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Judicial Review Procedural Improperity (Breach of an Express Provision…
Judicial Review Procedural Improperity
Breach of an Express Provision
Public Bodies
The procedure followed will typically be set out in a statute, statutory instrument or some other code or regulation
Other bodies
Rules may be set out in a constitution, code, contract or other document
Distinction between Mandatory and Directory Procedural Requirements
Mandatory
No-compliance affects the validity of the decision fatally
Directory
Non-compliance does not affect the validity of the decision
Wang v Commissioner of Inland Revenue
Court should consider 2 questions:
Did the legislature intend that the person making the decision should comply with the provision?
Did the legislature intend that failure to comply with the provision should render the decision null and void
Natural justice and Fairness
Errington v Wilson
Court considered a need for cross-examination
Held that to deny cross-examination was against principle of natural justice and fairness
Generally, these are taken to be an expression of the same underlying concept
Duty to give reasons
No general duty to give reasons
HMQ v Home Secretary ex parte Doody
The giving of reasons may be inconvenient but there are no grounds for why I should be against public interest
Lutton v General Dental Council
Even if there is no duty to give reasons and reasons are give , those reasons can be reviewed by the court
Right to be Heard - 'Audi Alteram Partem'
Ridge v Baldwin
No common law duty to give a hearing
Held Natural justice held that there was a requirement for a hearing before exercising the power
Rule aginst Bias - Nemo iudex in sua causa
No man should be a judge in his own cause
Potential Bias - possible disqualification
-Locabail (UK) ltd v Bayfield Properties Ltd
there has to be a reasonable assessment of the bias, a loose connection to a fact/element of the case and an element of a decision-makers life cannot suffice
Actual Bias - Automatic Disqualification
R v Bow Street Metropolitan (Pinochet)
One judge had interest in amnesty international who campaigned for the extradition.
the initial decision held risk of bias.
Makes no difference principle
The effect of section 84 means that the high court is barred form granting relief if the outcome is highly unlikely to make a difference
Irrationality
Requires the court to decide if the decision can be said to be unreasonable
Association Provincial Picture Houses Ltd v Wednesbury Corporation
the court may set aside a decision for being unreasonable only when an authority has come to a conclusion so unreasonable that no reasonable authority could ever had to come it
International Ferry Traders Case
Decision not to provide full-time police protection against animal right protesters was found not to meet the test