procedural impropriety Flashcards
procedural impropriety defined by Lord Diplock in GCHQ
the ‘failure to observe basic rules of natural justice or failure to act with procedural fairness … [or] … failure … to observe procedural rules that are expressly laid down in the legislative instrument
procedural impropriety focuses on…
making sure public bodies follow correct procedures, ensuring they’re followed in a fair way
the three main elements of procedural impropriety are
- Makes sure natural justice is served – decisions reflect natural justice
- At any rate, things are done fairly, procedures are fair
- The relevant legislation sets out the specific rules
Why is procedural impropriety needed
- Instrumental reasons – helps ensure accurate/appropriate outcomes
- Non instrumental reasons – reflects important values (fairness, rule of law, non-arbitrary exercise of public powers).
- ‘Procedures express society’s commitment to equal concern and respect for all’ (Allan, 1998)
correct statutory procedures that decision makers should follow
- Statute often sets out procedures to be followed when making decision e.g. Consulting, produce impact assessment, give public notice
mandatory requirement case
mandatory statute must be followed in full
Bradbury v Enfield LBC [1967] - have to attend secondary school from the age of 11-16
directory case
decision maker is allowed to make the odd error or perhaps allowed to not follow the statute to the letter.
coney v choyce [1975]
the modern approach
were omissions so serious that parliament would intend the decisions to be invalidated?
R v Secretary of State for the Home Dep, ex parte Jeyeanthan [2000]
statutory consultations
- Procedures will differ, common one is need for public authority to consult before making decisions
consultations must follow “gunning” criteria (Ex parte Gunning) as endorsed in R(Moseley) v Haringey Borough Council [2014] -
what is the gunning criteria
- consultation must be at a time when proposals are still at a formative stage
- proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
- adequate time must be given for consideration and response from the public
- product of consultation must be conscientously taken into account when finalising any statutory proposals.
cases with insufficient reasoning given to explain their proposals up for consultation.
R(Breckland) v Boundary Committee [2009]
R(Greenpeace) v Secretary of State for Trade an Industry [2007]
R (Moseley) v Haringey Borough Council [2014]
rules of natural justice cases
Ridge v Baldwin [1964]
R v Secretary of State for the Home Department, ex parte Doody [1994]
Lloyd v MacMahon [1987]
key PI question
were the processes fair in the context of the case
Ridge v Baldwin [1964]
perennial fallacy - that because something cannot be cut and dried, or simply weighed and measured, it does not exist.
natural justice depends upon the circumstances of the case.
Lloyd v MacMahon [1987]
not engraved on tablets of stone, natural justice depends on the character of the decision making body, the kind of question it has to make, and the statutory/other framework in which it operates.
R v SSHD ex parte Doody [1994]
What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects’ (Lord Mustill
hear the other side
audi alteram partem
once decisions made you deserve to hear the other side
once heard you can decide whether this is lawful or not and whether you want an oral hearing.
no man may be a judge in his own cause
nemo judex in sua causa
r v secretary of the home department, ex parte Fayed [1998]
‘unless applicant knowns areas of concern which could result in application being refused in many cases, and especially this case, it will be impossible for him to make out his case. Result could be grossly unfair’.
Bank Mellat (No. 2)
serious consequences of the decision and need to respond to inaccuracies (note dissenters felt that prior notice was not needed given the appeal mechanisms set out by relevant legislation)
r v secretary of state for the home department ex parte tarrant [1985]
the court held that the board did have the discretion to decide whether to afford the applicants legal representation or not. Although, the board was right to hold that the prisoners had no such rights, the failure to even consider their applications for legal representation was an infringement of the prisoners’ rights
R v Board of Visitors of the Maze Prison, ex parte Hone [1988]
you can have legal (or other) representation depending on what has been alleged or the nature of the charges.
hone was accused of common assault.
R v Governor of Hull Prison, ex parte St Germain (No 2) [1979]
cross examining witnesses is employed in the interests of justice
providing own witness can be important in the context of an alibi
R (Bonhoeffer) v General Medical Council [2011]
legal representation is important here because it means that the accuser (the victim) is not being cross examined by the person they are saying sexually assaulted them.
representation allowed where it is in the interests of all the parties in the case.
