Procedural Impropriety

Question 1

Grounds of JR: Procedural Impropriety

Introduction

Answer 1

The third ground of judicial review identified by Lord Diplock in GCHQ was procedural impropriety. This concerns a public decision-maker’s failure to follow correct statutory procedure and/or to act fairly in a more general sense, as measured against common law standards.
So, procedural impropriety as a concept covers two areas, the second having by far the wider scope:
1. Failure to observe procedural statutory rules
2. Common law procedural fairness

Question 2

1. Failure to observe procedural statutory rules

Answer 2

This type of error is essentially an extension of the basic principle of ultra vires, and it is therefore closely related to the ground of illegality. It requires public bodies to follow requirements of a procedural nature that have been laid down in statute. It is sometimes called ‘procedural ultra vires’.
In the following slides we will briefly consider the courts’ historic approach to assessing breach of procedural statutory rules, and then address the modern, more flexible approach.

Question 3

Historic approach

Answer 3

The courts’ approach to assessing the breach of a procedural statutory rule used to involve a distinction between mandatory procedural requirements and directory procedural requirements.
Breach of a mandatory requirement would invalidate a decision, whereas failure to comply with a directory (or discretionary) requirement would not automatically invalidate a decision.
For example, in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] All ER 280, the court held that an order issued by the Training Board was not binding upon the company because it had not been consulted, as required by a statutory provision which was expressed in mandatory terms.

Question 4

Modern approach

Answer 4

More recently, the difficulties that can arise in determining whether a statutory requirement is mandatory or discretionary, particularly when there are several inter-linked requirements, have led the courts to move towards a more flexible approach.
Following a series of cases, which culminated in the decision of the House of Lords in R v Soneji[2006] 1 AC 34, the judiciary now focus on the consequences of the non-compliance with the requirement, and ask whether, in the light of those consequences, Parliament could have intended that the outcome of that non-compliance should be the invalidity of the decision.
R v Soneji was a case on procedural requirements for criminal cases, but the test has been applied by the Court of Appeal in administrative law cases. Some of the key cases are discussed in the following slide.

Question 5

Case law

Answer 5

In JN (Cameroon) v SSHD [2009] EWCA Civ 307, the Court of Appeal held that a deportation notice that did not specify the country to which JN would be deported, as required by the Immigration (Notices) Regulations 2003, did not invalidate the decision to deport him. The purpose of the requirement was to assist the person concerned in relation to any appeal, and JN’s ability to present his appeal was not impaired by the omission, particularly where it was clear from the decision reasons that the intention was to deport him to Cameroon.
In R (Herron) v The Parking Adjudicator [2011] EWCA Civ 905, the Court of Appeal upheld the parking adjudicator’s decision that minor irregularities in road signs and road markings in the Sunderland Controlled Parking Zone did not invalidate the 39 penalty notice charges accumulated in that zone by the claimant.

Question 6

2. Common law procedural fairness

Answer 6

In all cases, a decision-maker must act in accordance with the principles of what was originally termed ‘natural justice’. There are two central common law rules concerning the duty to act fairly.
(A) The duty to act fairly
A person affected by a public law decision should be given the opportunity to present their case. The courts consider (i) whether a duty has arisen, (ii) what level of duty is owed by the public authority, and (iii) the ‘content’ of the duty, before determining whether there has been a breach.
(B) The rule against bias
Theprinciple is:’Nemo judex in causa sua_’,_ meaning thatno-one should be a judge in their own cause. The courts will consider the context of a case and determine if there has been direct or indirect bias. (The rule against bias is considered in the second section.)

Question 7

(A)(i) When does the duty to act fairly arise?

Answer 7

• Historic approach: The courts adopted a narrow approach whereby ‘judicial’ decisions were subject to the principles of natural justice, but ‘administrative’ decisions were not.
• Ridge v Baldwin [1964] AC 40: This case was a turning point as the court held that it did not matter whether the decision was judicial or administrative. The question for the court should be the extent of the justice/ fairness required in a given situation.

Question 8

When might the duty not apply?

Answer 8

Professor De Smith pointed to certain situations where the courts have appeared to override the duty or have significantly modified it. For example:
(a) Where there are overriding concerns relating to issues of national security: See for example, R v Secretary of State for the Home Department, ex parte Hosenball [1977] 1 WLR 766, concerning the deportation of a US journalist from the UK for having obtained information harmful to the security of the UK and prejudicial to the safety of members of the intelligence services.
(b) In emergency cases, where public safety demands urgent actions: See for example, R v Secretary of State Transport, ex parte Pegasus Holdings Ltd. [1989] 2 All ER 481 relating to air transport safety.
(c) Rationing of resources cases: The courts frequently find that authorities cannot be expected to put forward a detailed case. See R v Cambridgeshire AHA, ex parte B [1995] 2 All ER 129 where it was found it was not unfair for the authority not to give detailed reasons why it would not fund expensive cancer treatment for a child patient.
(d) Cases where a person has waived their right to fairness: See Lloyd v McMahon [1987] AC 625 (discussed below).

Question 9

(A)(ii) What is the level of fairness owed?

Answer 9

Upon establishing that the duty to act fairly applies, the court will assess the level of fairness owed by the authority to the applicant. This will vary depending on the decision and the context of the issues. An early case in which the Privy Council gave guidance on the contextual nature of the question is Durayappah v Fernando [1967] 2 AC 337.
A more modern approach to the courts’ assessment of the level of fairness was provided by Lord Bridge in Lloyd v McMahon [1987] AC 625. He stated that:
‘… the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision, which will affect the rights of individuals, depends on the character of the decision-making body, the kind of question it has to make and the statutory or other framework in which it operates.’
For a similar approach, see Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1993] 3 WLR 154.

Question 10

The level of fairness in licensing cases

Answer 10

Licensing cases provide an instructive example of the courts’ approach to the level of fairness question. For instance, on being refused a licence, does an applicant have the right to a hearing, enabling them to know why they have been turned down and giving them the opportunity to present counter arguments?
When considering the appropriate level of fairness, the courts have developed a spectrum approach. (Note that this is not a formal element of a case, but a background contextual judgement considered by the court.)
One of the key cases in this area is McInnes v Onslow-Fane [1978] 1 WLR 1520. The applicant had previously held licences for various roles from the British Boxing Board of Control. These were withdrawn in 1973. Between 1972 and 1975 he applied five times for a manager’s licence, failing each time. Applying for the sixth time, he asked for an oral hearing and notification of any unfavourable points so that he could reply to them. These requests were refused, and his application failed again.
Was there a breach of the duty of fairness? Should the applicant have been given fuller reasons for the decisions and/or an oral hearing? The court’s judgment is set out on the next slide.

Question 11

McInnes judgment

Answer 11

In holding that there was no breach, Megarry V-C made some important general observations:
a)There is a distinction between forfeiture and application cases. In the former, where a licence is being taken away, the holder will usually be entitled to expect the right to notice of any charges against him and the right to be heard in answer to the charges, as well as to an unbiased tribunal. (In other words, a higher level of fairness should be expected.) In application cases, where nothing is being taken away, the issue is the general suitability of the applicant, and notification of specific points may not be appropriate or practical.(
b) Also, in Megarry’s words, ‘there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted.’ He described this category as being ‘more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence … is one which raises the question of what it is that has happened to make the applicant unsuitable for the … licence for which he was previously thought suitable.’
Applying these principles to the case in question, he emphasised that McInnes was a mere applicant and that the British Boxing Board had not acted unfairly in this context

Question 12

Ex parte Benaim & Khaida

Answer 12

R v Gaming Board for Great Britain, ex parte Benaim & Khaida [1970] 2 QB 417 concerned an application for a certificate of consent to apply for a gaming licence under the Gaming Act 1968. . The application was rejected, and the applicants argued that they had a right to know the objections raised against them so that they could answer them prior to the Gaming Board making its decision on their application.
It was held that the Board had to act fairly by giving an applicant an indication of the objections against him to enable him to answer them, but that it done so to a sufficient extent in this case. The Board was not obliged to disclose sources or details of its information to an applicant, who was not being required to meet charges but only to satisfy the Board as to his fitness to apply for a licence.

Question 13

Summary

Answer 13

We have considered the following aspects of procedural impropriety:
-Procedural statutory rules:
• The courts’ approach to the assessment of potential breaches, which now centres on the consequence of breach and not on the language in the statute (Soneji; JN (Cameroon)
-Common law procedural fairness:
• The duty to act fairly (Ridge v Baldwin)
• When does the duty to act fairly arise? (Ridge v Baldwin)
• What is the level of the duty to act fairly? (Lloyd v McMahon; McInnes)
• this will depend on the context of the decision and what is at stake.

Question 14

Grounds of JR: Procedural Impropriety II

Context

Answer 14

In the last element we examined the following with reference to the right to be heard:
(A)(i) When the duty to act fairly arises (Ridge v Baldwin)
(A)(ii) The level of the duty owed (Lloyd v McMahon; McInnes) - this will feed into the evaluation below.
In this element we shall consider:
(A)(iii) The content of the duty (of the right to be heard) and whether the public authority has breached its duty.

Question 15

(A)(iii) The content of fairness

Answer 15

Once the level of fairness owed has been determined, the so-called ‘content’ of fairness needs to be considered. The content relates to the various procedural ingredients that may be relevant in any given case.
The duty to act fairly is a broad, umbrella term – what the claimant may have wanted by way of fairness will clearly vary according to the particular context of the decision in question. However, five broad elements have tended to become the focus of such challenges. These are as follows:
• (i) Notice of the case against a person
• (ii) Right to make representations
• (iii) Witnesses
• (iv) Legal representation
• (v) Reasons

Question 16

(i) Notice of the case against a person

Answer 16

The most basic element of procedural fairness is the right for a person to have notice of the case against or involving them. A failure to inform a person of the evidence against them, or of a decision taken that affects their interests, will mean that that person is unable to make any effective representations in response.
A lead case in this area is R v Governing Body of Dunraven School, ex parte B [2000] BLGR 494. ‘B’ was permanently excluded from school following the theft of a teacher’s bag, on the basis of the witness statement of another pupil (‘D’). B’s parents were not allowed to see the statement or to know who had made it. The court found that it was not fair for the governors to take into account the written statement of D which B and his parents had not seen, nor the oral evidence of D which B and his parents had not heard. B could not prepare his own case without sight of the substance of D’s evidence.
Sedley LJ emphasised in ex parte B that what fairness demands will depend upon the particular circumstances of the case.

Question 17

Key cases

Answer 17

This basic issue of lack of notice of the case against a person can be exemplified by judgments in the following cases:
In Errington v Minister of Health [1935] 1 KB 249, the Court of Appeal held that there had been a breach of ‘natural justice’, because the minister had in effect heard evidence from one side without the other side being present.
In R v Chief Constable of North Wales Police, ex parte Thorpe [1998] 3 WLR 57 (CA), the court held that a failure to disclose the full case against the applicants did not render the decisions unlawful because full notice would not have made a material difference.
Procedurally, it is important that once a person has been informed of the case against them, they are then given a reasonable amount of time in which to respond, prior to the actual decision being made.
In R v Thames Magistrates, ex parte Polemis [1974] 1 WLR 1371, a ship’s master was summoned to answer a charge under the Control of Pollution Act 1971. He was required to attend the magistrates’ court on the same afternoon to answer the charges. He was convicted, but this was subsequently quashed due to unfairness.
In a commercial context in which two rival companies were competing for a licence (to develop underground coalmining at a site in Wales), the court stated that fairness required that both applicants were treated equally. Consequently, the (unsuccessful) company’s claim in Abbey Mine v Coal Authority [2008] EWCA Civ 353 that it should have been able to see ‘the case against it’ by being shown the details of the rival’s bid, was not accepted.

Question 18

Bank Mellat

Answer 18

In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, (also referred to in the topic on unreasonableness), the procedural element of the challenge to the decision to prevent the bank from operating in the UK revolved around the lack of notice given to it of the Treasury’s intention to make the direction under the Counter-Terrorism Act 2008.
Although the Act allowed the bank to apply to the High Court to challenge the action taken by the Treasury, the fact that this could only be done some time after the direction took effect meant that the damage to the bank’s interests had effectively already been done. The direction was therefore quashed on procedural as well as substantive grounds.
Lord Sumption related this very strongly to the core ideal of fairness, but also argued that the significance of proper notice, and therefore of allowing affected parties the opportunity to make representations and to take part in consultation, was important in upholding the principle of good administration. Public decision-making was less likely to be effective, as well as transparent and fair, if relevant parties did not have such an opportunity.

Question 19

(ii) Right to make representations

Answer 19

Another key issue is whether a person should be given the right to make representations as part of the decision-making process. Whether it is fair for these representations to be confined to written form, or to involve an oral hearing, will depend on the nature of the decision and the process itself.

Question 20

Position at common law

Answer 20

It is important to note that there is not an automatic, common law duty to hold personal or oral hearings. There have been several cases where the lack of a hearing has been held not to have affected the fairness of a decision, as for instance in Lloyd v McMahon [1987] AC 625. (This case featured in the last element, concerning the level of duty owed).

Question 21

Case Examples

Answer 21

Ex parte Anderson
Facts: In_R v Army Board of the Defence Council, ex parte Anderson_ [1992] 1 QB 169, a soldier made a complaint of racial discrimination, which was referred to the Army Board. His request for an oral hearing was rejected by the Board.
Held: The Court of Appeal quashed the Board’s decision, because it found (on illegality grounds) that the Board had fettered its discretion by having an inflexible policy never to hold oral hearings. On the more specific oral hearing point, Taylor LJ said that such hearings were not necessary in all cases of this nature, and he set out a number of useful criteria to consider, when deciding if oral hearings are required to meet the requisite standard of fairness, namely:
(a) The subject matter and circumstances of the particular case
(b) The nature of the decision to be made
(c) Whether there are substantive and complex issues of fact that cannot be satisfactorily resolved on the available written evidence.

Smith and West
Facts: In R (Smith and West) v Parole Board [2005] UKHL 1 The applicants appealed against a decision upholding the refusal of the Parole Board to hold oral hearings in respect of their opposition to the revocation of their licences.
Held: It was acknowledged that the Parole Board was not required to hold an oral hearing every time a prisoner released on licence resisted his recall to prison. It was held, however, that where the Parole Board would be assisted in its task of assessing risk by having an oral hearing, for example to assess character or to allow the prisoner the opportunity to raise mitigating factors, this should be done. The case raised important issues of both common law fairness and the right to a fair legal process under Article 6 of the ECHR.

Osborn and further cases
In Osborn v Parole Board [2013] UKSC 61, Lord Reed emphasised the central importance of the common law in upholding core principles such as fairness to the individual, the need to involve individuals in processes affecting their lives, and the over-arching importance of accountability and transparency in government. The Supreme Court found unanimously that the refusal by the Parole Board to allow Osborn and the other two claimants an oral hearing breached the requirements of procedural fairness owed at common law.
Lord Reed reiterated the previous line that the obligation to have an oral hearing will continue to depend on the context of the given decision, but he appeared to tilt the balance in favour of such elements of fair process, laying out ‘general guidance’ to public decision-makers. Notably, he stated: ‘The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.’

In R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 Lord Reed reinforced the approach he pursued in Osborn.

Question 22

Multi-stage procedures

Answer 22

It is quite common for public bodies to follow procedures that deal with issues in stages. For example, an initial investigation, or prima facie assessment, may be followed by a decision at a later stage. This raises the question: if it is appropriate to have a hearing, when should this take place?
The tendency of the Administrative courts in these situations is to conclude that there is no right to be heard in the initial stages, the rationale being that there will usually be a right to be heard at some later stage in the process. Simply put, if there is a fair hearing at some appropriate point, the courts may regard this as sufficient, even though the applicant may feel that they are being granted the wrong type of hearing at the wrong time. See Wiseman v Borneman [1971] AC 297.

Question 23

(iii) Witnesses

Answer 23

Position at common law
As with hearings, there is not an automatic common law duty to call witnesses in a case. However, the duty to act fairly may in some circumstances be infringed if a person is not allowed to call witnesses, or to cross-examine witnesses appearing against them. This will depend on what is at stake for the individuals, the nature of the decision-making body and proceedings in question, and on whether the court feels that a ‘legalistic’ procedure is appropriate.
See R v Hull Prison Board of Visitors, ex parte St Germain [1979] 1 WLR 1401 in which prisoners, charged with breaches of prison discipline during riots, were entitled to have alibi witnesses give evidence because of the serious punishment that could be imposed by the disciplinary process (notably loss of remission).

Question 24

(iv) Legal representation

Answer 24

Position at common law
There is no general right at common law to be legally represented, and it can be seen to be counter-productive: R v Board of Visitors of HM Prison, the Maze, ex parte Hone [1988] 1 AC 379.
Case law suggests that, where the rules of the public body in question do not specifically exclude legal representation, the body has discretion to decide whether or not to allow it.
In R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251, the court suggested a number of factors that ought to be considered when considering the right to legal representation. These included: the seriousness of the charge; the likelihood that a point of law may arise; the ability of the person (a prisoner in this case) to conduct his own case; and, lastly, the need for a speedy process.

Question 25

(v) Reasons

Answer 25

An applicant may argue that a decision should be quashed not because of some procedural defect (such as not knowing the case against them or being denied an oral hearing), but because they were not given reasons for the decision taken. A duty to give reasons may be imposed by statute. Such a duty is imposed, for instance, by the Tribunals and Inquiries Act 1992 on all tribunals listed in Schedule 1 to the Act. Position at common law As with other areas of the right to be heard, there is no clear common law duty to give reasons for a decision. This was confirmed in R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312. However, there appears to be a notable trend towards the desirability of giving reasons for administrative decisions, as part of the general attempt by the courts to promote the values of accountability and ‘good administration’ in public life. In particular, where a fundamental interest is a stake, fairness would seem to require reasons to be given.

Question 26

Case law on reasons

Answer 26

In the leading case of R v Secretary of State for the Home Department, ex parte Doody [1993] 3 WLR 154, Lord Mustill acknowledged that ‘the law does not at present recognise a general duty to give reasons for an administrative decision’. He went on to say that in some circumstances a duty may be implied (and he endorsed the approach of the Court of Appeal in Reg. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310). In Doody the court found that fairness required the Home Secretary to give reasons for refusing to allow the release of prisoners who had served their minimum sentences set by the trial judge for the purposes of retribution and deterrence. In ex parte Cunningham, the court had found that the nature of the relevant decision had been an unexpected or 'aberrant' one, and so the general rule that there was no duty to give reasons should be departed from. The result of the case had ‘called out’ for reasons to be given.

Question 27

Case law cont.

Answer 27

In R v Ministry of Defence, ex parte Murray [1998] COD 134, relating to a court martial, the court provided a summary of the considerations and principles affecting the need to give reasons. For example, the absence of any right of appeal and the useful role that giving reasons can play in highlighting errors were seen as positive factors in support of the need for reasons. The duty to give reasons may not be necessary in circumstances where it would be unduly onerous for a body to do so, because of the complexity of the decision or the range of factors that have to be considered. Thus, in R v Higher Education Funding Council, ex parte Institute of Dental Surgery[1994] 1 WLR 242, reasons were not required to be given for the refusal to give research grant funding to the Institute. In some situations, the court may instead decide that the duty of fairness only requires that a general overview of the reasons for the decision be given (the ‘gist’). See for example the case of R v Secretary of State for the Home Department, ex parte Al Fayed [1997] 1 All ER 228.

Question 28

Case law cont.

Answer 28

Article 6 of the ECHR has also had an impact on cases relating to reasons. See for example, Stefan v General Medical Council [1999] 1 WLR 1293. This case is also illuminative of the courts’ evolving approach to this aspect of procedural fairness. In his judgment Lord Clyde stated that cases where reasons are not required are becoming exceptions rather than examples of the norm. A further indication, that the courts are moving towards a reversal of the traditional assumption about the need to give reasons in public law decision-making, was shown in Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71. This Court of Appeal case is considered on the next slide.

Question 29

Oakley

Answer 29

In Oakley, the local authority granted planning permission for Cambridge City Football Club to build a new stadium on an area of ‘green belt’ land, contrary to a recommendation by the council’s senior planning officer. No reasons were provided. In his judgment, Elias LJ provided a rationale and set of principles for the need to give reasons in such cases: ‘There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body…; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached…; and respecting the individual's interest in understanding - and perhaps thereby more readily accepting - why a decision affecting him has been made’. Elias LJ also stated that ‘…the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so’.

Question 30

Summary

Answer 30

We have considered the following aspects of procedural impropriety: **-**Common law procedural fairness: -‘The duty to act fairly’: The content of the fairness and the courts' approach to assessing these matters, which includes: • notice of the case against a person; • the right to make representations, including oral hearings; • the right to call witnesses; • the right to use legal representatives; • the right to receive reasons. - The common law does not acknowledge an automatic right to the full range of above ‘content’ – or ingredients of fair process – but we have seen that the courts can invalidate decisions taken if procedural ‘rights’ have not been allowed. - The trend is seemingly moving in the direction of greater procedural fairness as part of a general move to promote enhanced government accountability.

Question 31

Grounds of JR: Procedural Impropriety III Introduction to the rule against bias

Answer 31

In the last two elements we focused on the duty to act fairly. In this element we will consider the second aspect of common law procedural fairness: the rule against bias. Decision-makers cannot be deemed to act fairly if there is a risk that they may be biased. As Lord Hewart CJ stated in R v Sussex County Council, ex parte McCarthy [1924] 1 KB 256: ‘…justice should not only be done but should manifestly and undoubtedly be seen to be done’. The rule against bias disqualifies such a person from deciding a matter and will lead to the quashing of any decision so made. The rule can be divided into two elements: · Direct bias · Indirect bias

Question 32

Direct bias Forms of interests giving rise to direct bias

Answer 32

Interests have largely been confined to financial interests such as pecuniary interests on the part of the decision-maker. The idea is that one should not be a judge in one’s own cause.

Question 33

Courts’ approach to direct bias

Answer 33

The following key principles have been established by the courts: • The extent of the interest is irrelevant (so long as it is not too remote), as is the extent of the decision-maker’s knowledge. • If a decision is made by a group of individuals, e.g. a local authority or committee, a pecuniary interest on the part of one member will be enough to engage the prospect of direct bias. • Note that there does not need to be actual bias. A direct pecuniary interest is sufficient.

Question 34

Consequences of direct bias

Answer 34

Direct bias will invalidate the decision. This is sometimes referred to as ‘automatic disqualification’.

Question 35

Lead case law

Answer 35

In Dimes v Grand Junction Canal (1852) 3 HL Cas 759, orders were sought by the GJC company and granted by the Vice-Chancellor. The Lord Chancellor then affirmed the orders. However, he had a large financial interest in the company. Dimes successfully appealed on the basis that the Lord Chancellor should be disqualified for bias and his affirmation of the orders was set aside. Pinochet This case provides a rare example of where a non-financial personal interest was found to amount to direct bias. Pinochet (No 1): In R v Bow Street Metropolitan Stipendiary Magistrate Court, ex parte Pinochet Ugarte (No. 1) [2000] 1 AC 61, the House of Lords held by 3 to 2 that the Chilean Senator Pinochet could be extradited from the UK to Spain on an international warrant alleging crimes against humanity. Pinochet had claimed that he enjoyed state immunity because he had been the President and therefore Head of State of Chile at the relevant time. Pinochet’s legal team then discovered that one of the law lords in the majority, Lord Hoffmann, was a Director of Amnesty International’s charitable arm and that his wife had worked for its International Secretariat. This was relevant because Amnesty Int. had been given permission to ‘intervene’ in the case and had made submissions. In Pinochet (No 2) [2000] 1 AC 119, a new panel of the House of Lords set aside the earlier decision on the ground that Lord Hoffmann was automatically disqualified. Lord Goff took the view that Hoffmann was disqualified simply because he was closely connected with a party to the proceedings. Lord Browne-Wilkinson’s approach was slightly different. He held that Hoffmann was disqualified because his decision would lead to the promotion of a cause in which he was involved together with one of the parties. Note that there was no contention that Lord Hoffmann had actually demonstrated bias.

Question 36

Further case law

Answer 36

In Helow v Secretary of State for the Home Department [2008] UKHL 62, Lord Mance cited Lord Browne-Wilkinson’s formulation in Pinochet. He emphasised that mere membership of an organisation would not satisfy the principle in Pinochet. A judge would have to be actively involved in the organisation and that organisation would have to have been a party to the impugned proceedings in order for the principle to apply. It should be noted that in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483, Ouseley J took the view that that the rule in Pinochet only applies to people exercising judicial functions and not to members of a local authority. See also, the slides below, concerning the courts’ more recent views on the House of Lord’s rationale in the Pinochet case.

Question 37

Indirect bias

Answer 37

In cases where the decision-maker does not have a direct interest, the assessment of bias will depend upon the particular circumstances of the case. The law is now governed by the key decision in Porter v Magill [2002] 2 AC (HL) which superseded the old test from the case of R v Gough [1993] 2 All ER 724 (HL). The test in Porter v Magill was set down by Lord Hope, who stated: ‘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’. This rule applies equally to all public decision-making bodies, and not just tribunals.

Question 38

Case law

Answer 38

In Helow v Secretary of State for the Home Department, the appellant was a Palestinian whose asylum claim was rejected on appeal by Lady Cosgrove in the Scottish Court of Session. It was subsequently discovered that Lady Cosgrove was a member of the International Association of Jewish Lawyers and Jurists (IAJLJ). The appellant was involved politically with the PLO and she appealed to the House of Lords on the basis that the IAJLJ was, inter alia, 'anti-Palestinian' and that its president, an Israeli judge, had made certain loaded political comments in speeches. The Lords distinguished this case from Pinochet on the basis that the IAJLJ had not intervened in the proceedings, whereas Amnesty International had done so in that case. Assessing the case with reference to the Porter v Magill test, the law lords dismissed the appeal. They stated that, if Lady Cosgrove had personally expressed the type of views of the nature complained of in the president’s speeches, she would have been disqualified. However, there was nothing apart from membership of the Association to link her with any of these views. She had been in no different position than any judge, who might or might not have views about issues which came before the court, but who was expected to put them aside and decide the case according to law.

Question 39

Pinochet revisited

Answer 39

More recently, in R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168, Rix LJ expressed scepticism about treating the principles in Pinochet and Porter v Magill as separate doctrines. He drew on Lord Hope's observation in Meerabux v Attorney-General of Belize [2005] 2 AC 513 that it is likely that the law lords in Pinochet would have applied the test in Porter v Magill, had it been available at the time, rather than appearing to extend the remit of direct bias. Rix LJ (in Kaur) thought that it was possible to see Pinochet as a strand of the doctrine in Porter v Magill involving indirect bias.

Question 40

Examples of bias in operation: (i) unauthorised participation or presence

Answer 40

Participation in a decision, or mere presence when the decision is taken, by someone who may be biased (even if they are not a member of the decision-making body), may invalidate a decision. In R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452, a decision taken by a local authority committee to revoke a trader’s market licence, because he had urinated in the street, was quashed. This was in part because the market manager, who had reported the matter to the committee, was present when the decision was made. The rule against bias has been strengthened with the development of human rights case law in the UK. In R (Beeson) v Dorset County Council [2003] HRLR 11 a question was raised regarding the compliance of the decision-making process with Article 6(1) of the ECHR, which grants the right to be heard by an independent and impartial tribunal. In this case, a review panel on residential care was held to lack independence, because some of its members had already been involved in the case at an earlier stage. The court made it clear that in such cases it was important to consider the decision-making process as a whole.

Question 41

(ii) View formed in advance

Answer 41

Generally, the courts require bodies to exercise decision-making power fairly and objectively. Therefore, if in some way the body has already formed a view of the matter in question before considering its decision, the courts may intervene because this demonstrates the real possibility of bias having occurred. In R v Kent Police Authority, ex parte Godden [1971] 2 QB 662, a police authority was considering whether or not to retire a police officer because of disability. Before deciding, the authority was required to consult a doctor. The doctor chosen was someone who had already examined the officer in question on an earlier occasion and had concluded that he was suffering from a mental disorder. As a result of this, the Court of Appeal held that he should not have been involved in the decision of the police authority, as he had already formed a view on the matter in question and would therefore have been unlikely to have advised the authority objectively.

Question 42

Further case law

Answer 42

This principle may also be infringed where a number of different bodies are involved in a case, and the same person is a member of more than one. In Hannam v Bradford City Council [1970] 2 All ER 690, a teacher was dismissed by school governors. A committee of the council was empowered to approve or prohibit her dismissal and decided to approve it. However, this decision was quashed because three out of ten members of the committee (including the chairman) were also governors. The principle discussed above does not apply where only a provisional view, as opposed to a definitive conclusion, has been reached. See for example R v Reading BC, ex parte Quietlyn Ltd. [1987] 85 LGR 387. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 the House of Lords had to consider whether a member of a disability appeal tribunal (part of the Benefits Agency) was biased because she had a special interest in and experience of preparing reports for the Benefits Agency. The House again approved the use of the Porter v Magill test and concluded that there was no real possibility of bias in this case.

Question 43

Autonomy of decision-makers

Answer 43

In the case of R (Lewis) v Persimmon Homes (Teeside) Ltd [2008] EWCA Civ 746, the Court of Appeal effectively stated that a predisposition of local councillors in relation to a planning application was not unlawful: they were entitled to have an opinion and justified in taking a general political position. It would only be if they could be shown to have had a 'closed mind' in relation to the specific application (i.e. that they had actually pre-determined it), that their decision could be quashed for bias. This case is quite notable as a strong judgment on the need for the courts to respect the political autonomy of local councillors. The Localism Act 2011, s 25(2) now makes it clear that a decision-maker will not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because s/he had previously done anything that directly or indirectly indicated what view the decision-maker took (or would or might take) in relation to a matter. (The section only applies to local authorities, the National Park Authority and the Broads Authority.)

Question 44

(iii) Policy bias

Answer 44

Allegations of bias may arise where a government department, having formulated a particular policy, must then hear objections against the policy, as in Franklin v Minister of Town and Country Planning [1948] AC 87. Given the commitment of a department to its policy, how, it might be asked, can it consider objections impartially? (Note that there is an overlap here with the idea of fettering of discretion, dealt with in Topic 2 under illegality.) In Franklin, the House of Lords said that the only obligation on the part of the department in such a case is genuinely to consider objections submitted. If this is done, the fact that the department has adopted a particular point of view, because of policy on its part, will not invalidate the decision. The principle was repeated in Ridge v Baldwin. (Refer to the element relating to the right to be heard).

Question 45

(iv) Necessity

Answer 45

In rare cases, the duty to act fairly will have to give way to necessity. For example, if only one person is empowered to decide a question, then they cannot be disqualified for bias, because no decision could then be made. In Dimes, having set aside the decision made by the Lord Chancellor because of his pecuniary interest in the case, the House of Lords then dealt with the appeal on its merits, and affirmed the decision made by the Vice-Chancellor. However, before the appeal could proceed from the Vice-Chancellor to the House of Lords, the Lord Chancellor had to sign an order for enrolment, which no one else was empowered to do. His interest in the case did not, therefore, prevent him signing the order, as otherwise the proceedings could not have progressed further. In Wilkinson v Barking Corporation [1948] 1 KB 721, a statute gave local authority employees pension rights under certain conditions. The statute also provided that any dispute should be decided firstly by the local authority itself and then, on appeal, by the minister. The Court of Appeal, somewhat reluctantly, upheld the power of the authority to decide disputes. Scott LJ commented on the statute: '... its first provision is to subject the duty to pay to the jurisdiction, not of a court, not of a lay tribunal, not even of an impartial third party, but of the debtor himself! That almost converts its right into a mere discretionary privilege. At any rate the local authority is made, purely and simply, a "judge in its own cause".'

Question 46

Summary

Answer 46

We have considered the following aspects of procedural impropriety. -Common law procedural fairness -The rule against bias: • Direct bias (Dimes) • Indirect bias (Porter v Magill) • the ‘fair-minded and informed observer’ test • This can be exemplified through cases of: • Unauthorised participation or presence • Pre-formed views • Policy bias • Necessity