what are the subgrounds under procedural impropriety?
- notice
- consultations
- hearings
- reasons for a decision
- bias
what ideas in natural justice are procedural fairness associated with?
- right to be heard
- rule against bias
why must notice be given before a decision is made? (incl. 2 cases)
- Doody - so the affected knows ‘the gist of the case’ they have to answer to, ESPECIALLY in situations when there is a deprivation of liberty
- Anufrijeva - so the affected can be ‘in a position to challenge’; it is the right of access to justice
what is the general rule about consultations? (incl. case)
there is no general common law duty to consult; it would be for Parliament to introduce such a duty (BAPIO)
what are the exceptions as to when there is a duty consult?
- legislation may either require consultations, or give the public authority discretion to hold consultations
- dependent on statutory construction (e.g. “shall”, “must”)
what are the ‘Sedley criteria’ for consultation? (incl. case)
ex parte Gunning
1. consultations must take place when proposals are at a formative stage
2. the proposer must give sufficient reasons (why is it choosing certain options and what are the alternatives?)
3. adequate time given for consideration and response
4. things discussed in the consultation must be taken into account before finalising any statutory proposals
what are some examples of where there was a specific common law duty to consult? (incl. 4 cases)
- Baker - duty to consult residents of a care home before deciding to close it arising from a legitimate expectation
- Coughlan - duty to consult residents of a hospice before closing arising from a legitimate expectation
- LH - duty to consult regarding the closure of a number of daycares; consultations needed to occur with users of individual centres
- Greenpeace - consultation process was flawed in this case regarding policy changes on nuclear energy
legitimate expectations in consultations? (incl. case)
- Moseley - when someone is deprived of a benefit, there is a legitimate expectation to be consulted before the decision is made
what is the procedure around hearings? (incl. 2 cases)
- Lloyd v McMahon - there should generally be an oral hearing, or at least the opportunity to make written representations, unless the right is waived by the applicant
- Osborn - hearings (or the opportunity to present one’s case effectively) should especially be given in circumstances where liberty is at stake
why are hearings important (incl. case quote)
Sengupta v Holmes - ‘Oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge’
what should be considered by the decision maker when deciding to give an oral hearing? (incl. case)
- the nature and circumstances of the decision
- whether all substantive issues of fact could be satisfactorily resolved on the available written evidence (ex parte Anderson)
2 cases which consider oral hearings
- R (McLuckie) v SoS for Justice - oral hearing was unnecessary when both parole board and ‘Category A review team’ agreed that a murderer remained a danger to society
- R (Smith & West) v Parole Board - held that oral hearings are not necessary every time a prisoner is recalled after breaching parole conditions, but that the parole board should be ‘predisposed’ to grant an oral hearing
when does one have duty to give reasons? (incl. 2 cases)
- when liberty is at stake
- Doody - when it would be impossible for the complainant to mount a successful JR case without being given reasons why the decision went against them
- ex parte Murray - when the decision-maker is fulfilling a judicial role and there is no appeal possible, such as in a court-martial
4 cases which consider duty to give reasons
- Dover District Council - reasons are essential to allow effective supervision by the courts to allow individuals to challenge the legality of decisions, especially in cases regarding planning
- McInnes v Onslow-Fane - held that the board making the decision on whether to grant a boxing manager’s license were simply obliged to act fairly, and not also to give reasons
- ex parte Cunningham - court held detailed reasons were required as to the unfair dismissal and low awarding of damages of a prison PE teacher
- ex parte Institute of Dental Surgery - there is no duty to give reasons where to do so would be excessively onerous on the decision-maker because of the complexity of factors and time constraints
academic commentary (Bell) - what are the main reasons people challenge under duty to give reasons?
Bell - decision-makers are more likely to be challenged on the adequacy of what reasons they offered, rather than an outright refusal to offer reasons
academic commentary (Bell) - what factors are making the courts hesitant to introduce a common law duty to give reasons?
- doubts that introducing a general duty would truly add any practical utility to the current law
- difficulties inherent in developing a general formulation of the kind of reasons required
- a belief that the ‘hortatory’ function a general duty would serve is being better performed by broader developments in the administrative sphere
- weaker adherence on the part of modern judges than many academics to an understanding of administrative law’s nature which puts generality at its core
when is bias involved in a case? (incl. case)
Flaherty - 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 the merits of the issue’
bias - personal interests (financial) (incl. 2 cases)
- Dimes - a decision-maker is automatically disqualified in instances where they have a personal financial interest
- Locabail - the interest may also derive from that of a family member, provided that the link is ‘so close and direct’ that the family member’s interest is indistinguishable from that of the primary decision-maker
personal interest (non-financial) (incl. case)
Pinochet - automatic disqualification of decision makers (can include judges too!) in which they are a party, or may be treated as if a party because they had an interest in the outcome (financial, property or otherwise)
- in this case, Lord Hoffman was associated with a party which intervened in the case procedure (Amnesty International)
what was the apparent bias test? (incl. case)
- Gough - whether a “real danger” of bias on the part of a member of a tribunal in the sense that ‘he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him’
criticism of Gough (incl. case)
Pullar - the tribunal must be impartial from an objective viewpoint; therefore the danger of bias cannot be ascertained from the POV of the Court
what is the test for bias (incl. case)?
Porter v Magill - Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
Requirements of the ‘informed observer’ (incl. case)
- Gillies v SoS for Work and Pensions
- ‘must not be closed minded or unduly suspicious’
- must be ‘in possession of all the facts that are capable of being known by members of the public generally’
what is a case in which the porter test was applied?
Helow v SSHD
