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Procedural impropriety as a concept covers two areas: - Coggle Diagram
Procedural impropriety as a concept covers two areas:
1)
Failure to observe procedural statutory rules
This type of error is essentially and extension of the basic principle of ultra vires, and is closely related to the ground of illegality.
It requires public bodies to follow requirements of a procedural nature that have been laid down in statute. It is sometimes called ‘procedural ultra vires’.
Historical approach
- involved a distinction between mandatory procedural requirements and directory procedural requirements. Breach of a mandatory requirement would invalidate a decision, whereas failure to comply with a directory (or discretionary) requirement would not automatically do so. (Aylesbury Mushrooms)
Modern approach
- Following the case of R v Soneji, the judiciary now focus on the consequences of non-compliance with the statutory requirement. They ask whether Parliament could have intended that non-compliance should result in a quashing of the relevant decision (JN (Cameroon)).
2)
Duty to act fairly
(common law fairness)
A decision-maker must act in accordance with a duty to act fairly. The nature and extent of this duty will depend on the circumstances, the nature of the decision-maker and the decision in question.
Secondly
, there are two central common law rules concerning the duty to act fairly:
a.
The right to be heard
A person affected by a public law decision should be given the opportunity to present their case.
What the claimant may have wanted by way of fairness will vary according to the particular context of the decision in question.
There are five broad elements which have tended to be the focus of such challenges:
1)
Notice of the case against a person
Most basic element - the right for a person to have notice of the case against or involving them.
A failure to inform a person of the evidence against them, or of a decision taken that affects their interests, will mean that that person is unable to make any effective representations in response (ex p B).
Once they have been informed, they must be given a reasonable amount of time to respond, prior to the actual decision being made (ex p Polemis).
2)
Right to make representations
Whether a person should be given the right to make representations as part of the decision-making process. This will depend on the nature of the decision and the process itself.
There is not an automatic common law duty to hold personal or oral hearings.
3)
Witnesses
The duty to act fairly may be infringed if a person is not allowed to call witnesses, or cross-examine witnesses appearing against him. This will depend on the nature of the body and proceedings in question and on whether the court feels that a ‘legalistic’ procedure is appropriate (ex p St Germain).
4)
Legal representatives
Case law suggests that, 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.
There is no general right to be legally represented, and it can in fact be counter-productive (ex p Hone).
A number of factors to be considered (ex p Tarrant):
seriousness of the charge
likelihood that a point of law may arise
ability (or not) of a person to conduct his own case
need for a speedy process
5)
Reasons
An applicant may argue that a decision should be quashed because they were not given reasons for the decision taken.
A duty to give reasons may be imposed by statute (e.g. by the Tribunals and Inquiries Act 1992 on all tribunals listed in Schedule 1 of the Act).
There is no clear common law duty to give reasons for a decision (R (Hasan)).
However, there is a modern trend towards the desirability of giving reasons for administrative decisions, as part of the general attempt by the courts to promote the values of accountability and ‘good administration’ in public life. In particular, where a fundamental interest is at stake, fairness would seem to require reasons to be given.
b.
The rule against bias
Decision-makers cannot act fairly if there is a risk that they may be biased.
'...justice should not only be done but should manifestly and undoubtedly be seen to be done' (ex p McCarthy).
The rule against bias disqualifies such a person from deciding a matter and will lead to the quashing of any decision so made.
The rule can be divided into two elements:
1)
Direct bias
Any direct bias, such as a pecuniary interest on the part of the decision-maker, will invalidate the decision. This is sometimes referred to as ‘automatic disqualification’. The extent of this interest is irrelevant, as long as it is not too remote, as is the state of knowledge of the decision-maker.
If a decision is taken by a group of individuals (e.g. local authority or a committee) a pecuniary interest on the part of any one member will be sufficient to invalidate the decision. (Dimes)
2)
Indirect bias
In cases where the decision-maker does not have a direct interest, the assessment of bias will depend on the circumstances of the case.
The test - 'The question is whether the fair-minded and informed observe, having considered the facts, would conclude that there was a real possibility that the tribunal was biased' (Porter v Magill).
Examples of bias in operation
:
Unauthorised participation or presence
(ex p Hook / R (Beeson))
View formed in advance/pre-formed opinion
(ex p Godden / Gillies)
Policy bias
- allegations of bias may arise where a government department, having formulated a particular policy, must then hear objections against the policy (Franklin)
Necessity
- in 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, then they cannot be disqualified for bias (Dimes)
Firstly
, we must consider the following two questions, which reflect the approach of the courts:
a.
When does the duty to act fairly arise?
Historically
- cases were classified as dealing with either a ‘judicial’ or an ‘administrative’ decision. Administrative decisions were deemed not to be subject to the principles of natural justice, whereas judicial decisions were.
Now
- no longer matters whether a decision was administrative or judicial. It applies universally now. The question concerning the court should be the extent of the ‘justice’ required in any given situation. An administrative decision would merely attract a lower level of ‘natural justice’, rather than no ‘justice’ at all (Ridge v Baldwin)
b.
What level of duty to act fairly is owed by the decision-maker?
This will vary considerably depending on the nature of the decision and the context of the legal issue. Essentially, the more that there is at stake to the individual, the higher the level of fairness they should have been owed.
'Depends on the character of the decision-making body, the kind of question it has to make and the statutory or other framework in which it operates’ (Lloyd McMahon).