Procedural Impropriety Flashcards
GCHQ
Lord Diplock in GCHQ explained this as follows:
“I have described the third head as “procedural impropriety”… This is because susceptibility to judicial review under this head includes failure by an administrative tribunal to observe procedural rules which are expressly laid down in the legislative instrument by which its jurisdiction is conferred.”
Mandatory Provisions:
requirements which if not met make the decision void.
Directory Provisions:
requirement which if not met strict compliance is not required.
Bradbury v Enfield Borough Council
Both of these cases are very good to compare because they concern the same statute. Meaning, both of these cases were about the same piece of law and the decisions are widely different.
Now, the government’s policy in this statute was to convert grammar schools into comprehensive schools. Meaning, we would no longer select education; it used to be a policy and the concept of a grammar school was that clever children should go to school together and the less clever children should go to school together. The believe that the time was discriminatory; at 11 years old you couldn’t dictate whether someone is going to be clever or not clever, and the mixture of students was necessary to ensure that some people caught up with the cleverer students.
Now, the decision was taken for a school to undertake this process, and the statute gave the power to the local authority to do this providing that it provided notice of the change to the public.
Now, it was a requirement to provide notice of the change in the statute – meaning, it said in a nondiscretionary way “you must provide notice of your intention to change from a grammar school to a comprehensive school”.
And Bradbury was annoyed at Enfield Borough Council because Enfield did not produce any notice anywhere. By notice we mean like sticking up a leaflet at the front gate of the school saying “by the way folks, we are changing”; or you go to the church, library, or council and see a notice. Quite often they stick notices on the Internet these days. This is a public notice – “this is what we are planning to do”. A public notice of change.
The Education Act 1944 said that you have to give notice.
In this case it was held that the failure to give any notice was the breach of a mandatory consideration; that a mandatory procedural issue had been breached.
Lord Denning in his decision said that: “…if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them… I can see that there may be a considerable upset… But I think it is far more important to uphold the rule of law. Parliament laid down these requirements so as to ensure that electors can make their objections and have them properly considered. We must see that their rights are upheld”.
So the mandatory part of the Education Act 1944 was the need to put out there some notice.
Coney v Choyce
Similar facts. It is about the reorganization of a school into a comprehensive school.
This time the school did provide notice, but not necessarily in the right way per se. In the statute was not very clear about where to give that notice.
This made this decision in the court’s eyes not about the mandatory part of the statute… The mandatory part was “you must give notice”. They did that in this case, but they didn’t give it where it was expected to be given.
Now, this led to the court to say that this was merely a directory issue, and thus not ultra vires.
This is because the statute says to give notice. It doesn’t say where and it does not say when; it just says to give notice.
So, then to hold this against them for not complying as expected and putting something on the school front wouldn’t be fair.
Now, it is important to know, and this is the hard part… So I hope you can see this… If the statute had been clearer, and have the statute to be more detailed and said exactly where and when they must give notice, the court would have held the case the other way.
It all depends on what the statute says. If the statute says you must put an advertisement in the local paper; or the statute says that you must put the advert on the front gate of the school, and you do not do that, then that is procedurally ultra vires because the statute was mandating that you did something.
If the Act is being less specific, like it was here in Choyce, and merely directing you to do something, then you don’t necessarily have to do it in a particular way so long as you do the directed thing.
Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushroom Ltd (1972)
The consultation must be true. The requirements of statutory consultation must involve true consultation. This means that you must genuinely be consulted.
So, for example, if I say am going to consult my students and taken into consideration what they say, and you will feel great because you have had your input, and I later checked them in the bin without caring… That would be an untrue consultation. If I were to take that exercise, than that exercise would need to be genuine.
It will not be enough to consult only the largest representative body.
So, I couldn’t say that I am going to find out what the students think of my lectures, and just ask the people in here who are part of the Law Society, because they wouldn’t necessarily be representative of everyone in the room.
You must also be consulted and given the opportunity to respond.
It cannot be a closed book affair. Most consultations happen months in advance of the decision.
ex parte Gunning (1985)
Consultations must happen early in the stage, and not at the end of it. Consultation must take place when the proposal is still at the formative stage.
Sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response.
Adequate time must be given for consideration and response.
It can’t be, for example, something like “I am going to changes from an exam to coursework. You have 15 minutes to give me your thoughts.” That would be inadequate time for that.
The product of consultation must be conscientiously taken into account.
