Public Law - Procedural impropriety: duty to act fairly revision notes (semester 2)
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Course
Public Law (LAW106)
Institution
The University Of Liverpool (UoL)
Documents containing all the relevant information about the topic, condensed into colour coded tables to enable easier memorisation and order. I achieved a first class in public law using these notes.
Procedural Impropriety – duty to act fairly/natural justice
“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
PROCEDURAL IMPROPRIETY – DUTY TO ACT FAIRLY
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘procedural impropriety’ and more specifically this engages with duty to act fairly.
ARTICULATE LEGAL TEST Decision makers must act fairly by adopting fair procedures
and following the rules of ‘natural justice’
AUTHORITY FOR TEST Bourgass
WAYS TO ACT FAIRLY Give notice (but how much detail?) – telling someone
you’re making a decision
Written representations – for the decision maker to be
invited and accept
An oral hearing – people get together and present
their side of their story and their facts
Cross examination of witnesses
Legal representation
As you go down the list your participation increases
WHY REQUIRE Improving decision making (instrumental value)
FAIRNESS??? Adopting fair procedures leads to good decision
making
this is an indirect way of improving outcomes as the
courts are reluctant to intervene so if the decision
process is already good they don’t have to
ethical value
state interaction with citizens
state treats people appropriately as an individual with
respect as it would be disrespectful to make decisions
about people without letting them have a say
WHEN IS FAIRNESS Rather than asking what does fairness require they asked
REQUIRED??? when is fairness required
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