Montgomery, R (on the application of) v Hertfordshire County Council

Where a public authority controls access to its premises and staff, it may be exercising a statutory discretion even though the decision also concerns private-law property rights. The authority must therefore act fairly where exclusion substantially affects an individual’s ability to work. Fairness ordinarily requires advance notice of the proposed action and its reasons, disclosure sufficient to understand the concerns, an effective opportunity to make representations about the reasons, scope and impact of the proposed measure, and genuine consideration of those representations before the decision is taken. A later offer to reconsider does not cure a decision that was unlawful when made. The decision was quashed because the authority imposed a severe ban without notice, reasons, evidence of current risk or a prior opportunity to respond.

The claimant had formerly been employed by the defendant county council and later worked for the University of Hertfordshire as a temporary senior lecturer in social work. Her duties included arranging practical placements for social-work students with public bodies.

The council informed the university that the claimant was banned from its premises and from contacting its employees. The ban was based on historic workplace complaints, although her employment had ended and no recent incidents or current witness evidence were relied upon. The claimant sought judicial review, arguing that the ban unlawfully interfered with her employment and had been imposed without a fair procedure. The central issues were whether the council’s control of its premises was subject to public-law standards and whether the decision was procedurally unfair.

1. The claim succeeded. The council’s decision to ban the claimant from its premises and from contact with its staff was quashed. The interim relief granted by McCombe J consequently came to an end. The claimant was awarded her costs.
2. Although a landowner may ordinarily control access to its property, a local authority is in a different position when controlling access to publicly owned premises and staff in the exercise of a statutory discretion. At the interface between public and private law, it must comply with proper administrative standards, including reasonableness and fairness. The court relied particularly on R v Broxtowe Borough Council ex parte Bradford [2000] IRLR 329 and Wandsworth London Borough Council v A [2000] 1 WLR 1246.
3. The minimum requirements of fairness were an effective opportunity, before the measure was adopted, to address the reasons for the proposed action, its extent and its effect on the individual, followed by fair and prompt consideration by the decision-maker. The individual need not generally be given an oral hearing. The approach to the importance of a prior opportunity to respond was supported by R v The Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344, with reference to John v Rees [1970] Ch 345.
4. The council had given no notice, no adequate explanation of the grounds or evidence for the ban, and no opportunity to make effective representations. The ban substantially interfered with the claimant’s university duties. Its reliance on historic complaints, without evidence of current risk or present difficulties, and the severity of the measure reinforced the conclusion that the decision was unlawful.
5. A later offer to reconsider did not cure the initial breach. The council remained free to take appropriate protective measures in future if it followed a fair procedure and adopted a measure justified by the evidence.

First-instance judicial review proceedings. No earlier appellate decision is stated in the judgment.