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Procedural Impropriety (What is the level of the duty? (Durayappah v…

- - - - Aylesbury Mushrooms (1972) - choosing who was representative of employers engaged in activities concerned was subjective - once chosen, consulting them was mandatory
      - R v Soneji (2006) - move towards more flexible approach - focus on the consequences of non-compliance and whether Parliament could have intended that to invalidate the decision
      - JN (Cameroon) (2009) - failure to specify country that JN would be deported to as required did not invalidate order to deport - purpose of requirement was to assist in appeal and appeal not impaired
- - - - Ridge v Baldwin (1964) - obligation to observe natural justice in exercising of statutory function affecting the rights of an individual - here entitled to prior notice of negligence charge against him and proper opportunity to contest before dismissal
      - Re HK (an infant) (1967) - doesn't matter if judicial or administrative - still obliged to act fairly
      - Exceptions?
        
        Professor De Smith - situations where duty can be overriden completely (unlikely) or significantly modified
        
        a) Overriding concerns relating to national security - GCHQ (legitimate expectation case)
        
        b) Emergency cases, where public safety demands urgent actions - R v SoS Transport ex p Pegasus Holdings
        
        c) Rationing of resources cases, where authority cannot be expected to put forward a detailed case - R v Cambridgeshire AHA, ex p B
        
        d) Cases where a person has waived their right to fairness - Lloyd v McMahon
- - - - Points to consider
        
        Livelihood at stake - case involved applicant's liberty to work, so a duty of fairness applied, and court could in principle intervene
        
        Forfeiture v application - distinction - where licence taken away from holder, higher level of fairness expected - notification of charge etc. will be appropriate - in application cases, concerns general suitability of the applicant and therefore notification of specific appoints may be impractical and inappropriate
        
        Legitimate expectation - these cases occur where conditions are laid down for the grant of a licence and an applicant satisfies them, entitling him to believe application will not be rejected without good reason - akin to forfeiture so level of fairness higher, though not as high as forfeiture
        
        Duty to provide reasons - applying the above principles, held that McInnes was a mere applicant, so only obliged to act fairly in general sense - no indication that they hadn't so no obligation to provide basic reasons for refusal
- - - - Most basic element of procedural fairness
        
        Ex p B (2000) - schoolboy permanently excluded for theft of teacher's bag - based on witness statement of pupil that B's parents were not allowed to see - held to be unfair - broad principle that if right to a fair hearing is to mean anything it must include the right to know the case against you
        
        Ex p Benaim and Khaida (1970) - must have sufficient indication of objections raised against them to as to enable them to answer - entitled to know gist rather than all of the details - note here they were mere applicants whereas in B he was having something taken away so higher standard of fairness
        
        Bank Mellat (no 2) (2013) - lack of notice - allowed to apply but could only be done some time after direction took place meaning damage to Bank's interests effectively already done - held considerable financial impact of ban brought about in a manner that deprived the bank of opportunity to make any meaningful representations to counter action - core ideal of fairness and principle of good administration
        
        R (on the appl of British Sky Broadcasting Ltd) (2014) - order to disclose documents made on basis of interim hearing, where evidence given in absence of applicant - held to conflict with procedure
    - - Depends on nature and process of decision-making
        
        Lloyd v McMahon (1987) - no automatic common law duty to hold person or oral hearings - here lack of a hearing held not to have affected fairness of decision
        
        Wright (2009) - test case challenging practice of Health Dept of putting NHS staff on provisional employment blacklist after allegations of abuse had been made - breach of duty of fairness owed to individuals who did not have opportunity to put representations forward to dispute before termination - Lady Hale said effect of provision listing followed by delay before merits of case examined was "draconian"
        
        Ex p Anderson (1992) - solider made complaint of racial discrimination - found on illegality grounds that Board had fettered its discretion by having an inflexible policy never to hold oral hearings - Taylor LJ said such hearings not necessary in all cases of this nature - set out criteria to consider whether oral hearings required to meet requisite standard of fairness
        
        a) Subject matter and circumstances of particular case
        
        b) Nature of decision to be made
        
        c) Whether there are substantive issues of fact that cannot be satisfactorily resolved on the available written evidence
        
        Smith v West (2005) - former prisoners called back after alleged breaches of licences - acknowledged that Parole Board not required to hold oral hearing in every case like this - only where would be assisted in task of assessing risk e.g. to assess character - raises issues of common law fairness and right to fair legal process under Article 6 ECHR
        
        Mackay (2011) - pragmatic view taken - oral hearing not required as no significant change to degree of risk posed by prisoner - direct impact of liberty so was high degree of fairness - hearing would have been appropriate if there were inconsistencies between views of Parole Board and Category A Review Team
        
        Osborn (2013) - Lord Reed on central importance of common law in upholding core principles such as fairness to the individual, the need to involve them in processes affecting their lives, and accountability and transparency in government - "the board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense" - found to have breached requirements of procedural fairness owed at common law by refusing oral hearing - still said need context
      - Multi-stage procedures
        
        No general right to be heard at initial stages, just at some appropriate point - however applicant may feel they are being granted the wrong type of hearing at the wrong time - Wiseman v Bourneman (1971)
    - - Depends on the nature of the body and proceedings in question - is a "legalistic" procedure appropriate - R v Hull Prison Board of Visitors, ex p St Germain (1979) - prisoners accused of rioting entitled to have alibi witnesses because of serious punishment that could be imposed
    - - No general right to legal representation
        
        Ex p Hone (1988) - no general right to legal representation - where rules of the body do not specifically exclude, usually have discretion to decide
        
        Pett v Greyhound Racing Assoc (1969) - where body quite legalistic in nature, usually discretion should be exercised in favour of representation - where excluded, this may be valid and will depend on context
        
        Ex p Tarrant (1985) - court suggested number of factors to be considered including seriousness of charge, likelihood of a point of law arising, the ability of the person to conduct own case, and need for a speedy process
    - - No common law duty to give reasons - may be imposed by statute e.g. Tribunals and Enquiries Act 1992
        
        Hasan (2008) - confirmed no common law duty
        
        Ex p Doody (1993) - giving reasons useful for detecting errors in the decision-making process - made three key points - no general duty - duty will exist where decision involves deprivation of liberty - may exist where otherwise impossible to conduct a judicial review
        
        Ex p Institute of Dental Surgery (1994)
      - Paul Craig/Article 6? - said general rule should be that reasons should be given
  - - - Dimes v Grand Junction Canal (1852) - pecuniary interest leads to automatic disqualification
      - Ex p Pinochet Ugarte (1999) - doesn't have to be pecuniary - limited to facts - also very contentious and political case so need for impartiality high
    - - Porter v Magill (2002) - test for bias - whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
      - Gillies (2006) - confirmed Magill test
      - Kaur (2011) - Magill test should be used for Pinochet cases
    - - Godden (1971) - if body has already formed a view of matter in question before considering, courts may intervene
      - Franklin (1948) - may be biased where government department, having formulated a particular policy or decided on course of action, must hear objections - said only obligation is to genuinely consider objections
      - Wilkinson (1948) - sometimes fairness must give way to necessity - e.g. if only one person is empowered to decide they cannot be disqualified - here dispute on whether local authority employees should be given pension rights under certain conditions was first decided by the local authority itself - reluctantly allowed