Our course has mostly focused on constitutional law parts of public law thus far.

We'll
look at the fundamental concepts of administrative law, which is the other side of public
law, in this chapter. This isn't to imply that judicial review doesn't contain significant
constitutional ideas; it does, but it's still a fundamental concept of administrative law.

JUDICIAL REVIEW – DEFINITION & OVERVIEW – Judicial review is a sort of judicial

proceeding that examines the legality of a public body's decision or action.

- In the United Kingdom, judicial review is the procedure by which the legitimacy of the
exercise of governmental powers can be contested. (Le Seur)

In recent years, the government has supplied some helpful definitions, describing
judicial review as:

“Individuals, businesses, and other affected parties can contest the legality of Executive
decisions, actions, or inactions, including those of Government Ministers, local
governments, other public organisations, and people performing public functions.”
(Criminal Justice and Courts Act 2015, Explanatory Notes)

Following that, we will look at the grounds for judicial review. This is related to the
claim's substance (as opposed to the first procedural stage). The grounds for judicial
review are the reasons why courts examine the legality of the exercise of public
functions. Judges have developed and continue to develop these grounds. As a result,
they are completely governed by common law and have not been codified by statute.

4) PROCEDURAL IMPROPRIETY
What is Procedural Impropriety?

GCHQ – Lord Diplock: This ground for judicial review can involve two types of claim:

i) Decision maker failed to comply to procedures specified by law; or

ii) Decision was taken in an ‘unfair’ manner by not following the principles of natural
justice developed over time by the common law

Importance of Procedure

1) Contribute to the accuracy of a resulting decision

 2) Confer legitimacy on the decision or action taken and thereby make it more effective
3) Express respect for human dignity

I) PROCEDURAL ULTRA VIRES – STATUTORY PROCEDURAL REQUIREMENTS

If legislation imposes express procedural conditions which must be followed before a power can
be exercised, then a failure to do so would invalidate the action or decision. These requirements
are known as mandatory requirements.

[For e.g. before a Department makes a decision on XYZ, it must consult with the local authority
or publish its decision in draft form or consider any objections before making a decision.]

Case

Agricultural Training Board v Aylesbury Mushrooms an Act provided for prior consultation
by the Ministry of Labour with interested organisations. The Mushroom Growers Association
had not been consulted about an order to establish a training board and impose a levy. The
court held that consultation was a mandatory requirement.
Similar decision in ex parte Association of Metropolitan Authorities[1986].
- Sometimes however, legislation only imposes trivial or technical requirements, which are
known as directory requirements. A failure to follow a technical procedural
requirement will not necessarily result in the decision being invalidated.

II) THE RULES OF NATURAL JUSTICE

The rules of natural justice have been developed at common law by the courts and are generally
regarded as constituting two core principles:

A. Decision-makers must be neutral, independent and unbiased (the rule against bias)
B. The right to a fair trial

Traditionally their application was confined to judicial or ‘quasi-judicial’ decisions but this
restrictive approach was abandoned in the seminal 1964 case of Ridge v Baldwin. This related
to the dismissal of a Chief Constable by his local watch committee without notice or the
opportunity to make representations.
Although the Court of Appeal held that the committee was not required to observe the
requirements of natural justice because its action was ‘administrative or executive‘ this was
overruled by the House of Lords who held that the dismissal without following the rules of
natural justice was unlawful as the consequences were serious.

So, since Ridge v Baldwin the requirement of fairness or natural justice was applied in any
situation where the rights of individuals were at issue.
 A. NATURAL JUSTICE: THE RULE AGAINST BIAS

No man should be a judge in his own cause – that is should have no interest in the outcome of
the case or decision or have made any pre-judgement.
- Actual Bias: Where a person is motivated by a desire to favour one side or disfavor
another.If actual bias is found on behalf of the decision maker, the victim of the decision
is entitled to have the decision quashed. But finding actual bias is rare.

- Presumed Bias: The rule against bias includes cases where there is an appearance of a
bias. Because as per Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy “It is
not merely of some importance, but of fundamental importance that justice should not
only be done, but should manifestly and undoubtedly be seen to be done.”
- So there is no need to show actual bias – it is irrelevant whether the decision-maker was
influenced - an appearance of bias may suffice.
- Presumed Bias – Direct Interest will lead to automatic disqualification.
o Where a decision maker has a direct personal or pecuniary interest in the
outcome, this will automatically disqualify the decision maker.
 Dimes v Grand Junction Canal Co(Lord Chancellor owned shares in
one of the parties –
 Pinochet Case
- Apparent Bias – Non-direct Interest will not lead to automatic disqualification

Porter v Magill test applies in such cases

o First, the court must first ascertain all the circumstances which give rise to bias;
o Secondly, it must then ask whether in those circumstances a fair-minded and
informed observer would conclude that there was a real possibility of bias

Lord Hope in Porter v Magill: “the question is whether the fair minded and informed observer
having considered the facts, would conclude there was a real possibility that the tribunal was
biased.”

B. NATURAL JUSTICE: THE RIGHT TO A FAIR HEARING

The second rule of natural justice is the right to a fair hearing – the essence of this is the idea
that no man is to be condemned unheard.
But the right to a fair trial is very context specific and depends on a variety of factors which may
vary over time [ex parte Doody – 1994]
What might a right to a fair hearing consist of?
Depending on the context the right to a fair hearing might include some or all of the following:
- opportunity to know case against you
- right to adequate time to prepare case/response & disclosure of evidence
- right to make representations
- right to cross examine witnesses
- right to be legally represented
- the right to be given reasons (for the decision)

Duty to give reasons?

There is no general statutory duty to give reasons and no general duty under common law on
decision makers to provide reasons for decisions.
But the Courts have recently used the requirement of fairness to shift the balance so that reasons
will often now be required.
The key case in this context is Doody v Secretary of State for Home Department in which the
Home Secretary was required to give reasons when setting a mandatory life sentence tariff so
that the prisoner could make representations and, if need be, apply for judicial review.
Lord Mustill said there were two purposes for which reasons should be given:
1. to enable the individual to mount an effective attack on the decision; and
2. reasons were required on the grounds of openness in decision making and fairness to the
individual.

Breen v Amalgamated Engineering Union [1971] - Lord Denning - “giving reasons is one of
the fundamentals of good administration.”

 The duty to give reasons was considered by the Court of Appeal in Oakley v South
Cambridgeshire District Council [2017] EWCA.

Elias LJ accepted that there was no ‘general obligation to give reasons at common law’, as
confirmed in R v Secretary of State for the Home Department ex parte Doody [1993] UKHL 8.
However, he also accepted that ‘the tendency increasingly is to require them rather than not’. It
was his conclusion that:
...it may be more accurate to say that the common law is moving to the position whilst there is
no universal obligation to give reasons in all circumstances, in general they should be given
unless there is a proper justification for not doing so [emphasis added].
 LEGITIMATE EXPECTATIONS

As we have seen, there is no general common law ‘duty to act fairly’, other than when a statute
so provides. However, the courts have created a series of exceptions, ensuring that such a duty
can be inferred from previous behaviour of the public body in certain circumstances. In these
circumstances, it is said that the person seeking judicial review had a legitimateexpectation
that their case would be treated according to certain standards of procedural fairness.
Thus legitimate expectation is a doctrine that an expectation of a procedure (or benefit) arising
from a promise or practice may be protected in law. It is gradually developing as a separate
ground for judicial review although for now, it can be said to still fall under the general heading
of fairness.Ultimately the courts reserve the right to determine what constitutes a legitimate
expectation.
Such an expectation may arise as a result of:
 A Promise or Undertaking
 Past Practice
 Existence of general policies/guidance

However, the practice or promise made has to be Clear, unambiguous and precise;

Examples of the Legitimate Expectations Doctrine

In R (Save Britain’s Heritage) v Secretary of State for Communities and 
Local Government and Others [2018] EWCA, the Court of Appeal considered the doctrine of
legitimate expectations, recognising that a legitimate expectation could arise by the 
making of an express promise or by practice.
In this case, which concerned the role of the Secretary of State in the 
statutory planning permission process, an express promise had been 
made that reasons would be given in relation to a decision of the 
Secretary of State. That promise had not been publicly changed and it 
therefore gave rise to a legitimate expectation that reasons would be 
given. In this case, the duty to give reasons did not arise under common 
law but arose from the legitimate expectation created by an unequivocal 
promise.

Liverpool Taxi Fleet Case

Legitimate expectation based on a promise or undertaking. Here the local authority had the
statutory power to licence taxis in the area. It wrote to the association representing taxi cab
owners indicating that it would not recommend increasing the number of taxi cab licences until
certain legislation was passed. However, the local authority subsequently recommended that the
number of taxi licences should be increased.
The court held that the local authority was not at liberty to disregard their undertaking to the
applicant without first consulting the applicants and giving them an opportunity to put their case.

GCHQ Case

This is an example of a when a decision-maker seeks to depart from past practice generating a
legitimate expectation of its continuance or previous enjoyment of a benefit. Since 1947, staff at
GCHQ (Government Communications Headquarters) had been permitted to belong to national
trade unions, and most had done so.

There was a well-established practice of consultation between the official and trade union sides
about important changes to terms and conditions of service of staff. Then the Prime Minister
banned trade union membership for workers at GCHQ without consulting the trade union first.

The House of Lords held that the trade union had a legitimate expectation - based on past
practice - that they would be consulted prior to any important changes to conditions of service
for staff.
However, the Lords refused to find that the Prime Minister acted unfairly. The Prime Minister
indicated that the decision to ban union membership without consultation was taken on national
security grounds, and the judges held this issue was non-justiciable.

Khan Case

This is an example of a legitimate expectation arising from following a department’s policy

guidelines.

In Khan, a Pakistani couple who were resident in England wanted to adopt their brother’s child
who was living in Pakistan. A Home Office circular set out criteria for the entry of children into
the UK and set out the procedure which the Home Office would adopt in such cases.
However, due to an administrative error, this procedure was not initiated and eventually resulted
in a refusal of their adoption application.
The couple sought judicial review of the Home Office’s refusal, arguing that they had a
legitimate expectation that the procedures set out in the letter would be followed which gave rise
to an obligation by the Home Secretary to observe the stated procedures.
The Court of Appeal held that a legitimate expectation had been created and a quashing order
was granted.
Note: All the cases above dealt with procedural legitimate expectations – failing to uphold a
promise, departing from past practice or from one’s own policy/guidelines etc. The legitimate
expectation arises because the applicant felt that a certain procedure should have been followed.