JR: Procedural Impropriety & Legitimate Expectations

• What is the meaning of Procedural Impropriety?

  When if public authority makes a decision that may adversely affect an individual’s interests and rights, it must use a fair procedure before taking that decision
• What is also required for there to not be Procedural Impropriety?

  The decision-maker concerned should not have any personal interest in the outcome of the decision
• What are the two concepts that are used to determine whether the proper procedure has been followed?

  1. Statutory Procedural Requirement
  2. Common Law Duty of Fairness
• In the GCHQ case, how did Lord Diplock explain the two types of claims involved in procedural impropriety?

  1. A claim that the decision-maker has failed to follow the procedures required by legislation
  2. A claim that the decision-maker has failed to comply with the common law requirements of procedural fairness
• What are the two meanings of Procedural fairness & Natural Justice?

  1. That those adversely affected by decisions should be given a fair hearing at which they can present their side of the case
  2. That decisions-makers should be neutral & impartial
• What questions are asked for Statutory Procedural Requirements?

  • Is there a procedure laid down in the statute?
  • When looking at the statute, did Parliament lay down a particular procedure for the public body to follow in making a decision?
• How would a public body be seen to have breached Statutory Procedural Requirement?

  If a procedure is specified but the public body does not follow it, then it is a breach of the statutory requirement
• What is the meaning of the Common law duty of fairness?

  Where if there is no procedure laid down in statute: need to consider the common law rules of natural justice e.g common law duty of fairness
• What are the three steps of the Common law duty of Fairness?

  1. Existence of the Duty of Fairness
  2. Level of Duty Owed
  3. Content of Duty
• What is the L.P of Ridge V Baldwin? (where the Police Authority dismissed a Chief Constable without informing them of the reason for the disposal & chance to present his case)

  L.P: the requirement for the Existence of the Duty of Fairness is that there must be a duty to act fairly that applies to all public law decision-making
• What is the meaning of the Level of Duty Owed?

  Where requirements of procedural fairness will depend on the context e.g the interests involved & the nature of the body making the decision (what is fair in some circumstances will be unfair in others)
• What is the L.P of Durayappah v Fernan & Lloyd v McMahon?

  L.P: Level of fairness owed to the claimant depends on a number of factors
• What is the first factor to determine the Level of duty?

  The character of the decision-making body
• What is the second factor to determine the Level of duty?

  The statutory or other framework in which the public body operates
• What is the third factor for the Level of duty?

  The nature of its powers and the kind of decision being made by the decision-maker
• What is the fourth factor to determine the Level of duty?

  The seriousness of allegations or sanctions which can be imposed by the decision-maker
• What is the last factor to determine the Level of duty?

  The impact or repercussions for the individual
• What is the meaning of Content to Duty?

  Where because of various aspects of the duty, the right to receive such treatment depends on the level of the duty owed
• What type of treatments do claimants have a right to because of the public body's duty?

  1. The right to know the case against one;
  2. The right to a hearing/ to be heard;
  3. The right to a decision-maker free from bias
  4. Has the public body created a legitimate expectation that must be fulfilled?
• What are some elements of a fair hearing?

  • Prior notice of the decision; knowledge of the case to be answered
  • An opportunity to be consulted & to make representations
  • Legal representation
  • Knowledge of the reasons for the decision (helps people to decide if they want to challenge decision)
• How can a Legitimate Expectation arise?

  May arise from an express undertaking, a policy or by previous practice e.g. claimants argue a public body has said or done something that created an expectation that they will act in accordance with policies, past practices
• What is the first element of Legitimate Expectations?

  Where a public body promises to do something, or promises not to do something, that public body may be legally bound by that promise to act in a certain way
• What is the second element of Legitimate Expectations?

  If someone relies on that promise, they may have a legitimate expectation that the public body would follow through on that promise.
• What is the L.P of R V Department of Education and Employment? (where the claimant argued that Labour Gov breached her legitimate expectation as they abolished the scheme of children being sent to independent schools with fees paid, claimant was offered a place before abolished)

  L.P: there was no legitimate expectation if it would have conflicted with legislative provisions

  L.P: if a legitimate expectation is claimed on the basis of representation or promise, the promise or representation must not conflict with statutory provisions
• What is the L.P of Association of British Civilian Internees for Legitimate Expectations?

  L.P: courts held that promise/representation has to be sufficiently clear & unequivocal to create a substantive legitimate expectation
• How can a Legitimate expectation be enforced?

  1. Substantive grant
  2. Procedural grant
• What is the meaning of a Procedural Grant?

  If you have been given a legitimate expectation as to the procedure to be followed, then that procedure must be followed. Fits neatly into “procedural impropriety”.
• What is the L.P of R v North & East DR v North & East Devon Health Authority, ex parte Coughlan? (where claimant suffered from serious injuries & authority closed the facility where C stayed even though they promised to care for the applicant)

  L.P: Established the 4-limb Coughlan test
• What is the first part of the Coughlan test?

  Was a promise or representation made to the affected party?
• What is the second part of the Coughlan test?

  Does that party form part of a defined group? (e.g Coughlan was part of a readily identifiable group)
• What is the third part of the Coughlan test?

  Did that party rely upon that promise to their detriment?
• What is the last part of the Coughlan test?

  Is there an overriding public interest which would justify frustrating that legitimate expectation?
• What are the L.Ps of Niazi v Secretary of State?

  L.P: A promise of representation can be made to a small group of people directly affected by legitimate expectation

  
  

  L.P: Reliance is not necessary, although if it can be established that the claimant has relied on a promise to their detriment, their claim will be strengthened.
• What are the L.Ps of R (Gallaher) V Competition & Markets Authority? (where the claimant raised JR as they argued that public body was not being fair as they were still seen to have breached the Competitions Act)

  L.P: held that public bodies do not have to make decisions that are substantively fair as they do not have to ensure that everyone affected by their decisions is treated equally (still required to follow procedural fairness)

  L.P: makes clear that substantive unfairness unlike procedural unfairness, is not itself a ground for JR
• What does Lord Carnwarth state about the Gallaher case?

  "the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law”
• What does Lord Diplock state about the Gallaher case?

  “judicial review is available only as a remedy for conduct of a police officer or authority which is ultra vires or unlawful, but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise”
• What are the L.Ps of the GCHQ case?

  L.P: held that some types of prerogative powers can be suspetible to JR

  L.P: states that even if a legitimate expectation has been breached, if the breach was done because of fears of a possible threat to national security, then the breach will be lawful

  L.P: national security is a concept not reviewed by the courts as it should be reviewed by the Executive
• What two-stage test established by the case of Zamora can be used to determine if national security can lawfully breach a legitimate expectation?

  1. that national security considerations did actually affect the mind of the relevant minister (the minister reasonably believed that it could cause a threat)
  2. that (within the evidential limits imposed by the nature of the subject matter) those considerations were capable of justifying the consequence sought to be justified.”