JUDICIAL REVIEW:

PROCEDURAL
IMPROPRIETY
Dr Robert Taylor
 Schedule
 This Lecture will consider the following:
I. Procedural Impropriety
1) Compliance with Procedure
2) Procedural Fairness and Natural Justice
I. PROCEDURAL IMPROPRIETY
 Basic Idea
‘I have described the third head as "procedural impropriety" rather
than failure to observe basic rules of natural justice or failure to act
with procedural fairness towards the person who will be affected by the
decision. This is because susceptibility to judicial review under this
head covers also failure by an administrative tribunal to observe
procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even where such
failure does not involve any denial of natural justice.’

— Lord Diplock, Council of Civil Service Unions v Minister for the Civil
Service [1985] 1 AC 374, 411
 Basic Idea
Two types of claim:
1) That the decision-maker has failed to follow procedures laid down by
legislation
2) That the decision-maker has failed to comply with rules of natural justice and
procedural fairness
1) Compliance with Procedure
 Procedural Requirements
 Procedural requirements laid down by statute or other instrument
conferring a decision-making power must be complied with
 Failure to follow procedure, however, will not always result in a
decision being deemed unlawful
 ‘Mandatory’ (compulsory) requirements:
—Decision invalid if such requirements not complied with
 ‘Directory’ (advisory) requirements:
—Technical or trivial requirements which may not result in decision being held
invalid if not complied with
 Rebuttable presumption that statutory requirements are ‘mandatory’
 Mandatory Requirement: Example
Bradbury v Enfield London Borough Council [1967] 1 WLR 1311
 The local authority sought to implement government policy of abolishing
system of secondary and grammar schools and replacing it with a system of
comprehensive schools
 The local authority misinterpreted the statute however and failed to give the
parents of the eight schools being closed notice of the fact (there was
accordingly a failure to consult)
 Court of Appeal held that the local authority had acted unlawfully

‘[I]t is imperative that the procedure laid down in the relevant statutes should be properly
observed. The provisions of the statutes in this respect are supposed to provide safeguards
for Her Majesty’s subjects. Public Bodies and Ministers must be compelled to observe the
law; and it is essential that bureaucracy should be kept in its place’ (Danckwerts LJ)
 Directory Requirement: Example
Coney v Choyce [1975] 1 WLR 422
 Case also concerned introduction of system of comprehensive schools
 Failure to post notices near main entrance of two schools (however, public
notices in the local newspapers had been issued, public meetings had been
held, and parents had received letters)
 Court held that this failure to follow procedure was minor and did not
prejudice the parties
 There had been ‘substantial compliance’ with the regulations meaning that
the purpose of the Act – informing parents of the proposed change – had
been achieved
2) Procedural Fairness and
Natural Justice
1. The Rule Against Bias
2. The Fair Hearing Rule
1. The Rule Against Bias
 Bias
‘Bias is an attitude of mind which prevents ... [a person] from making an
objective determination of the issues that he has to resolve.’
—Lord Phillips, Re Medicaments and Related Classes of Goods [2001] 1 WLR
700, 711

 Two Types:
1) Presumed (Direct) Bias
2) Apparent (Indirect) Bias
 1) Presumed (Direct) Bias
Definition:
Improper interest in the outcome of the case

 Types of Interest:
i) Financial
ii) Member of a group that is party to the case

Both result in decision-maker being automatically disqualified from

making the decision under challenge
 i) Financial
Dimes v Grand Junction Canal Properties [1852] 3 HLC 759
 On appeal, the Lord Chancellor affirmed an order in favour of the Grand
Junction Canal (a company) of which he held shares
 House of Lords held that he should not have heard the appeal
 ‘It is of the last importance that the maxim that no man is to be a judge in his
own cause should be held sacred. And that is not to be confined to a cause in
which he is a party, but applies to a cause in which he has an interest’ (Lord
Campbell, at 793).

In order to trigger automatic disqualification, financial interest must be more than

de minimis (R v Bristol Betting and Gaming Licensing Committee, ex p O’Callaghan
(heard alongside Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451))
 ii) Member of a group that is party to the
case
R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet
Ugarte (No 2) [2000] 1 AC 1
 General Pinochet claimed immunity in House of Lords during extradition procedures to Spain
 Amnesty International was an intervener in the case
 House of Lords held that General Pinochet was not entitled to immunity
 Afterwards, it was revealed that Lord Hoffmann was the director of Amnesty International Charitable Limited
 House of Lords accordingly applied automatic disqualification rule

‘The substance of the matter is that [Amnesty International, Amnesty International Limited and Amnesty
International Charitable Limited] are all various parts of an entity or movement working in different fields
towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule
which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in
promoting the same causes in the same organisation as is a party to the suit. There is no room for fine
distinctions if Lord Hewart C.J.’s famous dictum is to be observed: it is ‘of fundamental importance that justice
should not only be done, but should be manifestly and undoubtedly be seen to be done’ (Lord Browne-
Wilkinson, at 135)
 2) Apparent (Indirect) Bias
 The Test:
 Would a ‘fair minded and informed observer having considered the facts ...
conclude that there was a real possibility that the tribunal [decision-maker]
was biased?’ (Porter v Magill [2002] 2 AC 357, [102-103])
 What fails this test?
 Family relationships, personal friendships, previous expressions of strong
views on subject matters etc
 Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700
2. The Fair Hearing Rule
 Right to be heard
Ridge v Baldwin [1964] AC 40
 Ridge (Chief Constable of Brighton Police) acquitted of conspiracy to obstruct
the course of justice (although two others were convicted)
 Judge at trial questioned Ridge’s fitness for the office of Chief Constable
 The Watch Committee (which oversaw Brighton Police) decided to dismiss
Ridge without a hearing and without notice
 Ridge challenged the decision on the basis that he had been denied an
opportunity to defend himself
 House of Lords held that Ridge’s dismissal was void because it breached both
the Police Discipline Regulations and the rules of natural justice
 Fair Hearing
 People affected adversely by a decision should be given a fair hearing
to present their side of the story – a ‘right to be heard’
 Respect for natural justice not just required for judicial hearings – a
body must respect natural justice where its decisions affect rights and
other important interests (Ridge v Baldwin [1964] AC 40)
 Overlap with Article 6 ECHR: ‘a fair and public hearing … by an
independent and impartial tribunal established by law’.
 What is Fair?
 Procedural fairness = a sliding scale
 Fairness depends on the circumstances of the case: character of decision-making
body; types of decisions it makes; statutory frameworks that it works with
 Lloyd v McMahon [1987] AC 625
‘My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use
the phrase which better expresses the underlying concept, what the requirements of fairness
demand when any body, domestic, administrative or judicial, has to make a decision which will
affect the rights of individuals depends on the character of the decision making body, the kind
of decision it has to make and the statutory or other framework in which it operates’ (Lord
Bridge, at 702)

General Rule: fairness required when decision impacts upon rights, interests or
legitimate expectations
 Oral Hearings?
 Oral hearings, however, are not necessary in every case in order to
ensure procedural fairness
 R (Osborn) v Parole Board [2013] UKSC 61
 Question before court was whether the parole board was required to grant
three prisoners an oral hearing (it had declined to do so in all three cases)
 Supreme Court allowed appeal in all three cases.
 The more important the decision to be made, the more likely fairness will
require an oral hearing
 Duty to Give Notice/Know the
Opposing Case
 Cannot object to a potentially adverse decision without first being
given notice of the case being made against them – no opportunity to
object and make representations
 R v Secretary of State for the Home Department ex parte Al Fayed
[1997] 1 All ER 228
 Mohammad Al fayed and his brother (Egyptian citizens with business interests
in the UK) applied for British citizenship under the British nationality Act 1982
 The Home Secretary rejected their applications under s.44(2) of the 1981 Act
and gave no reasons for the decision (reasons were not required under s.44(2))
 Court held that the Home Secretary was nevertheless required to give notice
of the matters that weighed against their applications being successful
 Duty to Give Reasons
 Decision-makers often required (under statute) to support their decisions with reasons, but this is not
always the case
 R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531
 The common law ‘does not at present recognise a general duty to give reasons for an administrative decision’ (at
564)

 R v Higher Education funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242
 No general duty to give reasons, but classes of cases exist where there is a duty to give reasons e.g. cases
concerning personal liberty or where the decision appears aberrant

 Clarke Homes Limited v Secretary of State for the Environment and east Staffordshire District
Council (1993) 66 P & CR 263
 Where reasons are given, they must be adequate reasons

Decision-makes must also be impartial and open-minded (unbiased etc)

 Legitimate Expectation
 A procedural legitimate expectation (Cf. Coughlan [2001] QB 213)may
give rise to procedural protection:
1) Promises to follow a procedure
2) Has a policy of following a procedure
3) Has a practice of following a procedure
 1) Promises to follow a procedure
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator’s Association
[1972] 2 QB 299
 The local authority had the power to grant taxi licenses.
 Taxi drivers were represented by the Operators’ Association and they made
representations to the local authority that they wanted the total number of licenses
granted to remain at 300
 The Association had been promised by the local authority that they would be
consulted before any decision was made
 Without consultation, the local authority later informed the Association that 350
licenses would be the new limit, then 450, and then removed entirely.
 Court of Appeal held that there was a procedural legitimate expectation - local
authority should have honoured their promise to consult the Association first before
rendering a decision
 2) Has a policy of following a procedure
R v Secretary of State for Home Department, ex parte Khan [1984] 1
WLR 1337
 Claimants wanted to adopt their nephew from Pakistan
 Circular from Home Office explained their policy on adoption, stating that
four criteria would be used when making a decision
 Despite complying with all four criteria, the nephew’s entry into the UK was
refused
 Home Secretary had changed the criteria, adding a new fifth criterion
 Court of Appeal held that the claimants had a legitimate expectation that the
terms of the circular would be complied with
 3) Has a practice of following a procedure
Council of Civil Service Unions v Minister for the Civil Service [1985] 1
AC 374
 The Prime Minister (Minister for the Civil Service) decided that members of
GCHQ (an intelligence service) could no longer be members of trade unions
for national security reasons
 Civil Service Unions argued that previous changes to employment conditions
had been implemented following consultation with the them
 Consequently, members of the Union had a legitimate expectation that
further changes could only occur following consultation
 House of Lords agreed that a legitimate expectation had arisen, but
nevertheless agreed with the Government's national security reasons for not
consulting with them
 Summary: Procedural Impropriety
1) Compliance with Procedure
 ‘Mandatory’ Requirements
 ‘Directory Requirements’
2) Procedural Fairness and Natural Justice
1. Rule Against Bias
‒ Presumed (Direct) Bias
‒ Apparent (Indirect) Bias
2. Fair Hearing Rule
‒ Right to be heard
‒ Oral hearings
‒ Duty to give notice/know the opposing case
‒ Duty to Give Reasons
‒ Legitimate Expectation
 ENDNOTES: IMAGES
Slide 1: Image of the UK Supreme Court: ‘Middlesex Guildhall.png’ by
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