Saturday, October 29, 2011

Legal Requirements, Following correct procedure

Please see document below which defines the legal requirements for a Public Body. It clearly shows that the decisions have to
1/Follow correct procedure
2/ Be Rational and Evidence based
3/Have proper purpose
4/to comply with the European Convention for Human Rights
5/To be Proportionate
6/To be properly Reasoned

TFL fail on most of these points on most of their decisions.

It may be good to make this available to drivers along with a template letter of complaint for them to send to their local MPs or MEPs.

Legal Requirements
Following correct procedure
A decision maker will frequently be required to follow a set procedure for making its decisions. This may take the form of procedural requirements set out in statute, statutory instrument, guidance (whether statutory or non-statutory) or a procedure which the decision maker has set for itself. Any such procedure will usually have been drafted with the purpose not only of guaranteeing that the decision maker takes into account all relevant considerations but also to ensure procedural fairness for those affected by the decision it is required to make.
Departure from an established prescribed procedure in itself can give rise to a successful legal challenge, by way of judicial review for example, even if no unfairness results:
“… susceptibility to judicial review under this head [procedural impropriety] covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice” (per Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411A-B).
Examples of prescribed procedures for decision makers include:
·        express duty to consult
·        express duty to serve notice
·        express duty to publish agenda
·        express duty to seek written representations
·        express duty to hold oral hearing if requested
·        express duty to give reasons for decision
·        express duty to be informed of right of appeal

Rational and evidence based
Whether a public body has a duty or discretion to exercise in making its decision, that decision must be rational. 
An irrational or unreasonable decision is one that was not reasonably open to it, as expounded by Lord Green MR in theAssociated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.
Meaning of irrationality
“Unreasonableness can include anything which can objectively be adjudged to be unreasonable.  It is not confined to culpability or callous indifference.  It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness or excessive lack of common sense” In Re W (An Infant) [1971] AC 682, per Lord Hailsham at 699H
“a decision which does not add up” (
R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1)
“a decision which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1064 E-F)
Decisions makers are given a degree of latitude by the courts when challenged by way of judicial review on grounds of unreasonableness. The Courts recognise that the decision was for All relevant considerations
An aspect of reaching a rational and evidence-based decision is taking all relevant factors or considerations into account.  This was made clear by the House of Lords in Anisminic v Foreign Compensation Commission [1969] AC 147, but the principle is more simply enunciated by Lightman J in R v Director General of Telecommunications, ex parte Cellcom Ltd [1999] COD 105:
“The Court may interfere if the Director has taken into account an irrelevant consideration or has failed to take into account a relevant consideration”.
This does not mean that a decision maker must consider all extraneous material, but it should have before it as much information as possible that is relevant to the decision that it is about to make. Deciding what is relevant and what is not depends on the subject matter of the decision, but examples include:
·        the proposal
·        responses to consultation or written representations received
·        guidance on parameters for decision
·        cost of decision
·        effects of decision on others
·        advice from officers
Examples of irrelevant considerations include:
·        the need to get business finished quickly
·        assumptions not based on evidence
·        personal experience of a different situation
·        dislike for the person affected by the decision or what they represent
Proper Purpose
A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 229).
It must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions for the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997).
Examples of Improper Motive
·        exercising local authority powers for the electoral advantage of a particular political party (Magill v Porter [2001] UKHL 67)
·        land acquisition for re-sale at a profit
·        to protect an unborn child from the mother’s right to refuse medical intervention
·        delaying a process so that a challenge to it became time-barred
It is unlawful for any public body to act contrary to one of the rights contained in the European Convention on Human Rights (“ECHR”) that has been incorporated into domestic law by the Human Rights Act 1998 (“HRA”)(section 6(1) HRA).
“Public bodies” for this purpose are defined in section 6(3) of the HRA as follows:
“6(3) In this section “public authority” includes:
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
Schedule 1 to the Freedom of Information Act contains a list of public bodies for the purposes of that Act. This provides a useful starting point for checking whether a particular decision maker is likely to fall within the definition contained in section 6(3) HRA. However, it is only a starting point; what matters in deciding whether a decision maker falls within the definition is whether the body in question is exercising public functions.
A variety of cases have considered the question of what amounts to a functional public authority for the purposes of section 6(3)(b) of the HRA: see here.
A review of this case law provides a private body is likely to be held to be performing public functions under section 6(3)(b) if:
·        its structures and work are closely linked with the delegating of power or contracting out from a State body; or
·        it is exercising powers of a public nature directly assigned to it by statute; or
·        it is exercising coercive powers devolved from the State.
Other factors such as the following may all be taken into consideration, perhaps cumulatively, in determining whether a function has sufficiently public “flavour”:
·        the fact of delegation from a State body,
·        the fact of supervision by a State regulatory body,
·        public funding,
·        the public interest in the functions being performed, or
·        motivation of serving the public interest, rather than profit
The ECHR contains the following articles that have been incorporated into domestic law that may be relevant to public bodies making decisions.
Article 6 is likely to be of particular relevance to decision makers sitting in a quasi judicial capacity and holding hearings. It provides as follows:
Article 6 Right to a fair trial
1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.    Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Breach of an ECHR right by a decision maker may render its decision not only unlawful but subject to an action for damages: see section 8(3) HRA (and R (Bernard) v Enfield Borough Council [2003] HRLR 111 for an example).
Public decision makers should act in a way that is proportionate.  While the common law does not necessarily accept proportionality as a freestanding ground for judicial review, it is a principle embedded in  both EU and ECHR law and consequently touches upon most of the decisions taken by public bodies:
“[Proportionality] is one of the fundamental principles of Community law, standing alongside such other principles as those of equal treatment and legitimate expectation. it has not so far (perhaps unfortunately) found any very promising seedbed in English domestic law. It is not anywhere vouchsafed in the EC Treaty; rather it is part of what may perhaps be called the common law, or the internal law, of the Community, having been developed by the Court of Justice as an integral part of the legal discipline applied by that court to the Community institutions in relation to their implementation of the Community legal order. When member states also act to implement Community law, or to take measures necessarily relying on exemptions from Treaty obligations provided by Community law, they too will be subject to this internal law” (R v Secretary of State for the Environment, ex parte Oldham Metropolitan Borough Council [1998] ICR 367, per Laws J at 384H to 385A)
“Reference to the Human Rights Act 1998 … makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied” (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, per Lord Slynn at [51]).
A decision that is proportionate, is also likely to be rational, evidence-based and reasonable (see R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, per Lord Lowry at 766D-E): “reliance on proportionality is simply a way of approaching the Wednesbury formula: was the administrative act or decision so much out of proportion to the needs of the situation as to be “unreasonable” in the Wednesbury sense”.
Properly Reasoned
Procedural requirements may specify that a public body must give reasons for its decisions. It should do so in any event, not only because the common law may require it to do so, but because a well reasoned decision will inform those affected fully about the decision the body has taken. Reasoned decisions also enable those affected to consider whether to subject it to legal challenge, and on what grounds and well reasoned decisions help public bodies withstand legal challenge by explaining their thought processes.
The process of setting out written reasons for a decision also improves the decision making process by making the decision maker focus on the logic lying behind his decision (R v Brent LBC, ex parte Baruwa (1996) 28 HLR 361).
Reasons do not need to be excessively detailed, but do need to be adequate. Adequate reasons are reasons that:
·        deal with all the substantial points that have been raised
·        are sufficient for the parties to know whether the decision maker has made an error of law
·        set out and explain key aspects of the decision maker’s reasoning in coming to its conclusion
·        include all aspects of reasoning that were material to the decision made
·        but do not need to set out in detail all the evidence and arguments referred to the decision maker
Decision makers should record the reasons for their decisions at the time they are made.  In the event of a subsequent appeal or other legal challenge, it will not usually lie open to them to elucidate, correct or add to their reasons at a later stage (see e.g. R v Secretary of State for the Home Department, ex parte Lillycrop (unrep 27.11.96)).

he public body to make, not the court, and so they are reluctant to interfere where they might disagree with a decision but it is objectively rationally made.