CON & AD LAW: PROCEDURAL IMPROPRIETY
Discuss preliminaries
FAILURE TO OBSERVE PROCEDURAL STATUTORY REQUIREMENTS
Consider: Are there any mandatory/directory requirements in the fictional act that have
been breached?
There are two types of procedural requirements within statute: procedural requirements that are
considered mandatory & those that are directory.
- A failure to follow mandatory requirements would invalidate a decision.
- AUTHORITY Aylesbury Mushrooms: Minister exercising his power under the Industrial
Training Act to introduce a levy to agricultural operators. Before making the order the Minister was
required under statute (mandatory) to consult any organisation, which appeared to be
representative of employers engaging in the activities concerned. The Minister had decided that the
Mushroom Growers' Association was representative. The minister had sought to send the
Mushroom Growers' Association a copy of a draft order for the purposes of consultation but this
never arrived. Held that the association had not been consulted in line with the mandatory
requirement therefore the order was quashed.
- A directory requirement is one, which is interpreted as not being compulsory. Failure to comply
with a directory requirement would not invalidate the decision; instead courts adopt a flexible
approach in regards to the failure to follow the requirement.
- AUTHORITY R v Soneji: Judiciary should follow the consequences of non-compliance and ask
whether Parliament would have intended the decision to be invalidated as a result of the
non-compliance consider the purpose of why the statute exists – has the non compliance
defeated the significance of it?
- Applied in: JN (Cameroon): An immigration notice was meant, under the relevant regulations, to tell
a deportee where he was going to be deported too. Court held that the failure to specify the country
or territory that JN was to be deported to on his deportation notice, as required by Regulations, did
not invalidate the order to deport him. The purpose of the requirement was to assist the person
concerned in relation to any appeal & JN's ability to appeal was not impaired by the failure to state
the destination. Moreover, it was clear from previous correspondence relating to the deportation
decision that the intention was to deport him to Cameroon. Therefore JN’s claim failed to quash the
notice as the non-compliance wasn’t a significant factor
- Herron v Parking Adjudicator: Minor irregularities (unclear) in road signs & road markings did not
invalidate the 39 penalty notice charges accumulated in that zone by the claimant
Failure to observe the duty to act fairly
Consider: What has been done that may not be considered fair in the scenario e.g. refusal
to be heard?
THE DUTY TO ACT FAIRLY
Is there a duty to act fairly?
Duty of fairness applies both for administrative and judicial decisions: AUTHORITY Ridge v Baldwin
- Ridge, a CC of the police, had been sacked for negligence & he hadn’t been told that he was going
to be sacked for negligence or given an opportunity to contest the dismissal. Held: there was an
obligation to observe natural justice & the duty to act fairly in the exercise of a statutory function
Discuss preliminaries
FAILURE TO OBSERVE PROCEDURAL STATUTORY REQUIREMENTS
Consider: Are there any mandatory/directory requirements in the fictional act that have
been breached?
There are two types of procedural requirements within statute: procedural requirements that are
considered mandatory & those that are directory.
- A failure to follow mandatory requirements would invalidate a decision.
- AUTHORITY Aylesbury Mushrooms: Minister exercising his power under the Industrial
Training Act to introduce a levy to agricultural operators. Before making the order the Minister was
required under statute (mandatory) to consult any organisation, which appeared to be
representative of employers engaging in the activities concerned. The Minister had decided that the
Mushroom Growers' Association was representative. The minister had sought to send the
Mushroom Growers' Association a copy of a draft order for the purposes of consultation but this
never arrived. Held that the association had not been consulted in line with the mandatory
requirement therefore the order was quashed.
- A directory requirement is one, which is interpreted as not being compulsory. Failure to comply
with a directory requirement would not invalidate the decision; instead courts adopt a flexible
approach in regards to the failure to follow the requirement.
- AUTHORITY R v Soneji: Judiciary should follow the consequences of non-compliance and ask
whether Parliament would have intended the decision to be invalidated as a result of the
non-compliance consider the purpose of why the statute exists – has the non compliance
defeated the significance of it?
- Applied in: JN (Cameroon): An immigration notice was meant, under the relevant regulations, to tell
a deportee where he was going to be deported too. Court held that the failure to specify the country
or territory that JN was to be deported to on his deportation notice, as required by Regulations, did
not invalidate the order to deport him. The purpose of the requirement was to assist the person
concerned in relation to any appeal & JN's ability to appeal was not impaired by the failure to state
the destination. Moreover, it was clear from previous correspondence relating to the deportation
decision that the intention was to deport him to Cameroon. Therefore JN’s claim failed to quash the
notice as the non-compliance wasn’t a significant factor
- Herron v Parking Adjudicator: Minor irregularities (unclear) in road signs & road markings did not
invalidate the 39 penalty notice charges accumulated in that zone by the claimant
Failure to observe the duty to act fairly
Consider: What has been done that may not be considered fair in the scenario e.g. refusal
to be heard?
THE DUTY TO ACT FAIRLY
Is there a duty to act fairly?
Duty of fairness applies both for administrative and judicial decisions: AUTHORITY Ridge v Baldwin
- Ridge, a CC of the police, had been sacked for negligence & he hadn’t been told that he was going
to be sacked for negligence or given an opportunity to contest the dismissal. Held: there was an
obligation to observe natural justice & the duty to act fairly in the exercise of a statutory function
