THE RIGHT TO A HEARING

[7.31] The common law right to a hearing is centuries old and has historically sought to ensure that individuals who will be affected by a decision are able to make informed representations to the decision-maker in advance of the decision being taken.^[1534] The right corresponds, at its highest, with a constitutional right of access to a court^[1535] and, more generally, with the right to have a decision taken in the absence of actual or apparent bias on the part of the decision-maker (on the rule against bias see [7.62]­[7.83]; the common law here typically requires that �he who hears should decide’, albeit that the requirement may be modified in the light of, for instance, the Carltona doctrine^[1536]).

[7.32] In terms of the content of the right to a hearing, the common law and Article 6 ECHR can each impose obligations before a decision is taken (for instance, notifica­tion of the issue to be addressed), during the hearing itself (as to the type of hearing, evidence, and so on), and after a decision has been reached (for example, reasons) (see [7.36]-[7.49]).

[7.33] There are two further points of overarching importance about the right to a hearing. The first is that, while the common law typically uses the language of �a right to a hearing’, it may in other instances use the language of �consultation’ (for example, where the courts consider that the individual has a legitimate expectation of fair treat­ment^[1540]). What consultation will require in any given case will, again, be a function of context �as the demands of fair consultation procedures will vary from case to case and will depend on the factors involved’.^[1541] The courts do, however, require that any consultation satisfy an objective minimum test of adequacy that is structured around four limbs of enquiry (see [7.24]).

[7.34] The second point concerns the need for decisions to be taken within a reason­able time.^[1545] This corresponds with a more general common law duty to avoid undue delay in the exercise of statutory powers or the performance of a statutory duty,^[1546] although it has a particular meaning in the context of the common law rules of fairness. The point here is that, as a decision will often have significant implications for an individual’s rights or interests, a hearing should be held, and a resulting decision reached, within a timeframe that is fair and reasonable. While the question of what is reasonable will depend on matters such as the complexity of the issue to be resolved, the underlying objective is to ensure that the decision-making process does not interfere unduly with the individual’s rights or interests. Common law fairness in this way includes a promptitude requirement that is likewise present in the text of Article 6 ECHR (�everyone is entitled to a fair and public hearing within a reasonable time’; and see [7.43]).

The (Variable) Content of the Right to a Hearing

[7.35] The content of the right to a hearing, both at common law and under Article 6 ECHR, can be examined with reference to five complementary headings. These are: (1) Notification; (2) The Nature of the Hearing and Evidence; (3) Representation; (4) Reasons; and (5) Appeals and Rehearings.

Notification

[7.36] It is a �fundamental principle’^[1547] and �one of the oldest principles’^[1548] of the common law that an individual who may be adversely affected by a decision is given advance notification of the central issues that a decision-maker must address. The underlying justification is simply that: �If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is to be made against him.’^[1549] While the language of �accused’ and a �case being made against’ is perhaps more evocative of, for instance, criminal or disciplinary proceedings, the idea of notification is also germane to administrative decision-making processes that may have implications for an individual’s rights (such as property rights) or interests (such as a licence). The need for notification can, in other instances, be founded upon a legitimate expectation of a fair hearing.^[1550]

[7.37] The corollary of the right to notification is the opportunity to respond, as �procedural fairness requires that a party has the right to know the case against him and the right to respond to that case’.^[1551] The right to respond, in turn, requires disclo­sure of material facts to the party affected^[1552] and adequate time to prepare a response^[1553] (the right to respond need not necessarily include the right of the party to cross­examine witnesses,^[1554] although such a right may exist within the nature of the hearing: see [7.42]) While the presumption in favour of disclosure can at the same time be displaced by legislation^[1555] or made subject to arguments of public interest immunity and/or of the need to maintain confidence/protect witnesses^[1556]—urgent cases too may have implications for the �adequate time’ requirement (see [7.54])—the common law here seeks to �facilitate participation and involvement in the decision making process’ and to �accommodate the strong impulse for practical justice’.^[1557] It is therefore likely that there will be a breach of the rules of common law fairness where the procedure adopted by the decision-maker prejudices the individual �to the extent that his oppor­tunity to participate effectively is seriously handicapped, certainly if it is in effect stultified’.^[1558]

[7.38] The right to notification and to respond are likewise found in Article 6 ECHR’s guarantees in respect of civil rights.

[7.39] The strength of the above statements of principle, both at common law and under Article 6 ECHR, has recently been tested in a controversial line of case law concerning the lawfulness of â€?closed material procedures’ in, most prominently, national security cases.¹⁸⁰ Recourse to such procedures is possible where statute (a) provides that a court or tribunal may consider sensitive material in proceedings that are closed to an individual but (b) requires that the individual’s interests in those proceedings be repre­sented by a so-called â€?special advocate’.¹⁸¹ The corresponding controversy has centred on the question of how much information should be disclosed to the individual in advance of any closed hearing being held. While arguments in favour of national security would plainly point towards no, or very minimal, disclosure of information, fairness would equally demand that the individual should be able to make meaningful representations through his or her special advocate. There has thus been a recurring tension between, on the one hand, the state’s need to, for instance, safeguard sources of information in national security cases and, on the other hand, its need to observe the core requirements of common law fairness and/or Article 6 ECHR.¹⁸²

[7.40] The leading decisions of the courts have not always been easy to reconcile, but three main points can be distilled from the authorities.

NIQB 81 (decision to revoke the applicant’s firearms licence quashed as it had been taken in breach of the applicant’s legitimate expectation that he would be able to make representations in advance of the decision).

¹⁷⁷ De Haes and Gijsels v Belgium (1998) 25 EHRR 1, 57, para 53.

¹⁷⁸ Eg, McGinley and Egan v UK (1999) 27 EHRR 1, 41, para 86.

¹⁷⁹ Albert and Le Compte v Belgium (1983) 5 EHRR 533, 546, para 39.

¹⁸⁰ The leading authorities are Bank Mellat vHM Treasury (No 2) [2013] UKSC 38 and 39, [2013] 3 WLR 179; Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452; Al-Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531; Home Secretary v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269; and A v UK (2009) 49 EHRR 29. See also, eg, Re Corey’s Application [2012] NICA 57.

¹⁸¹ Eg, art 9 of the Life Sentences (NI) Order 2001, as read with rr 9 and 19 of the Parole Commissioners’ Rules (NI) 2009. See also, eg, Part 2 of the Justice and Security Act 2013.

¹⁸² EU law may also be relevant: see, eg, Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452; and Case C-300/11, ZZ v Secretary of State for the Home Department [2013] 3 WLR 813. Note that individuals involved in national security cases can also apply for, eg, orders that witnesses on their behalf can give evidence anonymously: see W (Algeria) v Home Secretary [2012] UKSC 8, [2012] 2 AC 115 (a number of Algerians who were suspected of involvement in terrorism wished to challenge a deportation order by relying upon, among other things, witness evidence about the likelihood of their being tortured in their country of origin: held that the witness could give evidence anonymously because of his/her fear that his/her evidence could result in a threat to his/her well-being).

raised the question of how specific a statutory scheme needs to be before it can be read as providing for closed material procedures—the Supreme Court recently held that it has a general statutory power to consider such material where that is necessary for the disposal of an appeal^[1559]—the foremost authorities have been characterised by a robust reassertion of the immutability of common law principle.^[1560] The second point concerns the requirement of �gisting’ that can apply when statute provides for closed material procedures, where the term is shorthand for the State’s obligation to disclose �sufficient information... to enable [the individual] to give effective instructions to the special advocate’ where the decision in question is based �solely or to a decisive degree’ on the closed material.^[1561] This �sufficient information’ obligation was developed by the ECtHR in a case arising under Article 5 ECHR and, while it remains of most immediate appli­cation in relation to the right to liberty,^[1562] it has since also been used by the domestic courts in some Article 6 ECHR cases (notably those concerned with anti-terrorism �control orders’^[1563]). However, the third point, which is closely related to the second, is that the �gisting’ requirement is not absolute and that it does not apply in all cases. While it is axiomatic that it will apply when the right to liberty is at issue, it has therefore been held not to apply in an employment dispute that engaged Article 6 ECHR^[1564] or in a dispute about discipline within a prison.^[1565] Context in such cases remains all-important.

The Nature of the Hearing and Evidence

[7.41] The nature of the hearing that is required by the common law in any case will depend on the context that is set by the individual’s right, interest, or expectation, and by the corresponding nature of the decision to be taken.^[1566] At its highest, the full protec­tion of the individual would require that there is an oral hearing at which the individual is both present and able fully to participate in (although it is also open to an individual to decline the offer of a hearing). However, there is at the same time no �fixed require­ment for an oral hearing in all cases’^[1567] and it may be that written submissions will suffice where, for instance, an individual is making an application for the first time for a licence for an economic activity.^[1568] On the other hand, the common law may impose an obligation to grant an oral hearing in the very different circumstances where a prisoner who has been released early from prison on licence resists recall to prison for an alleged breach of the terms of the licence.^[1569] While the right to an oral hearing here is not absolute—the decision-maker is also tasked with protecting society from the risk of re-offending—the courts have emphasised that an oral hearing is to be preferred even in cases where there is no dispute as to primary facts. This is because facts not in dispute might still be open to explanation or mitigation, or because they might lose some of their significance in the light of other new facts. It is also because an oral hearing can bolster a prisoner’s right of response ([7.37]) in the sense that it may otherwise be difficult for the prisoner to know which points are troubling the decision­maker and to address those points effectively.^[1570]

[7.42] The common law rules of fairness do not, however, require that the strict rules of evidence have to be followed during a hearing (for instance, a decision-maker �may take into account any material which, as a matter of reason, has some probative value’^[1571]); and neither do they necessarily require that there is an opportunity to test evidence through the cross-examination of witnesses.^[1572] Nevertheless, the overall pro­cedure adopted during the hearing must be fair, and the more adversarial the hearing, the more that will be expected by way of procedural safeguards. At its most rigorous, the common law may therefore require that:

Where there is an oral hearing, a tribunal must... consider all relevant evidence submitted, inform the parties of the evidence taken into account, allow witnesses to be questioned and allow comment on the whole case... a [tribunal] should not rely on points not argued or private enquires made.^[1573]

[7.43] Article 6 ECHR’s guarantees in respect of civil rights likewise emphasise the importance of oral hearings at which the individual is able to participate, albeit that there is a stronger presumption in favour of such hearings in civil disputes where the dispute is centred upon, for example, the conduct of the individual^[1574] (other Articles may also require hearings, for instance Article 5 ECHR in the context of prisoner release disputes^[1575]). This emphasis on oral hearings corresponds not only with the �equality of arms’ principle (see [7.38]) but also with Article 6 ECHR’s textual require­ment that an individual be afforded a �fair and public hearing’. While the rules of evidence are, in turn, a matter for the national system, those rules must accord with the ECHR’s conception of what is fair in all the circumstances,^[1576] and this may require that there is an opportunity for cross-examination of witnesses even in civil disputes.^[1577] Article 6 ECHR also requires that the hearing is held within a �reasonable time’ given the nature of the dispute, viz the complexity of the issues, nature of the individual’s interests, and so on^[1578] (on the common law requirement that hearings be held within a reasonable time see [7.34]).

Representation

[7.44] The common law does not prescribe a right to be legally represented in all cases but regards the matter as at the discretion of the decision-maker. That discretion is, however, to be exercised in the light of the so-called �Tarrant criteria’,^[1579] and these, as with all aspects of the rules of fairness, are context-sensitive. Under the criteria, which were developed in the context of a prison dispute, decision-makers should thus consider: the seriousness of the decision to be taken; whether any points of law are likely to arise; whether the individual will be able to present his or her own case; whether there may be procedural difficulties; the need for reasonable speed in reaching a decision; and the need for fairness as between the individual and other parties to the dispute.^[1580] Those same criteria are also to be considered where an application is made to the decision­maker by a party who wishes to attend the hearing as the friend or adviser of the individual to be affected by the decision.

[7.45] Where an individual’s civil rights within the meaning of Article 6 ECHR are engaged by a decision there is similarly no automatic entitlement to representation^[1581] (the position is different in respect of criminal charges^[1582]). The ECHR is, however, premised on the need for rights to be effectively protected, and representation will therefore be deemed necessary for purposes of protecting the right to a hearing where, among other things, a dispute is legally and factually complex. Legal and factual com­plexity can, moreover, have implications for entitlement to legal aid in civil proceedings before domestic tribunals, as the ECtHR has held that legal aid may be necessary in complex cases to ensure that those individuals who are unable to afford legal represen­tation are able to present their cases properly and satisfactorily^[1583] (legal aid outside the human rights context is solely a matter for statute). On the other hand, the domestic courts have stated that the requirement publicly to fund civil proceedings will occur only �exceptionally’ and �where it is impossible as a matter of practicality for a litigant to have access to the courts... where a matter of fundamental importance is at stake’.^[1584]

The courts have likewise said that the scope for the individual to encounter difficulty should in any event be limited given the decision-maker’s obligation �to ensure that the [individual’s] lay status is not exploited by [his or her] opponents’.^[1585]

Reasons

[7.46] Reasons perform a number of important functions in administrative law (see [7.26]) and, cast in terms of the right to a fair hearing, they can allow the individual to determine whether the decision-maker has taken account of the arguments made by the individual and, if not, whether to challenge the decision. Where statute does not impose a duty to give reasons (see [7.26]-[7.30]), it falls to the common law to resolve whether a duty should be imposed in respect of a particular decision (reasons given under the common law must, as with those given under statute, be �adequate and intelligible’^[1586] within their context;^[1587] they must also be prepared by the decision-maker itself^[1588]). Historically, the common law has not imposed a general duty to give reasons, largely because of the burden that it was thought this might place upon decision-makers (viz, it may �demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge’;^[1589] for the arguments in favour of a duty see [7.26]). However, while there is still no general duty to give reasons,^[1590] the common law has more recently developed so as to impose duties in a wide range of circumstances in which fairness is taken to demand that reasons be given.^[1591] This development of the law has been most pronounced in respect of administrative decisions, although a duty has also been imposed in respect of sub­ordinate legislative choices that have been made in the absence of �some form of scrutiny other than that provided by way of judicial review’^[1592] (see [7.28]). The common law has also moderated its position in respect of magistrates’ courts as, to the extent that magistrates are still not under a legal duty, the courts have said that best practice requires that even a short statement of reasons be given for decisions^[1593] (reasons will in any event be required under Article 6 ECHR where a final determination has been made:^{[1594] [1595] see [7.48]).}

[7.47] The leading statement of the law relating to administrative decision-makers remains Re McCallions Application.¹¹⁹ In that case, the Northern Ireland Court of Appeal adopted a number of key points that had been distilled by the Divisional Court in England and Wales in R v Ministry of Defence, ex p Murray.^[1596] The most important of those, in more general terms, is that there is a perceptible trend towards an insistence on greater openness and transparency in the making of administrative decisions. However, the Court at the same time accepted that there is no general duty to give reasons and that it is for the applicant who claims that reasons should be given to show that the procedure of not giving reasons is unfair. In assessing whether there has been unfairness, courts should then consider, among other things: whether there is a right of appeal (the absence of which may be a factor in deciding that reasons should be given); the nature of the individual’s interest that is affected by the decision (that is, the more important the interest the more likely it is that reasons will be required); and the corresponding function performed by the decision-maker. A court should also consider whether there are public interest considerations that militate against the giving of reasons; and nor should reasons be required if the procedures of the particular decision-maker would be frustrated by the imposition of such a requirement.

[7.48] Article 6 ECHR likewise imposes a duty to give reasons for decisions that affect civil and criminal rights, notwithstanding that the obligation is not imposed in express terms. The justification for the obligation is, again, the need for fairness and to enable an individual to decide whether to challenge a decision (reasons, to this end, should be sufficient to aid the individual in understanding the essence of the decision^[1597]). A duty to give reasons can, moreover, be imposed by other Articles that are either procedural in form or which append adjectival elements to a substantive guarantee. Hence Article 5 ECHR contains an express requirement that an individual who is arrested is informed promptly, in a language which he or she understands, of the reasons for his or her arrest and of any charge against him or her; and Article 2 ECHR can require that reasons be given^[1598] because the ECtHR has identified a particular need for transparency when decisions are taken in the context of ongoing investigations into controversial deaths.^[1599] Articles 3 and 8 ECHR can likewise require that reasons be given, for example, where a patient in a mental health facility is to be administered treatment contrary to his or her stated wishes.^[1600]

[7.49] It should finally be noted that a duty to give reasons can arise under EU law, 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.^[1601] The duty here is also consonant with EU law’s more general emphasis on transparency in decision-making processes at both the national and supranational levels.^[1602]

Appeals and Rehearings

[7.50] Where a decision is reached in apparent breach of the common law’s fair hearing requirements and/or the equivalent aspects of Article 6 ECHR, this may, but need not necessarily, mean that the decision is unlawful. Much will here depend on whether there is a remedy by way of an appeal and whether that remedy can cure the defects in the original decision-making process (the so-called �curative’ principle).^[1603] A cure, for the purposes of the common law, is more likely to be achieved where the individual has a full right of appeal against the decision, as the appellate body will be able to rehear all issues and substitute its decision accordingly (that �effective alterna­tive’ remedy should therefore ordinarily be used in preference to judicial review; if review proceedings are brought the High Court may in its discretion decline to grant a remedy^[1604]). However, where an appeal is only partial, it may be that the original defect cannot be cured by that remedy and that the decision thereby remains tainted by impro­priety. Under those circumstances, an application for judicial review may thus be appropriate and the High Court may, for instance, quash the decision and require that it be retaken. On the other hand, there may be cases where the High Court declines to grant a remedy because it is of the opinion, on the facts, that the impropriety had no bearing on the final decision and that a new decision would be no different to that under challenge.^[1605]

[7.51] Article 6 ECHR likewise accepts that a defect in the original decision-making process which affects civil rights can be remedied on appeal or by an application for judicial review where the body hearing the issue has �full jurisdiction’ in the matter that comes before it^[1606] (the so-called �composite’ approach to compliance). A cure for these purposes will be achieved most readily where there is a full right of appeal, as the appellate body will be able to rehear all the issues and substitute its own decision for that of the original decision-maker. However, the ECtHR has at the same time held that the question of what constitutes �full jurisdiction’ depends on the context and that it may, in some circumstances, be sufficient for an individual to have an appeal on a point of law or a remedy by way of an application for judicial review. The significance of this point as relates to judicial review in Human Rights Act 1998 cases is considered at [7.73]-[7.79].

When Is the Right to a Hearing Modified and/or Excluded?

[7.52] Although the right to a hearing is regarded as a fundamental precept of both the common law and the ECHR, there are some (very limited) circumstances in which it is accepted that the rules do not apply or, to the extent that they do, that they should apply in only a modified form. The clearest example at common law is where a decision is taken in the interests of national security, as it has long been accepted that national security concerns can limit the right to be heard or, depending on context, to consul- tation.²³1 While the courts will not at the same time accept unquestioningly a governmental assertion that national security issues underpinned a decision,^{[1607] [1608] they do acknowledge that the role of the courts in protecting the individual must here account for wider security concerns[1609] [1610] (see also [7.39]-[7.40] on â€?closed material procedures’ and â€?special advocates’). The point can be seen in the analogous case of Re Shuker’s Application,134 where the applicant challenged the decision of the Attorney-General not to â€?de-schedule’ certain offences under the Terrorism Act 2000. In dismissing the appli­cation for judicial review, the High Court held that, while the Attorney-General’s decision was justiciable, it was not reviewable on the basis that it failed to comply with the requirements of procedural fairness. This was because the court considered that the decision had involved the evaluation of material that was of a sensitive nature and that disclosure in such circumstances would have been against the public interest. The court also considered that Parliament had entrusted the decision-making power to the Attorney-General, and judicial restraint was for that reason appropriate. Judicial review would therefore lie only where there was, for instance, bad faith on the part of the decision-maker.[1611]}

[7.53] The common law also considers that prosecutorial decisions of the Public Pros­ecution Service are not governed by the rules of fairness (see too [7.12] for the more general position in respect of preliminary determinations). The rationale here lies in the nature of the �complex and almost unique’ function performed by the office, which

is not that of an adjudicator between two parties... the [Public Prosecution Service] has to consider and weigh a number of disparate and at times even competing interests eg the general public interest at any particular time, the interest of the putative accused, the victim, the supplier of information such as an informant, the various disinterested and interested witnesses.^[1612]

The corresponding case law on the application or otherwise of the rules of fairness has generally centred on whether there is a common law duty to give reasons for deci­sions not to prosecute and, in holding that no duty arises, the courts have held that there is no anterior duty to observe the rules of fairness such as would found a more specific duty to give reasons.^[1613] A common law challenge to the failure to give reasons can therefore succeed only where it can be established either that extant prosecution policy on reasons is irrational or, alternatively, where a particular decision is irrational in the light of that extant policy.^[1614] On the other hand, a duty to give reasons can arise in cases under the Human Rights Act 1998, for instance where a prosecution decision is taken to fall within the ambit of the Article 2 ECHR right to life.^[1615]

[7.54] The common law also recognises that there may be no right to a hearing for reasons of practicality, for instance where an urgent decision is to be taken in order to protect public health.^[1616] Case law on this point would, however, suggest that such modes of decision-making will be acceptable in only truly exceptional circumstances, and it would also appear that the common law will typically require that the individual should have a hearing at a later stage^[1617] (on the �curative’ principle see [7.50]). In other instances, arguments of practicality may mean that it is not possible to grant a hearing to all affected parties and that the demands of the common law should lessen accordingly. An example here is in respect of the form and content of subordinate legislation as the common law has, in the absence of primary legislation specifying that certain indi­viduals should be consulted, historically declined to intervene for lack of a hearing or of consultation.^[1618] That said, some more recent case law has started to develop excep­tions to this common law rule, for instance where an applicant is able to demonstrate that he or she had a legitimate expectation of consultation^[1619] (see [7.25]). 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.^[1620]

[7.55] Case law under Article 6 ECHR likewise accepts that the various elements of the right to a fair trial are not absolute^[1621] and that they need not always be observed (for instance, where there are arguments of national security). The ECtHR does, however, require that any limitation upon the right to a fair hearing pursues a legitimate aim and does not impair the very essence of the right.^[1622] This requires that the lawful­ness of any limitation be assessed with reference to the proportionality principle^[1623] (see also [7.39]-[7.40] on �closed material procedures’ and �special advocates’).

Breach of the Right to a Hearing: Remedies and Waiver

[7.56] Where a decision is reached in breach of the right to a hearing this will mean that the decision is unlawful.^[1624] Under such circumstances, the High Court on an appli­cation for judicial review will typically grant a remedy to the affected individual, for instance by quashing the original decision and requiring that it be retaken in the light of the demands of fairness.

[7.57] The remedies available in judicial review are, however, discretionary^[1625] and the courts may refuse a remedy for one of four main reasons (the position may be more complex when a case is brought under the European Communities Act 1972 and/or the Human Rights Act 1998^[1626]0). The first is where an applicant has not exhausted an effec­tive alternative remedy that could have cured the defect in the original decision-making process (see [7.50]—it might, as a matter of logic, even be argued that there has not yet been an illegality here). However, the question whether a defect could be cured by an appeal must be answered with reference to the nature of the remedy, for instance whether there is a full right of appeal or whether any appeal is limited to a point of law.^[1627] Where the right of appeal is in the latter form it may be that the appellate body could not have cured the defect and that the original decision would remain tainted by illegality. In that circumstance, an application for judicial review would be appropriate and relief may not be refused for reasons of an alternative remedy.^[1628]

[7.58] The second reason concerns the conduct of the applicant. Applicants are expected to behave with candour and integrity during proceedings^[1629] and, should they fail to do so, they may be considered undeserving of a remedy notwithstanding a breach of their right to a hearing.^[1630] On the other hand, there is case law to suggest that the applicant may be considered undeserving only where he or she had some intention to mislead the court, or to misuse its process. The courts may not in the result censure an applicant for a simple, and largely inconsequential, oversight.^[1631]

[7.59] The third possible reason for refusing a remedy concerns arguments of utility.^[1632] Such arguments may prevail where the courts consider that, even if the decision were to be taken again and in accordance with the correct procedures, the final decision would be no different to that under challenge. Rather than �beat the air’ in such circumstances,^[1633] the courts may therefore simply decline to make an order.^[1634] A court may likewise 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;^[1635] and it may in other instances consider that the judgment of the court itself is sufficient relief, given the context of the case, and that there is no further need for a formal remedy.^[1636]

[7.60] The fourth possible reason for refusing a remedy concerns the standing of the applicant.^[1637] Although the courts have long adopted a �liberal’ approach to the question of standing for purposes of bringing an application for judicial review, the fact that, for instance, a publicly spirited citizen is recognised as having standing in a case does not automatically mean that he or she will be granted a remedy in the event that an argument of illegality is established. Much can instead depend upon the context to the case and, in particular, whether the court is dealing with solely a procedural error; whether the applicant has a private interest in the outcome of the case; the impact, if any, that the illegality may have had on other private interests; the impact that the grant of a remedy would have on third parties who may already have relied upon the impugned decision or measure; and whether the broader public interest would best be served by granting a remedy. In the event that one or more of these considerations influences the court, it may decline to grant a remedy or, alternatively, to conclude that the judgment of the court is sufficient given the competing considerations at issue.^[1638]

[7.61] A respondent in judicial review proceedings may finally argue that the applicant had waived his or her procedural rights in advance of the impugned decision being taken (waiver is possible both at common law and under Article 6 ECHR^[1639]). Waiver, for these purposes, must be â€?clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not’.²⁶⁴ Such knowledge is in turn said to be contingent upon disclosure of relevant factors and â€?of the grounds upon which the complaint... might be made’.²⁶⁵ Should the applicant thereafter wish to raise an objection, he or she must do so in a timely manner and not â€?blow hot and cold; he cannot approbate and then reprobate; he cannot have it both ways’.²⁶⁶ In the event that there is no objection and it can be said that there was â€?an obvious and freely given election. not to proceed with [any] challenge’ the courts may thus accept the argument of waiver, albeit that there may be countervailing arguments of â€?public interest, where some greater public concern arises’.²⁶⁷