Public Law L5 - Procedural impropriety

Question 1

What is the third ground of judicial review? (1)

Answer 1

Procedural impropriety.

Question 2

What does procedural impropriety concern? (2)

Answer 2

It concerns a public decision-maker’s failure to follow correct statutory procedure and / or to act fairly in a more general sense, as measures against common law standards.

Question 3

What two areas does procedural impropriety cover? (2)

Answer 3

Failure to observe procedural statutory rules and duty to act fairly (common law fairness).

Question 4

What is failure to observe procedural statutory rules? (3)

Answer 4

It is essentially an extension of ultra vires and closely related to illegality. It requires public bodies to follow requirements of a procedural nature that have been laid down in statute and is sometimes called procedural ultra vires.

Question 5

What are the two types of procedural requirements? (2)

Answer 5

Mandatory and directory / discretionary

Question 6

Difference between mandatory and directory requirements? (1)

Answer 6

Breach of a mandatory requirement would invalidate a decision. Breach of a directory requirement would not automatically invalidate a decision.

Question 7

What is the courts approach towards determining if a procedural requirement is mandatory or discretionary? (3)

Answer 7

It has become more flexible and the judiciary tend to focus on the consequences of non-compliance. They ask whether parliament could have intended that non-compliance should result in a quashing of a relevant decision.

Question 8

What two common law rules does duty to act fairly have? (2)

Answer 8

The right to be heard and the rule against bias.

Question 9

What does the right to be heard mean? (1)

Answer 9

A person affected by a public law decision should be given the opportunity to present their case.

Question 10

What does the rule against bias mean? (1)

Answer 10

Decision makers cannot act fairly if there is a risk that they may be biased.

Question 11

What does the court consider before considering the right to be heard and the rule against bias? (2)

Answer 11

The court will consider when does the duty to act fairly arise? And what level of duty to act fairly is owed by the decision maker?

Question 12

What does the appropriate level of fairness owed to the claimant by the public body depend on? (3)

Answer 12

The nature of the decision and the context of the legal decision – the more there is at stake to the individual the higher the level of fairness they should have been owed.

Question 13

What have the courts developed in regard to licensing issues? (1)

Answer 13

A spectrum approach.

Question 14

What countervailing circumstance may affect the application of duty and the extent to which a duty to act fairly is limited to? (2)

Answer 14

If there are issues of national security or in emergency cases, where public safety demands urgent action.

Question 15

What happens once the level of fairness owed has been determined? (1)

Answer 15

The so-called ‘content’ of the fairness needs to be considered.

Question 16

What are the broad elements which tend to be the focus of challenge regarding the right to be heard? (5)

Answer 16

Notice of the case against a person, right to make representations, witnesses, legal representation and reasons.

Question 17

What is notice of the case against a person? (2)

Answer 17

The right for a person to have notice of the case against or involving them. If this has not happened, it will mean that that person is unable to make any effective representations in response.

Question 18

What is the right to make representations? (1)

Answer 18

A person should be given the right to make representations as part of the decision-making process.

Question 19

Is there an automatic common law duty to hold personal or oral hearings? (1)

Answer 19

No.

Question 20

What should we consider when deciding if an oral hearing is required? (3)

Answer 20

The subject matter and circumstances of the case, the nature of the decision to be made and whether there are substantive issues of fact that cannot be resolved on the available written evidence.

Question 21

What should a public body guard against in regards to oral hearings? (1)

Answer 21

Refusing oral hearings as a mean of saving time, trouble and expense.

Question 22

What does case law suggest in regard to right to legal representation? (2)

Answer 22

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.

Question 23

Is there a general right to be legally represented? (1)

Answer 23

No.

Question 24

What should we consider when deciding if there is a right to legal representation? (4)

Answer 24

The seriousness of the charge, the likelihood that a point of law may arise, the ability (or not) of the person to conduct his own case and the need for a speedy process.

Question 25

What is meant by right to reasons? (1)

Answer 25

An applicant may argue a decision should be quashed because they were not given reasons for the decision taken.

Question 26

Is there a common law duty to give reasons for a decisions? (1)

Answer 26

No.

Question 27

What is the future trend regarding reasons? (1)

Answer 27

Reasons should be given unless there is a proper justification for not doing so.

Question 28

What does the rule against bias do? (2)

Answer 28

Disqualifies a person with bias from deciding a matter and will lead to the quashing of any decision so made.

Question 29

What is direct bias? (2)

Answer 29

Any direct bias, such as pecuniary interest on the part of the decision-maker, will invalidate the decision, unless this very strong presumption can somehow be rebutted.

Question 30

Does decision-maker have had to acted corruptly to prove direct bias? (2)

Answer 30

No, evidence of a direct financial interest will be sufficient to invalidate a decision.

Question 31

What is indirect bias? (2)

Answer 31

Where the decision-maker does not have a direct interest, the assessment of bias will depend upon the particular circumstances of the case.

Question 32

What do we consider when determining if there has been indirect bias? (2)

Answer 32

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 (or any public decision-making body) was biased.

Question 33

What is meant by unauthorised presence or participation? (1)

Answer 33

Participation in a decision, or even mere presence when the decision is taken, by someone who may be biased, may invalidate a decision.

Question 34

What is meant by views formed in advance / pre-formed opinion? (2)

Answer 34

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 of the real possibility of bias.

Question 35

What is meant by policy bias? (2)

Answer 35

Where a government department, having formulated a particular policy, must then hear objections against this policy. This idea overlaps with fettering of discretion ground of illegality.

Question 36

What is the obligation on the public body regarding policy bias? (2)

Answer 36

To genuinely consider objections submitted. If this has been done, the decision will not be invalid.

Question 37

What is meant by necessity? (2)

Answer 37

In some rare cases, the duty to act fairly will have to give way to necessity, e.g. if only one person is empowered to decide a question, they cannot be disqualified for bias