Procedural Impropriety Flashcards
Common law right of consultation when public agency promises.
ex parte Liverpool Taxi Fleet [1972]
Wanted to increase no. of taxis. Promised consultation before final decision then ignored. Creates legitimate expectation of consultation.
Cannot have blanket discrimination against legal representation.
ex parte Tarrant [1985]
Consider:
- seriousness of charge and penalty
- whether points of law are involved
- ability to represent self
- procedural difficulties
- speed
- fairness
Required to consult if change is pressing/focussed on small group
Bhatt Murphy [2008]
Criteria for meaningful consultation
ex parte Gunning [1985]
- proposals must be at a formative stage
- have to give sufficient reasons for proposals (explain alternatives)
- give adequate time to respond
- product of consultation must be taken into account
Current test for apparent bias
Porter v Magill [2001]
“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”
Consultation required by statute must be adhered to
Agricultural Training Board v Aylesbury Mushrooms [1972]
Dept. required to consult before imposing a levy/tax on training boards. Sent letters but never clear mushroom board had got them. Refused to pay as not consulted.
No general common law duty to consult but previous past practice of consultation creates a legitimate expectation.
GCHQ [1985]
Exception: national security issue.
Lord Hewart: “justice should not only be done but should manifestly and undoubtedly be seen to be done.”
Apparent bias
ex parte McCarthy [1924]
Justices’ clerk (also partner of law firm acting on behalf of D) in same room when magistrates deciding dangerous driving case BUT had not been consulted.
Conviction was quashed as clerk’s conflict gave rise to apparent bias.
No legal requirement to give oral hearing: depends on case or if asked for one.
Llyod v McMahon [1987]
Auditor case with council refusing to set tax rates. Breach so sanction.
Councillors produced collective defence (political) but no individual asked for oral hearing.
Guidance on what adequate reasons are
South Bucks DC v Porter [2004]
-intelligible and adequate
-understand why decided/conclusions reached
-must cover main issues but not everything
-no substantial doubt that error of law
-party challenging must be substantially prejudiced by failure to provide adequate reasons
Gypsy in static caravan breaches planning permission of land. Appeal to inspector - ill so let her stay. Council challenges, no adequate reasons.
Should give reasons if obviously doing something different and unusual.
ex parte Cunningham [1991]
Unfair dismissal of prison officer. Dealt with by civil service board of appeal not employment tribunal. Compensation £6,000 - in tribunal would be £12-14,000. No reasons given and no appeal against decision offered.
Dimes v Grand Junction Canal (1852)
Although HoL found no evidence of bias still automatic disqualification.
Case ruled in favour of GJC but judge omitted to acknowledge that he owned shares in GJC.
ex parte Fayed [1997]
Ruled that must give applicant indication of case against him but no duty to give reasons.
Mohammed Al Fayed application for British citizenship refused. S44 of British Nationality Act - no reasons needed to be given. Lacking ‘good character’. Example of the court looking for reason to impose duty.
Right to know case against you - don’t have to give all the details but have to tell something.
Benaim and Khaida [1970]
Application for licence of gambling club denied - thought involved in organised crime. But no reasons given.
No general duty to give reasons, but may be in exceptional circumstances.
Doody v Home Secretary [1993]
About prisoner’s liberty - deemed to be only fair to give reasons, plus need reasons to be able to challenge decisions.
