JR - Procedural Impropriety

Question 1

Statutory procedural protections can be…

Answer 1

Mandatory or directory

Question 2

What do courts consider when assessing whether statutory procedures for making a decision have been followed?

Answer 2

1) Is the aim of the statute undermined?

2) Did disregarding process cause injustice?

3) What were the consequences: would the decision have been different had the correct procedure been followed?

Question 3

Case establishing statutory requirement to provide prior notice is usually mandatory?

Answer 3

Bradfield v Enbury LBC (1967)

Question 4

Coney v Choyce (1975)

Answer 4

Where local authority has ‘substantially’ complied with the statutory procedure, this will usually be sufficient.

Question 5

Case establishing statutory requirement to consult is usually mandatory?

Answer 5

Aylesbury Mushrooms (1972)

Question 6

Aylesbury Mushrooms (1972) establishes…

Answer 6

That where statute requires consultation, an attempt to consult will be insufficient.

Question 7

Case setting out the requirements of consultation?

Answer 7

R v Brent LBC ex parte Gunning (1985)

Question 8

R v Brent LBC ex parte Gunning (1985)

Answer 8

1) Consultation must be made at a time when proposals are at a formative stage.

2) Must be reasons given for a proposal

3) Adequate time must be given to enable consideration and response.

4) Result of consultation must be conscientiously taken into account when making the decision

Question 9

2 elements of natural justice

Answer 9

1) Right to a fair hearing
2) Rule against bias

Question 10

Key case on the right to be heard

Answer 10

Ridge v Baldwin (1964)

Question 11

Ridge v Baldwin (1964)

Answer 11

Chief Constable of Brighton dismissed without notice or a hearing. Court held that a sliding scale approach to fairness meant the more harm -> the more the courts would apply natural justice principles.

Question 12

In which 3 circumstances is the right to be heard to be expected?

Answer 12

1) Loss of liberty
2) Loss of home
3) Loss of livelihood

Question 13

R v Board of Visitors Hull Prison ex parte St Germaine (1979)

Answer 13

Court held Parole Board should have given prisoners the chance to defend themselves against riot accusations.

As loss of liberty was at stake, the right to be heard was expected.

Question 14

Cooper v Wandsworth Board of Works

Answer 14

Court held the Board should have given Cooper a hearing before his home was demolished.

As loss of home was at stake, right to be heard was expected.

Question 15

Ridge v Baldwin (1964)

Answer 15

Court held Ridge should have been given a hearing to rebut accusations.

As loss of livelihood (and pension) was at stake, the right to be heard was expected.

Question 16

The courts take a _______ _________ approach to natural justice principles…

Answer 16

Sliding scale approach

Question 17

Case setting out the rule against bias

Answer 17

R v Sussex ex parte McCarthy (1924)

Question 18

2 elements to the rule against bias

Answer 18

1) Pecuniary interests in the decision
2) Personal interests in the decision

Question 19

Key case on pecuniary interests in a decision?

Answer 19

Dimes v Grand Junction Canal Properties (1852)

Question 20

Will the courts consider a decision to be biased if the decision-maker has a pecuniary interest in the decision?

Answer 20

Yes
NO SLIDING SCALE APPROACH to pecuniary bias.

Question 21

Dimes v Grand Junction Canal Properties (1852) establishes…

Answer 21

For pecuniary bias, the appearance of bias is sufficient - there need not be proof of actual bias.

Question 22

Where there is a personal interest in a decision, what will the court assume about bias?

Answer 22

Not as strict as pecuniary interests.
Key Q: has the personal interest been disclosed.

Question 23

Key case on personal interest in a decision?

Answer 23

Pinochet (Lord Hoffman’s wife: member of Amnesty International).

Question 24

Which case sets out the test for bias?

Answer 24

Porter v Magill (2001)

Question 25

What is the test for bias?

Answer 25

Porter v Magill (2001)

Would a ‘fair-minded and informed observer, having considered the facts… [have] conclude[d] there was a real possibility that the tribunal was biased?’

Question 26

Locabail v Bayfield Properties (2000) sets out…

Answer 26

A non-exhaustive list of circumstances that would not be considered automatically biased.

Question 27

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

Answer 27

NO

Question 28

Key case: duty to give reasons

Answer 28

R v Secretary of State for the Home Department ex parte Doody (1994)

Question 29

Did the court hold in Ex parte Doody (1994) that there was a duty for the parole board to give reasons?

Why / why not?

Answer 29

Yes: court held there was a duty to give reasons as without reasons for refusal of parole, the prisoners could not work towards release.

Question 30

Did the court hold in Ex parte Institute for Dental Surgery (1994) that there was a duty for reasons to be given?

Why / why not?

Answer 30

No duty to give reasons - it was just and fair for the decision-maker not to provide a reason for their decision.

Question 31

Most recent case on duty to give reasons

Answer 31

Oakley v South Cambridgeshire District Council (2017)

Question 32

Oakley v South Cambridgeshire District Council (2017) establishes…

Answer 32

Where consultation is required, people should not be ‘left in the dark’ as to the impact of their representations as this would undermine consultation.

Question 33

2 types of legitimate expectation

Answer 33

1) Procedural legitimate expectation
2) Substantive legitimate expectation

Question 34

What is a procedural legitimate expectation?

Answer 34

Assurance by a public body that a certain process will be followed when a decision is made.

Question 35

What is a substantive legitimate expectation?

Answer 35

Assurance by a public body that a certain result would be reached on a decision.

Question 36

2 cases: procedural legitimate expectation

Answer 36

AG for Hong Kong v Ng Yuen Shiu (1983)

Ex parte Asif Mahmood Khan (1984)

Question 36

AG for Hong Kong v Ng Yuen Shiu (1983)

Answer 36

Announcement that entrants would be interviewed before deportation created a PROCEDURAL legitimate expectation that this would occur.

Question 37

Ex parte Asif Mahmood Khan (1984)

Answer 37

Following procedure set out in a circular letter was held to create a PROCEDURAL legitimate expectation that this would be the process followed.

Question 38

Key case: substantive legitimate expectations

Answer 38

Ex parte Coughlan (2000)

Question 39

Ex parte Coughlan (2000)

Answer 39

Coughlan was resident of a care home. A local authority’s promise that this would be a ‘home for life’ created a SUBSTANTIVE legitimate expectation Coughlan could stay there.

Question 40

How often do courts find an applicant has a substantial legitimate interest?

Answer 40

Very exceptionally

Question 41

3 requirements for establishing a SUBSTANTIVE legitimate expectation

Answer 41

1) Must be a promise made to a specific individual / class of people

2) Of great importance to the individual

3) Courts must weigh up fulfilling the promise versus the public interest