JR: Procedural Impropriety Flashcards
What does the procedural impropriety ground cover?
1) Failure to observe procedural statutory rules
2) Duty to act fairly
What was the historic approach to breach of procedural statutory rules?
Breach of a mandatory requirement - invalidate a decision automatically
Breach of discretionary - not automatically discredited
What is the more modern approach to procedural impropriety?
Would Parliament have intended that non-compliance should result in the quashing of the relevant decision?
What are the two central common law rules regarding the duty to act fairly?
1) The right to be heard
2) The rule against bias
What two questions should you ask when considering the court’s approach to the duty to act fairly?
1) When does the duty to act fairly arise?
2) What level of duty to act fairly is owed by the decision maker?
When does the duty to act fairly now arise?
In all cases
How should you judge what level of duty to act fairly is owed?
Depends on the nature of a decision, and the context of the legal issue - the more that is at stake to the individual, the higher the level of fairness they should have been owed
How does the court distinguish between forfeiture and application cases in considering the level of the duty to act fairly that need apply?
Forfeiture - higher level of fairness should be expected
Application cases - lower level for ‘mere applicants’
Intermediate category - legitimate expectation - occur where conditions laid down mean you might consider yourself entitled to one thing or another
In what cases might the court decide that the duty to act fairly is less important?
Issues of national security
Public safety / emergency cases
What are five key ground of challenge in terms of the right to be heard?
1) Notice of the case against a person
2) Right to make representations
3) witnesses
4) Legal representation
5) Reasons
How does the right to make representations manifest itself?
No automatic right to an oral hearing - but there is a right to make representations more generally - written, etc.
What criteria will the court consider when judging whether oral hearings are required to meet the requisite standard of fairness?
Subject matter and circumstances of the particular case
Nature of the decision to be made
Are there substantive issues of fact that cannot be resolved on the available written evidence?
General point - if a body would be assisted in its task of making a decision by an oral hearing - should have one
You cannot refuse oral hearings purely as a means of saving time, trouble and expense
Sometimes - prevention on calling witnesses can be a breach
What are the rules on right to legal representation in hearings on fairness?
If the rules of a public body do not ban representation - body has discretion as to whether or not to allow it
No general right to be legally represented - can in fact be counter productive
What factors should be considered when judging the right to legal representation in hearings?
Seriousness of charge
Likelihood that a point of law may arise
Ability to conduct one’s own case
Need for a speedy process
What happens if someone is not given any reasons for a decision made about them?
No common law duty to give reasons - but there is a trend in terms of accountability to give reasons for administrative decisions
if it is a fundamental interest at stake - reasons must / should be given
In which direction is the court moving in terms of reasons for decisions?
Towards more accountability and giving rationale for any decisions - they should be given unless there is a proper justification for not doing so
How does direct bias affect the validity of a decision maker?
Invalidate a decision - sometimes called ‘automatic disqualification’
Even if the individual is only one of a group
No need to for actual bias - evidence of a direct financial interest will be sufficient to invalidate the decision
What approach will the court take to indirect bias, from Pinochet?
Applies to judicial cases only
Judge would have to be actively involved in a relevant organisation, and an organisation be a party to particular proceedings of relevance
What is the test from Porter v Magill which applies more widely in terms of indirect bias?
The question is whether the fair minded and informed observed, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
Give examples of bias in operation
Unauthorised participation or presence - e.g. someone involved in the case being there when a decision is made
members of a case involved at an earlier stage being included again at a later one
view formed in advance / pre-formed opinion
How do courts approach bias in policy?
A government department must genuinely consider objections submitted - but can stick by a reasoned decision
In what cases might the duty to act fairly give way sometimes?
Necessity - if the only person empowered to authorise a decision is the person with the bias,
