Principles of judicial review: procedural fairness

March 22, 2018/in Featured, Public Law /Private Law Tutor

Principles of judicial review: procedural fairness
Legitimate expectations

R (Patel) v General Medical Council Times LR 21 June 2013; [2012] EWHC 3688; [2013] 1 WLR 2694, the Court of Appeal considered the concept of ‘legitimate expectation’. In administrative law, if a public body creates expectation in the mind of a person affected by its decision, either through its policy, or the making of assurances, then that public body cannot simply ignore that expectation. Through judicial review proceedings the courts will examine whether such an expectation has been created, and if it has, will require the body concerned to act accordingly. For details see the October 2013 Public law Newsletter.

Right to an oral hearing

The Supreme Court examined the circumstances in which a prisoner was entitled to an oral hearing before the Parole Board in R (Osborn) v Parole Board; R (Booth) v Same, Re Reilly[2013]UKSC 61; [2013] 3 WLR 1020. While recognising that there could be no exhaustive definition of when an oral hearing should be granted, the Court held that an oral hearing was required ‘whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake’.

The case is interesting also for the analysis of the relationship between the common law, the Human Rights Act 1998 and the European Convention on Human Rights. In a summary of the conclusion reached, Lord Reed JSC explained that relationship in the following manner:

‘In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5.4 of the European Convention for the Protection of Human Rights and Fundamental freedoms, in circumstances where that article is engaged’ (para.2).

Lord Reed stated that the correct starting point for the analysis of rights is the common law. The rights guaranteed under the European Convention (as with much of international law) are expressed in very broad terms, and in order to be enforced must be translated into detailed rules in domestic law:

‘The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law’ (at para.56).

On the Human Rights Act 1998, Lord Reed emphasised that although it is an Act of great importance, it does not supersede the protection of human rights under the common law or statute. Lord Reed set out several examples from the case law to demonstrate that the analytical starting point is the common law, not the jurisprudence of the European Court of Human Rights. In R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord Bingham of Cornhill adopted the approach of Lord Cooke of Thorndon who said that:

‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them’ (at para.58).

Citing also R (Sturnham) v Parole Board [2013] 2 WLR 1157, para.29, Lord Reed stated that:

‘… the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles rather than the judgements of the international court.’


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