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Judicial Review 3 - Lecture Notes

Constitutional and Administrative Law (University of Southampton)

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Judicial Review 3
Procedural impropriety and legitimate expectations

Why does procedure matter?

Fair procedures promote good government: treat people as they should and one of oldest principles. In
common law, refer to natural justice (US: due process). Unless procedures fair, whole system falls apart.

(In 1250 case: Lord gives land to guy. Went to be carpenter so left land, died. Daughters went to court to
say inherited land from father. Court said they were right: Lord could have gone to court to get land back
but didn’t. Didn’t use right process, so got to keep land)

Following right procedures built into common law and makes a difference

Procedural impropriety
Procedure may be unlawful if does not meet statutory or common law requirements. Statutory
requirements can be construed as mandatory or directory:
- Failure to adhere to mandatory requirements renders decision void
- Failure to adhere to directory requirements need not do so.

Typical forms of statutory requirements

- Prior Notice
- Right of Appeal
- Duty to consult
- Duty to give reasons
- Time Limits

Rules of natural justice

‘The history of Liberty has largely been the history of the observance of procedural safeguards’ J
Frankfurter.

Rule against bias

Judge who has actual interest in case disqualified. Apparent bias more complex but basic principle:
justice must be seen to be done

R v Sussex Justices, ex parte McCarthy [1924]

Prosecution for driving offences. Clerk to justices was member of firm solicitors acting against him in
related civil action.
Held: justice ‘must manifestly and undoubtedly be seen to be done’

R v Gough [1993] AC 658

Courts gone back and forth as to appropriate test

Leading case now

Porter v Magill [2001] UKHL 67

“The question is whether the fair-minded and informed observer, having considered the facts,
would conclude that there was a real possibility that the tribunal was biased.”

Therefore: No need to establish probability, just objective test

Right to be heard
Requirement of knowledge of capability of contesting decisions affecting interests. However, right to be
heard does not mean getting whole thing in court of law (administrative tribunals..)

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Ridge v Baldwin [1964]
Chief Police into trouble and local police authority sacked without notice and without hearing.
Wanted right to notice and hearing.
Held: Lord Reid: even if administrative case, doesn't mean rules of natural justice don’t apply

Though R v B confirms general application of right to be heard, can vary depending on context.

Normative considerations: distinction between losing something and gaining something, certain
interests require greater protection
Practical considerations: written representations or oral hearing? Oral hearings usually required where
disputed questions of fact (R (Smith) v Parole Board (2005)).

Duty to give reasons

Giving of notice related to post-decision stage. Basis why giving reasons is good:
- Focuses minds of decision-makers.
- Acknowledges dignity of subject of decision

BUT no general requirement of giving reasons (possible statutory obligation). Depends on

significance of interest at stake

Legitimate expectations
Sometimes, public body acted in such a way that gave rise to legitimate expectations as to how going to
act in future. 2 Types:
- Procedural: legitimate expectation as to process which will be adopted in future
- Substantive: legitimate expectation as to outcome of decision making process, or as to way in which
discretionary powers will be exercised

Where there is legitimate expectation, must provide reason for going back on it (public interest)

Procedural legitimate expectation

GCHQ
Challenge based on failure to consult, where was previous practice of consultation: “… the evidence
shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when
conditions of service were to be significantly altered. Accordingly, in my opinion, if there had been
no question of national security involved, the appellants would have had a legitimate expectation that
the minister would consult them before issuing the instruction of 22 December 1983.” So, legitimate
expectation exists but national security sufficient reason.

Substantive legitimate expectations

R v North and East Devon Health Authority, ex carte Coughlan [2001]

NHS wanted close hospital and move her to care home. Didn’t want to. Said could move there for rest of
life. But at some point, care home too expensive so decided to close.
Held: made substantive legitimate expectation. Creation of legitimate expectation must be clear
and unequivocal: was given clear promise that Mardon House would be home for life

ACIFER v SSD [2003]

Minister said those entitled to receive payment ‘are former members of HM armed forces who were
prisoners of war… and British civilians who were interned’. Later change criterion to only ‘British
subjects whom the Japs interned, or had a parent or grandparent born here, are eligible for
payment’ Was there clear, unequivocal representation capable of giving rise to legitimate expectation?

Held: no

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Bancoult (No.2) [2008] UKHL 61
Government ruled people off island. Sued and won first case. Foreign Sec said would start
resettling them etc.
Held: did not create legitimate expectation. Was not promise, simply promise to look into it.

They lost in Bancoult (No.2)

R v SSEd, ex p Begbie [2000]

Government payed tuition costs for students independent schools. After election, abolished scheme.
Applicant been promised place. Sec of State said might continue funding some cases. Problem for
Begbie was not started yet. Said was substantive legitimate expectation.
Held: no: ‘any expectation must yield to the terms of the statute under which the Sec of State is
required to act’. Here, if legitimate expectation enforced, Sec of State would have no discretion
therefore would be contrary to statutory intention.

Niazi v SSHD [2008]

People convicted unjustly eligible for discretionary compensation. Scheme abolished and 2 groups affected
(individuals and solicitors) claimed should have been consulted. Both challenged on basis of legitimate
expectation.
Held: for legitimate expectation to arise, ‘promise must constitute a specific undertaking, directed at a
particular individual or group’ so NO

More people who would benefit, less likely court is to find promise enforceable

R (Wheeler) v PM [2008]
Government promised to have referendum on European Constitutional treaty (didn’t happen).
Wheeler said promised.
Held: government promised for Constitutional treaty, not specifically Lisbon Treaty: ’a promise to hold
a referendum lies so deep in the macro-political field that the court should not enter the relevant
area at all’.

Summary of legitimate expectations

Can be procedural or substantive. Where legitimate expectation exists, public body must show over-
riding public interest to go back on it.
Procedural legitimate expectation created by promise or past practice.
Substantive legitimate expectation created by ‘clear and unequivocal representation’ (Coughlan). Can’t be
incompatible with terms of statute (Begbie). Representation must be directed in its focus (Niazi) and can’t
create legitimate expectation matters of macro-policy (Wheeler).

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