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Grounds of judicial review—procedural impropriety

Produced in partnership with siân mcgibbon, barrister, 4-5 gray’s inn square, procedural impropriety as a ground of judicial review.

‘Procedural impropriety’ is the last of the three grounds for judicial review identified by Lord Diplock in the seminal case Civil Service Unions v Minister for the Civil Service (GCHQ) . In this case, Lord Diplock characterised the ground as encompassing a ‘failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision’ or ‘failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice’.

This Practice Note will address the central features of procedural impropriety as a ground of judicial review:

The development of procedural impropriety as a ground for judicial review including:

the language of procedural propriety

the boundaries of procedural impropriety as a ground for review

the rationale for procedural propriety

Elements of procedural propriety:

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PROCEDURAL GROUNDS FOR JUDICIAL REVIEW

procedural impropriety essay

15 Procedural grounds for judicial review 15.1 An overview of procedural grounds for judicial review 15.1.1 Lord Diplock in the GCHQ Case (discussed above) described procedural impropriety as ground of judicial review to include ‘the failure to observe basic rules of natural justice or failure to act with procedural fairness’ and also ‘failure… to observe procedural rules expressly laid down in… legislative instrument’. 15.1.2 This chapter considers the different procedural grounds that taken as a collective whole can be said to encompass the fuller concept of procedural impropriety. 15.2 Natural justice 15.2.1 The origin of the ‘natural justice’ principles of procedure is found in the common law . They effectively require a public body to act fairly. 15.2.2 With the passing of the Human Rights Act 1998, Article 6 of the ECHR, which requires ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’, is now enforceable in English courts. The right to a fair hearing ( audi alteram partem ) 15.2.3 Traditionally the courts would only apply the right to a fair hearing to judicial decisions: Local Government Board v Arlidge (1915). 15.2.4 In Ridge v Baldwin (1964), however, it was concluded that irrespective of whether a decision is judicial or administrative there is, in principle, a right to be heard . Judicial proceedings will attract a higher procedural standard of the right to a fair hearing than administrative decisions. 15.2.5 One exception to the right to be heard is where there are overriding factors in the interests of national security: GCHQ Case (above). (See also R v Secretary of State for Transport, ex parte Pegasus Holdings Ltd (1989).) 15.2.6 Failure to permit a hearing may also not invalidate the decision when the court concludes that the outcome of the decision would have been the same regardless. For example, in Glynn v Keele University (1971) the court dismissed an application by a student against their expulsion from the university on the basis that no representation by them would have affected the decision. 15.2.7 Whether a hearing is itself fair is not subject to fixed requirements, although the more serious the consequences for the individual, the higher the standard required for the hearing to be fair. 15.2.8 A fair hearing could require one or more of the following requirements therefore, depending on the facts of the case: • notification of a hearing/advance notice; • to be informed of the case against; • the opportunity to respond to evidence; • an oral hearing; • legal representation before and at the hearing; and • the ability to question witnesses. 15.2.9 For example, there is no absolute right to an oral hearing. According to R v Army Board of the Defence Council, ex parte Anderson (1992), whether an oral hearing is required for the hearing to be fair will depend on the subject matter and circumstances of the particular case. Consequently the question is whether any written proceedings are sufficient to ensure a fair hearing. 15.2.10 Arguments that an oral hearing is an entitlement of a person who may be deprived or may continue to be deprived of a fundamental right, such as their liberty, will be well received by the courts however: see Osborn v Parole Board (2013). The right to cross-examine any witnesses will only arise if there is an oral hearing. 15.2.11 Similarly, the right to legal representation will depend on the nature of the hearing and the rights that will be affected. In R v Secretary of State for the Home Department, ex parte Tarrant (1985) the criteria to be applied in determining whether legal representation is necessary include: • the seriousness of the charge and potential penalty; • whether any points of law are likely to be raised; • the ability of the person to present their own case; • the complexity of the procedure to be applied; and • whether there is need for reasonable speed in making the decision. 15.2.12 There does, however, appear to be no such discretion when the matters are ‘criminal’ – for example, in Ezeh v UK (2002) a prison governor’s decision not to allow legal representation at a disciplinary hearing was a breach of the right to a fair trial (Article 6 ECHR). 15.3 Bias: the rule against bias ( nemo judex in causa sua ) 15.3.1 Impartial and independent decision-making is a fundamental aspect of the rule of law. 15.3.2 The rule against bias is described as being strict in that the risk or appearance of bias will suffice. As stated by Lord Hewart in R v Sussex Justices, ex parte McCarthy (1924), ‘justice must not only be done but must manifestly and undoubtedly be seen to be done’. 15.3.3 If a decision-maker becomes aware that they may be biased, they should remove themselves from the decision-making process: AWG Group v Morrison (2006). 15.3.4 A financial interest, however small, will automatically indicate bias: Dimes v Grand Junction Canal Co. (1852) and Metropolitan Properties Co v Lannon (1969). 15.3.5 This principle, of automatic disqualification because of a direct interest, was extended in R v Bow Street Metropolitan and Stipendiary Magistrate, ex parte Pinochet Ugarte (1999). In this case extradition proceedings were challenged on the basis that Lord Hoffmann had links with Amnesty International, which had provided evidence. Whilst there was no evidence of actual bias, it was concluded that there could be the appearance of bias and therefore the case was re-heard. The House of Lords stated that any direct interest whether financial, proprietary or otherwise would lead to automatic disqualification. 15.3.6 In other instances, where there is no direct personal interest but a non-direct interest that may give the appearance of bias, the court will examine whether in the view of a ‘fair minded and informed observer’ taking into account all the circumstances there is a ‘real possibility’ of bias: Porter v Magill (2002). Failure to give reasons as a potential ground of judicial review? 15.3.7 Numerous statutes impose a duty to provide reasons. For example, there is a duty to give reasons on request in tribunals and public inquiries: Tribunals and Inquiries Act 1992. 15.3.8 There is no absolute duty to give reasons under the common law rules of natural justice, although there is a strong presumption that they should be provided: R v Secretary of State for the Home Department, ex parte Doody (1993). 15.3.9 There have been developments in the common law though where reasons must be provided. These include, for example: • Where decisions are analogous to those of a judicial body: R v Civil Service Appeal Board, ex parte Cunningham (1991) and R v Ministry of Defence, ex parte Murray (1998). • Where the decisions involve very important interests so that the individual would be at a clear disadvantage if reasons were not provided. For example, in ex parte Doody (above) reasons were required as the applicant otherwise had no knowledge of the case against them; the decision at hand was the fixing of a minimum sentence for a life prisoner (see also Stefan v General Medical Council (1999)). In R v Secretary of State for the Home Department, ex parte Fayed (1997) the court ruled that some indication of the Home Secretary’s objections to the application for a British passport should have been given. • Where the decision is unusual or a severe penalty can be applied. For example, in R v DPP, ex parte Manning (2000) reasons should have been provided for the decision not to prosecute after a coroner’s finding of unlawful killing. 15.3.10 Conversely, there are situations where there will be no duty to provide reasons. This may occur where to do so would be extremely costly or particularly onerous on the decision-maker, or where the reasons for a range of potential decisions are laid out in advance of a final decision by the decision-maker: see R v Higher Education Funding Council, ex parte Institute of Dental Surgery (1994) and R (Asha Foundation) v Millennium Commission (2003). 15.3.11 Where a Minister fails to provide reasons for a decision, the court may infer that there were in fact no proper reasons for that decision: Padfield v Minister of Agriculture, Fisheries and Food (1968). 15.3.12 Where reasons are required, they must enable the parties to understand the basis for the decision, but this does not necessarily mean they have to be detailed or comprehensive. The level of detail necessary will depend on the facts of the case: South Buckinghamshire DC v Porter (2004). 15.3.13 Article 6 of the ECHR does not explicitly require the giving of reasons. However, it could be implied because of the need to have reasons in order to be able to exercise any right to appeal. Article 5 of the Convention, however, expressly states in the context of the right to liberty and security that arrested persons shall be informed promptly and in a language they understand of the reasons for their arrest. 15.4 Legitimate expectations 15.4.1 Legitimate expectation is a well-accepted principle of EU law, and has been increasingly recognised by the English courts. It occurs when the decision-maker, by either their words or actions, creates a reasonable and therefore legitimate expectation that certain procedures will be followed in reaching a decision. 15.4.2 If such expectations have been created, the decision-maker is not able to ignore them when coming to a decision on the matter unless there are good reasons not to do so: R (Nadarajah) v Secretary of State for the Home Department, R (Abdi) v Secretary of State for the Home Department (2005). 15.4.3 Whether a legitimate expectation has been created will depend on the circumstances. According to Lord Diplock in the GCHQ Case (above) a legitimate expectation may arise in two circumstances: • from either an express promise given on behalf of the decision-maker; or • from the existence of a regular practice that the applicant can reasonably expect to continue. 15.4.4 For a promise to create a legitimate expectation it must be clear, unambiguous and precise: R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd (1990). However, the individual does not have to be aware of it, since it is the decision-maker who should be aware of any expectation created: R (Rashid) v Secretary of State for the Home Department (2005). 15.4.5 Some examples of where there was a clear, unambiguous and precise promise, creating a legitimate expectation, include: • R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association (1972) – the Corporation had given an express representation that licences would not be revoked without prior consultation. This created a legitimate expectation which could be relied on when the Corporation then failed to carry out that consultation. • Attorney-General for Hong Kong v Ng Yuen Shiu (1983) – it was concluded that an illegal immigrant had a legitimate expectation of an interview prior to deportation and for his case to be considered on its individual merits because of an express undertaking given by the British Government. • R v Secretary of State for the Home Department, ex parte Asif Mahmood Khan (1984) – the issuing of a circular providing the criteria under which a child would be permitted entry into the United Kingdom was held to have created a legitimate expectation that those criteria would be applied. • R (Bibi) v Newham LBC (2001) – it was held that promises made by the local authority had created a legitimate expectation that the applicants (refugees) would be provided with accommodation with security of tenure. 15.4.6 Examples of where the promise was not considered sufficiently clear, unambiguous and precise enough to create a legitimate expectation include: • R v Secretary of State for the Home Department, ex parte Behluli (1998) – the applicant argued that in the case of their expulsion they had a legitimate expectation that the Dublin Convention would be applied. The court held that the statements being relied upon did not create a sufficiently clear intention on behalf of the Government to create a legitimate expectation. • R v DPP, ex parte Kebeline (1999) – four applicants sought to rely on a legitimate expectation that the DPP would exercise its discretion to prosecute only in accordance with the ECHR. They based their argument on the ratification of the Convention by the Government; the enactment of the Human Rights Act 1998; and from public statements made by Ministers. However, the Act whilst passed had not yet come into force. The court concluded that no legitimate expectation had been created. • R v Secretary of State for Education and Employment, ex parte Begbie (2000) – a Labour Party pre-election promise that children benefiting from the assisted-places scheme would continue to receive this until the end of their education was held not to create a legitimate expectation. This was because Labour was in opposition at the time the statement was made and could not know of all the complexities of the matter until in office; consequently the promise was unclear. Thus, as a consequence of this decision, a pre-election promise cannot bind a new Government. 15.4.7 It should be noted that a legitimate expectation cannot arise from a promise or representation that is unlawful: R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd (1995) and R (Bibi) v Newham LBC (2001). 15.4.8 The question of whether there is an enforceable legitimate expectation is more complex when it involves a situation where there has been a change of policy. 15.4.9 Whilst legitimate expectation as a ground for judicial review promotes certainty and trust in executive authority, thus upholding the rule of law, it must also be recognised that the executive must be able to develop, adapt and change policies particularly if in the public interest. 15.4.10 In North and East Devon Health Authority, ex parte Coughlan (1999) the Court of Appeal identified three such situations involving legitimate expectation: (a) Where a body changes policy, it should consider previous policy and representations made, before changing that policy. Thereafter, in cases of claims of legitimate expectation, review will take place on the basis of whether the decision is Wednesbury unreasonable (see above). For example, R v Secretary of State for the Home Department, ex parte Hargreaves (1996) – there was an agreement between prisoners and prison authorities that, subject to good behaviour, prisoners could apply for home leave after serving one-third of their sentence. The Home Secretary then changed this to having served half of the sentence. The court held that the agreement did not give rise to a legitimate expectation and that in any case the Home Secretary’s change of policy was reasonable. (b) If there is a legitimate expectation of being consulted prior to a decision (a procedural legitimate expectation), the court will examine closely any change in that policy to ensure that any decision is made fairly. For example, in R v Secretary of State for Health, ex parte US Tobacco International Inc. (1992) the company, using a Government grant, opened a factory in 1985 producing snuff. In 1988 the Government was provided with additional evidence of the health risks of snuff and decided to ban it. It was held that whilst there was a legitimate expectation created by the Government’s prior actions, that expectation could not override the need to change the policy in the public interest. (c) Where undertakings, representations or promises by a decision-maker create a substantive legitimate expectation, the court will very closely examine any change of policy. The court will balance carefully the interests of fairness given the individual’s legitimate expectation against any overriding need to change the policy in the public interest. For example, in R v North and East Devon Health Authority, ex parte Coughlan (1999) the applicant lived in a home for the severely disabled and had been told by the Health Authority that it would be her home for life. She was then informed that the home was to be closed and she would be transferred. The court held that a legitimate expectation had been created, which no public-interest factor could override.

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Jr Procedural Improprietary Notes

Updated jr procedural improprietary notes.

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Con & Ad : JR, Procedural Impropriety

Procedural Improp (third ground of Lord Diplock, GCHQ ), covers two areas:

(a) failure to observe procedural statutory rules

(b) general duty to act fairly.

(a) Failure to observe procedural rules

Extension of the basic principle of ultra vires; closely related to ground of illegality.

Requires public bodies to follow procedural requirements laid out in statute.

In the past, courts distinguished between mandatory and directory procedural requirements

Mandatory or directory

Mandatory procedural requirement compulsory. Breach = invalidates decision.

Directory procedural requirement not compulsory. Failure to comply would not invalid the decision; but in some circumstances substantial compliance would be requirement.

Old strict approach-- Aylesbury Mushrooms (1972):

The Industrial Training Act 1964, s1(4) provided: ‘ Before making an industrial training order the Minister shall consult any organisation/association of organisations appearing to him to be representative of substantial numbers of employers engaging in the activities concerned . .. .[and any organisation/association] representative of substantial numbers of persons employed in those activities ’.

DM, the minister, sought to send the Mushroom Growers’ Association a copy of the draft Order, but this never arrived .

Both sides agreed it was up to the minister to decide which organisations appeared to him to be ‘representative’. –purely subjective test.

It was clear the Minister had decided that the Mushroom Growers’ Association was representative—and once he had decided this, he had to consult it. Was a mandatory requirement. Court held Mushroom Growers’ Association had not been consulted.

Original approach—failure to observe procedural rules = automatic breach.

Now approach is more flexible

Ap proach now from Soneji : what is the impact on the decision: what is the consequences of non-compliance with the procedural requirement; and whether Parliament could have intended the outcome of that non-compliance to have been the invalidity of the decision?

R v Soneji (2006), HL :

A case on procedural requirements in criminal cases.

But applied by CA in admin law cases:

JN (Cameroon ) v SSHD (2009 ), CA :

asylum application turned down, ordered deportation to Cameroon.

The last letter he got didn’t mention Cameroon.

Claimed failure to follow procedure—the last letter didn’t mention Cameroon.

HELD: that one procedural failure, on one document, didn’t impact the decision, trivial detail. The failure to specify the country/territory that JN was to be deported on his deportation notice (under Immigration (Notices) Regulations 2003) , did not invalidate the order to deport him.

The purpose of the requirement was to assist the person concerned in relation to any appeal, and JN’s ability to present his appeal was not impaired by the failure to state the destination. Moreover, was clear from the correspondence relating to the deportation decision that the intention was to deport him to Cameroon.

Followed in R ( Herron) v The Parking Adjudicator (2011), CA- minor irregularities , didn’t impact decisions. CA upheld the parking adjudicator’s decision that minor irregularities in road signs and road markings in the Sunderland Controlled Parking Zone did not invalidate the 39 penalty notice charges accumulated in that zone by the claimant.

R (on the application of Moseley ) v London Borough of Haringey (2014), SC :

A failure by a local authority to consult interested parties , as required by the terms of the Local Gov Finance Act 1992.

The relevant statutory requirement was held not to have been properly complied with when the respondent local authority published a draft Council Tax Reduction Scheme for the borough.

SC HELD: the requirement of consultation implied that, to be effective and fair, the process had to ensure ‘meaningful participation’ ( Lord Reed) by those consulted . Hence they needed to be provided with an outline of realistic alternatives to the authority’s proposals and reasons for its preferred policy.

(b) Duty to act fairly

Used to be called ‘natural justice’ now a ‘duty to act fairly’

(1) When does it apply?

(2) What is the level of duty?

(3) What is the content of the duty? – Two central common law rules of ‘natural justice’/duty to act fairly:

((a) Right to be heard --- Audi altem partem (‘the other side must be heard’)—generally taken to mean that a person affected by a decision made by a public body should be given the opportunity to present his/her case.

b) Right against bias— Nemo judex in causa sua (‘no one should be a judge in their own cause’).

GCHQ , Lord Roskill : suggested the traditional term ‘natural justice’ might be laid to rest, and replaced by the more modern term of ‘act fairly’.

Remember ECHR Art 6 , now operates in tandem with common law duty to act fairly.

In cases during late 1940s/early 1950s, courts adopted a narrow approach to issue of natural justice:

Cases were classified as dealing with either a ‘judicial’ or an ‘admin’ decision.

Admin decisions were deemed not to be subject to the principles of natural justice, whereas judicial decisions were, as they concerned justice in the purest sense.

This approach--HL, Franklin v Minister of Town and Country Planning (1948) :

HL held: the the actions of the minister and his department were purely administrative in nature, and allegations of bias against the minister were thus not relevant—in effect, natural justice did not apply in that situation.

As long as the correct procedure had been followed with regard to the objections ( i.e. they had been received and an inquiry had been held), the court was not prepared to interfere.

Similar issues in Nakkuda Ali v Javararatne (1951)

Turning point, HL, Ridge v Baldwin (1964)

Change in judicial policy: does matter whether the decision was administrative or judicial—natural justice (aka ‘duty to act fairly’) to both.

Mr Ridge, Chief Constable of...

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A failure on the part of a public authority to act in accordance with the requirements of procedural fairness and in compliance with the common-law rules of natural justice. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) the terms procedural impropriety, illegality, and irrationality were used to denote the common-law grounds or heads of judicial review of administrative action.

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Judicial Review of Administrative Actions: An Overview

Meaning of judicial review.

Judicial Review is a procedure by which the Courts supervise the exercise of the public power on the application of the individual or organization. In other words, Judicial Review is a process under which Executive or Legislative actions are subject to review by the Judiciary.  A person who feels that his rights have been infringed due to the exercise of some powers by Government authority, such as a minister, the local council or statutory tribunal, is unlawful, may apply to the Court for Judicial Review of the decision and have it set aside. A Court may also make mandatory orders and issue injunctions to compel the authority to do its duty or to stop it from acting illegally.

Under the Indian Constitution, Article 13 provides for the Judicial Review of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India ( Article 226 & Article 32 respectively) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.

In India, Judicial Review broadly deals with-

  • Judicial Review of Legislative Actions,
  • Judicial Review of Judicial Actions, and
  • Judicial Review of Administrative Actions

In this article, we are going to deal with the third aspect, i.e. Judicial Review of Administrative Actions.

Administrative Actions

The Administrative Actions connotes the residue of Government functions that remain after the legislative and judicial functions are taken away. The legal actions which are concerned with the conduct of a public administrative body are the administrative actions. The acts done by any administrative authorities is known as an administrative action. There are basically four types of administrative actions, such as-

1. Administrative Legislative Action- The law making action of the administrative authority.

2. Administrative Adjudicatory Action, or Quasi Judicial Action- The actions in which the administrative authority plays the role of Judiciary, or decides the cases by resolving the disputes.

3. Purely Administrative Action- The rule applying actions of the administrative bodies.

4. Ministerial Action- An action which is performed in a proper prescribed manner in obedience to law.

Grounds of Judicial Review

In Council of Civil Services Union v. Minister of Civil Service , Lord Diplock laid down the grounds of judicial review as follows –

  • Jurisdictional Error
  • Irrationality
  • Procedural Impropriety
  • Proportionality
  • Legitimate Expectation

These grounds are not exhaustive but have provided the base for the courts to exercise their jurisdiction.

1. Jurisdictional Error –

The term Jurisdiction means the power of the authority “to decide”. Ordinarily the administrative tribunal’s power to hear a legal controversy and issue orders regarding it, is known as Jurisdiction of that tribunal. Tribunals must not only have jurisdiction to try the suit but must also have the authority to pass the orders sought for. The jurisdiction of the tribunals must include the power to hear, decide and trial the concerned dispute. A jurisdictional error arises when an administrative body without having jurisdiction on the matter concerned passes the judgement. The Courts may reject any administrative actions that are ultra vires on the following grounds-

(a) Lack of Jurisdiction – When an administrative body for legal reasons does not have the power to order the parties of the case or over the subject matter of the case, it refers to lack of jurisdiction. The tribunals which lack jurisdiction can not hear the case or render any decision about it. A tribunal has jurisdiction over a matter only to the extent as defined by the Constitution and the Legislature of the State in which the tribunal is located.

(b) Excess of Jurisdiction – In this case initially the authority has the jurisdiction over a matter and properly proceeds within its jurisdiction but afterwards steps out of its jurisdiction in passing some orders or in doing some judicial actions. All the administrative actions must be performed fairly and bonafidely.

(c) Abuse of Jurisdiction – If the powers are abused, it becomes a ground for judicial review. Powers are abused when-

  • the powers are used for the purpose it was not made or given.
  • the authority acts dishonestly.
  • When the decision maker totally ignores the relevant matter.
  • When a decision has been passed only by considering the record, and without considering the evidence.

2. Irrationality –

Basically, the general principle is that the discretionary power of any administrative authority must be exercised reasonably. The administrative decision can be reviewed if it is in defiance of logic or accepted moral standards.

For the very first time in Associated Provincial Picture House v. Wednesbury, 1947, “ Irrationality” was considered as the ground of Judicial Review, and later it was popularly named as Wednesbury Test . The Court laid down the following conditions to determine irrationality of administrative action-

(a) If the decision is so unreasonable that no reasonable person acting reasonably would have made it,

(b) If the authority has not considered the factors that are pertinent to be considered.

3. Procedural Impropriety-

When an administrative authority fails to act in accordance to the procedure, it refers to procedural impropriety. It is one of the vital grounds for challenging the decisions made by an administrative authority. The decision can be challenged where the authority has made a decision by overlooking or by failing to follow the procedure established by law (Ultra Vires).

4. Proportionality-

In the cases of administrative actions, Doctrine of Proportionality is one of the grounds of Judicial Review. The Doctrine states that the means used by the authority to obtain any objective should not be more restrictive than that required to achieve it. For this ground to be considered the Courts generally examine the following things-

(a) Whether the relative merits of different objectives have been appropriately weighed and fairly balanced?

(b) Whether the matter under review was excessively restrictive or inflicted an unnecessary burden?

In India, the doctrine was adopted by the Supreme Court in the case Om Kumar v. Union of India, AIR 2000. In this case some officers of the DDA defrauded the depositors in collision with Skipper Construction Company, the Court felt prima facie that the punishments imposed on the officers were not proportional to the gravity of the misconduct and thus the punishments needed to be upgraded.

The Supreme Court always said that it would only employ this doctrine to test the validity of administrative action when the Fundamental Rights of any individual are disproportionately violated.

5. Legitimate Expectation-

The doctrine of Legitimate Expectation was first developed in English law as the ground of Judicial Review of Administrative actions to protect the procedural and substantive interests when an authority rescinds from a representation made to the person. The doctrine means that a person may have expectations to be treated in a way by the administration owing to the promises made or the past practices. The expectation must be reasonable. For the purpose of Judicial Review, the Court may consider-

  • Where an individual or group are made to believe that certain procedure will apply,
  • Where the individual or group relies on such belief, on particular law or policy.

Five kinds of Writs as Constitutional remedies empowers the High Courts and the Supreme Court of India ( Article 226 & Article 32 respectively) to declare a law unconstitutional if it is inconsistent with any of the provisions of Part III ( Fundamental Rights )  of the Constitution. The writ issuing power under Article 32 is only limited to the protection of Fundamental Rights, but under Article 226 the writ can be issued for any other purpose in addition to Fundamental Rights, example, a writ against any administrative authority. The writs are as follows-

1. Habeas Corpus- The meaning of this term is “to have a body”, or to produce a body. This is the most powerful and highly used remedy. If any person illegally detains another person, then such an individual can go for the writ of Habeas Corpus for the release of that person.

Under this writ, the Court issues an order to call upon the person who has illegally detained that other person, and to produce the detainee before the Court. The Court asks the detaining authority that on what basis the person was detained? If the base of the detention is unreasonable, the Court directly orders to release the detainee with immediate effect.

2. Mandamus- The meaning of this term is “We Command”, or to command the public official. A person can use this writ on any statutory, non-statutory, tribunals etc. and Command them to properly perform their public duty, i.e. this writ is used to command any public official to perform his duty, and to properly monitor the administration.

3. Certiorari- The meaning of this term is “to be certified”. Through this remedy, the Supreme Court or the High Court, can direct the Lower Authorities to submit their Records for Review. In the review, it is examined whether the judgements or decisions by the authorities are illegal or not. If the judgements are found to be illegal, the Courts can directly quash them and declare them unconstitutional.

4. Prohibition- The meaning of this term is “to forbid”. Prohibition is issued by the higher courts to the lower courts or administrative authorities to prevent them from exceeding their jurisdiction before passing the judgement or the decision. So this writ is used until lower courts or administrative authorities have pronounced the judgement, if the judgement has been pronounced then the aggrieved approach to the Court under Certiorari.

5. Quo Warranto- The meaning of this term is “by what authority”. Through this writ Courts can question any public officer, by what authority have you assumed this office. If the title of the person concerned is proved defective, then he has to vacate the office.

Judiciary plays an important role in exercising the control over the administration to ensure that the authorities function in the order they are required to function. In order to maintain checks on the functioning of these authorities, the judiciary plays a crucial role in a democratic nation. As per the Rule of Law , which is the cornerstone of the democratic nations, if any of the administrative action violates the basic principles of Rule of Law i.e., The Supremacy of Law, Equality before law and Predominance of Legal spirit, then that action can be challenged before the courts which can declare them unconstitutional. The ultimate purpose of Judicial Review is to examine whether the act is in conformity with the basic provisions of the Constitution or not.

  • https://www.lawctopus.com/academike/grounds-judicial-review-123/
  • https://lawtimesjournal.in/administrative-action/
  • https://blog.finology.in/constitutional-developments/writ-petition
  • http://www.legalservicesindia.com/article/1581/Judicial-Review-of-Administrative-Actions-in-India.html
  • https://indiankanoon.org/

This article has been written by Ayush Shukla, 2nd Year/ BBA LLB(Hons.) at Shri Ramswaroop Memorial University.

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GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

  • Administrative Law Constitutional Law Subject-wise Law Notes
  • January 20, 2020

administrative law

The doctrine-ultra-vires is the basic structure of administrative law. It is considered as the foundation of judicial review to control actions of the administration. Ultra-vires refers to the action which is made in an excessive manner or outside the ambit of the acting party.

Generally, the grounds for judicial review of administrative action in India are as follows-

Irrationality

“A general principle which has remained unchanged is that discretionary power conferred on an administrative authority is required to be exercised reasonably.”

This is also known as the Wednesbury Test. In the case of Associated Provincial Pictures Houe vs Wednesbury Irrationality as a ground of judicial review of administrative action was developed. The court held that the person to whom a discretion is been vested must excersie it with reasonable case and only on reasonable grounds. Any interference by the court would not be permissible unless and until that the decision was illegal or had defects with regard to the procedural improprieties.

Further in the case of Roberts vs Hopwood the court was faced with the question of adopting a policy of paying higher wages than what the national average. The court found it unreasonable on the grounds that the council was made was bound was law.

In another landmark case of R vs Broadmoor special hospital authority Ex Parte the court held that the hospitals and other medical research organisation have the power to conduct random and routine searches on its patients without there consent.

In the Indian Case of Neha Jain vs University of Delhi the court formulated few check points for judicial review

Some of them where:

  • If the decision made is mala fide or made beyond the jurisdiction or discriminatory
  • If it is found unreasonable or is in violation of the constitution
  • If it is legally not supported or is beyond one jurisdiction

Procedural Impropriety

The concept of procedural impropriety can be understood as the procedural failure to follow . In other words, it means failure to follow rules and regulation and other is the failure to observe the basic law of the natural justice. It is a ground of judicial review of administrative action .

In the case of Bradbury vs Enfield London Borough Council , the council breached the basic need of public policy. The council request to procedural requirement was not accepted by the courts.

Further in the case of Ridge vs Baldwin the court focus on the procedural fairness had to be followed. The court also held that following the principle of natural justice has to be followed at all cost.

In the case of the Aylesbury Mushroom Case the court held that it is the fundamental requirement that in cases a person interest are effected by any functions of Judicial and administrative functions then in that case the person has the right to be heard and make representations. the natural justice principle has to be followed

Proportionality

The Concept of the Proportionality can be understood as the administrative action should match the desired result. These means that the tries to balance means to end. It has to be reasonableness and it has to be seen that the courts see that the course of action has to be followed.

In the case of Sardar Singh vs Union of India , the court said the action taken by the army was arbitrary and the punishment was severe. The doctrine helps the court to the find out the possible discretionary power which can be done by the executive.

In the Management K Tea Estates vs Mazdoor Singh held that that the SC has in all circumstances that doctrine will be put to test against the administrative actions.

The concept of Illegality can be understood as when a body acts beyond the power to which it is vests with.

A decision of a public body may be illegal if the decision maker:

acts outside or beyond its powers, also known as ‘ultra vires’ is directs itself in law – for example the decision maker does not understand and apply the law correctly exercises a power wrongly or for an improper purpose – a decision must be reached on the basis of the facts of the matter in question. It is a ground of judicial review of administrative action.

In the Case of R (RWE Npower Renewables Ltd) v Milton Keynes Council the court held that one formulation of the test is that an irrational or unreasonable decision must be “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

Related Articles:

  • Administrative Action- Meaning, Classification And Need To Control
  • Judicial Review of Administrative Actions
  • Judicial Review of Administrative Actions by Writs
  • Remedies against Administrative Actions
  • For more articles on Administrative Law, Click Here.
  • For law notes, Click Here.

Author Details: Shubhang Gomasta ( LLM student, MATS University, Raipur, Chhattisgarh).

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Navalny’s Widow Pledges to Carry On Opposition Leader’s Work

The sudden death of Aleksei Navalny left a vacuum in Russia’s opposition. His wife, Yulia Navalnaya, signaled that she would try to fill the void.

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By Paul Sonne and Ivan Nechepurenko

The widow of Aleksei A. Navalny said on Monday that she would carry on her husband’s work to challenge President Vladimir V. Putin’s autocratic rule, presenting herself for the first time as a political force and calling on his followers to rally alongside her.

Mr. Navalny’s sudden death in prison, which was announced by the Russian authorities on Friday, left a vacuum in a decimated Russian opposition. His supporters had wondered whether his wife, Yulia Navalnaya — who long shunned the spotlight — might step in , despite immense challenges, to fill the void.

In a video released on Monday , Ms. Navalnaya, 47, signaled that she would. She said she was appearing on her husband’s YouTube channel for the first time to tell his followers that the best way to honor his legacy was “to fight more desperately and furiously than before.”

“I am going to continue the work of Aleksei Navalny and continue to fight for our country,” Ms. Navalnaya said. “I call on you to stand beside me, to share not only in the grief and endless pain that has enveloped us and won’t let go. I ask you to share my rage — to share my rage, anger and hatred of those who have dared to kill our future.”

The nearly nine-minute video, which showed Ms. Navalnaya seated with her hands folded on a marble surface under dramatic lighting, was crafted as an introduction of sorts to a new leader of the fractured pro-democracy movement against Mr. Putin. Long plagued by infighting and competing egos, the movement has withered under a multiyear crackdown in Russia that has left its most prominent leaders exiled, jailed or dead.

Ms. Navalnaya had often pushed back against suggestions that she enter politics, telling Germany’s Der Spiegel magazine last year that “I don’t think this is an idea I want to play with.”

Mr. Navalny and Ms. Navalnaya in a crowd with Russian flags.

On Monday, however, she presented a different face in trying to rally her husband’s followers, suggesting that there was no alternative and saying that the movement should derive strength from his memory.

“I know it feels impossible to do any more, but we have to — to come together in one strong fist and strike with it at this maddened regime, at Putin, at his friends and his bandits in uniform, at these thieves and killers who have crippled our country,” she said.

The dangers and hurdles Ms. Navalnaya faces in trying to assume her husband’s mantle and unite the opposition to Mr. Putin from outside Russia are significant.

The Russian government in 2021 disbanded Mr. Navalny’s Anti-Corruption Foundation inside the country by declaring it an extremist organization , sending the group’s main investigators fleeing into exile, where they continue to work and try to reach Russian audiences.

Cooperating with the organization from inside Russia has been made tantamount to abetting terrorism, limiting its ability to recruit the type of young grass-roots members who had electrified past efforts. Supporters of the Kremlin have tried to use the group’s exile to cast it as irrelevant or a puppet of Western security services.

Ms. Navalnaya cannot return to Russia without the threat of arrest. In June 2023, amid rumors that she might attend one of her husband’s many trials, the state-owned network RT quoted an unidentified law enforcement source as saying that Ms. Navalnaya could be arrested on charges of supporting an extremist organization if she were to return.

And much of Mr. Navalny’s appeal to his followers was personal, thanks to his unyielding humor, muckraking zeal and infectious certainty about the capacity for individual Russians to change the country in the face of cynicism and repression.

Ms. Navalnaya, seething with anger, suggested on Monday that she had no choice but to try. The immediate cause of Mr. Navalny’s death remains a mystery, but his family and team have accused Mr. Putin of killing him through a brutal incarceration.

“In killing Aleksei, Putin killed half of me, half of my heart and half of my soul,” Ms. Navalnaya said on Monday. “But I have another half left and it is telling me I have no right to give up.”

She echoed remarks from President Biden last week blaming Mr. Putin for her husband’s death and suggested Mr. Navalny’s team was investigating the circumstances of the death.

“We will name names and show faces,” she said.

She also directly addressed a question that many of Mr. Navalny’s followers have been asking after his death: Why did he return to Russia after his poisoning in 2020, knowing that he would almost certainly be killed?

In theory, she said, Mr. Navalny could have taken up a new life in exile and stopped speaking out against Russian corruption and fighting.

“But he couldn’t,” she said. “Aleksei more than anything else on earth loved Russia, loved our country and you all. He believed in us, in our power, in our future and that we deserved better. He didn’t believe it just in words but in deeds — so deeply and sincerely that he was ready to give his life for it.”

Ms. Navalnaya said that she wanted their two children to live in a free Russia — the “only way for his unthinkable sacrifice not to be in vain.”

Her rousing message was largely welcomed by Mr. Navalny’s supporters, many of whom have been driven out of the country and feel immobilized by grief.

It came as the Russian authorities continued to refuse to hand over Mr. Navalny’s body to his mother in a remote Arctic town close to the prison where he died.

Mr. Navalny’s spokeswoman, Kira Yarmysh, said on Monday that the authorities had told his mother that the body would be subjected to a “chemical examination” for another 14 days.

“One of the lawyers was literally pushed out” from the morgue in the Arctic where Mr. Navalny’s body is believed to be, Ms. Yarmysh said in a post on the social media platform X. She added in another post , “They lie, buy time for themselves and do not even hide it.”

Russian investigators initiated an inquiry into the causes of Mr. Navalny’s death shortly after it was reported, a procedural move that allows them to hold the body for longer than normal.

Ivan Zhdanov, the head of Mr. Navalny’s Anti-Corruption Foundation, said that the delay meant that Russian officials were “cleaning up traces of their crime.”

“They are waiting for the wave of hatred and rage toward them to calm down,” Mr. Zhdanov said in a post on Telegram, the messaging app.

The Kremlin spokesman, Dmitri S. Peskov, rejected any suggestion of impropriety on Monday, saying that the investigation into Mr. Navalny’s death has been continuing “in accordance with the Russian law.”

More than 63,000 people have signed a petition to Russian investigators demanding the release of Mr. Navalny’s body, a campaign initiated by a Russia-based human rights group, OVD-Info.

Mourners have brought flowers to makeshift memorials across Russia, paying tribute to Mr. Navalny with an act of grief that has also served as a form of protest in a country where even the mildest dissent can risk detention.

The Russian authorities have tried to tamp down the scale of public mourning. Flowers have been quickly removed from memorials and the police have detained hundreds of people.

Russian news outlets have also sought to play down Mr. Navalny’s death, limiting mention of it on television broadcasts. Russian officials have accused the West of jumping to conclusions in blaming Mr. Putin, describing the allegations as yet another example of Western unfairness toward Russia.

Anton Troianovski and Neil MacFarquhar contributed reporting.

Paul Sonne is an international correspondent, focusing on Russia and the varied impacts of President Vladimir V. Putin’s domestic and foreign policies, with a focus on the war against Ukraine. More about Paul Sonne

Ivan Nechepurenko covers Russia, Ukraine, Belarus, the countries of the Caucasus, and Central Asia. He is based in Moscow. More about Ivan Nechepurenko

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  1. Illegality and Procedural Impropriety in Judicial Review

    The Secretary of the State has exercised his discretion on the fact that ammonium nitrate is now classified under Regulation 5 of the 2009 regulations as a "controlled substance" and that in the past it has been used as a 'constituent part of home-made explosives'.

  2. Judicial Review

    In Durayappah v Fernando 1967 , the Privy Council established that the 'content' (ie the extent) of fairness to which a claimant is entitled is dictated by both (i) the seriousness of the situation, and (ii) the consequences of the decision on the claimant Case law since Fairmount 1976:

  3. Grounds for Judicial Review- Procedural Impropriety Lecture 18

    We can see from Lord Diplock's statement that procedural impropriety is made up of two main elements. I. there are two main general ways a public authority can act in a procedurally improper way. The first is by failing to comply with any procedural requirements set out in a piece of legislation.

  4. Procedural Impropriety Outline (concepts + cases)

    Looking at this by which a decision is made. Examining it against the standard of procedural fairness. Found in two sources o E Mental Health Act 1983 - outline procedure medics can use to detain someone.

  5. Proportionality as a Ground of Judicial Review

    The implication of the principle of proportionality is that the court will weigh for itself the advantages and disadvantages of an administrative action and such an action will be upheld as valid if and only if the balance is advantages. [ 5 ] If this action is disproportionate to the mischief then it will be quashed.

  6. Judicial Review Essays

    Y's arguments call attention to the ground for judicial review described as procedural impropriety. Although the ground of procedural impropriety covers a wide range of factors which might make the decision reached by the public body unlawful. In the present case, however, Y is alleging bias.

  7. 13. Grounds for judicial review: procedural impropriety, natural

    These include procedural impropriety, which means breach of the rules of natural justice, and failure to comply with statutory procedural requirements. This chapter looks at the definitional elements of the rules of natural justice, whether the rules of natural justice apply in principle, the extent to which the rules of natural justice apply ...

  8. Judicial Review Principles and Procedures

    The doctrine of separation of powers aims at introducing checks and balances of power, and divides the State into three separate bodies with distinctive function: the legislature makes law, the executive actions the law and the judiciary upholds the law.

  9. Grounds of judicial review—procedural impropriety

    Procedural impropriety as a ground of judicial review 'Procedural impropriety' is the last of the three grounds for judicial review identified by Lord Diplock in the seminal case Civil Service Unions v Minister for the Civil Service (GCHQ).In this case, Lord Diplock characterised the ground as encompassing a 'failure to observe basic rules of natural justice or failure to act with ...

  10. Procedural Grounds for Judicial Review

    15.1.1 Lord Diplock in the GCHQ Case (discussed above) described procedural impropriety as ground of judicial review to include 'the failure to observe basic rules of natural justice or failure to act with procedural fairness' and also 'failure… to observe procedural rules expressly laid down in… legislative instrument'.

  11. Jr Procedural Impropriety

    Procedural Impropriety. Lord Diplock in GCHQ, there are two halves to this: 1) Procedural requirements enjoined by legislation. 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.

  12. Jr Procedural Improprietary

    Buy the full version of these notes or essay plans and more in our GDL Constitutional and Administrative Law Notes. Oxbridge Notes' prizewinning note marketplace has been servingstudents since 2010 with premium study materials. Reap the benefits of joined-up learning and earn higher grades, just like our 75,000+ happy customers.

  13. Procedural impropriety

    In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) the terms procedural impropriety, illegality, and irrationality were used to denote the common-law grounds or heads of judicial review of administrative action. From: procedural impropriety in A Dictionary of Law » Subjects: Law

  14. Judicial review in English law

    Procedural impropriety; Legitimate expectation; The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. Those grounds ...

  15. Judicial Review of Administrative Actions: An Overview

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  16. Process Essay: Procedural Improprieties

    3 Pages Open Document Essay Sample Check Writing Quality Show More I have been asked to assess the procedural grounds on which Andrea and Billie could challenge the Minister's decision. Procedural Impropriety: Every case comes with fair hearing rights. The nature of this decision is a typical permitting process.

  17. Procedural impropriety

    Procedural impropriety focuses not on the decision itself but, on the procedure followed in arriving at the decision under review. Many procedural requirements, on which a decision's validity depends, are found in the statutes which confer decision making powers.

  18. Application, Grounds and Remedies for Judicial Review

    B. Grounds for Judicial Review As discussed in Section 11.1, the three grounds for judicial review are outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural impropriety. Each ground will be considered in further detail here.

  19. Most Effective and Appropriate Solution

    It is a procedural requirement of judicial review, to seek an alternative remedy before making an application. Furthermore judicial review is very expensive and should only be pursued as a remedy of last resort. Therefore, the alternative remedy that is available and most applicable is the right of appeal.

  20. Procedural-Impropriety-or-Fairness-Natural-Justice

    Procedural impropriety is a procedural ground because it aims at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.

  21. GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

    Procedural Impropriety. The concept of procedural impropriety can be understood as the procedural failure to follow . In other words, it means failure to follow rules and regulation and other is the failure to observe the basic law of the natural justice. It is a ground of judicial review of administrative action.

  22. Navalny's Widow Pledges to Carry On Opposition Leader's Work

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  23. Procedural impropriety bias

    Public Law II "Procedural Impropriety":The rule against bias. the third "procedural impropriety.'" (Lord Diplock in the GCHQ case) Procedural Impropriety 1 The rule against bias: decision makers must be impartial; partial decision makers must recuse themselves Three approaches to bias Actual bias Automatic Disqualification Apparent bias

  24. Judicial Review Lecture

    Case in Focus: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock further elaborated upon the grounds of illegality, irrationality and procedural impropriety. "By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it."