5. Procedural impropriety

Statutory procedures

Mandatory and directory: The older cases asked whether a procedural requirement was mandatory, so that breach made the decision void, or directory, so that breach did not. In Aylesbury Mushrooms the minister had to consult organisations representing those affected before making a training order. He failed to consult the Mushroom Growers' Association, and the order did not apply to its members.

Consequences of breach: In London and Clydeside Estates v Aberdeen District Council a council failed to tell an applicant of his right to appeal, and its certificate was quashed. Lord Hailsham said the mandatory and directory labels are only a guide, and the question is what Parliament intended to be the result of a breach.

Jeyeanthan: In R v Home Secretary, ex parte Jeyeanthan the Court of Appeal held that the better approach is to ask whether there has been substantial compliance, whether the breach can be waived, and what the consequences of non-compliance should be in the circumstances.

Consultation

A real chance to respond: Where consultation is required, it must take place while proposals are still at a formative stage, give enough reasons for an intelligent response, allow adequate time, and the results must be conscientiously taken into account.

Reasons

No general duty: There is no general common law duty to give reasons, but fairness may require them, especially where liberty or livelihood is at stake (R v Home Secretary, ex parte Doody). Many statutes impose a duty.