When a decision-maker is minded to make a decision adverse to someone on the basis of their dishonesty or other reprehensible conduct he is required as a matter of procedural fairness to indicate that suspicion clearly and give the applicant an opportunity to respond. This principle has been reaffirmed in Balajigari v SSHD (2019) EWCA Civ 673, from paragraph 46, where the Court of Appeal said:-

“46.    … the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned.”

“59.    … although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached … fairness will usually require that to be done where that is feasible for practical and other reasons. … Read more »

Keep the Horton General v Oxfordshire CCG and Cherwell District Council (2019) EWCA Civ 646 concerns one aspect of the first part of a two-phase consultation exercise upon five proposals. McCombe LJ said:-

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Following the Divisional Court decision in Hollow v Surrey County Council (2019) EWHC 618 (Admin) on local authority budgets and decisions to reduce expenditure, Supperstone J has decided R (AD) v Hackney LBC (2019) EWHC 943 (Admin), in which, again, the challenge was dismissed, and all the various grounds of challenge rejected. As regards alleged “systemic unlawfulness”, it was not the case that Hackney’s approach inherently would produce failures to comply with the relevant absolute, statutory duty (Section 42 of the Children and Families Act 2014). The impact of the reduction upon SEN children and Education and Health Care Plans could be mitigated in individual cases. Nor was a banded system an intrinsically unlawful way to discharge that duty. Further, there was no breach of Section 27 of the 2014 Act, of the PSED, of Section 175 of the Education Act 2002, or of Section 11 of the Children Act 2004. Moreover, no public law consultation was required under Section 27, or the PSED or at common law. There was no legitimate expectation of consultation. It was not required in order to avoid “conspicuous unfairness”. There was compliance with the Tameside duty to equip oneself with adequate information.

On acting as a judge in one’s own cause, legitimate expectation, and ECHR Article 8, see the Divisional Court Judgment in R (Sargeant) v First Minister of Wales (2019) EWHC 739 (Admin). A Press Statement issued by the First Minister stating that there would be an Independent Inquiry into actions of his was held to give rise to an enforceable legitimate expectation that he would himself have no involvement in the preparatory work for the Inquiry.   That expectation was breached by him by setting the remit for the drafting of the Operational Protocol governing the Inquiry and by his control over the final form of that Protocol.