Judicial Review - Procedural Impropriety Flashcards
who defines procedural impropriety
Lord Diplock in CCSU (1985)
how did Lord Diplock in CCSU define procedural impropriety
- “failure to observe the basic rules of natural justice or… to observe the procedural rules that are expressly laid down in the legislative instrument”
what does procedural impropriety concern
the manner in which decisions are made to ensure compliance with principles of natural justice or procedural fairness
give the 6 parts of procedural impropriety
-procedures laid down in statutes
-the rule(s) against bias
-fair hearings
-provision of reasons
-adequacy of consultation
-legitimate expectations
what are the 3 main parts of procedural impropriety
-bias
-adequacy of consultation
-legitimate expectations
give a case example for statutory procedures as a form of procedural impropriety
-Sunderland City Council (2011)
-judicial review of parking adjudicator’s decision to uphold parking fines
-Council’s failure to omply with statutory signage requirements as procedural error
what are the two core rules against bias
-decision makers must be impartial
-partial decision makers must recuse themselves
what are the 3 types of bias
-actual bias (practically useless)
-automatic disqualification
-apparent bias
explain actual bias
a rule which disqualifies decision makers who are actually biased eg proved to be biased
explain automatic disqualification
-a rule which disqualifies decision makers (without enquiring whether they are “actually” biased or not) based on their position, a category, a certain kind of relationship and so on
explain apparent bias
-some kind of test which disqualifies decision makers (without enquiring whether they are “actually” biased or not) based on appearances
give a case example for actual bias
-United Cabbies Group (2019)
what is the authority for automatic disqualification
-Dimes
-“a cause in which he has an interest”
what does Dimes says qualifies automatic disqualification
“a cause in which he has an interest”
what does Lord Browne Wilkinson say in Pinochet describing the rule in Dimes
-“a financial or propriety interest”
what is Pinochet (2000) an authority for
-the rule for automatic disqualification goes beyond financial interests
-unclear how far but presumably not very far
explain Locabail (2000)
-good guidance but not legally binding
what is the authority for apparent bias
-Lord Hill in Magill (2001) confirmed by Lawal (2003)
-“Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”
what is the test for apparent bias
“Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”
-Lord Hope
give examples of when the courts cannot conceive of bias in Locabail
-religion/ethnicity/sex/age/means/orientation
-masonic connections
give 2 examples of when bias might well be thought to arise from Locabail
-personal friendship/animosity
-previous expression of views in extreme or unbalanced terms
give 2 examples of cases with frustrated expectations (legitimate expectations)
-GCHQ case
-Patel (2013)
who is the authority for legitimate expectations
-Lord Denning in Schmidt (1969)
-“has some right or interest, or… some legitimate expectation of which it would not be fair to deprive him of”
what did Lord Denning say in SChmidt (1969)
-Lord Denning in Schmidt (1969)
-“has some right or interest, or… some legitimate expectation of which it would not be fair to deprive him of”
what are the 2 stages of proving legitimate expectation
-existence of LE
-protection of LE
what are the 2 main parts of proving existence of LE
-there must be a representation/undertaking (Ahmed and Perry)
-it must be clear, unambiguous and devoid of relevant qualification (Bingham LJ in MFK as applied in Bancoult)
what are the 2 extra weird bits of proving existennce of LE
-there is no need for reliance (Ng Yuen Shiu)
-no need for knowledge of representation (Rashid (2005) + Lord Wilson Mandalia)
who is the authority for generating LE
-Ahmed and Perry
what are Ahmed and Perry’s 3 ways of generating legitimate expectations
-Promise
-Practice
-Policy
what does Bingham LJ in MFK as applied in Bancoult say
-“statement relied upon must be clear, unambiguous and devoid of relevant qualification”
what is the authority for any of the 3 Ps being clear, unambiguous and devoid of relevant qualification
-Bingham LJ MFK as applied in Bancoult
who is the authority for no need for reliance on the representation
Ng Yuen Shiu
is reliance essential to cases of legitimate expectations
-relevant but not essential
-argued by Schiemann LJ in Bibi
what does Schiemann LJ in Bibi argue
-reliance is relevant but not essential to cases of LE
what are the 2 authorities for no need for knowledge
-Rashid (2005)
-Lord Wilson in Mandalia
what does Lord Wilson say in Mandalia
-difficult for LE to apply in circs where those invoking it were “unaware of the policy until after the determination adverse to them was made”
what is the definite part about the protection of LE
-you dont necessarily get anything and if you do it wont necessarily be all taht you expected
what is the complicated bit about protection of LE
how it is determined
what is the procedural/substantive distinction
-procedural= an expectation that some particular procedure will be followed (eg a consultation/interview)
-substantive= an expectation that some particular outcome will be achieved (eg return to homeland, a home for life in Mardon House)
what are the 2 rules of thumb for LE
-existence of LE: promise is better than a policy better than a practice
-protection of LE: procedural better than substantive
what are the two case examples for the low and high points in the range of possibilities regarding protection of LE
-Bancoult low point
-Coughlan high point
what are the 2 main points/questions regarding consultations
-are public authorities obliged to consult
-when they do, what counts as doing so adequately
what is the authority for no general duty to consultin common law
-Plantagenet Alliance Case (2014)
what is Plantagenet Alliance Case (2014) an authority for
-there is no general duty to consult at common law
- the 4 main circs where duties to consult may arise
what are the 4 main circs where duties can arise as per Plantagenet Alliance Case (2014)
-statutory duty
-promise to consult
-there has been an established practice of consultation
-a failure to consult would lead to conspicuous unfairness
what are the 2 main ways duties may arise
-statute
-other rules/public law principles eg relevant considerations, legitimate expectations and rationality)
what is the authority for the adequacy of consultation
-Haringey (2014)
-“endorse the Sedley Criteria”
does adequacy of consultation extend to voluntary consultations
-yes as per Article 39 case
what is for the authority for adequacy of consultations applying to voluntary consultations
-Article 39 case
what are the Sedley Principles
-consultations must be at a time when proposals are still ata formative stage
-must give sufficient reasons for any proposal to permit of intelligent consideration and response
-adequate time must be given for consideration and response
-product of consultation must be conscientiously taken into account in finalising any …proposals
what is the authority for the Sedley Principles
Gunning (1985)
what is Gunning (1985) the authority for
The Sedley principles
how many failures of the Sedley criteria is required to make in inadequate/unlawful consultation
1/4 failed
what is a summarised version of the Sedley criteria
- Consultation when proposal still at formative stage
- Sufficient reasons for any proposal
- Adequate time given for consideration and response
- End product of consultation must be taken into account
