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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

McInnes v Onslow Fane and another [1978] 3 All ER 211

MEGARRY V-C:....The dispute in this case arises over the refusal to grant a boxers' manager's licence to the plaintiff. On 28 May 1976 he applied for the licence to the Western Area Council of the British Boxing Board of Control, and on 16 July 1976 the Board refused to grant it....

It was common ground between counsel that the point before me was the subject of no direct authority: although expulsion from clubs and other bodies is the subject of an ample range of authorities, the refusal of applications for membership is much less richly endowed. It was also accepted that the point is of considerable general importance. There are many bodies which, though not established or operating under the authority of statute, exercise control, often on a national scale, over many activities which are important to many people, both as providing a means of livelihood and for other reasons..... In such cases it is plainly important, both to the body and the applicant, for them to know whether, before the application is rejected, the applicant is entitled to prior notice of any case against granting him a licence or admitting him to membership, and whether he is entitled to an oral hearing.

I think that I should take the matter by stages. First, there is the question of whether the grant or refusal of a licence by the board is subject to any requirement of natural justice or fairness which will be enforced by the courts. The question is not one that is governed by statute or contract, with questions of their true construction or the implication of terms; for there is no statute, and there is no contract between the plaintiff and the board. Nevertheless, in recent years there has been a marked expansion of the ambit of the requirements of natural justice and fairness, reaching beyond statute and contract. A striking example is Nagle v Feilden. There, a woman sought a declaration and injunctions against the Jockey Club to enforce her claim that she ought not to be refused a trainer's licence for horse-racing merely because she was a woman. At first instance her claim had been struck out, but the Court of Appeal reversed this decision. Lord Denning MR accepted that social clubs could refuse to admit an applicant for membership as they wished; but the Jockey Club exercised 'a virtual monopoly in an important field of human activity', and what gave the courts jurisdiction was 'a man's right to work' ([1966] 1 All ER 689 at 693, 694)....

I pause there to say that there may well be jurisprudential questions about the true nature of such a 'right'. [I]n R v Gaming Board for Great Britain, ex parte Benaim ([1970] 2 All ER 528 at 533 Lord Denning MR himself rejected 'right' in favour of 'privilege' for a particular claim of this sort....

It seems to me that the case before me is one in which the court is entitled to intervene in order to enforce the appropriate requirements of natural justice and fairness, and that counsel for the board was right to accept that the case fell within this category.

Second, where the court is entitled to intervene, I think it must be considered what type of decision is in question. I do not suggest that there is any clear or exhaustive classification; but I think that at least three categories may be discerned. First, there are what may be called the forfeiture cases. In these, there is a decision which takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refuses to grant the applicant the right or position that he seeks, such as membership of the organisation, or a licence to do certain acts. Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority...

It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason; and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges (which, in Ridge v Baldwin ([1963] 2 All ER 66 at 114), Lord Hodson said were three features of natural justice which stood out) are plainly apt. In the application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Instead, there is the far wider and less defined question of the general suitability of the applicant for membership or a licence. The distinction is well-recognised, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.

I pause there. I do not think that I need pursue the expectation cases, for in the present case I can see nothing that would bring the plaintiff within them. Although he has at different times held a promoter's licence, a trainer's licence and an MC's licence, he has never held a manager's licence. His 1976 application for a manager's licence has to be viewed in the light of the five unsuccessful applications for a manager's licence that he made during the years 1972 to 1975. I can see nothing that could fairly be called a legitimate expectation that his 1976 application would succeed... In my judgment, the case is plainly an application case in which the plaintiff is seeking to obtain a licence that he has never held and had no legitimate expectation of holding; he had only the hope (which may be confident or faint or anything between) which any applicant for anything may always have.

Third, there is the question of the requirements of natural justice or fairness that have to be applied in an application case such as this. What are the requirements where there are no provisions of any statute or contract either conferring a right to the licence in certain circumstances, or laying down the procedure to be observed, and the applicant is seeking from an unofficial body the grant of a type of licence that he has never held before, and, though hoping to obtain it, has no legitimate expectation of receiving?

I do not think that much help is to be obtained from discussing whether 'natural justice' or 'fairness' is the more appropriate term. If one accepts that 'natural justice' is a flexible term which imposes different requirements in different cases, it is capable of applying appropriately to the whole range of situations indicated by terms such as 'judicial', 'quasi-judicial' and 'administrative'. Nevertheless, the further the situation is away from anything that resembles a judicial or quasi-judicial situation, and the further the question is removed from what may reasonably be called a justiciable question, the more appropriate it is to reject an expression which includes the word 'justice' and to use instead terms such as 'fairness', or 'the duty to act fairly'....[T]he question before me is that of the content of 'the duty to act fairly' (or of 'natural justice') in this particular case. What does it entail? In particular, does it require the board to afford the plaintiff not only information of the 'case against him' but also an oral hearing?....

I think it is clear that there is no general obligation to give reasons for a decision. Certainly in an application case where there are no statutory or contractual requirements but a simple discretion in the licensing body there is no obligation on that body to give their reasons. In Nagle v Feilden to which I have already referred, Salmon LJ made this plain. The point is also carried by R v Gaming Board for Great Britain, ex parte Benaim. In the latter case, the Gaming Board were under a statutory obligation to have regard only to certain criteria. For this purpose the board were under a statutory obligation to take into consideration in particular 'the character, reputation and financial standing' of the applicants (and of certain other persons) for what in effect was the certificate of fitness that was requisite on application for a licence. The Court of Appeal held that the board were under a duty to act fairly which required the board to give the applicants a sufficient indication of any relevant objections raised against them to enable the applicants to meet them. On the other hand, the board need not reveal the details or the sources of the information, nor when the board came to decide the application need the board give any reasons. The board had exercised their statutory power to regulate their procedure, and under the procedure that the board had adopted they gave the applicants a hearing at which the board revealed in outline what was troubling them. The applicants were then given the opportunity of making further representations in writing before the application was decided; and the Court of Appeal held that this procedure satisfied the duty of the board to act fairly which flowed from the statutory obligation of the board to 'have regard only' to the specified matters.

Counsel for the plaintiff, of course, relied on this decision. He also relied on Re K (H) (an infant).....

These cases seem to me to be very different from the case before me. In each there was a statute which conferred the power and the duty to decide on some defined issue. Here there is no statute and no defined issue but merely a general discretion. In the Gaming Board case, the character, reputation and financial standing of the applicants was in issue, so that the refusal of the certificate of fitness would be a slur on the applicants. In Re K (H) (an infant), the question was whether or not the immigrant had a statutory right of entry. Here, there is no statutory or, indeed, any other true right; and certainly the refusal of a licence by no means necessarily puts any slur on the plaintiff's character.... There may be no 'case against him' at all, in the sense of something warranting forfeiture or expulsion; instead, there may simply be the absence of enough in favour of granting the licence....

The most that can be said is that the more burdensome and far-reaching the consequences, the more carefully must be scrutinised the rule that is said to produce them. What, then, does the requirement to act fairly mean in this type of case?

As I have said, counsel accepted that the board were under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy. That, I think, is right: and if the plaintiff showed that any of these requirements had not been complied with, I think the court would intervene. Counsel for the plaintiff accepted that the burden of proof would have been on him if any such questions had arisen. But assume a board acting honestly and without bias or caprice: why should a duty to act fairly require them to tell an applicant the gist of the reasons (which may vary from member to member) why they think he ought not to be given a licence? Is a college or university, when selecting candidates for admission or awarding scholarships, or a charity when making grants to the needy, acting 'unfairly' when it gives no reasons to the unsuccessful? ....

Looking at the case as a whole, in my judgment there is no obligation on the board to give the plaintiff even the gist of the reasons why they refused his application, or proposed to do so. This is not a case in which there has been any suggestion of the board considering any alleged dishonesty or morally culpable conduct of the plaintiff. A man free from any moral blemish may nevertheless be wholly unsuitable for a particular type of work. The refusal of the plaintiff's application by no means necessarily puts any slur on his character, nor does it deprive him of any statutory right. There is no mere narrow issue as to his character, but the wide and general issue whether it is right to grant this licence to this applicant. In such circumstances, in the absence of anything to suggest that the board have been affected by dishonesty or bias or caprice, or that there is any other impropriety, I think that the board are fully entitled to give no reasons for their decision, and to decide the application without any preliminary indication to the plaintiff of those reasons. The board are the best judges of the desirability of granting the licence, and in the absence of any impropriety the court ought not to interfere.

There is a more general consideration. I think that the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens.....

That brings me to the fifth point, the contention that the board are obliged to afford the plaintiff a hearing. This, I think, has in large part been disposed of by what I have said in rejecting the contention that the plaintiff has a right to be told the gist of the reasons for proposing to reject his application. The contention that the plaintiff ought to be given a hearing seems to have been put forward mainly as an ancillary to the alleged obligation to inform him of the gist of the reasons for provisionally deciding not to grant him the licence, and so as to enable him to meet what is said. However, if one treats the right to a hearing as an independent requirement, I would say that I cannot see how the obligation to be fair can be said in a case of this type to require a hearing. I do not see why the board should not be fully capable of dealing fairly with the plaintiff's application without any hearing. The case is not an expulsion case where natural justice confers the right to know the charge and to have an opportunity of meeting it at a hearing. I cannot think that there is or should be any rule that an application for a licence of this sort cannot properly be refused without giving the applicant the opportunity of a hearing, however hopeless the application, and whether it is the first or the fifth or the fiftieth application that he has made. Certainly counsel for the plaintiff has not referred me to any authority which appears to me to give any real support to such a proposition in a case such as this. I therefore reject the contention that the board should be required to give the plaintiff a hearing or interview.