#15512 - Jr Procedural Improprietary - GDL Constitutional and Administrative Law

Con & Ad : JR, Procedural Impropriety

Procedural Improp (third ground of Lord Diplock, GCHQ), covers two areas:

• (a) failure to observe procedural statutory rules

• (b) general duty to act fairly.

(a) Failure to observe procedural rules

• Extension of the basic principle of ultra vires; closely related to ground of illegality.

• Requires public bodies to follow procedural requirements laid out in statute.

In the past, courts distinguished between mandatory and directory procedural requirements

• Mandatory or directory

• Mandatory procedural requirement compulsory. Breach = invalidates decision.

• Directory procedural requirement not compulsory. Failure to comply would not invalid the decision; but in some circumstances substantial compliance would be requirement.

• Old strict approach--Aylesbury Mushrooms (1972):

  • The Industrial Training Act 1964, s1(4) provided: ‘Before making an industrial training order the Minister shall consult any organisation/association of organisations appearing to him to be representative of substantial numbers of employers engaging in the activities concerned ... .[and any organisation/association] representative of substantial numbers of persons employed in those activities’.

  • DM, the minister, sought to send the Mushroom Growers’ Association a copy of the draft Order, but this never arrived.

  • Both sides agreed it was up to the minister to decide which organisations appeared to him to be ‘representative’. –purely subjective test.

  • It was clear the Minister had decided that the Mushroom Growers’ Association was representative—and once he had decided this, he had to consult it. Was a mandatory requirement. Court held Mushroom Growers’ Association had not been consulted.

• Original approach—failure to observe procedural rules = automatic breach.

Now approach is more flexible

• Approach now from Soneji: what is the impact on the decision: what is the consequences of non-compliance with the procedural requirement; and whether Parliament could have intended the outcome of that non-compliance to have been the invalidity of the decision?

  • R v Soneji (2006), HL:

  • A case on procedural requirements in criminal cases.

  • But applied by CA in admin law cases:

  • JN (Cameroon) v SSHD (2009), CA:

  • asylum application turned down, ordered deportation to Cameroon.

  • The last letter he got didn’t mention Cameroon.

  • Claimed failure to follow procedure—the last letter didn’t mention Cameroon.

  • HELD: that one procedural failure, on one document, didn’t impact the decision, trivial detail. The failure to specify the country/territory that JN was to be deported on his deportation notice (under Immigration (Notices) Regulations 2003), did not invalidate the order to deport him.

  • The purpose of the requirement was to assist the person concerned in relation to any appeal, and JN’s ability to present his appeal was not impaired by the failure to state the destination. Moreover, was clear from the correspondence relating to the deportation decision that the intention was to deport him to Cameroon.

  • Followed in R (Herron) v The Parking Adjudicator (2011), CA-minor irregularities, didn’t impact decisions. CA upheld the parking adjudicator’s decision that minor irregularities in road signs and road markings in the Sunderland Controlled Parking Zone did not invalidate the 39 penalty notice charges accumulated in that zone by the claimant.

  • R (on the application of Moseley) v London Borough of Haringey (2014), SC:

  • A failure by a local authority to consult interested parties, as required by the terms of the Local Gov Finance Act 1992.

  • The relevant statutory requirement was held not to have been properly complied with when the respondent local authority published a draft Council Tax Reduction Scheme for the borough.

  • SC HELD: the requirement of consultation implied that, to be effective and fair, the process had to ensure ‘meaningful participation’ (Lord Reed) by those consulted. Hence they needed to be provided with an outline of realistic alternatives to the authority’s proposals and reasons for its preferred policy.

(b) Duty to act fairly

• Used to be called ‘natural justice’ now a ‘duty to act fairly’

• (1) When does it apply?

• (2) What is the level of duty?

• (3) What is the content of the duty? –Two central common law rules of ‘natural justice’/duty to act fairly:

  • ((a) Right to be heard---Audi altem partem (‘the other side must be heard’)—generally taken to mean that a person affected by a decision made by a public body should be given the opportunity to present his/her case.

  • b) Right against bias—Nemo judex in causa sua (‘no one should be a judge in their own cause’).

• GCHQ, Lord Roskill: suggested the traditional term ‘natural justice’ might be laid to rest, and replaced by the more modern term of ‘act fairly’.

• Remember ECHR Art 6, now operates in tandem with common law duty to act fairly.

(1) When does it apply?

• In cases during late 1940s/early 1950s, courts adopted a narrow approach to issue of natural justice:

  • Cases were classified as dealing with either a ‘judicial’ or an ‘admin’ decision.

  • Admin decisions were deemed not to be subject to the principles of natural justice, whereas judicial decisions were, as they concerned justice in the purest sense.

  • This approach--HL, Franklin v Minister of Town and Country Planning (1948):

  • HL held: the the actions of the minister and his department were purely administrative in nature, and allegations of bias against the minister were thus not relevant—in effect, natural justice did not apply in that situation.

  • As long as the correct procedure had been followed with regard to the objections (i.e. they had been received and an inquiry had been held), the court was not prepared to interfere.

  • Similar issues in Nakkuda Ali v Javararatne (1951)

• Turning point, HL, Ridge v Baldwin (1964)

  • Change in judicial policy: does matter whether the decision was administrative or judicial—natural justice (aka ‘duty to act fairly’) to both.

  • Mr Ridge, Chief Constable of police, Sacked from job for negligence, in accordance with statute, without a hearing.

  • Majority H held: he had been impliedly entitled to prior notice of the charge against him and a proper opportunity of contesting it.

  • Said he had right to a fair hearing.

  • Council said, don’t need to give far hearing, as we’re an administrative body.

  • HELD: court said everyone had duty to be treated ‘fairly’ applies to all administrative bodies, applies in every decision-making process.

  • There was an obligation to observe natural justice in the exercise of a statutory function affecting the rights of an individual.

  • The question for course is the extent of the ‘justice’ required in any given situation—an administrative decision would merely attract a lower level of ‘natural justice’, rather than none at all.

• Backed up in Re HK (an infant) (1967)—court recognised a duty of fairness

  • Under immigration provisions, HK was entitled to enter the UK if the immigration officer was satisfied he was under 16. The officer believe he was at least 16 and refused him permission to enter.

  • HK asked for decision to be quashed, claiming the officer was acting judicially and had not treated him accordingly.

  • Held (Lord Parker CJ): the officer was not acting judicially, but nevertheless was obliged to act fairly. Given that he had done so, the court found-- the claim failed.

• So duty of fairness in play since 1964, in relation to all decision-making processes, whether administrative or judicial

• Exceptions:

  • National security, eg GCHQ.

How to the courts apply the duty to act fairly?

• It safeguards the interests of the individual; is a restraint on the actions of various authorities.

• Expanding case law: courts widening circumstances in which ready to find duty to act fairly.

• So duty of fairness in play since 1964, in relation to all decision-making processes

• Exceptions (De Smith, certain situations in which the duty of fairness can be overridden completely or significant modified:

  • (a) National security issues, eg GCHQ, where held that the duty to consult trade unions prior to banning them was overridden by national security concerns about strike action during any such consultation. (this was a legitimate interest case’

  • (b) emergency cases: where public safety demands urgent actions, eg R v SoS Transport, ex p Pegasus Holdings (1989).

  • (c) Rationing of resources cases, where the authority cannot be expected to put forward a detailed case. R v Cambridgeshire AHA, ex p B (1995): where held that a health authority did not have to give detailed reasons for its conclusion that it would not offer expensive cancer treatment to a child patient because of scare resources.

  • (d) Cases where a person has waived right to fairness (Lloyd v McMahon 1987)).

(2) What is the level of the duty to act fairly? depends on circumstances

• Level of duty depends on general context of the legal issue in question.

• Durayappah v Fernando (1967), PC

  • A gov minister in Ceylon (Sri Lanka) had dissolved a local council, without giving it or any of its councillors a chance to make representations in its defence.

  • PC held: this was unlawful.

  • 3 broad considerations to be borne in mind:

  • Sliding scale--3 stages—(1) nature/status of the property held/status enjoyed/services to be performed by the complaint of injustice; (2) circumstances in which the personal is claiming to be entitled to exercise the measures of control entitled to intervene; (3) sanction

  • (1) look at nature or status of person/organisation which is the subject of the decision.

  • (2) what circumstances surrounding the D-M process (any allegations...