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Jr Procedural Impropriety Notes

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This is an extract of our Jr Procedural Impropriety document, which we sell as part of our GDL Constitutional and Administrative Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.

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PROCEDURAL IMPROPRIETY

Lord Diplock in GCHQ, there are two halves to this:
o 1) Procedural requirements enjoined by legislation.
o 2) Procedural requirements laid down by common law

STATUTORY REQUIREMENTS

Laid down in statute: duty to notify certain third parties, within time frames, consultation, notification of appeal, publication etc.
Divided in two (Lord Penzance in Howard v Bodington (1877)):
o Mandatory Requirements
 Breach of this will generally nullify the decision affected. This results in ultra vires action

Directory Requirements
 Breach of this will not generally have such a strong affect. This is merely an intra vires error - regrettable but venial.
London & Clydeside Estates v Aberdeen District Council
[1979] - suggested that there should be a further sub-division of directory requirements.
 Those with which substantial compliance was required
 Those which did not especially matter.
o Lord Hailsham opposed this: parliament expects all statutory requirements be obeyed.

COMMON LAW REQUIREMENTS

Generally described as the rules of 'natural justice'
Essentially two rules

The principle that both sides of a case must be fairly heard
(the requirement of fairness).
o The principle that adjudication must be impartial (various rules against bias).
Ridge v Baldwin (1964) - Ridge, Chief Constable of Brighton, was acquitted of a charge but the Judge said that a change was needed in Brighton. Ridge was sacked without being given a chance to defend himself. CA held that natural justice should not apply, HoL
reversed this decision.
o Lord Reid: recently the rules of natural justice have not been applied. This rested on the fallacy that because something cannot be nicely weighed or measured it does not exist.
 There is always a duty to act judicially.
 Only time this receded was wartime.
The right to a fair hearing

The duty is related to the seriousness of the sanctions:
 Cooper v Wandsworth Board of Works (1863) -
required to give seven days notice before building.
Cooper only gave five and the LA ordered the demolition of the building in the middle of the night.
Did not give him chance to be heard.  Held the board was acting improperly.
o This can be waived or excluded:
 Cooper v Wandsworth Board of Works (1863) -
counsellors had not requested a hearing therefore could not complain on grounds they had not had a hearing.
 Re HK (an infant) [1967] - HK claimed to be an infant. The immigration officer contended that he was not. Was held that the officer need not call a court to establish this.
 Cinnamond v British Airport Authority [1980] Authority had exercised its powers under bylaws to ban six minicab drivers from entering Heathrow, had been loitering ripping people off etc, each had a string of past convictions.
 Drivers claimed they had not been given a chance to defend themselves. Lord Denning sided with
BAA - they could have got in touch with the authority immediately after the ban was imposed
(they still could)
 Brandon LJ: No one can complain of not being given an opportunity to make representations when such an opportunity would have availed you of nothing.
o Heavily criticised for this.
 Glynn v Keele University [1971] - Student was suspended without any form of hearing for having been caught sunbathing naked on campus.
 Court held that there was nothing he could have said in his defence - he suffered no injustice.
o McInnes v Onslow-Fane [1978] Palintiff held a variety of licences in connection with boxing, all had been withdrawn.
Applied for managers licence but was rejected five times.
Megarry J divided cases into three categories for the purposes of deciding what degree of procedural protection is required
 1) Forfeiture cases - cases where the individual stands to lose something which they have.
 Require a high level of procedural protection.
 2) Application cases - individual is merely applying for something which she has never had before.
 E.g. a licence for the first time. Virtually no procedural protection applies. The protection is instead provided by the rules against the abuse of discretion.
 3) Expectation Cases - the individual has good reason to suppose the decision will go his way.
 E.g. a licence comes up for renewal, confirmation of a permanent appointment after provisional

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