Procdural fairness and reasonableness

Constitutional commitments

Magna Carta 1215 + ECHR Art 6 = constitutional commitments to JR

Justifications (I vs NI)

Instrumental - connection between fair procedure and substantive justice / non-instrumental - grounded in justice + RofL

O v TPB 2013

Osborn v Parole Board 2013 / prisoners sought oral hearings before parole decisions (board only paper-based reviews) / SC ruled oral hearings are required where a prisoner needs it, context dependent

Establishing PF as ground for JR - R v B 1963

Ridge v Baldwin 1963 / Ridge fired but not told why / Lords held dismissal was void - must be a reason / case = foundation for modern admin law, expanded scope of JR (must have PF)

Re HK 1967

Re HK 1967 / Commonwealth citizen wanted to bring his son, HK, to UK - Chief immigration officer denied this / court rejected this - but acknowledged duty to act fairly + Cs have a right to be heard

Ex p B and K 1970 - expanding to admin law

Ex p Benaim and Khaida 1970 / B and K not allowed to operate a gaming club, gaming board refused to explain refusal / Lords ruled they must explain (but don’t’ have to disclose confidential info) / shows how principles of PF expanded to admin law

Ex p B and K - Lord D quote

Ex p Benaim and Khaida 1970 / Lord Denning: ‘at one time it was said that the principles only apply to judicial and not to administrative proceedings. That heresy was scotched in Ridge v Baldwin’

What fairness requires - B v ES 1980

Bushel v Environment Secretary 1980 / Lords held that fairness is context-specific

Defining PF in depth - ex p D 1994

Ex p Doody 1994 / D serving life sentences, Home Sec set min terms without disclosing why / Lords held Sec could do this - but prisoners must know the reasons

Ex D 1994 - ion depth - Lord M 6 principles

Ex p Doody 1994 / Lord Mustill outlined 6 principles for PF (presumption of fairness, standards can evolve, context-dependent, statutes shape requirements, opportunity to make representations, right to know)

Biases

Any pecuniary/personal interests = case automatically disqualified

Biases - ex p McC 1924

Ex parte McCarthyism 1924 / mere presence/appearance of a bias sufficient to overturn a conviction

Biases - strictness - ex p P 1999

Ex p Pinochet 1999 / Pinochet former President of Chile, highly controversial / argued immunity from Spain’s requested extraction / Lords rejected this - but Lord Hoffmann was in Amnesty I = bias = disqualified

Legitimate expectation

When body breaks promise/established principle relied upon

Legitimate expectations - promise/undertaking cases - AG HK v NYS 1983

Ag of Hong Kong v Ng Yuen Shiu 1983 / illegal immigrant promised interview before deportation, didn’t get that / court ruled in his favour (govt must honour promises)

Legitimate interest - detrimental reliance - M 2015

Mandalia 2015 / M applied to extend student visa, UK Border Agency rejected as missing docs, but M never given the chance to five missing docs / SC ruled legitimate interest expectation

Reasonableness

Reasonableness = substantive review

Reasonableness - Wednesbury quote

Wednesbury 1948 / ‘if a decision is so unreasonable…. Then the courts can interfere’

Affirming reasonableness - BL v GL 1983

Bromley v Greater London 1983 (Fares Fair case) / Labour implemented supplementary rate to reduce London transport - Bromley challenged this / Lords found scheme unlawful - failed to fairly balance rights of public transport uses and ratepayers in a local authority

Ex p B 2001

Ex p Bancoult 2001 / govt banned Chagossians from returning / Lords ruled govt was ultra vires - no reason for it (though overturned by Bancoult II 2008)

Anxious scrutiny _ R v B Lord B quote

Heightened standard of JR - applied to admin decisions affecting HR / R v Budgdaycay, Lord Bridge: ‘the courts must be entitled to subject an administrative decision to the more rigours examination’

Anxious scrutiny - R v B 1987

R v Budgdaycay 1987 / Lords acknowledged Sec of State’s right to approve asylum claims, but B had a genuine risk of persecution if he returned to Pakistan / HR > executive power

Furthering anxious scrutiny - ex p S 1995

Ex p Smith 1995 / fundamental rights threatened, courts cannot overlook minor flaws of decision / ‘the more substantial the interference with human rights, the more the court will require by way of justification’

But - S and G v UK 1999

Smith and Grady v UK 1999 / S and G discharged from UK RAF for homosexuality / govt claimed needed for morale / ECHR ruled in UK’s favour - so they lifted the ban

R (U) v LC 2017

R (Unison) v Lord Chancellor 2017 / govt introduced fees for bringing employment tribunal claims / Unison challenged these feeds / court ruled in U’s favour - access to justice = constitutional right

Discretion - L v MofH

Lavender v Ministry of Housing / minister acted unlawfully when rejected appeal claiming to be bound by minister of agriculture / discretion given to him, not Minister of A = wrongful delegation

Carltona principle in depth

Lord Greene in Carltona: ‘functions given to ministers… are so multifarious that no minister could ever personally attend to them’

PF on public bodies - M v P 2011

Magill v Porter 2011 / local authority tried to use statutory powers to sell housing stock + help win for CTAS / Lords held local authorities have an obligation to act in public interest

Ex p C

Ex p Coughlan / Coughlan seriously injured in accident, moved to NHS facility for disabled - promised that would be her forever home / health authority tried to close house + move C / court ruled in her favour (substantive fairness + legitimate expectations)

Clarity on who can be affected by promised / legitimate interests - N v SS 2008

Niazi v Sec of State 2008 / Laws LJ: ‘the promise must be directed at a particular individual or group’

Substantive fairness + equal treatment - R (G) v CMA

R (Gallagher) v Comp and Markets Authority / G claimed JR against CMA as findings in similar cases had been withdrawn, so so should his / SC ruled there’s no duty requiring equal treatment - so substantive fairness itself is not a ground for JR