Procedural Impropriety - consultation
“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
PROCEDURAL IMPROPRIETY – CONSULTATION
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘procedural impropriety’ and more specifically this engages with consultation.
ARTICULATE LEGAL TEST There is no general duty to consult but one might arise
through the operation of other rules and where it does arise,
it must be done properly
AUTHORITY FOR TEST Plantagenet Alliance Case
no general duty to consult
though might arise through other rules
R (Moseley/Stirling) v Haringey
where it does arise, it must be done properly
THE SEDLEY CRITERIA R v Brent ex parte Gunning
“Mr Sedley submits….”
1. consultation must be at a time when proposals are still
at a formative stage – can’t consult on a decision
you’ve already made
2. proposer must give sufficient reasons for any proposal
to permit of intelligent consideration and response
3. adequate time must be given for consideration and
response
4. the product of consultation must be conscientiously
taken into account in finalising any ... Proposals –
answers of consultation must be taken into account
Describes what counts as a general consultation – if you
violate one of these then it’s not a real or authentic
consultation and you have to consult, do it properly - RULE
THEN APPLY TO FACTS OF PROBLEM QUESTION!!! – keep legitimate expectations separate
“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
PROCEDURAL IMPROPRIETY – CONSULTATION
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘procedural impropriety’ and more specifically this engages with consultation.
ARTICULATE LEGAL TEST There is no general duty to consult but one might arise
through the operation of other rules and where it does arise,
it must be done properly
AUTHORITY FOR TEST Plantagenet Alliance Case
no general duty to consult
though might arise through other rules
R (Moseley/Stirling) v Haringey
where it does arise, it must be done properly
THE SEDLEY CRITERIA R v Brent ex parte Gunning
“Mr Sedley submits….”
1. consultation must be at a time when proposals are still
at a formative stage – can’t consult on a decision
you’ve already made
2. proposer must give sufficient reasons for any proposal
to permit of intelligent consideration and response
3. adequate time must be given for consideration and
response
4. the product of consultation must be conscientiously
taken into account in finalising any ... Proposals –
answers of consultation must be taken into account
Describes what counts as a general consultation – if you
violate one of these then it’s not a real or authentic
consultation and you have to consult, do it properly - RULE
THEN APPLY TO FACTS OF PROBLEM QUESTION!!! – keep legitimate expectations separate
