THE RULE Against BIAS - Lecture notes 1-10 PDF

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RULE AGAINST BIAS | ADMIN LAW: MZK 2020-21

THE RULE AGAINST BIAS In making decisions, public administrators must follow fair procedure. The decisions should be free from bias or impartiality ( D. Galligan, Due Process and Fair Procedures). The rule against bias focuses on ensuring that the decision maker solely concentrates on delivering a judgment which is free from motivation of favouring or disfavouring any party involved. The rule against bias entails that a decision-maker should not be judge in his or her own case ( nemo judex in causa sua/ nemo iudex in sua causa/ nemo judex in re sua), irrespective of whether he or she is named as a party to the dispute. The rule against bias seeks to eliminate arbitrariness in decisionmaking by requiring those who are, or who may appear to be, partial to recuse themselves or step-aside (Peter Leyland and Gordon Anthony, Administrative Law, 7th Edition). NEED FOR RULE AGAINST BIAS In order to ensure justice, it is essential that the decision-maker in not biased. The rule against bias provides the platform to uphold the faith of the general people in the system. TYPES OF BIAS: Actual and Apparent 1) Actual: Actual Bias can be either pecuniary (financial) or non-pecuniary. However, cases related to actual bias are difficult to be proved due to evidential matters. A decisionmaker is actually biased if: (i) (ii)

influenced by partiality or prejudice in reaching the decision. Actually prejudiced in favour of or against a party (Re Medicaments and Related Classes of Goods (No. 2)) Whether a decision is vitiated by such bias is a question of fact, and the courts have said that a claim of actual bias will succeed only ‘when supported by the clearest evidence.” (Kerr J in Re Foster’s Application). Effect: Decision cannot stand if proved to be an outcome of bias. Automatic disqualification of the decision-maker. 2) Apparent Bias: In R v. Sussex Justices Ex p. McCarthy, Lord Hewart stated that “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

Hence, there is no need to prove actual bias as long as there is a possibility that he or she might have been biased. Therefore, rule against bias not only operates against actual bias but operates 1

RULE AGAINST BIAS | ADMIN LAW: MZK 2020-21

equally against a situation where there was “appearance of bias”. Apparent bias can be present in the form of pecuniary interest or non-pecuniary interest. a) Apparent Bias: Pecuniary Interest The courts have long insisted that any pecuniary interest disqualified the decision-maker. Thus in Dimes v. Grand Junction Canal, the House of Lords reversed a decision made by Lord Chancellor Cottenham, when the latter confirmed that he held shares worth several thousand pounds in a company involved in a case that came to the court. There was no imputation of actual bias made against Lord Cottenham but it was held that the principle no man can be a judge in his own cause “should be held sacred” as per Lord Campbell. The courts have consistently held that if there was a pecuniary interest it was not necessary to go on to consider reasonable suspicion or real likelihood of bias (R v. Rand). It leads to automatic disqualification. However, in such cases it needs to be seen whether the nature was such as to justify disqualification of the decision maker. It is therefore important to establish what will constitute pecuniary interest. Blackburn J in R v. Hammand stated that any pecuniary interest, however small, will be sufficient. However, any pecuniary interest that does not go beyond the financial interest of any citizen does not disqualify judges from sitting in a case as seen in Bromley v. Greater London Council. b) Apparent Bias: Non-Pecuniary Interest Disqualification of the decision-maker was seen in the case of R v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2) which was related to non-pecuniary interest and this was an unprecedented decision in which the House of Lords (HL) set aside one of its own previous judgments on the grounds of maintaining the absolute impartiality of the judiciary. In the above mentioned case, Amnesty International was given leave to intervene in the proceedings before the HL. It advocated for the punishment of Pinochet Ugarte for various crimes committed during his regime as the Head of the government of Chile. Unknown to the representatives of Pinochet Ugarte, one of the law lords, Lord Hoffman, was in fact an unpaid director and chairperson of Amnesty International Charity Limited (AICL), a company under the control of Amnesty International which was formed to carry out activities related to the charitable parts of Amnesty International. Lord Hoffman did not disclose his links with Amnesty International, had no financial interest in the outcome and was not a party to the proceedings. Lord Browne Wilkinson was of the view that the substance of the matter is that Amnesty International… and Amnesty International Charity Limited are all various parts of an entity or movement working in different fields towards the same goals. This along with the fact that Lord 2

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Hoffman did not also disclose his wife’s link was enough to automatically disqualify Lord Hoffman and hence the matter was reheard before a differently constituted Appeal Committee. In this case it was held by the HL that there was no allegation of any actual bias against Lord Hoffman, but held that the earlier decision could, nonetheless, not stand. In such situations the judges would normally have to recuse themselves, or disclose the position to the parties, where they had an active role as trustee or director of a charity which was closely allied to, and acting with, a party to the litigation (S.Breyer, R.Stewart, C.Sunstein and M.Spitzer, Administrative Law and Regulatory Policy, Problems, Text and Cases, 5th edn, 2002,Ch 7 ). Case in contrast to R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet Ugarte (No.2): Locabail (UK) Ltd. v. Bayfield Properties Ltd.; Timmins v. Gormley: (five applications heard together by Lord Chief Justice, the Vice Chancellor and the Master of the Rolls). The judge in this case was the senior partner in a large firm of solicitors. His firm was acting in litigation for the enforcement of financial claims and of bankruptcy against the defendant’s former husband. The judge did not know of this until during the hearing. The judge immediately disclosed that connection, stating that he knew no more of that litigation (litigation related to defendant’s ex husband) than had appeared from the press cutting which was presented by the defendant during the hearing. Neither party sought an adjournment nor an objection was raised and the hearing continued. The judge gave the judgment for the plaintiffs and thereafter defendant applied for the judge to disqualify himself from further involvement in the case and to set aside his judgment on the ground of bias. The judge stated that his firm’s engagement to client’s involved in litigation against defendant’s former husband had not created conflict of interest as to disqualify him from dealing with cases and he accordingly refused her application. (Judge did not step down which is in contrast to Pinochet Ugarte (No.2)) The court expressed the view that while everything will depend upon facts and the nature of the issue to be decided, no sensible objection could be based on factors such as religious persuasion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. It was doubted that whether a challenge could ever succeed on the basis that an adjudicator had a particular social or educational background, employment history, political affiliation, professional association (e.g. membership of an Inn of Court) or expressed in views in textbooks, lectures or articles or in the past received instructions from a party (or the party’s representatives). But a history of personal friendship or animosity between the judge and a member of the public associated with the case (e.g. as party or witness (AWG Group Ltd v. 3

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Morrison)) may disqualify the judge. (The principles laid down in Locabail are formally limited to judicial decision-makers and the line was clearly crossed in Howell v. Millais (2007) where the judge refused to recuse himself.) Other Relevant Cases: Apparent bias was said to be manifested in cases in cases where the prosecutor of the offence is also a judge. This has happened directly as in R v. Lee, ex p Shaw. The court there held that the decision of a judge shall not stand because of his membership in a committee which has instructed to prosecute the defendant. The matter can also arise indirectly where the decision-maker belongs to an organisation that initiated the proceeding but he himself has taken no part in the decision to prosecute (Re S (A Barrister). The court may overturn a decision if it felt that a justice has pre-judged the matter before hearing the full case (R v. Romsey JJ ex p. Gale, R(Kaur) v. Institute of Legal Executives Appeal Tribunal). Decisions may also be challenged for bias where a party who has been involved in a case at an earlier stage, for instance in investigating an individual, has some subsequent involvement in the decision about whether to impose a penalty on the individual. Such later involvement need not be a formal and/or direct, as even the mere presence of the party at the later stage of proceedings may be enough to render the decision invalid (R v. Barnsley Metropolitan Borough Council, ex p Hook, R(Bennion) v. Chief Constable of Merseyside Police). Where the judge feels he has a bias against one of the parties to the litigation, he may disqualify himself from sitting on the case, as did Lord Denning MR in Exparte Church of Scientology of California (1978). There the counsel for the Church requested that he disqualify himself as a result of eight previous cases involving the church on which he had sat. In AA Lawal v. Northern Spirit Limited, the appellant had his case considered by the Employment Appeal Tribunal (EAT). He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and this would lead to undue weight and respect being given to his arguments, so as to bias the tribunal. One of the EAT panel had previously sat on another panel with the opponent’s representative. The appellant did not allege actual bias but raised the question regarding subconscious bias on part of the lay members. The test of Porter v. Magill (discussed in details later in this handout) was applied and Pill LJ thought that a part-time judge who subsequently appears as an advocate was likely to diminish public confidence in the administration of justice. He stated that “a litigant’s doubt impartiality…would, for the reasons given, be a legitimate doubt.” 4

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In Helow v. Secretary of State for Home Department, the appellant, a Palestinian at birth, was preparing for a lawsuit against the then Prime Minister of Israel and she claimed asylum but her application was refused. She lodged a petition seeking a review of that refusal and the petition was considered by Lady Cosgrove, who dismissed it. She brought a claim of apparent bias against Lady Cosgrove on the basis of her membership of the International Association of Jewish Lawyers and Jurists which gave an impression that she was pro-Israel. It was held that there was no apparent bias as a fair-minded and informed observer would not conclude that she was bias. Moreover, the observer would take into account the fact that Lady Cosgrove was a professional judge, having advantage of years of training and experience and having sworn an oath to decide impartially, which were all relevant factors to conclude whether there was a real possibility that she her decision was biased and in this case the fair minded observer would not consider that there had been any real possibility of bias. TEST FOR BIAS There has been considerable confusion concerning the test for determining bias in cases other than those concerning pecuniary interest. The HL attempted to clarify the law in R v. Gough. It was held that same test should be applied in all cases of apparent bias, whether concerned with justices, tribunals, jurors, arbitrators and coroners. It held that in terms of the degree of bias, that the test should be whether there was a “real danger” of bias on the part of the relevant member of the tribunal in the sense that he might unfairly regard with favour or disfavour the case of the party under consideration by him. In terms of the perspective from which bias should be viewed, it was not necessary, said Lord Goff, to formulate the test in terms of the reasonable man, because the court had to ascertain the relevant circumstances from the evidence that might not be available to the ordinary observer. This test was criticized by courts in other common law jurisdictions, on the ground that it tended to emphasise the court’s view of the facts and gave inadequate attention to the public perception of the incident being challenged (Webb v. R). The HL in ex p Pinochet Ugarte (No 2) indicated that it might review the test in Gough and the Court of Appeal (CA) undertook such a review in re Medicaments and Related Classes of Goods (No.2) and its approach, with some modification, was confirmed in Porter v. Magill. The test adopted in Porter was: “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” Courts have applied this test in subsequent cases (Taylor v. Lawrence (2002); Taylor v. Williamsons (A Firm) (2002); Jones v. DAS Legal Expenses Insurance Co Ltd (2003); Lawal v. Northern Spirit Ltd ( 2004); R(on the application of Carroll) v. Secretary of State for Home 5

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Department (2005); Gillies v. Secretary of State for Work and Pensions (2006); El Farargy (2007)). Thus in Davidson v. Scottish Ministers (No.2), it was held that a risk of apparent bias arose where a judge was called upon to rule judicially on the effect of legislation that he had drafted or promoted during the parliamentary process. SITUATIONS WHEN THERE WILL BE NO AUTOMATIC DISQUALIFICATION 

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If the pecuniary interest is not personal to the decision maker then the matter will fall to be considered as a challenge on the grounds of favour (R v. Rand) and not on the grounds of bias. The pecuniary interest cannot be too remote (R v. McKenzie). Acts of Parliament may allow justices of the peace, as an exception, to make orders in cases despite of having public functions/ involvement in a case (as per Justices Jurisdiction Act 1742). There may be cases where the adjudicator cannot be dispensed due to substitution not being possible, since no one else is empowered to act. Natural Justice then has to give way to necessity (Dimes v. Grand Junction Canal). In Locabail (UK) Ltd v. Bayfield Properties Ltd. and Another, it was held that in any case where the judge’s interest is said to derive from the interest of the spouse, partner or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself (otherwise there shall be no automatic disqualification). No disqualification in cases whether an individual waives the interests of an adjudicator (R v. Williams Ex p. Phillips; Smith V Kvaerner Cementation (Later courts have been reluctant to infer such a waiver where the applicant did not know of the right to object at that stage.) Include Academic Kate Malleson’s article on “safeguarding judicial impartiality”.

HUMAN RIGHTS ASPECT The Human Rights Act 1998 highlighted Article 6(1) that there must be an independent and impartial tribunal established by law. This requirement cannot be satisfied where the court or tribunal is biased. It is clear from the Strasbourg jurisprudence that this requirement does not need to have been satisfied at every stage of the decision-making process provided that there are provisions for appeal rights or judicial review to a judicial body that has full jurisdiction and provides the guarantees of Art 6(1).The whole process will be assessed to determine whether the requirement of Art 6(1) was upheld. The key question to be addressed is whether the decision making process guarantees the minimum standards of independence and impartiality. In R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions (SSETR); R. (Holding & Barnes Plc) c. SSETR , it was alleged that the role of the SSETR in making decisions relating to different pieces of legislation was inconsistent with Art 6

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6(1) ECHR. The HL overturned this decision. Their Lordships accepted that the minister was not an impartial tribunal as required by the Convention. They held however that the decision making process taken as a whole was compatible with the Convention, since there was sufficient review of legality through judicial review. Further, in Runa Begum v. Tower Hamlets LBC, the HL held that there was no breach of Art 6. PRE-DETERMINATION AND BIAS: In R v. Secretary of State Ex parte Kirkstall Valley, Sedley J stated that while it (predetermination) can be legitimately be described as a form of bias, it is jurisprudentially a different thing. Sedley J referred to the case of R v. Chesterfield BC, Ex parte Darker Enterprises Ltd. where Brooke J stated that apparent bias was not to be applied in considering whether the expression of a view on the merits of the matter to be decided amounted to predetermination. Sedley J in Kirkstall, stated that whether there a pre-determination by a public body was a matter to be judged by the Court but NOT by reference to the appearance of bias test as these cases are to be decided by a separate line of authority on predetermination. In contrast, later in Condron v. National Assembly for Wales, pre-determination from the administrative decision maker was judged by reference to the test for apparent bias. The application of the test for apparent bias in a case of pre-determination has made the law cumbersome and difficult to apply. CONCLUSION An unbiased judiciary is of utmost importance to uphold the public confidence and to ensure that there is no violation of Dicey’s rule of law that “no man is above the law”. The rule against bias has worked reasonably well. It is a developing area which, as evident through the decisions of case laws, is trying to achieve the ultimate goal of ensuring that the decisions given by the decision makers are free from bias. The enactment of HRA 1998 has further put pressure to ensure that a decision is not influenced by bias because if bias is present then it will be in violation of Art 6, which is highly undesirable.

Mariha Zaman Khan Barrister (Lincoln’s Inn) PGDil (The City Law School, City University of London) Advocate, Dhaka District & Sessions Judges Court LL.B (University of London) Civil/Commercial Mediator (ADR-ODR International Limited) Principal Academic Guidance Tutor & Lecturer LCLS(South)

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