Judicial Review II - Lecture 12

What is the rationale for procedural protection? There are 5 rationales?

1. accuracy and efficiency

2. opportunity for affected individuals to partake in decision-making

3. rule of law and protection of fundamental rights

4. interest representation

5. public confidence

Is there a widening and deepening of JR? - historical development

In the 20th century -

• courts have increasingly become demanding of the government to express their views and decision-making wide scale

• There is a contextual approach - flexible depending on the context of different cases and differing levels of judicial discretion

• THOUGH, there is greater opposition by governments against judicial demands - tensions between the judiciary and executive

Ridge v Baldwin

Lord Reid stated that Chief Constable shouldn’t be dismissed on allegations of corruption without chance to explain itself.

There is a pool of possible procedural requirements which fall under generic heading of rights to be heard.

What are the 6 general requirements for the fair procedure?

1. give proper notice

2. make available relevant information

3. provide oral hearings

4. allow legal representation

5. permit cross-examination

6. give reasons for the decision

Paul Craig on 3 factors influencing the strength of the dose of procedural review

1. The importance of the interest infringed;

2. The value to the claimant of the additional process right; and

3. The cost of providing the additional procedural safeguard.

R v Secretary of State for the Home Department ex p Doody on procedural review

Context → a power then exercised by the Secretary of State to set the minimum term to be served by prisoners who had received a mandatory life sentence. Prisoners were not given an opportunity to submit representations before such decision was taken or told the recommendation made by the Judiciary.

IMPORTANCE - seen as an expansionary case in relation to courts being demanding of the executive

A v United Kingdom on procedural fairness

Context → Terrorism Act 2005 meant that long term detention and house arrest depending on reasonable suspicion and there was a restriction to movement but the individuals were not prosecuted for the crime. Their rights were restricted on the basis of reasonable suspicion of terrorist activity, rather than being charged.

Outcome → Strasbourg concluded that their liberty cannot be taken away, as long as they don’t have the outline of the case against them and have the ability to make a representation regarding the case.

Osborn v Parole Board on procedural fairness

Context →Prisoners were out on license and on path to rehabilitation and if they breached it, they return to prison. It raised a question of hearing requirements for a breach within the parole board. The court previously argued that there was austerity and limited resources, so representation should be made in written form.

Outcome →The Supreme Court had overturned this ruling, aligning with the interest groups that normal hearings were more powerful and allowed the prisoner to cross-examine and for judges to physically interact with them. Therefore, the board has a duty under S6(1) HRA 1998 to act compatibly with the convention.

R(Pathan) v Secretary of State for the Home Department on procedural fairness, a question of procedure or substance?

Context → Mr Pathan applied for leave to remain. He was supported by a sponsor employer. The Home Office revoked his employer’s sponsor’s licence – for reasons unconnected to Mr Pathan. He was not informed. Mr Pathan's application was rejected. His stay in the UK was rendered unlawful.

Outcome → The Supreme Court unanimously found that failure to tell Mr Pathan of the revocation of the licence was a breach of the duty of fairness. A majority held that he could have taken steps to try to amend his application.

• However, the majority – Lord Kerr, Lady Black and Lord Briggs – held that there was nonetheless no duty to extend time for Mr Pathan to make representations (the opportunity for which had passed). To allow this would be to grant an extended period of leave, which was a matter of substance rather than procedure

Bank Mellat v HM Treasury on procedural fairness in context of legislation

This case is the leading authority on procedural fairness in relation to legislation.

Context → A bank was subject to a statutory instrument prohibiting transactions for the purpose of inhibiting the production of nuclear weapons in Iran.

Outcome → The common law duty to give advance notice and an opportunity to make representations to an individual against whom it was proposed to exercise a draconian statutory power

• The Court concluded unless the statute expressly or impliedly excluded the duty, or consultation was impracticable or would frustrate the purpose of the direction, fairness required that the individual concerned should be afforded an opportunity to make prior representations.

Why is ‘reason-giving’ used within Courts? What is the reason behind it?

• administrative discipline, encouraging careful deliberation and consistency

• citizen interest, satisfying a basic need for fair play

• public confidence or legitimacy, promoting the sense of transparency

Re Poyser and Mills’s Arbitration as classic authority for duty to give reasons

The case establishes that the reasons must be -

• proper

• intelligible

• adequate

• dealing with substantive points

South Buckinghamshire DC v Porter on the expanded meaning of ‘duty to give reasons’

Lord Brown outlines -

• Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.

• The reasons need refer only to the main issues in the

  dispute, not to every material consideration.

R v Secretary of State for the Home Department, Ex p Doody on the applicability of duty (reason giving in planning)

Lord Carnwath outlined -

“'Public authorities are under no general common law duty to give reasons for their decisions; but it is well-established that fairness may in some circumstances require it, even in a statutory context in which no express duty is imposed”

R (Oakley) v South Cambridgeshire DC on applicability of duty

Outcome → The court held that a duty to give reasons for planning decisions, whilst it was not a general duty, did arise in the particular circumstances of that case: where the development would have a “significant and lasting impact on the local community”

Porter v Magill on apparent bias

This case outlines the test for apparent bias.

• ‘Whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the judge was biased.’

R v Secretary of State for the Environment ex p Kirkstall Valley Campaign Ltd on apparent bias

Outcome →

• Principles of bias not limited to judicial function.

• Planning decisions could not be made or be made in the presence of persons with a personal or pecuniary interests in such decisions.

What are the 4 requirements for a consultation according to Lord Woolf?

1. done early in the formative stage

2. sufficient info to respond

3. give adequate time so they have reasonable time to respond

4. product of consultation must be conscientiously taken into account, when a decision is made

R v Brent LBC, ex p Gunning on duty to consult?

It outlined, the consultation has to be a proper one, even if there is a statutory requirement or not

R (Moseley) v London Borough of Haringey on duty to consult

Context → The Local Government Finance Act 1992 required the authority to ‘consult such other persons as it considers are likely to have an interest in the operation of the scheme’. Information materials for the resulting local consultation gave the misleading impression that the funding shortfall led inexorably to a cut in council tax relief.

Outcome → The Supreme Court held unanimously that the consultation had been conducted unlawfully and made a declaration accordingly.

Lord Reed on a narrower approach to ‘duty to consult’

• less emphasis upon the common law duty to act fairly, and more upon the statutory context and purpose of the particular duty of consultation with which we are concerned.

• purpose […] to ensure public participation in the local authority’s decision-making process […] not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected

Lord Wilson on a open approach to ‘duty to consult’

when statute does not limit the consultation, fairness will require that interested persons be consulted not only upon -

• the preferred option

• upon arguable yet discarded alternative options.