Lecture 16 PDF

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LECTURE 16: THE SUBSTANTIVE GROUNDS FOR JUDICIAL REVIEW – (iii) PROCEDURAL IMPROPRIETY – and REMEDIES CRITICAL ANALYSIS POINTS: 1. The three substantive grounds (including illegality/irrationality from LECTURE 15) are one examinable topic, without the procedural hurdles in LECTURE 14. 2. Procedural impropriety splits into (a) ‘procedural ultra vires’ - which may naturally overlap with illegality and (b) requirements imposed by common law (the ‘rules of natural justice’). 3. Procedural ultra vires splits into (a) mandatory and (b) directory requirements; which have different effects on the decision-maker for failing to comply. 4. Procedural fairness looks at (a) the scope of the duty, and (b) the content of the duty. 5. The content of the duty includes the rule against bias. 6. Remedies are included in this examinable topic.

THE THIRD GROUND - PROCEDURAL IMPROPRIETY The validity of a public decision may finally be challenged on procedural grounds. This may take the form of: (A) Statutory requirements (procedural ultra vires); and/or (B) Requirements imposed by the common law (procedural fairness); and/or (C) The rule against bias. (A) Procedural ultra vires The statutory framework governing the decision-making powers of a public authority may specify the procedures and procedural requirements that are to be followed when the authority makes its decisions. Such procedures can take a variety of different forms. For example, it may be required to conduct a hearing. It may be required to reach a decision and notify the relevant parties within a set time frame. This sub-division may overlap with simple ultra vires – see LECTURE 15. Mandatory v Directory requirements to comply A failure to comply with a statutory procedural requirement will not necessarily render the procedure or resulting decision invalid unless the statute specifies that it does. This is because the courts have proved unwilling to accept that every breach of a statutory procedural requirement, no matter how minor or unjust, is to operate to invalidate the decision. For years, this manifested itself in a distinction drawn by the courts between mandatory and directory procedural requirements. A ‘mandatory procedural requirement’ was one that was interpreted as being compulsory. Failure to comply with it would render the decision void. Failure to comply with a ‘directory

procedural requirement’ would not render it void, although in some circumstances substantial compliance would be required. The courts focus on the consequences of the non-compliance in the case and ask whether, in the light of those consequences, Parliament could have intended the outcome of that noncompliance to have been the invalidity of the decision (see Williams v Home Office (No 1) 1 All ER 1151; Wang v Commissioner of the Inland Revenue [1994] 1 WLR 1286; R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354; Attorney-General’s Reference (No. 3 of 1999) [2001] AC 91 and R v Soneji [2006] 1 AC 340). Bradbury v Enfield Borough Council [1967] 1 WLR 1311 – a local authority failed to give adequate public notice of the plan to change the status of schools. (B) Failure to act with procedural fairness Even where the statute does not prescribe any specific procedures, the common law may provide for some minimum standards of procedural fairness (formerly the ‘rules of natural justice’) that public bodies should adhere to. The first question is to determine whether procedural fairness is required in a particular situation. The next is what procedural fairness requires. . The Content of Procedural Fairness Procedural Fairness would normally require all or some of the following elements: (a) Advance notice of the case to be met. No-one can be expected to properly answer criticism if they do not know what this criticism is. E.g. Chief Constable for North Wales v Evans [1982] 1 WLR 1155 where a probationary constable had been ordered to resign from the police force following accusations about his private life. He was not informed about the accusations and so did not have an opportunity to refute them. All of the accusations were false. The House of Lords held that he had not been dealt with fairly. (b) Being given a reasonable amount of time to prepare a response see R v Thames Magistrates ex p Polemis [1974] 1 WLR 1371 where a ship’s captain was expected to appear in court on the same day he was summoned for causing pollution to the river. Again, this was held to be unfair. (c) An opportunity to make representations: see McInnes v Onslow Fane [1978] 1 WLR 1520. In R v Army Board of the Defence Council, ex parte Anderson [1992] 1 QB 169 , 187-188 Taylor LJ held: “The hearing does not necessarily have to be an oral hearing in all cases…Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence... Even

when such a hearing is necessary, it may only re-quire one or two witnesses to be called and cross-examined.” In some cases, written representations may satisfy the requirements of fairness - see R v Army Board of the Defence Council, Ex parte Anderson [1992] 1QB 169 (d) Allowed to cross-examine persons who may have made adverse statements to the decision maker. This will depend on the circumstances. In R v Hull Prison Board of Visitors ex p St Germaine (No 2) [1979] 3 All ER 545 hearsay evidence was admitted by prison officers not present at the disciplinary hearing following prison riots. The court said that this was inadmissible, because the prisoner could not challenge their version by cross-examination. However, contrast this solution with R v Gaming Board for Great Britain ex parte Benaim and Khaida [1970] 2 QB. (e) Allow legal representation. This is not a blueprint for legal aid, but means that normally legal representation should be allowed. In addition, any other form of representation would normally be permissible, such as a good friend, your parents etc. Useful guidance was provided in R v Home Secretary ex parte Tarrant [1985] QB 251 in which Justice Webster laid down a non-exhaustive list of six criteria that prison Boards of Visitors should take into account in determining whether or not to allow legal representation: (i) The seriousness of the charge and potential penalty (ii) Whether points of law are likely to arise (iii) The particular prisoner’s ability to present his case (iv) Any procedural difficulties (e.g. the inability of prisoners who have been kept in seclusion to interview potential witnesses before a hearing or to crossexamine without having seen the witness’s evidence beforehand) (v) The need for reasonable speed in reaching a decision (vi) The need for fairness between prisoners and between prisoners and prison officers NB. This case refers to prisoner’s rights, but MAY have application in other types of case. (f) Duty to be given a reason for the decision. The judiciary have reiterated time and time again that there is no general duty under the common law requiring decision makers to give reasons. However, a decision maker may still be under a duty to give reasons where fairness requires it. In R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, the then Justice Sedley identified two categories of decision for which reasons would generally be required. These were: (i) Where the subject matter of the decision involves a right or interest so highly regarded by law (eg personal liberty) that fairness requires that reasons must be given as of right (e.g ex parte Doody);

(ii) Where the decision appears aberrant and there is prima facie evidence that something has gone wrong (e.g R v Civil Service Appeal Board, ex parte Cummingham [1992] ICR 816 – the Board was held to be under a duty to give reasons for awarding a former prison officer £6,500 compensation for wrongful dismissal as there was good evidence for believing that an industrial tribunal would have awarded at least £14,240) In this situation, fairness may require reasons to be given to enable the recipient to determine whether or not the decision was legally flawed and therefore challengeable before the courts. Loss of rights All of these rights are flexible concepts, and not absolute, see Williams v Home Office (No 2) [1981]. Some applicants’ behaviour is such that they lose some or all of their rights, for example: (i) Unmeritorious behaviour by the applicant means that the court may decide that the right to any form of hearing has been forfeited; see Cinnamond v British Airways Authority [1980] 1 WLR 582; (ii) Where national security is at issue, the courts may decide that this overrides the requirements for natural justice. Note the potential importance of this in the context of terrorism legislation. See R v Home Secretary ex p Cheblak [1991] 2 All ER 319; Normally an applicant would have to exhaust all internal appeals and remedies on offer; see Thomas v University of Bradford [1987] 1 AC 795. (C) The rule against bias This means that a decision-maker must not act impartially or, at least, must not appear to have done so. Any decision maker who has a direct financial or personal interest in a decision is automatically disqualified from making that decision, irrespective of whether he would have been influenced by that interest or not. If he has already decided the issue, the decision will be set aside even if there was no evidence the financial or personal interest influenced his decision in any way. For example, in Dimes v Grand Junction Canal [1852] 3 HLC 759, the Lord Chancellor was disqualified by the House of Lords from deciding a case involving a canal company in which he had several thousand pounds worth of shares, notwithstanding that the House of Lords emphasised that it should not be supposed that the Lord Chancellor could have been influenced by the personal interest that he had in the canal company. This principle was extended in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [2000] 1 AC 119 to include judges who, whilst not having a direct personal interest in the case, did have a connection with a party that was advocating a cause in a case that they were hearing. This arose because Lord Hoffmann and his wife had connections with one of the organisations that had been given permission to intervene in an

earlier hearing before the House of Lords. When these connections came to light, the House of Lords reconvened and a different panel of Law Lords held that a judge would be automatically disqualified from hearing a case not only where he had a personal interest at stake but also where his decision would lead to the promotion of a cause advocated by an organisation with which he was directly involved. The decision of the previous panel of Law Lords would therefore be set aside. It would seem that the rule in the Pinochet case only applies to judicial bodies and not to members of a local authority (see Bovis Homes Ltd v New Forest District Council [2002] EWHC 483, para 87) The test for bias Where no direct financial or personal interest is involved, a decision maker will not be automatically disqualified, but his decision may still be set aside if some other form of apparent bias can be shown. The problem that the courts have faced has been in determining what the precise test for this should be. A large part of the twentieth century saw two different tests being used by the judiciary. The uncertainty and confusion that this caused was not resolved until R v Gough [1993] AC 646 in which the House of Lords held that the correct test was: ‘…whether there was a real danger of injustice having occurred as a result of bias’. ‘Real danger’ here referred to a real possibility of bias rather than a mere probability. However, this test was criticised for failing to take sufficient account of how accusations of bias would be perceived by the public. As a result, the test was modified by the Court of Appeal in Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 to: ‘…whether, having regard to the circumstances in which the suspicion of bias arose, a fairminded and informed observer would conclude that there was a real possibility or a real danger that the judge was biased’. This new test was upheld by the House of Lords in Porter v Magill [2002] AC 357, although it removed the words “…or a real danger” from the test to avoid future confusion. In R (on application of Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 - in which a member of the jury was an employee of the Crown Prosecution Service - Lord Bingham stated: “It is in my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full time salaried, long-serving employee of the prosecution.” REMEDIES What remedies may be available? There are three orders available solely through judicial review: 

Quashing order. This instructs the decision-maker to deliver the record of the decision to the office of the Administrative Court to be quashed (deleted).



Prohibiting order. This orders a body to refrain from illegal action. Also known as a ‘negative injunction’.

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Mandatory order. This is designed to ensure performance by a public body of its duty. Sometimes sought with a quashing order to require a decision-maker to go through the process again. Also known as a ‘positive injunction’.

A successful applicant may also be awarded other types of injunction, or declarations and/or damages in appropriate circumstances - although these particular remedies are not exclusive to judicial review. Compensatory damages are only ever awarded together with an order – never without one....