4. Procedural Impropriety – Natural Justice and Fair Process

What is "procedural impropriety" as a ground for judicial review?

A failure by the decision-maker to observe rules of natural justice or other procedural rules

What are the two main rules of natural justice?

The right to a fair hearing (audi alteram partem) and the rule against bias (nemo iudex in causa sua)

How did Ridge v Baldwin change procedural fairness?

It removed distinctions between "rights" vs. "privileges" and "judicial" vs. "administrative" decisions

What is an instrumental justification for procedural fairness?

It tends to result in better, more accurate decisions

What is a dignity justification for procedural fairness?

Justice requires a process that respects persons affected by decisions

What is the third justification for procedural fairness mentioned?

It promotes democracy in decision-making, especially through consultations

Does procedural fairness apply uniformly in all contexts?

No, requirements of fairness depend on context, decision-maker, and statutory frameworK

What are the three main sources of procedural fairness duties?

Common law, statute, and the ECHR

What is the core requirement of "notice"?

The affected person must be informed of the case against them to make representations

Is there a general common law duty to consult?

No general duty; Parliament would need to introduce such a duty

When does a duty to consult arise (four circumstances)?

Statutory duty, promise to consult, established practice, or conspicuous unfairness

Give an example of "conspicuous unfairness" leading to a duty to consult.

Amending child social care regulations without consulting children's rights bodies was conspicuously unfair (Article 39

What is the first Sedley criterion for proper consultations?

Consultation must occur when proposals are still at a formative stage

What is the final Sedley criterion for proper consultations?

The product of consultation must be conscientiously taken into account

Give an example where a specific common law duty to consult arose from legitimate expectation.

Consulting care home residents before closure decisions (R v Devon County Council, ex p Baker)

What is the purpose of an oral "hearing"?

To assist decision-making and allow individuals to effectively present their case

Is there a general common law duty for decision-makers to give "reasons"?

No general common law duty, but fairness might require reasons in certain circumstances

What are two advantages of decision-makers giving reasons?

They facilitate judicial review and focus the decision-maker’s mind

When might reasons be required (factors)?

When the interest affected is personal liberty, or the decision appears absurd

What might a court infer if a decision-maker fails to give reasons?

The court may infer no valid reasons exist for the decision (Padfield)

What is the definition of "bias"?

A decision-maker has a prejudice against a party's case unrelated to merits

What is the principle behind the appearance of bias?

Justice must not only be done, but be seen to be done (R v Sussex Justices)

What is the Dimes rule on personal financial bias?

Automatic disqualification for a decision-maker with a personal financial interest

How did Pinochet (No 2) expand automatic disqualification for bias?

It extended to non-financial interests where a judge has an "interest" in the outcome

What is the current test for "apparent bias" (the Porter v Magill test)?

Would a fair-minded and informed observer conclude a real possibility of bias?

What does the "fair-minded and informed observer" know and consider?

They are not suspicious and possess all publicly known facts about the circumstance

What is "predetermination" in the context of procedural impropriety?

When a decision-maker has closed its mind and already decided the issue