CONCLUSION

[7.84] This chapter has examined procedural impropriety as a ground for review. Five points can be made by way of summary.

i. Procedural impropriety is the ground for review that is concerned with fairness in decision-making processes.

ii. Where a decision-maker fails to observe a procedural requirement that is contained in statute, the courts must ascertain whether the legislature intended that any resulting decision should be deemed unlawful. In seeking to identify that intention, the courts have said that �it is necessary to have regard to the use of mandatory or directory language within the provision, to establish the purpose for the use of such language and to determine from the context of the provision and other aids to interpretation what consequence should flow from any breach’.^[1724] The courts may also ask whether substantial compliance with a particular provision is sufficient or whether precise compliance is required given the overall legislative objective; and they may further consider whether public policy would best be served by finding that a decision is unlawful (see [7.19]-[7.22]).

iii. The common law rules of fairness—viz �the right to a hearing’ and �the rule against bias’—exist in addition to any procedural requirements in statute, and a decision that complies with statute may still be deemed unlawful for failure to observe the common law rules ([7.07]). The question whether the common law rules have been breached will, however, depend on context, as the requirements of fairness vary from case to case and in light of the interests involved ([7.11]-[7.12]).

iv. Article 6 ECHR contains a range of procedural requirements that apply, most obvi­ously for the purposes of judicial review, whenever a decision is to be taken in respect of an individual’s �civil rights’ ([7.15]-[7.17]; the Article also applies to �criminal charges’). The meaning given to �civil rights’—they have historically been regarded as private law rights as understood within the civilian legal tradition— does, however, entail that Article 6 ECHR does not have as a broad a reach as the common law rules of fairness. Nevertheless, the Article has still had a significant impact on the common law rules, and the rule against bias in particular has been modified to absorb the demands of the ECHR ([7.63]).

v. Where a decision is taken in breach of the common law rules of fairness this may, but need not necessarily, mean that the decision is unlawful. Much will depend on whether the individual has, for instance, a right of appeal and whether the appellate body can cure the defect in the original decision-making process (the so-called �curative’ principle: see [7.50]). A failure to observe Article 6 ECHR during the original decision-making process likewise need not mean that the corresponding decision is unlawful, that is, if the individual can have recourse to an �independent and impartial tribunal’ that has �full jurisdiction’ in the matter before it (so-called �composite’ compliance). �Full jurisdiction’, in turn, is a context-dependent require­ment, and the courts have emphasised that judicial review on ordinary grounds will often be sufficient for the purposes of Article 6 ECHR. Case law on the point does, however, continue to evolve and it may now be doubted whether judicial review is suited to the demands of Article 6 ECHR in all cases. It is now also clear that Article 6 ECHR is no longer taken as engaged by some decision-making in the public law realm (see [7.73]-[7.79]).