Week 19 Public: introducing the grounds of judicial review; procedural impropriety, procedural fairness (natural justice), and legitimate explanations

What is "procedural impropriety" according to Lord Diplock in CCSU v Minister for the Civil Service [1985]?

Procedural impropriety includes failure to observe procedural rules laid down in legislation, even without denial of natural justice.

What are the sources of procedural standards for public administrators?

• Common law (natural justice/procedural fairness, procedural legitimate expectations)

• Legislation (Acts of Parliament, delegated legislation)

• European Convention on Human Rights (especially Art 6 ECHR)

What is the basic position on procedural standards?

• Statutory procedures must be followed

• If statute is silent, common law fairness applies

• HRA 1998 imposes duty to respect ECHR rights

• Art 6 ECHR: Right to an independent and impartial tribunal

What are statutory procedural requirements?

Examples:

• Consulting specified groups

• Providing hearings

• Publishing decisions

• Holding inquiries

• Considering objections
  Failure to comply may invalidate decisions.

Example of statutory procedure: Housing Act 1985, s377A

Before serving a works notice:

• Give written notice

• Allow written or oral representations

• Consider representations made

What are the two key aspects of natural justice/procedural fairness?

1. Right to a hearing (audi alteram partem)

2. Right to an unbiased judge (nemo judex in causa sua)

What happened in Bagg’s Case (1572)?

Bagg was unlawfully disenfranchised without a hearing for insulting behavior towards the mayor.

What principle was established in Cooper v Wandsworth Board of Works (1863)?

Even without explicit statutory requirement, common law justice demands a hearing before a person’s rights are affected.

What was decided in Ridge v Baldwin [1964]?

Police Authority dismissed Ridge without a hearing; held: fair procedure required when rights are significantly affected.

Why does fairness matter according to R (Osborn) v Parole Board [2013]?

Fairness leads to:

• Better decisions (more relevant info)

• Respect for individuals' rights (avoiding sense of injustice)

• Upholding the rule of law

Procedural fairness "menu" – what may it include?

• Notice of decision

• Consultation/representations

• Knowing the case against you

• Hearing (oral or written)

• Legal representation

• Calling/cross-examining witnesses

• Impartial decision-maker

• Reasons for decision

• Appeal/review rights

Does fairness always require all elements of the "menu"?

No. The specific requirements depend on context.

What did Lord Bridge say in Lloyd v McMahon [1987] about fairness?

"Rules of natural justice are not engraved on tablets of stone... fairness depends on the nature of the decision, decision-maker, and statutory context."

What is the key difference between a lease and a licence?

• A lease grants exclusive possession.

• A licence grants only permission to occupy without exclusive possession.

How are leases created?

• Through an agreement between landlord and tenant.

• A written document is required if the lease term exceeds three years (Law of Property Act 1925).

What types of leasehold estates exist?

• Fixed-term leases (for a specified period).

• Periodic tenancies (renew automatically at the end of each period).

What are tenant covenants in leases?

Tenant obligations usually include:

• Paying rent

• Maintaining the property

• Complying with use restrictions

What are landlord covenants in leases?

Landlord obligations typically include:

• Ensuring quiet enjoyment

• Maintaining the structure of the property

What is lease assignment?

Assignment is when a tenant transfers their interest to another party, subject to landlord consent if required.

What is subletting in leasehold law?

Subletting is when a tenant rents out part or all of the property to another while remaining responsible under the original lease.

How can leases be terminated?

• Expiry of the lease term

• Mutual agreement

• Landlord action for forfeiture (e.g., due to tenant breaches like non-payment of rent)

What statutory protections against forfeiture exist for tenants?

• Protections under the Housing Act 1988

• Protections under the Leasehold Reform, Housing and Urban Development Act 1993

What does the Landlord and Tenant Act 1954 provide?

It grants security of tenure to business tenants, allowing them to renew leases under certain conditions.

What is the purpose of the Leasehold Reform Act 1967?

It allows qualifying tenants to purchase their freehold in certain circumstances.

How does case law impact leasehold law?

Landmark cases interpret key issues such as lease covenants, assignment rights, and landlord-tenant obligations.

What areas of leasehold law does Chapter 17 of Sueur cover?

• Creation, operation, and termination of leases

• Statutory and case law influences

• Practical issues like covenants, assignment, subletting, and tenant protections