment

Question 44

What does legality mean when deciding if an expectation is legitimate?

Answer 44

A LE can only arise on the basis of a lawful promise/practice; it is within the powers of the public authority making it to fulfil said promise

E.g.
Begbie (promise) - undertaking that children already on GOV funded scheme at independent school could continue on that scheme was not an LEas it was contrary to the Education Act

Rowland (practice) - Environment Agency decided a waterway was public access after it was treated for years as a private right of way to C’s property - not an LE as statute could not extinguish public access to it

Question 45

Can an ultra vires representation be binding where harm to public would be minimal compared to that individual?

Like a one-off cos it’s not a big deal

Individuals rely on representation to their detriment in good faith - this could be unfair!

Answer 45

No!!!

Question 46

Does the promise giving rise to the alleged LE have to be made by the body who may be bound by it?

Answer 46

No

BAPIO - promise from Home Office bound the Dept for Health

Question 47

Can an expectation be legitimate where the public authority made a promise in mistaken belief it was under a statutory duty to do what it had promised to do?

Answer 47

Yes

Seems to conflict with 2 cards ago:// distinction is ‘mistake’ I think

Bibi - local authority did not have statutory duty to provide permanent housing to applicant but it made such promise, CoA held it lay within their powers both to make representation and fulfil it

Question 48

Will a public body be bound by the representation of one of its agents?

Answer 48

Not where the agent acted outside his authority

E.g. Flanagan - council was not bound by settlement it had appointed who had made settlement with D’s lawyer for breaching enforcement notices

Question 49

Can a person claim they had a LE where they had no knowledge of the representation/past pracrice at the relevant time?

Relevant time = before the action/decision

Answer 49

Generally no - knowledge is an essential prerequisite

I.e. must know about it before

Walker - applicant to GOV compensation scheme was denied; did not have LE as he had no knowledge of original criteria in scheme and had not derived beliefs concerning compensation of scheme

Question 50

Has knowledge always been insisted upon in order to find a LE?

Answer 50

No - Rashid: a LE was found for asylum policy in spite of the asylum seeker not knowing about the Home Office’s policy - however other errors resulted in abuse of power so whether or not Rashid knew of policy was deemed irrelevant

Held not to be a typical LE case

Has divided opinion - not universally accepted by the judiciary

Question 51

How is Rashid reconciled with the prerequisite requirement?

(This is super niche - should follow the prerequisite rule generally)

Answer 51

Two doctrines at play (Kambadzi):
1. LE - requires individual to know about policy on which they seek to rely
2. Consistency of application of policy (in Rashid the Home Office failed to apply its own policy)

Question 52

Is it necessary for a party to have relied on expectation for it to be legitimate?

Answer 52

Detrimental reliance is not essential (not-determinative) but is a factor courts should consider

Strong cases will have both reliance and detriment

Question 53

Will frustration of a legitimate expectation always be deemed unlawful?

Step 3

Answer 53

No - can be deemed lawful by the court. in certain circumstances

Burden of proof imposed on public body to establish lawful frustration

Question 54

What are the 3 categories for deciding whether a LE can be lawfully frustrated?

Answer 54

1. Where LE is that public authority should bear in mind its previous policy/representation
2. Where there is a procedural legitimate expectation
3. Where there is a substantive legitimate expectaion

Categories not sealed

Question 55

If a LE that public authority would bear in mind previous policy/representation is frustrated, what is the court confined to doing?

Answer 55

Court confined to reviewing it on grounds of Wednesbury reasonableness

Question 56

What is the rule for frustration of a procedural legitimate expectation?

Answer 56

Must be complied with unless there is an overriding reason - assessed on fairness - to resile from it

E.g. GCHQ - expectation of consultation frustrated - lawful because significant national security interests dictated need for speedy, executive action

Question 57

What is the rule for frustration of a substantive legitimate expectation?

Answer 57

Court can decide whether frustration of expectation was so unfair it amounted to an abuse of power - weigh up requirements of fairness against any overriding interest relied upon for change of policy

NB fairness is an alternative to Wednesbury reasonableness

E.g. Coughlan - severely disabled applicant who was promised they could live in purpose-built facility for as long as they chose - was closed by health authority for financial reasons - decision held unlawful by CoA - health authority had not treated its promise as distinct from DOC to provide care nor sought reasonably equivalent facility - was unfair for health authority to resile from promise = abuse of power

Question 58

Should courts interfere with decisions that lie within a macro-political context?

Answer 58

Should attract a particularly light intensity of review

General wariness of courts to interfere with executive’s remit

Question 59

What else can influence court’s approach in assessment of frustration of LEs?

Answer 59

Proportionality

Question 60

How is proportionality applied in frustration of LE?

For procedural and substantive

Answer 60

Question becomes whether denial of LE is proportionate to legitimate aim pursued

To be judged by competing interests

If representation relied on amounts to an unambigous promise/there is detrimental reliance/promise made to specific individual of group = denial of expectation likely to be harder to justify as a proportionate measure
Cf macro-political issues, easier to justify

Question 61

Examples of how proportionality has been used…

Answer 61

• Fingle - decision to implement a road scheme which did not follow past practice of consultation was proportionate because of need to deliver scheme ASAP to avoid serious accidents (was also enough time to make public enquiry before made permanent)
• R W - decision to prevent teacher from working with children after promise that no further action would be taken was held a proportionate response (interest in protecting children + evidence against him)

Question 62

What approach will be used where the court does not feel equipped/entitled to use proportionality standard of review in high policy/macro-political contexts?

Answer 62

A rationality (Wednesbury) approach

Cf fairness approach used in non-high-policy cases

E.g. Finucane - decision to not hold a public inquiry into murder of applicant’s husband after promised was lawful; where a decision concerning macro-political issues was made in good faith on genuine policy grounds (unworkable re national security issues, still given independent paper-based review) it would be difficult to enforce complaince with LE