Week 19 Procedural Impropriety, Procedural Fairness and Legitimate Expectations

Introduction to Procedural Impropriety and the Lord Diplock Definition

Procedural impropriety represents the third ground of judicial review as classified by Lord Diplock in the landmark case Council of Civil Service Unions v Minister for the Civil Service [ $1985$ ] AC $374$ (often referred to as the GCHQ case). This ground encompasses both the failure by a public authority to observe basic rules of natural justice (or to act with procedural fairness) and the failure to adhere to procedural rules that are expressly laid down in legislation. Lord Diplock specifically chose the term ‘procedural impropriety’ because it covers statutory breaches even in instances where such a failure does not necessarily involve a denial of natural justice. This establishes that public administrators are bound not only by common law standards of fairness but also by the specific procedural dictates of Parliament.

Sources of Procedural Standards in Public Law

Public administrators draw their procedural obligations from several distinct sources. The primary source is statutory law, which includes primary Acts of Parliament and delegated legislation. These often specify mandatory steps such as the requirement to consult or to hold a hearing before a decision is finalized. A second major source is the common law, encompassing the traditional standards of natural justice and procedural fairness as developed by the courts. A third source is the doctrine of procedural legitimate expectations, where an assurance or past practice of a public body creates a binding obligation to follow a specific procedure. Finally, the Human Rights Act $1998$ (HRA) requires public authorities to respect Convention Rights; specifically, Article $6$ of the European Convention on Human Rights (ECHR) provides for the right to an independent and impartial tribunal. Under Sections $3$ and $6$ of the HRA $1998$ , courts must take into account decisions of the European Court of Human Rights (ECtHR) and ensure public authorities act compatibly with these rights.

Statutory Procedural Requirements and Mandatory Duties

When a statute sets out procedural requirements, they are generally considered mandatory, and a failure to follow them may result in a decision being invalidated by the courts. Such requirements often include the duty to consult specific people or groups, to provide formal hearings, to publish decisions, to hold public inquiries, or to consider objections before a final decision is reached. A concrete example of such a statutory scheme is found in the Housing Act $1985$ s $377A$ . Under subsection ( $4$ ), before a local authority serves a works notice, they must provide written notice stating that they are considering the notice and the reasons why. Furthermore, the authority is legally required to specify a period in which the affected person may make written representations or, if requested, oral representations. Crucially, the authority must consider any representations that are duly made before proceeding. In these contexts, the court's task is primarily one of statutory interpretation to determine exactly what procedural steps Parliament intended the authority to follow.

Historical Development of Common Law Natural Justice

The terms ‘natural justice’ and ‘procedural fairness’ are frequently used interchangeably within the common law. Traditionally, natural justice is divided into two fundamental aspects: audi alteram partem (the right to be heard/hear the other side) and nemo judex in causa sua (the right to an unbiased judge/no man shall be a judge in his own cause). The historical roots of these principles are deep. In Bagg’s Case ( $1572$ ) $77$ ER $1271$ , Bagg, the Chief Burgess of Plymouth, was disenfranchised for insolent behavior toward the mayor, which included turning the hinder part of his body in an ‘unhuman and uncivil manner’ and telling the mayor to ‘come and kiss.’ The court held this disenfranchisement unlawful specifically because Bagg had not been given a hearing.

Further development occurred in Cooper v Wandsworth Board of Works ( $1863$ ) $143$ ER $414$ . In this instance, the Board of Works demolished Cooper’s house late one evening because he had built it without planning permission. Cooper argued he was never told this would happen nor given an opportunity to be heard. Byles J held that even if a statute is silent on the matter, the ‘justice of the common law will supply the omission of the legislature.’ This is now viewed as an aspect of the principle of legality, where statutes are presumed compatible with common law rights unless Parliament expressly states otherwise. The modern era of procedural fairness was solidified by Ridge v Baldwin [ $1964$ ] AC $40$ . When a Chief Constable was dismissed without being told of the allegations against him or given an explanation, the court held that the Police Authority had a duty to act judicially and observe natural justice due to the significant impact of the decision on the individual's rights.

The Underlying Values and Significance of Procedural Fairness

In the case of R (on application of Osborn) v Parole Board [ $2013$ ] UKSC $61$ , the Supreme Court addressed whether the Parole Board’s refusal to grant oral hearings to prisoners was lawful. Lord Reed explained that procedural fairness matters for three primary reasons. First, it has instrumental value: it is liable to result in better decisions by ensuring the decision-maker receives and properly tests all relevant information. Second, it serves the value of avoiding a sense of injustice by respecting the dignity of individuals significantly affected by a decision, allowing them to participate in the process. Research indicates that prisoners place high importance on having their contributions considered. Third, it upholds the Rule of Law. As noted by legal theorists such as Fuller ( $1969$ ) and Bingham ( $2010$ , Chapter $6$ ), procedural requirements promote congruence between the actions of decision-makers and the law that governs them.

The ‘Menu’ of Procedural Rights and the Principle of Context-Dependency

Procedural fairness does not require a fixed checklist for every scenario; instead, the requirements are context-dependent. A potential ‘menu’ of fairness includes prior notice of a decision, the right to be consulted, the right to know the case against you, the right to a hearing (oral or written), the right to legal representation, the right to call and cross-examine witnesses, the right to an unbiased decision-maker, the right to receive reasons for a decision, and the right to an appeal or review. In Lloyd v McMahon [ $1987$ ] AC $625$ , Lord Bridge stated that natural justice rules are not ‘engraved on tablets of stone’ and depend on the character of the body, the kind of decision, and the statutory framework. Similarly, in R v SSHD, ex p Doody [ $1994$ ] $1$ AC $531$ , Lord Mustill emphasized that standards of fairness are not immutable and change with the passage of time. Fairness must be applied having regard to the specific language of the statute and the shape of the legal and administrative system in which the decision resides.

Case Study: Procedural Fairness in the Context of the COVID-19 Pandemic

The reliance on written rather than oral hearings during the pandemic was tested in JCWI v The President of the Upper Tribunal and the Lord Chancellor [ $2020$ ] EWHC $3103$ (Admin). The President had issued guidance suggesting that immigration and asylum appeals should normally be decided on papers rather than remote hearings. Fordham J held this guidance was unlawful, noting that it was inconsistent with the common law requirement for a just and fair disposal. While written procedures are not inherently unfair, there cannot be a general norm mandating them in this context. Fordham J, citing research by Joe Tomlinson, noted that $50\%$ of the finalised appeals determined between $23$ March $2020$ and $11$ September $2020$ (amounting to $305$ cases) concerned vital human rights issues and complex facts. The court concluded that oral hearings are necessary to achieve a just decision whenever facts are in issue or where credibility and veracity must be tested, as written submissions are an unsatisfactory basis for such determinations.

The Rule Against Bias and the Principle of Impartiality

The second pillar of natural justice prohibits bias. There are three categories of bias. Actual bias is clearly unfair and results in invalidation. The second is the presumption of bias, which leads to automatic disqualification regardless of whether actual bias existed. This occurs if a judge has a financial interest in the outcome or is seen to be furthering their own cause. In Dimes v Proprietors of Grand Junction Canal [ $1852$ ] ER $301$ , an appeal was set aside because the Lord Chancellor owned shares in the company involved, with Lord Campbell noting the need to avoid even the appearance of influence. In Pinochet (No. $2$ ) [ $2000$ ] $1$ AC $119$ , Lord Hoffmann was automatically disqualified because he was the unpaid chairman of Amnesty International Charity Ltd, which was closely linked to Amnesty International, an intervener in the case. Lord Brown-Wilkinson noted that the rationale is that a man cannot be judge in his own cause, and this extends to the promotion of a cause the judge is involved in with one of the parties.

If disqualification is not automatic, the court applies the test for a ‘real possibility of bias.’ The test asks whether a ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.’ In Locabail (UK) Ltd v Bayfield Properties Ltd [ $2000$ ] QB $451$ , the court distinguished between tenuous connections and real possibilities, finding no automatic disqualification for nominal or indirect interests. In R (Al-Hasan) v Secretary of State [ $2005$ ] UKHL $13$ , a Deputy Governor was found to lack objective impartiality because he had been present during an intimate search he was later adjudicating upon. Conversely, in Helow v Secretary of State [ $2008$ ] UKHL $62$ , the judge's membership in the International Association of Jewish Lawyers and Jurists did not disqualify her from an asylum case, as it could be assumed a judge is capable of detaching their mind and making an impartial decision. Finally, ‘official bias’ (Franklin v Minister of Town and Country Planning [ $1948$ ] AC $87$ ) allows a minister to follow their own stated policy even if they confirm it after an inquiry, as they are expected to act in accordance with government policy.

Understanding Legitimate Expectations: Procedural and Substantive

Legitimate expectations arise when a public body’s practice or promise creates a situation where it would be unfair or unreasonable for the body not to honor that expectation. Statutes themselves do not create legitimate expectations; only public bodies do so through express or implied representations. In the GCHQ case [ $1985$ ], the past practice of consulting trade unions created a procedural legitimate expectation for future consultation, although this was ultimately overridden by national security interests. Substantive legitimate expectations involve a promise of a specific benefit. In ex p. Coughlan [ $1998$ ] EWHC Admin $1134$ , a severely disabled woman was promised a ‘home for life’ at Mardon House. When the Health Authority tried to close the facility, the court held the promise had to be respected unless there was an overriding public interest. The court applied a proportionality test and found the authority's justifications inadequate. This confirmed that expectations can be substantive as well as procedural.

Limitations and Conditions for Legitimate Expectations

Courts have recently shown a trend toward a narrower interpretation of the Coughlan principle, as seen in United Policyholders Group v The Att-Gen of Trinidad and Tobago [ $2016$ ] UKPC. For a legitimate expectation to be enforceable, the representation must not conflict with a statute; in ex parte Begbie [ $1999$ ] All ER $983$ , an offer of a school place could not create a legitimate expectation because it conflicted with existing law. The representation must also be clear and unequivocal, a standard that failed in R (ABCIFER) v SS for Defence [ $2003$ ] $1397$ regarding compensation for internees and was questioned in R (Bancoult) v SS for Foreign and Commonwealth Affairs [ $2008$ ] UKHL $61$ regarding statements made to Parliament. The claim is strongest for narrow, specific groups. Furthermore, while reliance to one’s detriment strengthens a claim, it may not be strictly necessary, as the doctrine is also based on the need for good administration (Niazi v SS [ $2008$ ] EWCA $755$ ). Political promises generally do not create legitimate expectations.

Conclusions on the Interplay of Fairness and Good Administration

Procedural fairness and impropriety are central to judicial review because they balance the interests of public bodies against the rights of individuals. Courts consider whether rights are affected and will usually require public bodies to justify potentially unfair actions by showing they are necessary and proportionate. Fairness is valued both instrumentally—facilitating better quality decisions—and normatively, through the requirements of justice and the Rule of Law. In the interests of good administration, courts may require fairness even in cases where specific individual detriment cannot be proven. Ultimately, while fairness to the public may sometimes demand unfairness to individuals, the judiciary acts as a check to ensure that any departure from procedural standards is legally justified and contextually appropriate.

Public Law Revision Summary — Procedural Impropriety, Natural Justice & Legitimate Expectations

1. Procedural Impropriety — Overview

Source

Council of Civil Service Unions v Minister for the Civil Service

(“GCHQ case”)

Lord Diplock’s Definition

Procedural impropriety includes:

Failure to comply with statutory procedural requirements.
Failure to comply with common law procedural fairness/natural justice.

Significance

Established procedural impropriety as one of the three classic grounds of judicial review.

Supports:

Rule of Law,
accountability,
fair administration.

2. Sources of Procedural Fairness

A. Statutory Law

Meaning

Acts of Parliament may require:

consultation,
hearings,
publication,
inquiries,
consideration of objections.

Significance

Public authorities must follow Parliament’s procedural requirements.

B. Common Law

Meaning

Courts impose:

natural justice,
procedural fairness.

Significance

Protects individuals even where statutes are silent.

C. Legitimate Expectations

Meaning

Promises or practices by public bodies may create enforceable procedural rights.

D. Human Rights Act 1998

Human Rights Act 1998

Key Provisions

Section 3,
Section 6,
Article 6 ECHR.

Article 6 ECHR

European Convention on Human Rights

Protection

Right to:

fair hearing,
independent tribunal,
impartial tribunal.

Significance

Strengthens procedural fairness protections.

3. Statutory Procedural Requirements

Important Principle

If Parliament imposes procedural duties:

they are generally mandatory.

Failure to Comply

May invalidate decision.

Housing Act 1985

Section 377A

Requirements Before Works Notice

Authority must:

provide written notice,
explain reasons,
allow representations,
consider representations.

Significance

Illustrates mandatory statutory procedural safeguards.

4. Natural Justice

Definition

Traditional common law procedural fairness principles.

Two Core Principles

A. Audi Alteram Partem

Meaning

Right to:

hear the other side,
fair hearing.

B. Nemo Judex in Causa Sua

Meaning

No person should:

judge their own cause.

Significance

Foundation of anti-bias principle.

5. Historical Development of Natural Justice

Bagg’s Case

What Happened

Bagg removed from office without hearing.

Court Decision

Unlawful because he was not heard.

Significance

Early authority establishing right to fair hearing.

Cooper v Wandsworth Board of Works

What Happened

Authority demolished Cooper’s house without hearing him.

Court Decision

Common law fairness applies even where statute silent.

Key Principle

“Justice of the common law will supply the omission.”

Significance

Foundational authority for:

procedural fairness,
principle of legality.

Ridge v Baldwin

What Happened

Chief Constable dismissed without hearing allegations.

Court Decision

Dismissal unlawful.

Significance

Revived modern law of natural justice.

Important for:

fair hearing rights,
procedural safeguards,
administrative fairness.

6. Osborn Case and Why Fairness Matters

R (Osborn) v Parole Board

What Happened

Parole Board refused oral hearings.

Lord Reed’s Three Justifications for Fairness

A. Better Decisions

Meaning

Fair procedures improve quality and accuracy of decisions.

B. Dignity and Participation

Meaning

Individuals deserve opportunity to participate.

C. Rule of Law

Meaning

Procedural standards ensure lawful administration.

Significance

Major modern authority on constitutional value of fairness.

Fuller and Bingham

Lon Fuller

Lord Bingham

Relevance

Procedural fairness supports:

legality,
consistency,
Rule of Law.

7. Context-Dependent Fairness

Important Principle

Procedural fairness varies depending on context.

No Universal Checklist.

Possible Procedural Rights

notice,
consultation,
oral hearing,
legal representation,
cross-examination,
reasons,
appeal,
impartial decision-maker.

Lloyd v McMahon

Lord Bridge’s Principle

Natural justice not:

“engraved on tablets of stone.”

Significance

Fairness depends on:

decision type,
statutory framework,
institutional context.

Ex parte Doody

R v Secretary of State for the Home Department, ex parte Doody

Lord Mustill’s Principle

Fairness standards:

evolve over time,
depend on circumstances.

Significance

Key authority on flexible procedural fairness.

8. COVID-19 and Procedural Fairness

JCWI Case

JCWI v President of the Upper Tribunal and Lord Chancellor

What Happened

Guidance favoured paper immigration hearings during pandemic.

Court Decision

General preference for written hearings unlawful.

Reason

Oral hearings often necessary where:

facts disputed,
credibility assessed,
human rights affected.

Significance

Modern authority on:

procedural fairness,
access to justice,
oral hearings.

9. Bias and Impartiality

Core Principle

Decision-makers must be:

impartial,
unbiased.

Three Categories of Bias

A. Actual Bias

Meaning

Decision-maker genuinely biased.

Result

Decision invalid.

B. Automatic Disqualification

Meaning

Certain interests automatically disqualify judge.

Dimes Case

Dimes v Proprietors of Grand Junction Canal

What Happened

Lord Chancellor owned shares in company involved.

Court Decision

Decision set aside.

Significance

Classic authority on:

financial interest,
appearance of bias.

Pinochet (No 2)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 2)

What Happened

Lord Hoffmann linked to Amnesty International.

Court Decision

Automatically disqualified.

Significance

Expanded automatic disqualification to:

organisational involvement,
advancement of cause.

C. Real Possibility of Bias

Test

Would:

“fair-minded and informed observer”
see real possibility of bias?

Locabail Case

Locabail (UK) Ltd v Bayfield Properties Ltd

Principle

Minor or indirect links insufficient.

Significance

Clarified modern apparent bias test.

Al-Hasan Case

R (Al-Hasan) v Secretary of State

What Happened

Official adjudicated on search he witnessed.

Court Decision

Lacked objective impartiality.

Significance

Illustrates real possibility of bias.

Helow Case

Helow v Secretary of State for the Home Department

What Happened

Judge linked to Jewish legal association.

Court Decision

No disqualification.

Reason

Judges presumed capable of impartiality.

Significance

Shows limits of apparent bias doctrine.

Official Bias

Franklin v Minister of Town and Country Planning

Principle

Ministers may lawfully pursue government policy.

Significance

Recognises political role of ministers.

10. Legitimate Expectations

Definition

Public body’s:

promise,
representation,
established practice,
creates expectation that should be honoured.

Important Point

Statutes do NOT create legitimate expectations.

Public Bodies Do.

GCHQ Case

Council of Civil Service Unions v Minister for the Civil Service

What Happened

Government stopped consulting unions.

Court Decision

Past consultation created procedural legitimate expectation.

But

National security overrode expectation.

Significance

Foundational legitimate expectation authority.

Procedural Legitimate Expectations

Meaning

Expectation of:

consultation,
hearing,
procedural participation.

Substantive Legitimate Expectations

Meaning

Expectation of actual substantive benefit.

Coughlan Case

R v North and East Devon Health Authority, ex parte Coughlan

What Happened

Disabled woman promised “home for life.”

Court Decision

Authority bound by promise.

Test

Departure allowed only for overriding public interest.

Significance

Leading case establishing:

substantive legitimate expectations,
proportionality balancing.

11. Limits on Legitimate Expectations

A. Cannot Conflict with Statute

Ex parte Begbie

R v Secretary of State for Education, ex parte Begbie

Principle

Promises conflicting with law cannot create enforceable expectations.

B. Promise Must Be Clear

ABCIFER Case

R (ABCIFER) v Secretary of State for Defence

Principle

Representation must be:

clear,
unequivocal.

Bancoult Case

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

Significance

Statements to Parliament may not always create expectations.

C. Narrow Group Claims Stronger

Meaning

Specific promises to identifiable groups more enforceable than broad public promises.

D. Reliance Strengthens Claim

Niazi Case

Niazi v Secretary of State

Principle

Detrimental reliance helpful but not always necessary.

Significance

Doctrine also protects:

good administration,
fairness.

Political Promises

Important Principle

General political promises usually:

do NOT create legitimate expectations.

12. Key Constitutional Themes

Rule of Law

Procedural fairness ensures:

lawful,
accountable,
fair administration.

Natural Justice

Protects:

hearings,
impartiality,
dignity,
participation.

Separation of Powers

Courts supervise fairness without replacing administrative decision-makers.

Principle of Legality

Courts presume Parliament intends:

fairness,
legality,
unless clearly excluded.

Good Administration

Fair procedures:

improve decisions,
enhance legitimacy,
increase public confidence.

Balancing Exercise

Courts balance:

administrative efficiency,
against:
individual fairness and rights.