JR - Procedural Impropriety Flashcards
What does procedural impropriety cover?
- failure to observe procedural statutory rules
- duty to act fairly (common law fairness)
What is procedural impropriety as a result of failure to observe procedural statutory rules?
Closely related to illegality - requires public bodies to follow requirements of a procedural nature that have been laid down in statute
When will procedural impropriety as a result of failure to observe procedural statutory rules?
When the courts decide that parliament would have intended that non-compliance should result in quashing of relevant decision
So minor infringement will not invalidate decision
What is the duty act fairly dependent on?
The nature and extent will the depend on the circumstances, nature of the decision-maker and decision in question
What are two central concepts to the common law rule to act fairly?
- the right to be heard - a person affected by a public law decision should be given the opportunity to present their case
- the rule against bias - decision makers cannot act fairly if there is a risk that they may be biased
When does the duty to act fairly arise?
Applies to both administrative and judicial decisions.
Administrative decisions attract a lower level of natural justice than judicial.
Eg duty to observe natural justice where rights of individual going to be affected
What level of duty to act fairly is owed?
The more at stake to the individual, the higher the level of fairness.
Spectrum approach - greater fairness to be owed if right is to be lost, compared to if decision is about trying to gain a right such as a licence
What public interest facts will trump the duty to act fairly?
- any overriding security concerns
- emergency cases, where public safety demands urgent action
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What are five component elements to the right to be heard?
- notice of the case against a person
- right to make representations
- witnesses
- legal representation
- reasons
Why is it important that at the very least a person is given notice of the case against them?
- as failure to do will mean that they are unable to make any effective representations in response
- they should be given a reasonable amount of time to respond before any decision is made
What is the right make representations?
Concerns whether person should be given the right to make representations as part of the decision-making process.
What form of representations is a person allowed to make under duty of fairness?
Whether fair for representations be made in written form or orally will depend on decision’s nature and process.
No automatic right to personal/oral hearings.
When will oral hearings be required to meet standard of fairness?
- when subject matter and circumstances of the particular case
- the nature of the decision to be made
- whether there are substantive issues of fact that cannot be satisfactorily resolved on the available written evidence
- more likely when matters of liberty at stake
What is not a legitimate ground for refusing oral hearings?
Where it is a way of saying time, trouble and expense
When will the duty to act fairly extend to a person being allowed to call witnesses?
Will depend on the nature of the body and proceedings in question and on whether the court feels that a ‘legalistic’ procedure is appropriate
Eg prisoners charged with breaches of prison discipline during riot were entitled to alibi witnesses to give evidence because of the seriousness of the punishment that could have been imposed
When will the duty to act fairly mean there is a right to legal representation?
No general right to be legally represented
Where no specifically excluded by public body in question, then the body has discretion to decide whether or not to allow it
What factors may be relevant to the right to legal representation?
- seriousness of the charge
- likelihood that a point of law may arise
- the ability of the person to conduct his own case
need for a speedy process
When might a duty to give reasons arise?
- may be required by statute
- no clear common law duty to give reasons
- where fundamental interest at stake, fairness seems to require giving reasons
- trend by court to promote giving reasons for administrative decisions to promote values of accountability and good administration
- if a decision is unexpected, then decisions required as crying out for explanation
When might there not be a duty to give reasons?
Where it would be unduly onerous for a body to do so because of complexity of decision or range of factors to be considered
Only if proper justification for not doing so
What is the rule against bias?
Decision makers cannot act fairly if there is risk that they may be biased.
‘justice should not only be done but should manifestly and undoubtedly be seen to be done’
What are the two components of the rule against bias?
- direct bias
- indirect bias
What will amount to direct bias and what are the consequences?
Direct bias is having a direct interest in the case such as a pecuniary interest.
Will invalidate decision unless presumption of bias can be rebutted - unlikely.
Extent of interest is irrelevant as long as it is not too remote.
State of knowledge of the decision-maker is irrelevant - so do not need to show that decision-maker was actually bias.
When will judge be disqualified by being member of an organisation?
- must be more than mere membership
- judge would have to be actively involved in organisation and organisation would have to have been a party to proceedings
What is the test for indirect bias?
Question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
Who does the rule against indirect bias apply against?
All public decision-making bodies - not just tribunals
What is indirect bias caused by unauthorised participation or presence?
Participation in a decision or even mere presence when decision is taken by someone who may be biased, even if not a member of the decision making body may invalidate a decision.
Can be caused by appeal being heard by person who already rejected decision at earlier stage in the process
What is indirect bias caused by view formed in advance/pre-formed opinion?
if body has already formed view of the matter in question before considering decision, courts may intervene because of the real possibility of bias.
Decision-makers cannot have closed minds
Interferes with exercise of power fairly and objectively
What is indirect bias by policy bias?
Arises where a government department, having formulate a particular policy, must hear objections against the policy.
As long a department genuinely considers objections submitted, the fact they have a particular view due to a policy will not invalidate decision
What effect will necessity have on duty to act fairly and when will it arise?
Necessity will be exception to duty to act fairly. Arises where only one decision-maker can make the decision - in which case they cannot be disqualified for bias
