Judicial review (legitimate expectation & procedural impropriety)

Question 1

what does procedural impropriety cover

Answer 1

1. Failure to observe statutory rules
2. duty to act fairly

Question 2

what are the subsections of the duty to act fairly

Answer 2

1. Right to be heard
2. Bias

Question 3

when does the duty to act fairly arise?

Answer 3

in all public law cases

Question 4

what are factors considered in the right to be hear

Answer 4

1. notice
2. right to make representations
3. right to make oral representations
4. legal representation
5. allowed witnesses
6. allowed reasons

Question 5

what is the level of the duty to act fairly and how does this impact licensing applications

Answer 5

Modern approach = depends on the character of the decision-making body, the kind of question it has to make and the statutory or other framework in which it operates

LICENSING:
Forfeiture = holder will usually be expected to receive a higher level of fairness)

Application cases = general issue is the suitability of the applicant and the notification of specific points may not be appropriate or practical

Question 6

what is the effect of direct bias

Answer 6

• ‘Automatic disqualification’ unless this strong presumption can be rebutted
• A group making a decision with one person who has direct bias will invalidate the decision
• Evidence of a direct financial interest will be sufficient to invalidate
  *

Question 7

what is the definition of indirect bias

Answer 7

Whether the fair-minded & informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biassed

Question 8

what are the two types of judicial review

Answer 8

1. Procedural (public body has either promised that a particular procedure will be followed/past practice indicates should be)
2. Substantive (a public body makes an assurance/promise that has led a person to believe they will receive a particular, tangible benefit)

Question 9

what is the three step process for determining legitimate expectation

Answer 9

1. has an expectation arisen
2. is the expectation legitimate
3. has the public body lawfully frustrated the expectation

Question 10

what are the sections to consider under whether an expectation is legitimate

Answer 10

1. Clarity
2. legality
3. knowledge
4. reliance
5. agency