JR - Procedural Impropriety

Question 1

What does procedural impropriety cover?

Answer 1

1. failure to observe procedural statutory rules
2. duty to act fairly (common law fairness)

Question 2

What is procedural impropriety as a result of failure to observe procedural statutory rules?

Answer 2

Closely related to illegality - requires public bodies to follow requirements of a procedural nature that have been laid down in statute

Question 3

When will procedural impropriety as a result of failure to observe procedural statutory rules?

Answer 3

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

Question 4

What is the duty act fairly dependent on?

Answer 4

The nature and extent will the depend on the circumstances, nature of the decision-maker and decision in question

Question 5

What are two central concepts to the common law rule to act fairly?

Answer 5

• 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

Question 6

When does the duty to act fairly arise?

Answer 6

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

Question 7

What level of duty to act fairly is owed?

Answer 7

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

Question 8

What public interest facts will trump the duty to act fairly?

Answer 8

• any overriding security concerns
• emergency cases, where public safety demands urgent action

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Question 9

What are five component elements to the right to be heard?

Answer 9

• notice of the case against a person
• right to make representations
• witnesses
• legal representation
• reasons

Question 10

Why is it important that at the very least a person is given notice of the case against them?

Answer 10

• 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

Question 11

What is the right make representations?

Answer 11

Concerns whether person should be given the right to make representations as part of the decision-making process.

Question 12

What form of representations is a person allowed to make under duty of fairness?

Answer 12

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.

Question 13

When will oral hearings be required to meet standard of fairness?

Answer 13

• 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

Question 14

What is not a legitimate ground for refusing oral hearings?

Answer 14

Where it is a way of saying time, trouble and expense

Question 15

When will the duty to act fairly extend to a person being allowed to call witnesses?

Answer 15

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

Question 16

When will the duty to act fairly mean there is a right to legal representation?

Answer 16

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

Question 17

What factors may be relevant to the right to legal representation?

Answer 17

• 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

Question 18

When might a duty to give reasons arise?

Answer 18

• 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

Question 19

When might there not be a duty to give reasons?

Answer 19

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

Question 20

What is the rule against bias?

Answer 20

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’

Question 21

What are the two components of the rule against bias?

Answer 21

• direct bias
• indirect bias

Question 22

What will amount to direct bias and what are the consequences?

Answer 22

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.

Question 23

When will judge be disqualified by being member of an organisation?

Answer 23

• 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

Question 24

What is the test for indirect bias?

Answer 24

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

Question 25

Who does the rule against indirect bias apply against?

Answer 25

All public decision-making bodies - not just tribunals

Question 26

What is indirect bias caused by unauthorised participation or presence?

Answer 26

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

Question 27

What is indirect bias caused by view formed in advance/pre-formed opinion?

Answer 27

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

Question 28

What is indirect bias by policy bias?

Answer 28

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

Question 29

What effect will necessity have on duty to act fairly and when will it arise?

Answer 29

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