Basic idea
● "I have described the third head as "procedural impropriety" rather than failure to observe 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 covers
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, even where such failure does
not involve any denial of natural justice"- Lord Diplock, Council of Civil Service Unions v Minister
for the Council Service [1985] 1 AC 374, 411
● Two types of claims:
1. That the decision-maker has failed to follow procedures laid down by legislation
2. That the decision-maker has failed to comply with rules of natural justice and procedural
fairness
Compliance with procedure
Procedural requirements
● Procedural requirements laid down by statute or other instrument conferring a decision-making
power must be complied with
● Failure to follow procedure, however, will not always result in a decision being deemed unlawful
● "mandatory" requirements- decision invalid if such requirements not complied with
CASE EXAMPLE
Bradbury v Enfield London Borough Council [1967] 1 WLR 1311
● The local authority sought to implement government policy of abolishing system of secondary
and grammar schools and replacing it with a system of comprehensive schools
● The local authority misinterpreted the statute however and failed to give the parents of the eight
schools being closed notice of the fact (there was accordingly a failure to consult)
● Court of Appeal held that the local authority had acted unlawfully
● "it is imperative that the procedure laid down in the relevant statutes should be properly
observed. The provisions of the statutes in this respect are supposed to provide safeguards for
Her Majesty's subjects. Public Bodies and Ministers must be compelled to observe the law; and it
is essential that bureaucracy should be kept in its place"- Danckwerts LJ
● "directory" requirements- technical or trivial requirements which may not result in decision
being held invalid if not complied with
CASE EXAMPLE
Coney v Choyce [1975] 1 WLR 422
● Case also concerned introduction of system of comprehensive school
● Failure to post notices near main entrance of two schools (however, public notices in the local
newspaper had been issued, public meetings had been held, and parents had received letters)
● Court held that this failure to follow procedure was minor and did not prejudice the parties
● There had been "substantial compliance" with the regulations meaning that the purpose of the
Act- informing parents of the proposed change- had been achieved
● Rebuttable presumption that statutory requirements are "mandatory"
, Procedural fairness and natural justice
The rule against bias
● "bias is an attitude of mind which prevents...[a person] from making an objective determination
of the issues that he has to resolve"- Lord Phillips, Re Medicaments and Related Classes of Goods
[2001] 1 WLR 700, 711
1. Presumed (direct) bias
1. Improper interest in the outcome of the case
2. Types of interest
3. Financial
CASE EXAMPLE
Dimes v Grand Junction Canal Properties [1852] 3 HLC 759
● On appeal the Lord Chancellor affirmed an order in favour of the Grand Junction Canal (a
company) of which he held shares
● House of Lords held that he should not have heard the appeal
● "it is of the last importance that the maxim that no man is to be a judge in his own cause should
be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a
cause in which he has an interest"- Lord Campbell, at 793
● In order to trigger automatic disqualification, financial interest must be more than de minimis (R
v Bristol Betting and Gaming Licensing Committee ex p O'Callaghan (heard alongside Locabail UK
Ltd v Bayfield Properties Ltd [2000] QB 451))
1. Member of a group that is party to the case
CASE EXAMPLE
R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No 2)
[2000] 1 AC 1
● General Pinochet claimed immunity in House of Lords during extradition procedures to Spain
● Amnesty International was an intervener in the case
● House of Lords held that general Pinochet was not entitled to immunity
● Afterwards, it was revealed that Lord Hoffman was the director of Amnesty International
Charitable Limited
● House of Lords accordingly applied automatic disqualification rule
● "the substance of the matter is that [Amnesty International, amnesty International Limited and
Amnesty International Charitable Limited] are all various parts of an entity or movement working
in different fields towards the same goals. If the absolute impartiality of the judiciary is to be
maintained, there must be a rule which automatically disqualifies a judge who is involved,
whether personally or as a director of a company, in promoting the same causes in the same
organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart C.J.'s
famous dictum is to be observed: it is "of fundamental importance that justice should not only
be done, but should be manifestly and undoubtedly be seen to be done"- Lord
Browne-Wilkinson, at 135
● Both result in decision-maker being automatically disqualified from making the decision under
challenge
1. Apparent (indirect) bias
● "I have described the third head as "procedural impropriety" rather than failure to observe 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 covers
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, even where such failure does
not involve any denial of natural justice"- Lord Diplock, Council of Civil Service Unions v Minister
for the Council Service [1985] 1 AC 374, 411
● Two types of claims:
1. That the decision-maker has failed to follow procedures laid down by legislation
2. That the decision-maker has failed to comply with rules of natural justice and procedural
fairness
Compliance with procedure
Procedural requirements
● Procedural requirements laid down by statute or other instrument conferring a decision-making
power must be complied with
● Failure to follow procedure, however, will not always result in a decision being deemed unlawful
● "mandatory" requirements- decision invalid if such requirements not complied with
CASE EXAMPLE
Bradbury v Enfield London Borough Council [1967] 1 WLR 1311
● The local authority sought to implement government policy of abolishing system of secondary
and grammar schools and replacing it with a system of comprehensive schools
● The local authority misinterpreted the statute however and failed to give the parents of the eight
schools being closed notice of the fact (there was accordingly a failure to consult)
● Court of Appeal held that the local authority had acted unlawfully
● "it is imperative that the procedure laid down in the relevant statutes should be properly
observed. The provisions of the statutes in this respect are supposed to provide safeguards for
Her Majesty's subjects. Public Bodies and Ministers must be compelled to observe the law; and it
is essential that bureaucracy should be kept in its place"- Danckwerts LJ
● "directory" requirements- technical or trivial requirements which may not result in decision
being held invalid if not complied with
CASE EXAMPLE
Coney v Choyce [1975] 1 WLR 422
● Case also concerned introduction of system of comprehensive school
● Failure to post notices near main entrance of two schools (however, public notices in the local
newspaper had been issued, public meetings had been held, and parents had received letters)
● Court held that this failure to follow procedure was minor and did not prejudice the parties
● There had been "substantial compliance" with the regulations meaning that the purpose of the
Act- informing parents of the proposed change- had been achieved
● Rebuttable presumption that statutory requirements are "mandatory"
, Procedural fairness and natural justice
The rule against bias
● "bias is an attitude of mind which prevents...[a person] from making an objective determination
of the issues that he has to resolve"- Lord Phillips, Re Medicaments and Related Classes of Goods
[2001] 1 WLR 700, 711
1. Presumed (direct) bias
1. Improper interest in the outcome of the case
2. Types of interest
3. Financial
CASE EXAMPLE
Dimes v Grand Junction Canal Properties [1852] 3 HLC 759
● On appeal the Lord Chancellor affirmed an order in favour of the Grand Junction Canal (a
company) of which he held shares
● House of Lords held that he should not have heard the appeal
● "it is of the last importance that the maxim that no man is to be a judge in his own cause should
be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a
cause in which he has an interest"- Lord Campbell, at 793
● In order to trigger automatic disqualification, financial interest must be more than de minimis (R
v Bristol Betting and Gaming Licensing Committee ex p O'Callaghan (heard alongside Locabail UK
Ltd v Bayfield Properties Ltd [2000] QB 451))
1. Member of a group that is party to the case
CASE EXAMPLE
R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No 2)
[2000] 1 AC 1
● General Pinochet claimed immunity in House of Lords during extradition procedures to Spain
● Amnesty International was an intervener in the case
● House of Lords held that general Pinochet was not entitled to immunity
● Afterwards, it was revealed that Lord Hoffman was the director of Amnesty International
Charitable Limited
● House of Lords accordingly applied automatic disqualification rule
● "the substance of the matter is that [Amnesty International, amnesty International Limited and
Amnesty International Charitable Limited] are all various parts of an entity or movement working
in different fields towards the same goals. If the absolute impartiality of the judiciary is to be
maintained, there must be a rule which automatically disqualifies a judge who is involved,
whether personally or as a director of a company, in promoting the same causes in the same
organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart C.J.'s
famous dictum is to be observed: it is "of fundamental importance that justice should not only
be done, but should be manifestly and undoubtedly be seen to be done"- Lord
Browne-Wilkinson, at 135
● Both result in decision-maker being automatically disqualified from making the decision under
challenge
1. Apparent (indirect) bias
