Judicial review iii- procedural impropriety
1. Failure to follow a statutory procedure
- Public bodies must have the legal power to act
- If statute gives the power, it may also state 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.
1.1 statutory procedure
- courts have developed two catergories of statutory procedure;
- mandatory provisions- requirements which if not met make the decision void.
- Directory provision provisions- requirement which if not met strict compliance is not required.
1.2 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. (ADD LORD DENNINGS QUOTE SLIDE 13)
1.3 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 that 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 and should it be waived? 3- what
are the consequences of it not being waived?
1.4 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.
2. 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 someones livelihood is at stake a far greater standard will be imposed, than a
minor decision.
1.2 “doody principles”
- Doody v secretary of state for the home department [1993] 3 AII 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 decision of a particular type.
1. Failure to follow a statutory procedure
- Public bodies must have the legal power to act
- If statute gives the power, it may also state 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.
1.1 statutory procedure
- courts have developed two catergories of statutory procedure;
- mandatory provisions- requirements which if not met make the decision void.
- Directory provision provisions- requirement which if not met strict compliance is not required.
1.2 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. (ADD LORD DENNINGS QUOTE SLIDE 13)
1.3 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 that 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 and should it be waived? 3- what
are the consequences of it not being waived?
1.4 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.
2. 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 someones livelihood is at stake a far greater standard will be imposed, than a
minor decision.
1.2 “doody principles”
- Doody v secretary of state for the home department [1993] 3 AII 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 decision of a particular type.
