In R (on the application of the London Reading College Limited) v Secretary of State for the Home Department [2010] EWHC 2561 (Admin), the High Court upheld a complaint that the Secretary of State had acted in a procedurally unfair manner by revoking a licence. It followed that the revocation of the licence amounted to a breach of Article 1 of the First Protocol ('A1 P1') of the European Convention on Human Rights ('ECHR').

Key points

  • Procedural fairness depends on the subject matter of a decision, the functions of the decision-maker and the particular circumstances in which the decision is made, but it generally requires that licence holders be given 'fair notice' of a public body's concerns, in order to attempt to deal with them. In particular, allegations of dishonesty must be spelt out with sufficient particularity;
  • Procedural unfairness can lead to a quashing of otherwise reasonable decisions;
  • Licences can constitute 'possessions' for the purposes of A1 P1, thereby attracting human rights protections against unlawful revocation or withdrawal by public bodies;
  • A procedurally unfair withdrawal of a licence is not a deprivation justified under the law for the purposes of A1 P1; and
  • Damages are not available as a remedy in judicial review claims, but they may be available under the Human Rights Act 1998 ('HRA') where human rights have been breached.

Background and grounds of challenge

London Reading College (the 'licensee') was issued a licence (the 'licence') to sponsor international students wishing to study in the UK. Following several inspections conducted by the UK Border Agency ('UKBA'), the licensee lost its licence.

The licensee commenced judicial review proceedings in the High Court relying on four grounds, namely:

  • UKBA had failed to meet standards of procedural fairness by failing to make the licensee aware prior to the decision of the criticisms that UKBA regarded as material to the decision, including allegations of dishonesty;
  • UKBA had failed to consider alternative and less drastic sanctions than revocation;
  • the decision was irrational or disproportionate; and
  • UKBA had acted in breach of A1 P1.

The licensee also sought a quashing of the decision and damages under section 8 of the HRA (which incorporates the ECHR into English domestic law).

The decision

Procedural unfairness and breach of A1 P1

Mr Neil Garnham QC, sitting as a Deputy Judge of the High Court, found in the licensee's favour that UKBA had acted in a procedurally unfair manner. He duly quashed the revocation. The Judge also found that there had been a breach of A1 P1, which provides for the peaceful enjoyment of possessions. The Judge stated that it was common ground that, in order to be compliant with A1 P1, revocation of the licence had to be "subject to the conditions provided for by law" and in the public interest, and proportionate. He concluded that because he had found that withdrawal of the licence was carried out in a manner that was procedurally unlawful, it followed that the revocation was not subject to the 'conditions provided for by law' since those conditions included procedural fairness. Argument is to be heard as to the appropriate order for damages under the HRA.

The Judge reiterated the two fundamental rules of natural justice, that parties must have a reasonable opportunity of (1) learning what is alleged against them, and (2) putting forward a case in answer. While the demands of procedural fairness may vary with the specific circumstances, there remains an "irreducible minimum of information" that a licensee must be told.

Little weight was placed by the Judge on UKBA's internal documents given UKBA's hierarchical structure, notwithstanding that some were helpful to the licensee in their recommendations that the license should not be revoked. The Judge considered that senior staff should not be tied to the views of more junior staff, the important issue being the public interaction of the parties and UKBA's actions, viewed objectively. In the Judge's view this case ultimately turned upon the failure by UKBA to inform the licensee of the concerns that were material to its decision to revoke the licence, in particular only 'hinting' at dishonesty rather than plainly and properly alleging it.

Irrationality

In respect of the second (failure to consider alternative sanctions) and third (irrationality and disproportionality) grounds, the Deputy Judge's view was that the failure alleged in the second ground was really a species of irrationality, falling to be considered under the third ground. In considering irrationality, the Deputy Judge thought that UKBA was entitled to maintain a fairly high "index of suspicion" in overseeing the activities of the licensees it regulated, and a "light trigger" in deciding when and with what degree of firmness it should act. Accordingly, had there not been procedural unfairness, the decision would otherwise have stood as neither irrational nor disproportionate.

Comment

This decision reiterates the fundamental importance of procedural fairness in administrative decision-making and its place in the law. It is an illustration of how a public body's failure to abide by the required standards in a licensing context can also result in a breach of human rights, exposing the public body not only to the usual public law remedies (including the quashing of the impugned decision), but also to damages under the HRA. In practice, there is a high threshold to overcome in order to sustain such a claim; however, as this shows, the Courts will intervene if it is appropriate to do so. Although (as in this case) the Courts will typically give a considerable degree of deference to specialist public bodies / regulators when a challenge is made to the rationality of their decision-making, London Reading College is an example of the lower tolerance given in instances of procedural unfairness.