AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

The applicable principles are well known. As Singh LJ said in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, [2018] 4 WLR 123 at [68]:

“68.

That the common law will “supply the omission of the legislature” has not been in doubt since Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 (Byles J)…. Accordingly, the duty to act fairly or the requirements of procedural fairness (what in the past were called the rules of natural justice) will readily be implied into a statutory framework even when the legislation is silent and does not expressly require any particular procedure to be followed.”

The classic statement is that of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 at 560D-G:

“My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

In Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, [2014] AC 700 Lord Neuberger said this at [178]:

“178…where the executive intends to exercise a statutory power to a person's substantial detriment, it is well established that, in the absence of special facts, the common law imposes a duty on the executive to give notice to that person of its intention, and to give that person an opportunity to be heard before the power is so exercised. While this has been described as a “rule of universal application … founded upon the plainest principles of justice”….. it has more recently been expressed in somewhat more measured terms. In [ex parte Doody] ….Lord Mustill said that “fairness” will “very often require that a person who may be adversely affected by the decision will have an opportunity to make representations … either before the decision is taken …; or after it is taken, with a view to procuring its modification”.

At [179] he went on to say:

“179.

In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute.”