Week 23: Proportionality, Legitimate Expectations, Procedural Fairness and Bias

Question 1

Where does proportionality fit in with reasonableness/irrationality review?

Answer 1

Q: “within a range of reasonable responses?” A “decision which no reasonable authority could have come to?”

Standard of review:
Issue-sensitive, sliding scale; deference depending on context

Question 2

Where does proportionality fit in with interference with rights at common law?

Answer 2

Q: “whether the decision–maker could reasonably have concluded that the interference was justified”

Standard of review
“anxious scrutiny”

Question 3

Where does proportionality fit in with EU law and the ECHR

Answer 3

Proportionality
(EU law & ECHR)

Q: (EU) Whether least onerous measure, necessary to achieve aims; proportionate to aims; (HR) whether “necessary in a democratic society” in pursuit of legitimate aim”

Standard of review:
Court weighing and balancing interests

Question 4

What is proportionality?

Answer 4

The idea that an action should not be more or less severe than is necessary and that competing interests in this regard should be carefully balanced

• state action to be justified
• suitable means to achieve aims
• weighing and balancing competing interests

Question 5

When does proportionality arise in ECHR and domestic law?

Answer 5

ECHR

Principle of interpretation applied by ECtHR:
Whether an infringement of a qualified right is ‘necessary in a democratic society’

Domestic law

A free-standing ground of review?
Emerging as a common-law ground of review

Question 6

proportionality and ECHR rights in the UK

HRA (s.6; s.2), Interference with qualified rights. Is infingement ‘necessary in a democratic society’

Answer 6

• “the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine:
• whether its objective is sufficiently important to justify the limitation of a fundamental right;
• whether it is rationally connected to the objective;
• whether a less intrusive measure could have been used; and
• whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
• Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, Lord Sumption,[20

Question 7

What is a problem of proportionality

Answer 7

requires intense review

Question 8

Explain proportionality and intensity of review

Answer 8

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, Lord Bingham, [27]:
“may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is in the range of reasonable or rational decisions”.

“may go further than the traditional grounds of review in as much as it may require attention to be directed to the relevant weight accorded to interests and considerations.”

“even the heightened scrutiny test developed in ex parte Smith is not necessarily appropriate to the protection of human rights.”

Question 9

What is an advantage of proportionality

Answer 9

The advantage of the terminology of proportionality is that it introduces an element of structure to the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages
- gives structure to the court

Question 10

Is there a common law ground in proportionality?

Answer 10

Available as a ground: “the tool of proportionality is one which would, in my view and for reasons explained in Kennedy v Information Commissioner, be both available and valuable for the purposes of such a review.” (Lord Mance, [98])

Context important: “Whether under EU, Convention or common law, context will determine the appropriate intensity of review.” (Lord Mance, [96])

Intensity “is not determined by the structure of the test but by the degree of judicial restraint practiced in applying it” (Lord Mance, [96])

Question 11

In what case has proportionality already been used as a ground of review?

Answer 11

Has been used already: “In a number of cases concerned with important rights….the court has interpreted the statutory powers to interfere with those rights as being subject to implied limitations, and has adopted an approach amounting in substance to a requirement of proportionality.” (Lord Reed, [118]), Pham v Home Secretary [2015] UKSC 19

Question 12

Describe cases where proportionality has been rejected

Answer 12

R. (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKS 69: “It would not be appropriate for a five-justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms” (Lord Neuberger, [132])

R (Youssef) v Secretary of State for the Foreign and Commonwealth Office [2016] UKSC 3
– Lord Carnwath, obiter:

• “an authoritative review in this court of the judicial and academic learning on the issue… might aim for rather more structured guidance for the lower courts than such imprecise concepts as “anxious scrutiny” and “sliding scales”’ [55]
• “Even in advance of such a comprehensive review… there is a measure of support for the use of proportionality as a test in relation to interference with “fundamental” rights.” [56]

Question 13

What are the issues with the proportionality test

Answer 13

A ‘potent weapon’?
* takes courts into relatively new territory, it could shift the understanding of the role of the court in judicial review

Intensity of review?

Should we adopt proportionality in the UK?

Should there be two separate grounds (Wednesbury AND proportionality)?

Question 14

What is the meaning of legitimate expectation?

Answer 14

“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.”

Question 15

What is the principle behind legitimate expectations

Answer 15

“It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.”

R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, Laws LJ [68]

Question 16

Explain how legitimate interest is a legal standard

Answer 16

“In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law.” Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 (Laws LJ, [68])

Question 17

What are the foundations of legitimate expectation

Answer 17

Institutional Autonomy
Entitlement of central government to formulate and re-formulate policy
(see Laws LJ, R (Niazi v Secretary of State for the Home Department [2008])
V
Public interest
* Legal certainty
* If executive undertakes to behave in a particular way should be able to expect that they will do so
Fairness
Consistency

Question 18

How does legitimate expectation work

Answer 18

1. Consider legitimacy or the expectation
   What is the indicidual entitled to expect?
   Courts look at:
   * representation/promise
   * past practice
   * policy
   * reliance & knowledge
2. Courts consider how protect the expectation
   If, and how, expectation should be protected
   * substantive
   * procedural

Question 19

What are some possible legitimate expectation outcomes?

Answer 19

R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, Lord Woolf:

• Court decides PA only required to “bear in mind previous policy or other representation, giving it the weight it thinks right, but no more” – review on Wendesbury grounds
• Induces legitimate expectation of being consulted - court will “require the opportunity for consultation to be given unless there is an overriding reason to resile from it.”
• Where practice or promise has induced a legitimate expectation of a “benefit which is substantive…the court will… decide…whether to frustrate the expectation is so unfair that to take a different course will amount to an abuse of power.”

Question 20

What question must you ask when considering a substantive benefit arising from a legitimate expectation?

Answer 20

What, in the circumstances, could the applicant legitimately expect?

Question 21

Describe substantive legitimate expectation

Answer 21

A substantive legitimate expectation is an expectation induced by a public authority that an individual will be granted or retain some substantive benefit.

Question 22

Describe procedural legitimate expectation

Answer 22

A procedural legitimate expectation is created when a representation is made by a public authority that it will follow a certain procedure before making a decision on the substantive merits of a particular case.

Question 23

When does legitimate expectation arise

Answer 23

PAST PRACTICE
unlikely to give rise to substantive legitimate expectation. SLE requires: “specific undertaking, directed at a particular individual or group” (Laws LJ, R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755

OR

REPRESENTATION OR ASSURANCE
must be: “clear, unambiguous and devoid of relevant qualification” (Bingham LJ, R v Inland Revenue Commissioners, ex parte MFK Underwriting Agencies [1990] 1 WLR 1545)

Question 24

legit. expectation

Explain how the implications of a statement are relevant

Answer 24

R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, 1124 (Peter Gibson LJ) “For my part I cannot accept that the mere fact that a clear and unequivocal statement…was made is enough to establish a legitimate expectation in accordance with that statement such that the expectation cannot be allowed to be defeated. All the circumstances must be considered.”

R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409, Richards LJ: “a promise to hold a referendum lies so deep in the macro-political field that the court should not enter the relevant area at all”

Lord Doherty, DM v Secretary of State for the Home Department[2014] CSIH 29: “it is essential that a person who seeks to found on a legitimate expectation arising out of a statement made by government or public authority should have knowledge of that statement.”

Question 25

Explain the importance of policy in legitimate expectation

Answer 25

Use of the LE doctrine is “strained” when those who invoke it “were … unaware of the policy until after the determination adverse to them was made” and when “reliance is placed on guidance issued by one public body to another” Mandalia v Home Secretary [2015] UKSC 59

Right to determination of application in accordance with policy is “now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing which was best articulated in Nadarajah” (Lord Wilson, Mandalia):
* the law will require the promise or practice to be honoured unless there is good reason not to do so
* Grounded in fairness, and a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.” (Laws LJ, Nadarajah)

Question 26

In order to establish legitimate expectation, do you have to show you have relied on it in some way

Answer 26

It would be contrary to good administration if public authorities could “resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage.” Re Finucane’s Application for Judicial Review [2019] UKSC 7; [2019] 3 All E.R. 191at [63] and [72]

• looks like now, you probably dont have to but it holds significance in your case

Question 27

If you establish legitimate expectation, can the public authority depart from that?

Answer 27

“….a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest.”Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 (Laws LJ)

Question 28

Compare the issues of substantive justice and procedural justice/fairness

Answer 28

Substantive justice:
General objective is to ensure that decisions are within the scope of powers conferred to a decision-maker – ensures that powers are not exceeded

Procedural justice/fairness:
Aims to provide individuals with a fair opportunity to influence the outcome of a decision and ensure the integrity of decisions.

Question 29

Describe procedrual v fairness in the UK

Answer 29

Common law:
* duty to act fairly
* rule against bias

+

ECHR
* article 6

Question 30

What are the aspects of procedural fairness in the UK

Answer 30

Natural justice and duty to act fairly
* Due process
* Consultation
* Representation
* Notice
* Reasons

Bias
* Unbiased-decisions
* No conflict of interest
* No actual or perceived bias

Art.6 ECHR
* “civil rights and obligations or criminal charge”
* “fair and public hearing”
* “independent and impartial tribunal”

Question 31

What are 3 instances that give rise to entitlement to procedural fairness

Answer 31

• Statutory duty to follow specific procedure
• Relationship between body and individual
• Legitimate expectation

Question 32

Describe the distinction between common law and the European Convention of Human Rights (ECHR)

Answer 32

Common Law:
Duty to act fairly
* e.g: consultation, representation, hearings,
reasons

Rule against bias
* Decision-maker
should not
biased so as to prevent fair
and genuine consideration

All of these elements are bound up by Art 6 within the ECHR

Question 33

PROCEDURAL FAIRNESS

What are the two branches of the basic concept of fairness/natural justice

Answer 33

Common law imposes minimum standards of procedural fairness/due process – audi alteram partem

Common law requires that an adjudicator is unbiased – nemo judex in causa sua

Common law reinforced by procedural guarantees under Art. 6 ECHR

Question 34

What was the distinction that had to be made regarding audi alteram partem in the case of Cooper v Wandsworth Board of Works (1863) 143 E.R. 414

Answer 34

Emphasized the importance of a right to a hearing even where there was no provision for it in statute: “a board exercising this large power should follow the ordinary rule, that the party sought to be affected should be heard” (Wiles J, at 194)

Board of Education v Rice [1911] AC 179
Reiterated the generality and flexible nature of the audi alteram paretem rule:

Question 35

procedural fairness

Describe requirement of judicial decisions

Answer 35

requires a ‘trial’

Question 36

procedural fairness

Describe administrative decisions

Answer 36

natural justice does not apply

Question 37

procedural fairness

Does the body need to ‘act judicially’ for rules of natural justice to apply?

Answer 37

“in my judgment the older cases certainly do not “illustrate” any such general principle - they contradict it.” Ridge v Baldwin [1964] A.C. 40, Lord Reid (79)

Question 38

procedural fairness

Does the distinction between judicial and administrative proceedings still apply?

Answer 38

no

Question 39

Explain the duty to act fairly

Answer 39

… “principles of natural justice”… the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting-place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courtsto determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case… (GCHQ case [1985] AC 374, Lord Roskill, 412)

Question 40

What do the requirements of fairness demand

Answer 40

• the character of the decision-making body
• the kind of decision it has to make
• the statutory or other framework in which it operates

Question 41

What are the standards not applied by rote: ex p Doody

Answer 41

R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 (Lord Mustill):
1. “presumption” that power conferred by Parliament “will be exercised in a manner which is fair in all the circumstances.”
2. “The standards of fairness are not immutable. They may change” over time.
3. “The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.”
4. An “essential feature of the context is the statute which creates the discretion…”
5. “Fairness will … often require that a person who may be adversely affected by the decision will have an opportunity to make representations…”
6. “…fairness will very often require that he is informed of the gist of the case which he has to answer.”

Question 42

Describe the features of procedural fairness

Answer 42

1. Notice
2. Hearing/ Oral Hearing
3. Legal representation/ Cross-examination/ Evidence/ Open/public
4. Reasons

Question 43

Explain the duty to give notice

Answer 43

“denunciation on grounds that are not disclosed is the stuff of nightmares.”Lord Hope, Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, [83]

R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 (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 gist of the case which he has to answer.

Question 44

procedural fairness

Explain the importance of giving reasons

Answer 44

R (Bourgass) v Secretary of State for Justice [2015] UKSC 54: “A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought” (Lord Reed, [100])

BUT:
“No general duty to give reasons” R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 (Lord Mustill)

Question 45

procedural fairness

Explain the role of hearings

Answer 45

Osborn v Parole Board [2014]
“What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance.” Lord Reed, [80]
* - apply these guidelines to any factual situation to find out whether a hearing should be held

• “should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and… the importance of what is at stake”
• “the purpose of holding an oral hearing is not only to assist it in its decision-making, but… reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him
• “an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted”

Question 46

What is the importance of the rule against bias

Answer 46

Davidson v Scottish Ministers [2004] UKHL 34:
The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial.

…. decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case.

What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment.

Question 47

What reasons give ground for a judge to be disqualified from hearing a case

Answer 47

if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question.

Question 48

What is actual bias

Answer 48

• personal interest in the outcome
• friend/relation of party or witness
• unable to be objective

Question 49

What principle does automatic disqualification protect

Answer 49

the absolute impartiality of the judiciary

Question 50

Give examples of automatic disqualification

Answer 50

Direct pecuniary or propriety interest
* Dimes: Lord Chancellor - shares in company that is party to the suit
* Automatic disqualification

Other direct interest
* Pinochet: Law Lord = member of Amnesty International, appearing as an intervener, and promoting a cause
* Automatic disqualification

Question 51

What is apparent bias

Answer 51

Describes the situation where circumstances exist which give rise to a reasonable apprehension that the judge may have been, or may be, biased

Question 52

What is the test for apparent bias

Answer 52

The test: Porter v Magill [2001] UKHL 67
“The question 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.” [103] (Lord Hope)

Question 53

Give an example of apparent bias

Answer 53

Helow v Secretary of State for the Home Department [2008] UKHL 62

The basic legal test applicable is not in issue. The question is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there existed a real possibility that the judge was biased… the question is one of law, to be answered in the light of the relevant facts…(Lord Mance, [39]
“…the present case is a long way away from Ex p Pinochet, since the Association was not a party to or in any way concerned with (or so far as appears even aware of) the proceedings involving Miss Helow… (Lord Mance, [40])

Question 54

Explain how the disqualification of a person is an administrative decision

Answer 54

“… the principle that a person is disqualified from participation in a decision if there is a [real danger] that he or she will be influenced by a pecuniary or personal interest in the outcome, is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings” (325 b-c

Question 55

bias

Whta is predetermination

Answer 55

Where decision is of a body whose members can be expected to have prior views, e.g. planning decision by local authority, the requirement is a little different

Question 56

What is the test for predetermination

Answer 56

R (Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83
“So the test would be whether there is an appearance of predetermination, in the sense of a mind closed to the planning decision in question…[what needs to be shown is] something which goes to the appearance of a predetermined, closed mind in the decision-making itself.” (Rix LJ, [96])

Question 57

Where may rules against bias not apply

Answer 57

1. Necessity
   * where decision-maker cannot be replaced, e.g. if required to form quorum
   * Administrative structure makes it inevitable that there is an appearance of bias (e.g. R (Lewis) v Redcar and Cleveland BC; Alconbury)
2. Waiver
   * A party may waive objections to decision-maker, if knew of disqualification but did not object
3. Policy and political bias
   * E.g. members of legislative bodies may, and are sometimes expected to, show political bias, but must not show personal bias.