PROCEDURAL REQUIREMENTS AND STATUTE
[7.18] Legislation that delegates a power of decision to a subordinate body will often contain a range of procedural provisions that seek to ensure transparency in, and accountability for, exercises of the power of decision ([7.05]; such provisions will also pursue fairness towards those to be affected by a decision, although the question whether the demands of fairness are met is ultimately one for the courts—see [7.07]).
Where a decision-maker fails to act in accordance with a statutory provision, the issue for the courts is whether the legislature intended that any corresponding decision should thereby be unlawful. This, in turn, reduces to an exercise in statutory interpretaÂtion in which â€?the paramount objective is to ascertain the intention of the legislature in enacting the provision under consideration’.[1493] In seeking to identify that intention, the courts have said that â€?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 interÂpretation what consequence should flow from any breach’.[1494] Depending on context, this may also lead the courts to ask whether substantial compliance with a particular provision is sufficient or whether precise compliance is required given the overall legislaÂtive objective.Ascertaining Legislative Intent
[7.19] The starting point when deciding whether a decision should be deemed unlawful for reason of failure to observe a statutory provision is whether the provision is â€?mandaÂtory’ or â€?directory’. Although the classification of provisions with reference to these categories is no longer regarded as definitive of the matter,[1495] non-observance of a mandatory requirement is more likely to be taken to constitute an illegality than is a failure to observe a directory requirement (although a failure to observe either can, in any given case, still constitute an illegality).
Mandatory provisions for these purposes are typically signified by the use of words like â€?shall’,[1496] which can be read as imposing a duty to act in a particular way rather than conferring a discretionary power[1497] (direcÂtory provisions, in contrast, will give the decision-maker a discretion on whether to observe a particular procedure). Where the legislature has used the mandatory term, this is thus indicative of the importance to be attached to the corresponding procedural requirement that the decision-maker is to observe. Should the decision-maker fail to observe the requirement, the courts may decide that the decision should fall precisely because the decision-maker has failed to â€?understand correctly the law that regulates his decision-making power and [to] give effect to it’.[1498][7.20] The rule regarding mandatory provisions is not, however, absolute, and the courts may give such provisions a more flexible reading in the light of the legislature’s presumed intentions. For instance, the courts may read a provision as both mandatory and directory; that is, mandatory as to substantial compliance but directory as to precise compliance.[1499] The idea of substantial compliance is one that can shield deciÂsion-makers from findings of illegality insofar as the courts will not allow matters of mere technicality to trump a decision and to cause â€?unjust and unintended consequences’[1500]
where the decision has been taken in a manner that is compliant overall with the legislaÂtive scheme.[1501] On the other hand, the need for substantial compliance can have the opposite implication for decision-makers where there is only formal adherence to a requirement during the decision-making process. Under these circumstances, merely formal adherence could serve to defeat the purpose of the requirement, as the decisionÂmaker may be able to sidestep the legislation’s actual objective.
Hence where statute imposes, for example, a duty of consultation or a duty to give reasons for a decision, the consultation held must be adequate and the reasons given meaningful within their statutory context (see [7.23]-[7.30]). Failing this, the decision may be deemed unlawful.[7.21] The courts may also give a provision a less strict interpretation â€?if the effect of adopting a mandatory construction would be substantial public inconvenience’.[1502] This approach is justified with reference to notions of â€?public policy’, although the courts at the same time attribute their decision to the legislature’s intentions. In Robinson v Secretary of State for Northern Ireland[1503] the courts thus held that it had not been Parliament’s intention to prevent the Northern Ireland Assembly electing the First and Deputy First Ministers outside the six-week period specified for their election in the Northern Ireland Act 1998.[1504] Although the Act provided that the Secretary of State â€?shall’ call fresh Assembly elections in the event that the First and Deputy First MinisÂters were not elected within the six-week period,[1505] the courts considered that the election of the Ministers outside that period was lawful and that the Secretary of State had thereby also acted lawfully when proposing a delayed date for Assembly elections. This was because, in â€?public policy’ terms, the 1998 Act was to be viewed as a â€?constituÂtion’ for Northern Ireland[1506] that Parliament had intended to have every opportunity to function. A rigid reading of the time-limit within the legislation would have had precisely the opposite effect.
[7.22] It should finally be noted that legislation that has implications for an individÂual’s rights under the ECHR falls to be interpreted in accordance with section 3 of the Human Rights Act 1998.[1507] Should a â€?mandatory’ provision thereby have implications that would not be ECHR-compliant, it should, â€?so far as it is possible to do so’, be read as â€?directory’ if that would ensure ECHR compatibility.[1508] Such arguments may arise where, for example, rules of court specify in their original terms that certain procedures must be adhered to, with non-adherence meaning that an appeal cannot be heard.
Whether judicial review proceedings would be the appropriate forum for raising the issue would, however, depend on context, as the question may instead be raised as a preliminary matter before the court that may hear the appeal.[1509]Consultation
[7.23] Legislation will often provide that a decision or other measure should be made in the light of consultation with parties to be affected by the decision or measure (the common law too may impose a duty to consult: see [7.33]). Such provisions are conÂsonant with the idea of public participation in decision-making processes (see [7.05]), and a failure to consult may, depending on statutory language and context, mean that a decision is unlawful. The question of who should be consulted will, in turn, depend on the statute, as the relevant legislation may either specify that certain groups should be consulted116 or, instead, require that the decision-maker consult â€?persons appearing to be representative’ of those to be affected.117 Where the legislation is of the former kind and an individual who has not been specified in the legislation claims that he or she should have been consulted, the courts may simply hold that the legislature did not intend that the applicant be consulted.118 Where, in contrast, the legislation leaves it to the decision-maker to identify consultees, an aggrieved individual may challenge the failure to consult them on the ground of Wednesbury unreasonableness.119 The indiÂvidual may alternatively claim that they had a legitimate expectation of consultation as a result of prior practice and that the expectation had been unlawfully frustrated.120
[7.24] The nature of the consultation that is required thereafter depends on context, �as the demands of fair consultation procedures will vary from case to case and will depend on the factors involved’.121 Of course, where there is a requirement to consult and no consultation at all occurs, the fact of non-compliance will be self-evident and the court must ascertain whether the legislature thereby intended that the decision or other measure should be deemed unlawful (see [7.19]-[7.22]).
However, more difficult is the situation where consultation does in fact occur but where it is claimed that the consultation was inadequate. Under these circumstances, the court must decide with reference to an objective test rather than one centred on Wednesbury unreasonableness whether the consultation met a minimum threshold of adequacy. That objective test is structured around four principal limbs of enquiry, namely: (1) whether the consultation occurred at a time when proposals were still at a formative stage; (2) whether the consultee was given adequate information on which to respond; (3) whether the con- sultee was given adequate time in which to respond; and (4) whether the decision-makerby the clerk of petty sessions to the applicant, as was required by art 146(9) of the Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675 (NI 26), and it fell to be determined as a preliminary point whether the consequence of that failure was that the appeal could not be entertained by the court).
116 As in, eg, Re Police Association for Northern Ireland’s Application [1990] NI 258 (Secretary of State required by s 34(2) of the Police Act (Northern Ireland) 1970 to consult the Police Association before making regulations concerning remuneration).
117 Eg, the Local Government (Best Value) Act (Northern Ireland) 2002, s 1: �(1) A council shall make arrangements for continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency, and effectiveness. (2) For the purpose of deciding how to carry out its duty under subsection (1), a council shall consult persons appearing to the council to be representative of (a) persons liable to pay rates in respect of hereditaments in the district of the council; (b) persons who use or are likely to use services provided by the council; and (c) persons appearing to the council to have an interest in the district of the council.’
118 Bates v Lord Hailsham [1972] 3 All ER 1019.
119 On Wednesbury see [6.05]-[6.11].
120 Re General Consumer Council [2006] NIQB 86.
121 Re Law Society of Northern Ireland’s Application [2004] NIQB 48, para 62. considered conscientiously the response to consultation.[1510] Should the court find that one or more of these limbs have not been satisfied it may hold that the decision is unlawful for lack of adequate consultation, so long as the finding of illegality is at one with legislative intent. On the other hand, the court may decline to grant a remedy where it is of the opinion, on the facts, that proper consultation would not have made a difference to the course of action that the applicants would have taken and that they had thereby suffered no significant unfairness.[1511] Neither will a court accede to arguÂments about procedural impropriety where the applicant did not respond to a genuine invitation to offer an opinion: â€?Were it otherwise organisations with a right to be consulted could, in effect, veto the making of any (decision) by simply failing to respond to the invitation.’[1512]
[7.25] Where legislation is silent on the issue of consultation, the common law may instead require consultation where an individual or group has, for instance, a proceÂdural legitimate expectation ([7.10]; such consultation must likewise be adequate within the meaning of the four-limb test—see [7.24]—and, in the event that it is not, the decision may be deemed unlawful). However, an important distinction for these purposes, at least historically, has been that between administrative decisions and deciÂsions made in respect of the form and content of subordinate legislation. While the legitimate expectation doctrine has long been used to found a common law right to consultation in respect of administrative decisions,[1513] the courts previously held that the common law should not impose a requirement of consultation in respect of subÂordinate legislation where the legislature has chosen not to do so.[1514] The rationale for that approach centred upon (a) the fact that there is parliamentary control of such choices and that additional judicial control is thereby unnecessary and (b) the fact that the range of individuals who may be affected by legislation could be so diverse as to render consultation unworkable. However, while it can be expected that the orthodox approach will continue to dominate in the clear majority of cases,[1515] recent case law has recognised that some contexts can give rise to an enforceable expectation of consultation in respect of subordinate legislation.[1516] The Supreme Court has likewise held that, where an individual is to be affected by a draconian decision that is in the form of subordinate legislation, common law fairness may require that the individual be given advance notification of the matter at hand and a corresponding opportunity to make representations.129
Reasons
[7.26] Statute may also require that a decision-maker give reasons for its decision.130 Such an obligation is said to engender transparency and public confidence in the decision-making process by, among other things, concentrating the mind of the deciÂsion-maker, demonstrating to the recipient that this has been so, showing that the issues have been conscientiously addressed, and/or alerting the recipient to a justiciable flaw in the process.131 Reasons, which should be prepared by the decision-maker itself,132 must therefore be â€?intelligible and adequate’,133 although much will, at the same time, depend
upon the particular circumstances and the statutory context in which the duty to give reasons arises... in many cases very few sentences should suffice to give such explanation as [is] appropriate to the particular situation.134
Should the decision-maker, in time, fail to give any reasons whatever or give reasons that do not satisfy the minimum threshold of adequacy, the courts must ascertain whether the legislature intended that the decision should thereby be deemed unlawful (see [7.19]-[7.22]). In the event that such intention is attributed to the legislature, the courts will be likely to quash the decision and require that it be retaken. However, where the courts consider that illegality need not necessarily follow the absence of reasons, they may instead order that reasons be given in the light of the statutory duty. Under those circumstances, the duty will be observed although there will remain the possibility that the reasons will reveal further grounds for challenging the decision.
set up by the draft Order as a guardian of the consumer interest). Cf Re Christian Institute and Ors’ ApplicaÂtion [2007] NIQB 66, [2008] NI 86, paras 13-18 (applicants—who were challenging the lawfulness of equality regulations—had no legitimate expectation of consultation because there was no established practice of consultation and neither were there any special circumstances that could have created an obligation in public law to consult any of the applicants (the point was, however, rendered moot, as the respondent had engaged in consultation and the applicants were able to show that there had been inadequate consultation in respect of some of the provisions)).
129 Bank Mellat vHM Treasury (No 2) [2013] UKSC 38 and 39, [2013] 3 WLR 179 (Financial Restrictions [Iran] Order 2009, made under s 62 of and Sch 7 to the Counter-Terrorism Act 2008, was unlawful because, inter alia, it had been made in breach of the claimant Bank’s right to common law fairness).
130 For the leading authority see South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953; mentioned in, eg, Re National Trust' Application [2013] NIQB 60, para 114, Weatherup J. On the statutory duty to give reasons see also, eg, Uprichard v Scottish Ministers [2013] UKSC 21.
131 Re Jordan’s Application [2003] NICA 30, para 15, Carswell LCJ, citing R v Higher Education Authority, ex p Institute of Dental Surgery [1994] 1 WLR 242, 256-7, Sedley J. See too Stefan v General Medical Council [1999] 1 WLR 1293, 1300, Lord Clyde.
132 Re KD [2005] NICA 51, para 41.
133 Re Waide’s Application [2008] NICA 1, para 19, citing South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953.
134 Re Adams’ Application, 7 June 2000, unreported, citing Stefan v General Medical Council [1999] 1 WLR 1293, 1304, Lord Clyde.
[7.27] One related issue that features in the case law is the question of how far a public authority can add to its original reasons in the context of judicial review proÂceedings. This is essentially a matter concerned with the admissibility of evidence, and the starting position is that â€?affidavits may supplement or explain [but] they may not contradict or provide an ex post facto rationalisation for the decision’.[1517] Much will, however, again depend on the statutory context of the decision, and the basic position can become more complex given the nature of the duty. For instance, where there is a duty to give reasons as part of the notification of the decision to the parties, the courts will normally regard the provision of adequate reasons at the time of the decision as a condition of the decision’s validity[1518] (fuller explanation of the reasons would thereÂfore not be possible). Where, in contrast, adequate reasons are not regarded as a condition of the decision’s validity the courts may be willing to accept delayed reasons,[1519] albeit that they will be cautious about doing so. In such cases, the courts will thus enquire whether the late reasons are consistent with the earlier ones, whether they appear to be genuine, and whether they amount to an ex post facto rationalisation of the decision. In the event that the delayed reasons are found to be inadmissible, the court must decide whether the legislature intended that the decision should thereby be deemed unlawful[1520] (see [7.19]-[7.22]).
[7.28] Where statute does not impose a duty to give reasons, common law fairness may instead require that reasons be given (however, there is still no general duty to give reasons at common law: see [7.46]). For instance, the common law has long considered that good practice requires that magistrates give reasons for their decisions (although there is no concomitant legal duty[1521]), and it has recently developed a duty both in respect of an increasingly wide range of administrative decisions[1522] and in respect of some subordinate legislative choices.[1523] Although the courts have traditionally refused to impose procedural obligations upon the legislative process because of, among other things, parliamentary controls[1524] (but see now, regarding consultation, [7.25]), there are some forms of subordinate legislation that can be made without any parliamentary scrutiny beyond the initial scrutiny of primary legislation that delegates the power to make subordinate legislation.[1525] In those circumstances—viz where the legislative choice is lacking â€?some form of scrutiny other than that provided by way of judicial review’—it has thus been held that the common law may impose a duty to give reasons so as to ensure that minimum levels of transparency and scrutiny are observed.[1526] However, the courts have at the same time said that it is likely that the common law reason-giving obligation that can apply to administrative decision-making cannot be â€?imported wholeÂsale into the legislative domain’.[1527] The nature of reasons expected in the legislative context may therefore be different from that in the administrative and judicial contexts.
[7.29] The ECHR too may require that reasons be given in the event that statute is silent on the matter (although the fact that the obligation here has it origins in the Human Rights Act 1998 may mean that it is in that sense attributable to legislative intent; on reasons and the ECHR see further [7.48]). For instance, it is now accepted that Article 6 ECHR requires magistrates to give reasons where they refuse an applicaÂtion to stay proceedings, albeit that the reasons need not be extensive.[1528] An obligation can in similar vein arise under Article 2 ECHR,[1529] where the ECtHR has identified a particular need for transparency when decisions are taken in the context of ongoing investigations into controversial deaths.[1530] Articles 3 and 8 ECHR can, moreover, require that reasons be given where, for example, a patient in a mental health facility is to be administered treatment contrary to his or her stated wishes.[1531]
[7.30] Reasons may also be required under EU law as read with the European ComÂmunities Act 1972, for instance where a decision interferes with rights of free movement under the TFEU. In those circumstances, the general principles of EU law require that reasons be given so that the affected individuals can determine whether there are grounds for challenging the interference with their rights.[1532] The duty here is also conÂsonant with EU law’s more general emphasis on transparency in decision-making processes at both the national and supranational levels.[1533]