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TOPIC 9GROUNDS (3)
PROCEDURAL IMPROPRIETY
9.1 INTRODUCTION
(1) The Sources of procedural rules
A set of grounds have been developed which concern decision-making procedures.
Such procedural rules are to be found in the common law and also sometimes in
statute. Failure to comply with them may lead to the decision being nullified.
(2) The Reasons for Procedural Rules
The link between process and outcome;
The need to protect values which are independent of the direct outcome of the
decision.
e.g. Participation, fairness and the protection of individual dignity
9.2 EXPRESS PROCEDURAL REQUIREMENTS
Remember that where Article 6 of the ECHR applies, by virtue of section 3 of the
Human Rights Act 1998, express statutory requirements will have to be given a
meaning which as far as possible is in accordance with the Article's requirements.
(1) In deciding whether failure to follow a procedural requirement invalidates a
decision courts have historically divided procedural requirements into two types:
(a) Mandatory ones- breach of which leads to the decision being quashed;
(b) Directory ones- breach of which will not lead to the decision being quashed
See the cases of Bradbury v Enfield London Borough Council [1967] 1 WLR
1311 (W and S: 577)
R v Secretary of State for Social Services ex parte Association of Metropolitan
Authorities [1986] 1 WLR 1 (T and G: 283-285)
Note however a different approach in R v Secretary of State for the Home
Department ex parte Jayeanthan [1999] 3 All ER 231 and more recently in R v
Soneji (2005)
(W and S: 574-575)
T9-1|Page
TOPIC 9-Procedural Impropriety
, R v Soneji [2005] UKHL 49 1
Here Lord Hailsham stated that Parliament expected its authority to be obeyed when it lays
down statutory requirements for the exercise of legal authority. The court must interpret such
requirements in a factual context. At one extreme there may have been such an outrageous
and flagrant disregard of the requirement that the person affected might consider an action or
decision to have no legal consequences upon him. At the other end of the spectrum, is a
trivial defect in procedure that the courts are unlikely to regard as significant. Lord Hailsham
considered terms such as ‘mandatory’ and ‘directory’ to be too rigid to be applied in all cases
and Lord Slynn considered that they should be avoided.
(2) The Relationship between statute and common law
9.3 THE COMMON LAW: THE RULES OF NATURAL JUSTICE
(1) A person must be given a fair hearing (audi alteram partem);
(2) The rule against bias which requires that a person must not be a judge in
his or her own cause.
Historically these rules have been closely tied to decision-making in the courts but
have been extended to apply to administrative decision-making by administrative
authorities.
9.4 THE RIGHTS TO A FAIR HEARING
(1) The traditional principles was that the audi alteram partem principle only applied
to judicial or quasi-judicial decisions as opposed to administrative ones.
(2) Since Ridge v Baldwin [1964] a wider variety of decisions have been considered
to be subject to the requirements of natural justice and the division between judicial,
quasi-judicial and administrative decisions for these purposes no longer has pivotal
importance.
"The mere fact that the power affects rights or interests is what makes it 'judicial',
and so subject to the procedures required by natural justice. In other words, a power
which affects rights must be exercised 'judicially', i.e. fairly, and the fact that the
power is administrative does not make it any of the less 'judicial' for this purpose."
(Wade and Forsyth, p.512)
If a decision seriously affects individual interests, natural justice (or fairness) must be
observed irrespective of the label applicable to that decision. The issue is the
application of the rule to the particular circumstances of the case under analysis- that
is the extent to which the requirements of procedural protection will apply.
1
This House of Lords case concerned the making of confiscation of property orders against convicted criminals. The facts are unimportant
for our purposes.
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TOPIC 9-Procedural Impropriety
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