Judicial review-procedural impropriety and legitimate expectation Flashcards
Define procedural impropriety as a ground of judicial review.
This concerns a public decision-maker’s failure to follow correct statutory procedure and/or to act fairly in a more general sense, as measured against common law standards.
What are the two central common law rules concerning the duty to act fairly?
The right to be heard
The rule against bias
When does the duty to act fairly arise and what level of fairness is owed?
It applies universally to public law.
The more that there is at stake to the individual, the higher the level of fairness they should have been owed.
What are the five broad elements of the right to be heard?
- Notice of the case against a person-failure to do so will mean they are unable to make effective representations
- Right to make representations-no automatic common law duty to hold person or oral hearings
- Witnesses-duty to act fairly may be infringed if a person is not allowed to call witnesses
- Legal representation-no general right but there is discretion
- Reasons-no common law duty but it is preferred to promote good administration and accountability
What is the rule against bias?
A rule that decision-makers cannot act fairly if there is a risk that they may be biased.
It disqualifies such a person from deciding a matter and will lead to the quashing of any decision so made.
What is direct bias and provide an example?
Any direct bias, such as a pecuniary interest on the part of the decision-maker, will automatically disqualify/invalidate the decision.
What is indirect bias and what is the test for indirect bias?
In cases where the decision-maker does not have a direct interest, the assessment of bias will depend upon the particular circumstances of the case.
Whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
Define legitimate expectation as a ground of judicial review.
This ground of judicial review relates to the concept that an expectation of either a procedure or a benefit, arising from a representation or promise made by a public body, may be protected in law.
Define procedural legitimate expectation, refer to R v Liverpool Corp, ex parte Liverpool Taxi Association (1972).
When a public body has promised or represented that a particular procedure will be followed before a decision is made, or where there has been an established practice for the public body to use a particular procedure.
R v Liverpool Corporation, ex parte Liverpool Taxi Association (1972): town clerk assured the association it would not increase number of licensed taxis without hearing representations and departing from this was unlawful.
Define substantive legitimate expectation.
This arises where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit. If upheld by the Court, this will entitle the person to the actual benefit itself.
What three factors do the Court take into account when assessing legitimate expectation?
- Has an expectation arisen?
- If so, is the expectation legitimate?
- Has the public body lawfully frustrated the legitimate expectation?
Will procedural legitimate expectations be upheld by the Courts?
The interests of fairness will usually require procedural legitimate expectations to be fulfilled, unless there is a compelling public interest reason not to e.g. GCHQ case.
Where the legitimate expectation is that the public authority should bear in mind its previous policy or other representation, what grounds do the Court review it on?
The Court is confined to reviewing it on grounds of Wednesbury unreasonableness.
