Constitutional and Administrative Law Lecture 21.01.19
Procedural Impropriety- Consultation:
Lord Diplock defines procedural impropriety as ‘failure to observe basic rules of natural
justice’ etc.
Consultation
Fair Hearing
Procedures-people entitled to be treated fairly; fair procedures lead to better decisions
(decision-maker listens to all arguments and evidence); however costs to fairness
Consultation: no general requirements to consult before primary leg.; Recommended:
Cabinet Office Code of Practice.
Statutory rights to consultation-Aylesbury Mushrooms (1972)-requirement to consult in
statute. Imposition of tax levy. i.e. tax strict construction; required to consult mushroom
growers.
Common law rights to consultation-sometimes statute silent; but still might be requirement
to consult found in common/case law. Liverpool Taxi Fleet-explicit promise; GCHQ (1985)-
previous practice on consultation; not an explicit promise but courts accepted due to past
practice
Past Practice-Bhatt Murphy (2008)-impact of past practice pressing/focused. Changes to
legal aid (gov. wants) but law firms don’t want this to happen. No past practice but courts
said it would impact vulnerable indiv.; Harrow Community Support (2014)-gov. wanted to
put missile system on top of block of flats, should’ve consulted before. Court not prepared
to interfere.; Plantagenet Alliance (Richard III) (2014)-archaeology wanted to dig up car park
to see if Richard III was buried here, need licence from Ministers of Justice, they did find him,
debates on why he should be reburied in Leicester.
Consultation requirements under common law-Plantagenet Alliance; Lady Justice Hale-no
general duty to consult at common law; four main circumstances……… common law slow to
require public body to engage in consult. where there’s been no assurance…..
Meaningful Consultation- Lee v DES (Dpt. For Education and Science) (1968) gov. decided to
close a school and consult parents and staff, 3-4 days not enough usually need 12 weeks;
Gunning (1985) proposals at formative stage, sufficient reasons for proposals, adequate time
and product of consultation taken into account; Moseley (2014)-changes to council tax
discounts, central scheme for relief replaced by local scheme, to what extent do alternatives
have to be explained; But cf Rusal (2014) London metal exchange, wanted to change
regulations, courts decided they didn’t need to consult, clients
Effect of failure to consult-AMA (1986) failure to consult over housing benefit regulations,
court agreed with AMA, requirement to consult, unlawful BUT no remedy awarded
(discretionary remedy, can win in court but don’t always get remedy), used to past
regulations
Procedural Impropriety: Natural Justice (1)
When do rules of natural justice apply?
Right to a fair hearing?
Pre-Ridge v Baldwin; Ridge v Baldwin; Post-Ridge v Baldwin
What is natural justice?
“Hear the other side” Audi alteram partem (don’t need to know Latin)
“No one may be the judge in their own cause” Nemo judex in causa sua
Procedural Impropriety- Consultation:
Lord Diplock defines procedural impropriety as ‘failure to observe basic rules of natural
justice’ etc.
Consultation
Fair Hearing
Procedures-people entitled to be treated fairly; fair procedures lead to better decisions
(decision-maker listens to all arguments and evidence); however costs to fairness
Consultation: no general requirements to consult before primary leg.; Recommended:
Cabinet Office Code of Practice.
Statutory rights to consultation-Aylesbury Mushrooms (1972)-requirement to consult in
statute. Imposition of tax levy. i.e. tax strict construction; required to consult mushroom
growers.
Common law rights to consultation-sometimes statute silent; but still might be requirement
to consult found in common/case law. Liverpool Taxi Fleet-explicit promise; GCHQ (1985)-
previous practice on consultation; not an explicit promise but courts accepted due to past
practice
Past Practice-Bhatt Murphy (2008)-impact of past practice pressing/focused. Changes to
legal aid (gov. wants) but law firms don’t want this to happen. No past practice but courts
said it would impact vulnerable indiv.; Harrow Community Support (2014)-gov. wanted to
put missile system on top of block of flats, should’ve consulted before. Court not prepared
to interfere.; Plantagenet Alliance (Richard III) (2014)-archaeology wanted to dig up car park
to see if Richard III was buried here, need licence from Ministers of Justice, they did find him,
debates on why he should be reburied in Leicester.
Consultation requirements under common law-Plantagenet Alliance; Lady Justice Hale-no
general duty to consult at common law; four main circumstances……… common law slow to
require public body to engage in consult. where there’s been no assurance…..
Meaningful Consultation- Lee v DES (Dpt. For Education and Science) (1968) gov. decided to
close a school and consult parents and staff, 3-4 days not enough usually need 12 weeks;
Gunning (1985) proposals at formative stage, sufficient reasons for proposals, adequate time
and product of consultation taken into account; Moseley (2014)-changes to council tax
discounts, central scheme for relief replaced by local scheme, to what extent do alternatives
have to be explained; But cf Rusal (2014) London metal exchange, wanted to change
regulations, courts decided they didn’t need to consult, clients
Effect of failure to consult-AMA (1986) failure to consult over housing benefit regulations,
court agreed with AMA, requirement to consult, unlawful BUT no remedy awarded
(discretionary remedy, can win in court but don’t always get remedy), used to past
regulations
Procedural Impropriety: Natural Justice (1)
When do rules of natural justice apply?
Right to a fair hearing?
Pre-Ridge v Baldwin; Ridge v Baldwin; Post-Ridge v Baldwin
What is natural justice?
“Hear the other side” Audi alteram partem (don’t need to know Latin)
“No one may be the judge in their own cause” Nemo judex in causa sua
