Chapter 13 Answers to quick test questions

Judicial review: procedural impropriety

1. What are the benefits of the rules of natural justice?

The rules of natural justice can be summarised as the right to be heard and the rule against bias. These two core rules have been developed by the courts to ensure that decisions are reached fairly and that the decision-making process is sustainable.

The right to be heard ensures that those subject to a decision have been involved in the decision-making process and have been able to express their point of view. (The extent of the involvement will depend on the nature of the decision and the importance of the issue.) As for the rule against bias, this is important because decisions are only likely to be accepted by those who are negatively affected by the outcome if the decision-maker is free from bias, and also because decisions tainted by bias are likely to harm confidence in the decision-making process more generally.

2. When considering procedural requirements laid down by statute, do the mandatory/directory categories remain useful?

Statute can impose requirements on how a public authority can reach a decision. If these requirements have not been met, then the decision can potentially be challenged on the basis that the procedure laid down in statute has not been complied with. However, it has long been established by the courts that not every breach of procedural requirement will necessarily invalidate a decision. The courts developed a distinction between ‘mandatory’ requirements, which must be followed for the decision to be valid, and ‘directory’ requirements, which are expected to be followed but do not invalidate the decision if not followed. The effect of this was that decisions would not be declared void if the procedural error was minor.

However, more recently the courts, particularly in the case of R v Secretary of State for the Home Department, ex p Jeyeanthan,1 have framed the issue by asking three questions which can be summarised as follows:

  1. Has there been substantial compliance in the case in issue even though there has not been strict compliance?
  2. Is the non-compliance capable of being waived? If so, has the non-compliance been waived?
  3. If the non-compliance not capable of being waived or has not been waived then what is the consequence of the non-compliance?

In R v Soneji, Lord Steyn in the House of Lords considered that the ‘rigid mandatory and directory distinction … have outlived their usefulness’, preferring to focus on the consequences of the non-compliance and considering whether Parliament could have intended that the failure to comply with a requirement should mean the ‘total invalidity’ of the decision in question.2

3. What is the significance of the judgment in Ridge v Baldwin?

The judgment in Ridge v Baldwin is a hugely significant case.3 After the war, some cases cast significant doubt on the extent of the right to be heard, but the House of Lords – and in particular Lord Reid’s judgement – reasserted the traditional approach to the right to be heard, and that the content of this right will depend on the context in which the decision is made.

4. To what extent does a duty to give reasons exist at common law?

There is no general common law duty to give reasons, however a duty to give reasons can be imposed at common law in certain circumstances. The position was summarised as follows in R v Higher Education Funding Council, ex pare Institute of Dental Surgery4:

  1. There is no general duty to give reasons for a decision, but there are classes of case where there is such a duty.
  2. One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right.
    • a) Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent;
    • b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgment is such a decision; and
    • c) procedurally, the grant of leave in such cases will depend upon prima facie evidence that something has gone wrong.

5. What does Article 6 ECHR add to the common law requirements of fairness?

Article 6 ECHR requires that in ‘the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal’. In Osborn v Parole Board,5 the Supreme Court made clear that Article 6 is ‘expressed at a very high level of generality’ and that the starting point should remain the considerably more detailed common law.6

One of the difficulties is in determining when Article 6 applies. The reference to ‘civil rights and obligations’ could be read as meaning private law rights. Furthermore, the interpretation of ‘civil rights’ in the case law of the European Court on Human Rights is complex. In relation to benefits and social housing, Ali v Birmingham City Council7 concluded that a distinction should be made between benefits where entitlement is defined with sufficient precision so that anyone within the criteria was entitled to the benefit as of right, and when entitlement to benefit was subject to the ‘evaluative judgement’ of the public authority. Only benefits of the former kind would qualify as a civil right.

A further difficulty is that if the issue involves civil rights as defined in the above paragraph, Article 6 states that those civil rights should be determined by ‘a fair and public hearing, within a reasonable time by an independent and impartial tribunal’. On the face of it, this could mean that decisions involving civil rights need to be made by an independent court or tribunal. In theory, this could cause chaos within government as most decisions of this nature are made within government departments or local government, not courts or tribunals. However, this is interpreted so that Article 6 is satisfied as long as the initial decision can be appealed against before an independent court or tribunal. The requirements for a fair hearing are similar to the common law.

Where Article 6 arguably makes a contribution is on the right to legal representation –under the common law this can be at the discretion of the decision maker. Similarly, on the need for the case to be heard within a reasonable time, this is made explicit in Article 6, when under the common law this is arguably implied.

6. To what extent is there any difference in circumstances when the automatic disqualification rule and apparent bias apply?

The automatic disqualification rule has traditionally applied only when the decision-maker has a financial interest in the decision to be made. The rationale is that the financial interest serves to make the decision-maker effectively a judge in their own cause. Consequently, they are automatically disqualified and no allegation of actual bias needs to be made. However, R v Bristol Betting and Gaming Licensing Committee, ex parte O’Callaghan stated that any financial interest needed to be more than de minimis for the automatic disqualification rule to apply.8

In R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (No 2), the automatic disqualification rule applied to a non-financial interest.9 This was because the interest involved was so closely connected to the decision to be made that the decision-maker would effectively be ‘a judge in his own case’10 in the same way as if he had a financial interest.

Apparent bias applies in different circumstances, when the facts are such that there is a perception that the decision maker may no longer be impartial. This perception is sufficient to mean that the decision is tainted by apparent bias and can longer stand. The test for apparent bias was confirmed by the House of Lords in Porter v Magill as whether a ‘fair minded and informed observer’ would conclude that there was a ‘real possibility’ of bias.11

7. How can the actions of a public authority give rise to a legitimate expectation?

Legitimate expectations arise in certain situations. One example is when the public authority has granted a benefit or an advantage (such as a licence) to a person, and the public authority has assured them that they will continue to receive that benefit or advantage until they are informed that it is to be withdrawn and the reasons why. The person receiving the benefit will have the opportunity to comment on those reasons. Some cases, such as R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association,12 involve promises made by a public authority that a decision will be made in a particular manner which have not been fulfilled. If, for example, a public authority promises that a decision would be made after a process of consultation, the courts will require it to keep this promise.

Most examples of legitimate expectations relate to the procedure by which a decision is made. Very rarely the courts will give effect to a substantive legitimate expectation. As shown from R v North and East Devon Health Authority, ex p Coughlan,13 this is most likely to occur when the promise has been made to an individual or a very small number of people and the consequences of requiring the public authority to honour its promise are likely to be financial only.

1 [2000] 1 WLR 354.

2 [2006] 1 AC 340 [23].

3 [1964] AC 40.

4 [1994] 1 WLR 242.

5 [2013] UKSC 61.

6 Ibid [55].

7 [2010] UKSC 8.

8 [2000] QB 451.

9 [2000] 1 AC 119.

10Dimes v The Proprietors of the Grand Junction Canal (1852) 3 HLC 759

11 [2001] UKHL 61.

12 [1972] 2 QB 299.

13 [2001] QB 213.