procedural impropriety Flashcards
what is procedural impropriety
lord diplock - GCHQ - third ground for judicial review
baggs case - lord coke - ‘it appears…that why have proceeded against him without… hearing him answer to what was objected’ - ppl should be granted hearing
natural justice
parties affected by a decision should be given the opportunity to be heard - audi alteram partem
the adjudicator should be unbiased - nemo judex in causa sua
ridge v baldwin - chief constable dismissed w/out being given notice of the charge and an opportunity to be heard, prior to ridge procedural rights only in judicial (not administrative) decisions and in ridge the HoLs removed these distinctions
now natural justice applies to administrative decisions and not confined to judicial decisions where a body adjudicates on rights not privileges
doody case - claimants = life prisoners and in previous system, minimum prison time before considered release was determined by home secretary
decided when such a decision could impacts someones life - natural justice should applu as not fair they dont know reason behind sentencing
justifying procedural fairness
- instrumental to the decision - procedure = fundamental to securing correctness of decision, as parties involved and informed and given opportunities
- dignity - respecting the individual impacted by the decision
notice
right to notice, more interest when type of interest is a personal interest
doody case - lord mustill - ‘since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the fist of the case which he has to answer.’
right to know the case against
aufrijeva case - lord steyn - ‘notice of decision is required…because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so…simply an application to the right of access to justice
consultations
no general common law duty to consult, for parliamnt to introduce such a duty
BAPIO case - Sedley LJ - due to seperation of powers tgat courts not instituted general duty to consult as it would be an open ended duty and many Qs would arise, giving those affected or a community the opportunity to comment on the proposed measures (not an individual decision)
statutory duty to consult
legislation may either require consultations or give public authority discretion to hold (directory) consultations and failure to comply will result in subsequent decision being void
sedley criteria for consultations
A. consultation must be at a time when proposals are still at a formative stage
B. the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response - need to explain why choosing certain options and alternative
gunning case - product of consultation should be taken into account in finalising statutory proposals
specific common law duty
baker case - duty to consult residents of care home before deciding to close it based on legitimate expectation
coughlan case - specific duty arising out of legitimate expectation based on either nature of interest affected or past practice of consultation
common duty to consult applied
LH case - local authority which consulted widely on the need to close a certain number of day care centres, owes a specific duty to then consult with users of individual centres
hearings
sengupta v holmes - lord laws - ‘oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge.’
requirement depends on context, hearing normally when applicants liberty is at stake - osborn case
advantages of hearings
facilitates judicial review (relevancy, propriety or rationality)
focus on the decision makers mind leading to better thought through decisions
ensures that other objectives of admin law are not frustrated (consultations do not simply go through the motions)
increases public confidence in and legitimacy of admin process
no general common law duty to give reasons for a decision and might be a reach of natural justice to not give reasons in certain circumstances - cunningham case
refusal to give reasons must be fair and a prisoner has a real interest in understanding how long would remain in prison and why this period was imposed - doody case
factors in favour of giving reasons
duty to give reasons no longer exceptional but depends on factors such as:
nature of interest affected (personal liberty)
whether the decision appears absurd: fairness may require reasons so that the recipient may know whether the absurdity is in the legal sense real - institute of dental surgery case
reasons and planning
dover district council case - in planning context they may also require whether there is a widespread public controversy surrounding the proposal
departuring from policy or of the decision is taken against the advice of planning officers in this case the reasons were inadequate and the decision to grant planning permission was quashed
padfield case - if a decision maker fails to give reasons for a decision, the court may infer that no valid reasons exist
bias
flaherty case - decision maker is biased if they have a ‘predisposition or prejudice against one party’s case or evidence on an issue for reasons unconcerned with te merits of the issue.’
