Procedural Impropriety Judicial Review

Case for recongition of procedural impropriety

Lord Diplock - CCSU

3 branches of procedural impropriety:

Bias

Legitimate Expectations

Adequacy of Consultation

3 types of Bias

Actual

Automatic Disqualification

Apparant

Actual Bias definition and threshold

Actual bias requires the decision-maker to be actually biased. This is a very high threshold, nearly impossible to prove and so is normally only claimed by litigants in person. Judges will normally knudge their judgements into the other two categories.

What is Automatic Disqualification

Where a specific relationship exists between the decision-maker and a stakeholder party that gives rise to a sufficiently high risk of bias, the decision-maker should recuse himself.

What relationships amount to automatic disqualification.

Financial Interests - Dimes v Grand Junction Canal

Relationships beyond financial - Pinochet (highly political reasoning)

But there is a limit, e.g. NOT spousal financial interests - United Cabbies v Westminister Magistrates

What is Apparant Bias and is the threshold lower than automatic disqualification?

Where the facts of the case give the impression of a risk of bias

Threshold = Lower than automatic disqualification

Test for Apparant Bias and Case authority

Whether the “fair-minded, informed observer having considered the facts would conclude there was a real possibilty” of bias - Porter v Magill, confirmed in Lawal v Northern Spirit

Is the outcome of the apparent bias test clear?

No, judges have differing ideas as to what a fair-minded observer would conclude than everyday citizens - Taylor v Lawrence

What Obiter is a guide to the outcome of the apparant bias test, and is it binding?

Lord Bingham in Locabail v Bayfield

Not binding, discussing a previous (but similar) version of the test, but persuasive and insightful

What does Lord Bingham say will NOT be apparant bias

Religion

Ethnic/national origins

gender, Age, Class, Means, Sexuality

Social/educational background

Employment history

Previous political associations

previous decisions

membership of sporting / charity bodies

Masonic connections

Extra-curricular utterances

What does Lord Bingham say WILL be apparant

Personal friendship or animosity

Close acquaintance

Previous expression of views in extreme or imbalanced terms

If a decision-maker possibly could breach the rules of bias, what should they do?

Recuse themselves before the decision is made

What is a Legitimate Expectation?

An expectation that has been induced by the direct words of a (member of a) public authority and is “clear, unambiguous, and devoid of relevent qualification” - MFK Underwriters

Case first recognising the protection of legitimate expectations

Lord Denning - Schmidt v SSHA

What kinds of legitimate expectations exist?

A procedural or substantive…

Promise, policy, or practise (Ahmed and Perry)

Case for a procedural/substantive promise

Procedural Promise: NG Yuen Shiu

Substantive Promise: Coughlan / Bancoult No.2

Case for a procedural/substantive policy

Substantive Policy: Rashid v SSHD

Procedural policy: ??

Case for a procedural/substantive practise

Procedural Practise: CCSU

Substantive Practise: ??

Does the claimaint need to have relied on the expectation?

No - NG Yuen Shiu

Does the claimaint need to be aware of the expectation they could have?

No - Rashid v SSHD

Will the courts always protect a legitimate expectation?

No. It is the courts discretion to protect expectations

What expectations are courts more likely to protect?

Courts more likely to protect procedural expectations than substantive expectations

Courts more likely to protect expectations on a promise than a policy, and on a policy than a practise.

What 3 ways do the courts think when deciding whether to protect an expectation

Cited from Lord Woolf in Coughlan

i) that the public authority should keep in mind the expectation they induced but do no more than this

ii) the public authority should fulfill the expectation unless there’s an overiding reason not to

iii) to not fulfill the expectation would amount to an abuse of power

Are remedies for a legitimate expectation predictable?

No. Protection and remedies are at the courts discretion, and courts may not grant what a litigant is asking for. Courts more likely to give a procedural remedy than a substantive one.

Does a public authoirty have a duty to hold a consultation?

No. “there is no general duty to consult at common law” - Plantagenet Alliance

Are there exceptions to the rule that there is no general duty to consult?

Yes:

Where there is a statutory duty (illegality)

A promise/policy/practise to consult (legitimate expectation)

Where a failure to consult would lead to unfairness (illegality, ignorance of relevent considerations)

What is the test for if a consultation is adequate?

Cited from the Sedley Criteria made law through case of Gunning, endorsed in Haringey

i) consultation must be made in formative stage

ii) sufficient information on proposals and reasoning must be given

iii) sufficient time must be given to consider info and submit responses

iv) responses must be genuinely considered and taken into account when making decision