Introduction
GCHQ
Lord Diplock
I have described the third head as “procedural impropriety” rather than a failure to observe the basic rules of natural
justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head cover also failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred”
So even if a decision has been made lawfully, and “rationally” (or reasonably), it can still be challenged because of the
way the decision has been made.
The decision could be challenged for many procedural reasons
Breach of statutory procedure.
Bias
Right to be heard
Legitimate expectation
Failure to Follow a statutory procedure
Public bodies must have the legal power to act.
If statute gives the power, it may also state how that power is to be exercised - the process which should be followed.
For example, a public body may have to consult interested groups or inform people likely to be effected by their
decision.
If this is not complied with the statutory procedure has been breached, and this could be reviewed on the grounds of
procedural impropriety
Courts have developed two categories of statutory procedure;
Mandatory provisions - requirements which if not met make the decision void.
Directory provisions - requirement which if not met strict compliance is not required.
Bradbury v Enfield Borough Council
Government policy was to convert grammar and secondary modern schools into comprehensive schools.
The statute giving the power to local authorities to do this required that the schools involved should be notified and
consulted about this change.
The council had failed to do this for some schools because they misinterpreted the law
The decision was void.
Lord Denning
“… if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them…I can see
that there may be a considerable upset…but I think it is far more important to uphold the rule of law. Parliament laid
down these requirements so as to ensure that electors can make their objections and have them properly considered.
We must see that their rights are upheld”.
The problem was that those affected did not have the opportunity to make their concerns felt.
Coney v Choyce
Similar facts, reorganisation of schools into comprehensives.
However, the law required that a notice was placed near the main entrance to the school detailing the changes.
This was not complied with for two schools.
Not a breach of the statutory procedure because these had only been minor breaches and there had been substantial
compliance with the procedure.
The changes had been well advertised in the local press. This was a challenge “purely on the technicalities”
From this we can see that if it’s a serious breach of the procedure the decision or action will be void.
If it’s a mere technicality, the decision will not be void.
R v Secretary of State for Home Department, ex p Jeyeanthan [2000] 1 WLR 354
, Lord Woolf suggested a three stage test
1. Has there been substantial compliance with the requirement?
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived?
3. What are the consequences of it not being waived
Statutory Duty to Consult
Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushroom Ltd (1972)
The requirements of statutory consultation must involved true consultation.
It will not be enough to consult only the largest representative body.
All must be consulted and given the opportunity to respond.
Natural Justice Outline
These are requirements that the common law has placed on decision makers.
This can be described as “due process” or “procedural fairness” or “rules of natural justice”.
This is a very wide area of decision making, and the standard of fairness depends on the nature of the decision being
made.
If someone’s livelihood is at stake a far greater standard will be imposed, than a minor decision.
Doody Principles
Doody v Secretary of State for the Home Department [1993] 3 All ER 92
(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a
manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in
their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the
shape of the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity
to make representations on his own behalf either before the decision is taken with a view to producing a favourable
result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh
against his interests fairness will very often require that he is informed of the gist of the case which he has to answer
Mcinnes v Onslow-Fane
Application for a boxing manager licence, this was rejected by the British Boxing Board of Control.
The applicant argued that the decision has to be made in accordance with ‘natural justice’.
This meant that the applicant should be informed of the case against them.
This also required an oral hearing.
Held:
A distinction was made between taking a right away and granting a new right.
Forfeiture - When membership or licence is going to be revoked.
Expectation - Renewal or has a legitimate expectation of application being granted.
Application - When someone applies for membership.
This was an application case.
Which meant that there was no duty to give reasons or have an oral hearing.
By implication this meant that there was no duty to inform them of the gist of the case against them.
But the more significant the case the greater the procedural requirements are likely to be.
Right to a fair hearing
GCHQ
Lord Diplock
I have described the third head as “procedural impropriety” rather than a failure to observe the basic rules of natural
justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head cover also failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred”
So even if a decision has been made lawfully, and “rationally” (or reasonably), it can still be challenged because of the
way the decision has been made.
The decision could be challenged for many procedural reasons
Breach of statutory procedure.
Bias
Right to be heard
Legitimate expectation
Failure to Follow a statutory procedure
Public bodies must have the legal power to act.
If statute gives the power, it may also state how that power is to be exercised - the process which should be followed.
For example, a public body may have to consult interested groups or inform people likely to be effected by their
decision.
If this is not complied with the statutory procedure has been breached, and this could be reviewed on the grounds of
procedural impropriety
Courts have developed two categories of statutory procedure;
Mandatory provisions - requirements which if not met make the decision void.
Directory provisions - requirement which if not met strict compliance is not required.
Bradbury v Enfield Borough Council
Government policy was to convert grammar and secondary modern schools into comprehensive schools.
The statute giving the power to local authorities to do this required that the schools involved should be notified and
consulted about this change.
The council had failed to do this for some schools because they misinterpreted the law
The decision was void.
Lord Denning
“… if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them…I can see
that there may be a considerable upset…but I think it is far more important to uphold the rule of law. Parliament laid
down these requirements so as to ensure that electors can make their objections and have them properly considered.
We must see that their rights are upheld”.
The problem was that those affected did not have the opportunity to make their concerns felt.
Coney v Choyce
Similar facts, reorganisation of schools into comprehensives.
However, the law required that a notice was placed near the main entrance to the school detailing the changes.
This was not complied with for two schools.
Not a breach of the statutory procedure because these had only been minor breaches and there had been substantial
compliance with the procedure.
The changes had been well advertised in the local press. This was a challenge “purely on the technicalities”
From this we can see that if it’s a serious breach of the procedure the decision or action will be void.
If it’s a mere technicality, the decision will not be void.
R v Secretary of State for Home Department, ex p Jeyeanthan [2000] 1 WLR 354
, Lord Woolf suggested a three stage test
1. Has there been substantial compliance with the requirement?
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived?
3. What are the consequences of it not being waived
Statutory Duty to Consult
Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushroom Ltd (1972)
The requirements of statutory consultation must involved true consultation.
It will not be enough to consult only the largest representative body.
All must be consulted and given the opportunity to respond.
Natural Justice Outline
These are requirements that the common law has placed on decision makers.
This can be described as “due process” or “procedural fairness” or “rules of natural justice”.
This is a very wide area of decision making, and the standard of fairness depends on the nature of the decision being
made.
If someone’s livelihood is at stake a far greater standard will be imposed, than a minor decision.
Doody Principles
Doody v Secretary of State for the Home Department [1993] 3 All ER 92
(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a
manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in
their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the
shape of the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity
to make representations on his own behalf either before the decision is taken with a view to producing a favourable
result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh
against his interests fairness will very often require that he is informed of the gist of the case which he has to answer
Mcinnes v Onslow-Fane
Application for a boxing manager licence, this was rejected by the British Boxing Board of Control.
The applicant argued that the decision has to be made in accordance with ‘natural justice’.
This meant that the applicant should be informed of the case against them.
This also required an oral hearing.
Held:
A distinction was made between taking a right away and granting a new right.
Forfeiture - When membership or licence is going to be revoked.
Expectation - Renewal or has a legitimate expectation of application being granted.
Application - When someone applies for membership.
This was an application case.
Which meant that there was no duty to give reasons or have an oral hearing.
By implication this meant that there was no duty to inform them of the gist of the case against them.
But the more significant the case the greater the procedural requirements are likely to be.
Right to a fair hearing
