significance of Baggs case
it appears that they have proceeded against him without hearing him answer to what was objected, or that he was not reasonably warned, such removal is void and shall not bind the parties’
reinforcing natural justice
how has administrative law moved on from natural justice
Diplock, GCHQ - - I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.’
ridge v baldwin
decision to dismiss chief constable was taken without giving notice or an opportunity to put across his side of the story
prior to this, procedural fairness captured cases where rights were affected and where the decision was judicial
- this distinction has now been removed
why is procedural fairness necessary
instrumental to the decision - result in better decisions
dignity - justice requires a procedure which pays due respect to persons whos rights are significantly affected - Osborn
democracy
which case emphasises the importance of context
Lloyd v MacMoahon
need to look at character of decision, rights affected and statutory framework
notice - the right to be informed
must be informed of gist of case which he has to answer
Doody
notice - right to know the case against
notice is required because individual must be in a position to challenge the decision in the courts if they wish to do so
constitutional principle of our legal system
hearings
related to notice
oral argument is perhaps most powerful force in our legal system - Sengupta v Holmes
depends on context
where liberty is at stake, more readily enforced - Osborn
hearings in cases beyond liberty
examples:
- Cooper - house demolsihed w/o hearing
- Ridge v baldwin
- Bank Mellat
statutory duty to consult
legislation may require consultation
failure to comply with this duty results in the subsequent decision being void
criteria for consultations
Gunning
requirements are binding
- must be at time when proposals are still at a formative stage (so it can be properly influenced by the consultation)
- must give sufficient reasons for any proposal to permit of intelligent consideration and response
- adequate time must be given for consideration and response
- product of consultation must be taken into account
flawed consultation
Clifford case
timeline was rushed
specific common law duty
Bapio Action made clear there is NONE
duty to consult elderly before closing a care home - Baker
Specific duty arising out of a legitimate expectation based on either the nature of the interest affected or past practice of consultation - Coughlan
where does a duty to consult arise
- if there is a statutory duty to consult
- a promise to consult has been made
- established practice to consult
- not consulting would give rise to conspicuous unfairness
conspicuous unfairness
Art 39 case 2020
‘given the impact of these proposed amendments on the very vulnerable children in the care system, it was conspicuously unfair not to include those bodies representing their rights and interests within the informal consultation’
advantages of giving reasons
facilitate judicial review
focuses the decision makers mind
ensures that other objectives are not frustrated
increases public confidence in the administrative process
giving reasons
no general duty
factors in favour of giving reasons
nature of the interest affected
whether decision appears to be absurd - institute of dental surgery
reasons and other JR grounds
if a decision maker fails to give reasons, court may infer that no valid reasons exist - Padfield
absence of reasons is not irrationality, but if all other factors point to a different outcome to the one teh decision maker comes out with, may be considered irrationality - Lonrho
when is a decision maker biased
‘predisposition or prejudice against one partys case or evidence on an issue for reasons unconcerned with the merits of the issue’
- Flaherty
personal bias - financial interests
default rule is automatic disqualification - Dames
interest may also derive from a family member, provided that the link is so close and direct that the family members interest is indistinguishable from the decision makers - Locabail
personal bias - non financial interests
all cases in which the judge is a party because he has an interest in the outcome
R v Bow Street
Porter test
TEST YOU MUST REFER TOO
‘whether fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’
fair minded and informed
must not be ‘closed minded or unduly suspicious’ and musy be assumed to be in possession of all necessary facts - Gillies
must appreciate the context - Helow
