Procedural impropriety and legitimate expectation

Question 1

What is the purpose of notifying an applicant of changes and reasons in certain cases?

Answer 1

In certain cases, it is appropriate to notify an applicant of changes and reasons to ensure fairness in decision-making.

Question 2

What is the significance of the Osborn v Parole Board case?

Answer 2

Osborn v Parole Board is a significant case that highlights the importance of the common law in upholding core principles such as fairness, individual involvement in decision-making processes, and government accountability and transparency.

Question 3

procedural impropriety?

Answer 3

involves a public decision-maker’s failure to follow correct statutory procedure and/or to act fairly in a more general sense.

Question 4

What are the two areas covered by the concept of procedural impropriety?

Answer 4

The concept of procedural impropriety covers two areas: failure to observe procedural statutory rules and the duty to act fairly (common law fairness).

Question 5

What are ‘legitimate expectation’ cases and when do they occur?

Answer 5

‘Legitimate expectation’ cases occur when conditions are laid down for the grant of a license and an applicant satisfies them, entitling them to believe that their application will not be rejected without a good reason.

Question 6

How did the Supreme Court rule in the Osborn v Parole Board case?

Answer 6

The Supreme Court unanimously ruled that the Parole Board’s refusal to allow Osborn and the other claimants an oral hearing breached the requirements of procedural fairness owed at common law.

Question 7

How does the duty to act fairly vary in different cases?

Answer 7

The duty to act fairly varies depending on the context and other countervailing public interest factors. It may not apply at all or only apply to a limited extent in certain situations, such as issues of national security or emergency cases where public safety demands urgent action.

Question 8

What is the concept of legitimate expectation and how does it relate to the duty to act fairly?

Answer 8

Legitimate expectation is a concept that arises from the duty to act fairly. It relates to the idea 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.

Question 9

What factors may infringe the duty to act fairly in relation to witnesses?

Answer 9

The duty to act fairly may be infringed if a person is not allowed to call witnesses or cross-examine witnesses appearing against them. The court considers the nature of the body and proceedings and whether a ‘legalistic’ procedure is appropriate.

Question 10

What is the modern approach to assessing non-compliance with procedural statutory rules?

Answer 10

The modern approach, following the case of R v Soneji, focuses on the consequences of non-compliance with the statutory requirement. The courts consider whether Parliament could have intended that non-compliance should result in a quashing of the relevant decision.

Question 11

What are the five broad elements of procedural fairness in decision-making?

Answer 11

The five broad elements of procedural fairness are: (i) Notice of the case against a person, (ii) right to make representations, (iii) witnesses, (iv) legal representation, and (v) reasons.

Question 12

Is there a general right to legal representation in public body proceedings?

Answer 12

There is no general right to legal representation in public body proceedings. The decision to allow legal representation is at the discretion of the public body, unless the rules specifically exclude it. In some cases, legal representation may not be necessary or may even be counterproductive.

Question 13

What are the two primary forms of legitimate expectation?

Answer 13

The two primary forms of legitimate expectation are procedural legitimate expectation and substantive legitimate expectation. Procedural legitimate expectations can arise from a public body promising or representing that a particular procedure will be followed before a decision is made, or from an established practice of using a particular procedure. Substantive legitimate expectations arise when an assurance or promise has led a person to believe that they will receive a particular, tangible benefit.

Question 14

What are the two central common law rules concerning the duty to act fairly?

Answer 14

The two central common law rules concerning the duty to act fairly are the right to be heard and the rule against bias. The right to be heard means that a person affected by a public law decision should be given the opportunity to present their case, while the rule against bias ensures that decision-makers cannot act fairly if there is a risk of bias.

Question 15

What is the significance of giving notice of the case against a person in procedural fairness?

Answer 15

Giving notice of the case against a person is a basic element of procedural fairness. It allows the person to be informed of the evidence or decision that affects their interests and enables them to make effective representations in response.

Question 16

What are the considerations for giving reasons in administrative decisions?

Answer 16

The duty to give reasons for administrative decisions may be imposed by statute. While there is no clear common law duty to give reasons, there is a modern trend towards the desirability of giving reasons to promote accountability and good administration. Fairness may require reasons to be given, especially when a fundamental interest is at stake.

Question 17

When does the duty to act fairly arise and what level of duty is owed by the decision-maker?

Answer 17

The duty to act fairly arises in all public law cases. The level of duty owed by the decision-maker depends on the circumstances, the nature of the decision-maker, and the decision in question. The duty to act fairly includes the right to be heard and the rule against bias.

Question 18

What is the difference between procedural legitimate expectation and substantive legitimate expectation?

Answer 18

Procedural legitimate expectation arises from a promise or representation made by a public body regarding a particular procedure that will be followed. Substantive legitimate expectation arises when an assurance or promise has led a person to believe that they will receive a particular, tangible benefit. Unlike procedural legitimate expectation, if upheld by the court, substantive legitimate expectation entitles the person to the actual benefit itself.

Question 19

What is the approach of the courts in assessing legitimate expectation claims?

Answer 19

The courts adopt a three-step approach to assess legitimate expectation claims: 1) Has an expectation arisen? 2) If so, is the expectation legitimate? 3) Has the public body lawfully frustrated the legitimate expectation?

Question 20

What are the two questions that reflect the courts’ approach to the duty to act fairly?

Answer 20

The two questions that reflect the courts’ approach to the duty to act fairly are: (i) When does the duty to act fairly arise? and (ii) What level of duty to act fairly is owed by the decision-maker?

Question 21

What are the three broad considerations mentioned in Durayappah v Fernando regarding the right to a hearing?

Answer 21

In Durayappah v Fernando, the Privy Council stated that three broad considerations should be borne in mind when considering whether there is an applicable right to a hearing: (1) the nature of the property held, status enjoyed, or services to be performed by the complainant of injustice; (2) the circumstances or occasions on which the person claiming to be entitled to exercise control is entitled to intervene; and (3) the sanction that the latter is entitled to impose upon the other.

Question 22

What is the rule against bias in decision-making?

Answer 22

The rule against bias states that decision-makers cannot act fairly if there is a risk of bias. This rule disqualifies a person from deciding a matter and leads to the quashing of any decision made. Bias can be direct or indirect.

Question 23

What is the test for bias set out in Porter v Magill?

Answer 23

The test in Porter v Magill, as set down by Lord Hope, is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

Question 24

What factors determine the legitimacy of an expectation?

Answer 24

The legitimacy of an expectation depends on factors such as clarity, legality, agency, knowledge, and reliance. These factors are considered in the context within which the expectation has arisen.

Question 25

What is direct bias and how does it invalidate a decision?

Answer 25

Direct bias refers to situations where a decision-maker has a pecuniary interest or personal interest in a matter they are deliberating. Any direct bias, such as a financial interest, will invalidate the decision unless there is a strong rebuttal. The extent of the interest and the decision-maker’s knowledge are irrelevant.

Question 26

What is the requirement for a promise or policy to be considered clear?

Answer 26

A promise or policy must be clear, unambiguous, and devoid of relevant qualification to be considered clear. It should be understood by those to whom it was made on a fair reading of the promise.

Question 27

How does the legality of a representation affect the legitimacy of an expectation?

Answer 27

A representation must be legal for a legitimate expectation to arise. It must be within the powers of the public authority making the representation to fulfill the promise or practice. A legitimate expectation can only arise on the basis of a lawful promise or practice.

Question 28

What factors affect the need to give reasons for a decision according to R v Ministry of Defence, ex parte Murray?

Answer 28

In R v Ministry of Defence, ex parte Murray, the court highlighted factors affecting the need to give reasons, such as the absence of a right of appeal and the role of reasons in highlighting errors. The duty to give reasons may not be necessary in complex decisions or when it would be unduly onerous for a body to do so.

Question 29

What did the Court of Appeal decide in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622?

Answer 29

In R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622, the Court of Appeal enforced a substantive legitimate expectation. Several severely disabled patients were promised by the Health Authority that they would be able to live at a purpose-built residential facility for as long as they chose. The court held that this promise created a substantive legitimate expectation.

Question 30

What did Lord Wilson hold in the case of R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs?

Answer 30

Lord Wilson held that in order to establish a settled practice by the HMRC, there would need to be evidence that the practice was unambiguous, widespread, well-established, and well-recognized. The taxpayers’ evidence in the case was insufficient to establish such a practice.

Question 31

In what circumstances may the duty to act fairly give way to necessity?

Answer 31

In some rare cases, the duty to act fairly may give way to necessity. For example, if only one person is empowered to decide a question, then they cannot be disqualified for bias as the administrative process would otherwise grind to a halt.

Question 32

What is the requirement for a public body to be bound by a representation made by one of its agents?

Answer 32

A public body will not be bound by a representation made by one of its agents if the agent acted outside their authority in making the representation. The representation must be within the agent’s authority to be binding.

Question 33

What were the three categories described by Lord Woolf MR in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622?

Answer 33

Lord Woolf MR described three categories: (a) where the legitimate expectation is only that the public authority should bear in mind its previous policy or other representation, the court is confined to reviewing it on grounds of Wednesbury unreasonableness; (b) where there is a procedural legitimate expectation, the court will require the procedure to be complied with, unless there is an overriding reason to resile from it; and (c) where there is a substantive legitimate expectation, the court can now also decide whether the frustration of the expectation was so unfair as to amount to an ‘abuse of power’. The court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Question 34

What is the burden of proof in establishing the lawfulness of frustration of legitimate expectation?

Answer 34

The burden of proof in establishing the lawfulness of frustration is imposed on the public body seeking to defend itself. They must demonstrate that there was a sufficient public interest to override the legitimate expectation.

Question 35

Two types of procedural impropriety?

Answer 35

1. Failure to observe procedural statutory rules
2. Duty to act fairly (common law fairness)

Question 36

approach to assess legitimate expectation claims?

Answer 36

1. Has an expectation arisen?
2. If so, is the expectation legitimate?
3. Has the public body lawfully frustrated the legitimate expectation?

Question 37

How does legitimate expectation arise?

Answer 37

‘Legitimate … expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.’

Question 38

Established past practice?

Answer 38

An expectation can also arise from an established practice or settled course of conduct by the public body towards the claimant, or towards a class of persons to which the claimant belongs.

‘… evidence that the practice was so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it.’

Question 39

Legitimate expectation: express promise must be

Answer 39

‘… clear, unambiguous and devoid of relevant qualification

Question 40

Is knowledge needed for legitimate expectation?

Answer 40

No

essentially two doctrines at play in this area: the more established doctrine of legitimate expectation, which, in the policy field, logically and intuitively requires an individual to know about a policy line on which they are seeking to rely; and a parallel, but different, doctrine of consistency in application of policy.

Question 41

Is it necessary for a party to have relied on an expectation for it to be deemed legitimate?

Answer 41

‘It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power.’

Question 42

True or false:
A duty to act fairly will apply to administrative and judicial decision-making - the crucial question is the level of the duty that should apply, which will depend upon the context of the decision and what is at stake in relation to the legal issues involved.

Answer 42

True

Question 43

Q for procedural impropriety (failure to observe procedural statutory rules)?

Answer 43

They ask whether Parliament could have intended that non-compliance should result in a quashing of the relevant decision.

Question 44

True or false: There is no automatic duty under the common law for public bodies to hold oral hearings to decide administrative issues.

Answer 44

True

There is no common law duty as such to hold personal or oral hearings and there have been several cases where the lack of a hearing has been held not to have affected the fairness of a decision, such as in Lloyd v McMahon.

Question 45

True or false: For a decision to be quashed on the basis of direct bias, the decision will only be invalidated if actual and deliberate bias is shown.

Answer 45

Falsw

Any direct interest, such as a pecuniary stake in the matter on the part of the decision-maker, will invalidate the decision. There does not need to be proof of actual bias: a direct financial interest will be sufficient to invalidate the decision.

Question 46

Test for indirect bias?

Answer 46

The test for indirect bias is whether the fair-minded and informed observer, having considered all the relevant facts, would conclude that there was a real possibility that the decision-maker was biased.

Question 47

True or false: The only circumstance in which a procedural legitimate expectation can arise is where a public body promised or represented that a particular procedure would be followed.

Answer 47

False

This is one way in which a procedural legitimate expectation can arise. However, one could also arise where a public authority has consistently followed an established past practice in relation to the relevant procedure. Refer to cases such as GCHQ.

Question 48

True or false: In order to form a legitimate expectation, a promise, policy or practice must be expressed or configured clearly. What amounts to clarity is an objective test and will be determined by the courts in the context of the given case.

Answer 48

True

The case of Paponette exemplifies the objective nature of the test. The Privy Council stated that clarity amounts to “how on a fair reading of the promise it would have been reasonably understood by those to whom it was made”.

Question 49

True or false: The courts have determined that public authorities will always be required to fulfil procedural legitimate expectations.

Answer 49

Fasle

Although the courts have found that, generally, fairness will require a procedural legitimate expectation to be fulfilled, public authorities can lawfully frustrate such an expectation if they can show an overriding public interest, as in the case of GCHQ.

Question 50

Proportionality?

Answer 50

Recent developments in case law demonstrate that for the ground of legitimate expectation, the courts are increasingly moving towards a proportionality in assessing whether a public authority has lawfully frustrated a legitimate expectation.

Question 51

State’s department and was sent a copy of a departmental circular, which states ‘when awarding compensation, a full award will normally be given to charitable organisations providing care for disadvantaged groups’.
Which of the following best describes the grounds on which the charity should seek judicial review of the amount of the award?
A The charity’s claim is likely to fail as it is a mere applicant and the Secretary of State’s only duty is to act honestly and without bias. On the facts provided, there is no evidence of dishonesty or bias.
B The charity’s claim is likely to fail. The Secretary of State is under no duty to give reasons and, in the absence of reasons, the charity cannot prove the Secretary of State has acted illegally or irrationally.
C The charity’s claim is likely to succeed. By failing to award £100,000 compensation, the Secretary of State has breached a mandatory procedural requirement.
D The charity’s claim is likely to succeed. The statement in the circular is likely to create a substantive legitimate expectation that its application will be successful and it will be an abuse of power to frustrate that expectation.
E The charity’s claim is likely to succeed. In the absence of reasons, the decision is likely to be held to be irrational.

Answer 51

Answer
Option E is correct. The charity will most likely be able to bring a claim based on irrationality. Whilst there may also be procedural impropriety, neither option C nor option D correctly summarises the position.
The charity is entitled to a fair hearing. On the face of it, it is a first-time applicant for compensation (McInnes v Onslow-Fane), which may impact on what is expected of the decision-maker in order to achieve fairness. However, the charity will argue that the statement in the circular has created a substantive legitimate expectation that its application will be successful.
It is then necessary to analyse whether this case falls within the first or third of Lord Woolf’s categories in Coughlan. It is likely to fall within the first category as it involves the payment of money rather than a basic need such as healthcare. The charity would therefore have to rely on irrationality. As no reasons have been given for reducing the award of compensation from £100,000 to £5,000, the charity has a strong argument that the Wednesbury threshold of irrationality has been reached. Option E is therefore correct and a better answer than option D. Option B is also clearly wrong as the absence of reasons is likely to lead to a finding of irrationality.
Although there is no general requirement for ministers to give reasons for their decisions,
the courts may require this if the decision appears wrong. Here, they may require reasons
to enable the charity to ascertain whether the minister took all relevant circumstances into account in reaching his decision (ex p Cunningham). In this case, the size of the award may appear unjustifiably low, and if so, the decision could be quashed for the failure to give reasons. However, this duty arises from the common law rules of procedural fairness, and do not arise from statute; hence option C is wrong. Option A is wrong as the circular has created a legitimate expectation that the charity will receive a full grant.

Question 52

Question 3
Assume that a statute (fictitious) gives local authorities the power to order the closure of market stalls in a public market if the trader has repeatedly sold goods that are not of
a satisfactory quality. The statute provides that the operator of any stall that is to be the subject of a closure order shall be given seven days’ notice of the order, and shall also be given the right to make representations against the closure. Using its power, the local authority has sent a notice to a trader ordering the closure of his stall after seven days. The local authority has stated that due to the poor quality of the goods the trader sells, there is no point in him making representations.
Which of the following best describes whether the trader could seek judicial review of the closure notice?
A The trader’s claim is likely to fail. Due to the seriousness of the matter, the local authority was entitled to dispense with the requirement to allow the trader to make representations.
B The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a guidance as to good practice and its breach does not render the closure notice invalid.
C The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a directory procedural requirement and its breach does not render the closure notice invalid.
D The trader’s claim is likely to succeed. The requirement to allow the trader to make representations is a mandatory procedural requirement as Parliament probably intended its breach to invalidate the closure notice.
E The trader’s claim is likely to succeed. The local authority has acted without legal authority in ordering the closure of the stall without allowing the trader to make representations.

Answer 52

Answer
Option D is correct. The issue is whether the local authority has failed to comply with a mandatory procedural requirement or a directory one. Non-compliance with the former renders a decision invalid on grounds of procedural ultra vires, whereas failure to comply with a directory requirement does not. An important factor that the court will take into account is the wording of the statute itself. According to the facts, the statute provides that local authorities ‘shall’ allow operators of stalls to make representations; this points towards a mandatory obligation to consult. However, the language used is not conclusive.
Case law also shows that where a claimant is substantially prejudiced by non-compliance
with an important procedural safeguard, the courts are likely to rule a statutory requirement is mandatory. Another question is whether Parliament would have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision. This seems likely, as closure of the stall will deprive the trader of his livelihood. Accordingly, options C and B are wrong for suggesting the requirement is merely directory or guidance as to good practice respectively.
Option A is wrong as, in the absence of statutory authority, the seriousness of the matter does not dispense with the need to observe procedural requirements.
Option E is wrong as the local authority did have the legal authority to order the closure of the stall, provided it followed the correct procedure. Acting without legal authority (one of the headings under illegality) arises when a decision-maker does not have the power at all to take a given decision, no matter how properly it tried to act.