THE RULE AGAINST BIAS

[7.62] The rule against bias entails, at its most basic, that a decision-maker should not be judge in his or her own cause (nemo judex in causa sua), irrespective of whether he or she is named as a party to the dispute.

[7.63] The corresponding body of case law identifies two types of bias, namely â€?actual’ and â€?apparent’ bias.²⁷¹ Each of these is examined more fully below ([7.65]-[7.72]),

^{26 4} Re Glasgow's Application [2006] NIQB 42, para 12, Weatherup J, citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65, 73, para 15, Lord Bingham.

²⁶⁵ Re Glasgow's Application [2006] NIQB 42, para 13.

²⁶⁶ Corrigan v Irish Land Commission [1977] IR 317, 326, Henchy J.

²⁶⁷ Re Glasgow's Application [2006] NIQB 42, para 13.

²⁶⁸ R v Secretary of State for the Environment ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 323, Sedley J, cited in, eg, Re Buick's Application, 3 June 1999, unreported.

²⁶⁹ Re McCaffrey's Application [2001] 378, 382, quoting de Smith, Woolf and Jowell, Principles of Judicial Review, 5th edn (London, Sweet & Maxwell, 1999) p 413.

²⁷⁰ Re O'Connor and Broderick's Application [2006] NI 114, 121, para 18.

²⁷¹ See, eg, Re Cullen's Application [2005] NIQB 9, para 18. although one point of more general importance concerns the test for apparent bias. Until relatively recently, the test was that laid down by the House of Lords in R v Gough¹²¹ whereby the reviewing court would determine, with reference to the informa­tion available to it, whether there was a â€?real danger of bias’ on the part of the decision-maker. The test was not, at the same time, formulated in terms of the â€?reason­able man’, both because the court itself was taken to personify the reasonable man and because it was thought that the court would have available to it evidence that may not be available to the ordinary observer. However, this court-centred approach was criti­cised in other common law jurisdictions for the reason that it placed insufficient emphasis on public perception of the issue under challenge,^{[1640] [1641]} and it was thought in the UK that it may be incompatible with Article 6 ECHR’s approach to bias^[1642] (viz to ask whether there was an objective risk of bias in the light of the circumstances identi­fied by the court^[1643]). The House of Lords in Porter v Magill thus adopted a new test that requires a reviewing court, once it has ascertained all the circumstances that have a bearing on the suggestion of bias, to ask â€?whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility’ of bias.^{[1644] [1645]} The modern test is, in the result, more closely aligned with the approach to apparent bias both in other common law systems and in the ECHR,²²² even if the courts also acknowledge that any reference to the â€?fair minded and informed observer’ can involve a consideration of â€?attributes that many of us might struggle to attain to’.^[1646]

[7.64] One further point about the impact of Article 6 ECHR on bias concerns the requirement that determinations about an individual’s �civil rights and obligations’ be made by an �independent and impartial tribunal established by law’ (on �civil rights’ see [2.15]-[2.12]).

Actual Bias

[7.65] Actual bias is taken to exist where the decision-maker is �either (1) influenced by partiality or prejudice in reaching the decision, or (2) actually prejudiced in favour of or against a party’.^[1653] 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’.^[1654] The courts have, moreover, said that a claim of actual bias is �an extremely serious allegation’^[1655]and it is therefore clear that any claim should not be made lightly (there have been very few in the case law^[1656]). Nevertheless, the ground remains an important, if little-used, safeguard against the potential abuse of power and it in that sense corresponds with other little-used headings such as bad faith.^[1657]

Apparent Bias

[7.66] The test for apparent bias is centred on the question whether �the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility’ of bias^[1658] (see [7.63]). In some instances, the test is applied on the basis of a presumption that the nature of the decision-maker’s interest in the matter before it is such that the common law requires automatic disqualification from the decision­making process. However, in many other cases there is no automatic requirement of disqualification, and the issue will fall to be determined with reference to context. Here, the reviewing court must first ascertain all the circumstances that have a bearing on the suggestion of bias and, on that basis, decide whether the fair-minded and informed observer would conclude that there was a real possibility of bias.^[1659] This emphasis on context is all-important, as the courts accept that the rule against bias should be applied variably and in the light of the nature of the decision-maker and its corre­sponding interests.

Automatic Disqualification: �Pecuniary Interests’ and �Parties to the Dispute’

[7.67] The first, and most obvious, circumstance under which the common law requires the automatic disqualification of a decision-maker for reasons of apparent bias is where the decision-maker has a direct financial interest in the outcome of the dispute before it.^[1662] The rationale here is simply that, where there is such an interest, it can be presumed conclusively that any fair-minded and informed observer would consider that there was a real possibility of bias. While the presumption is, in turn, subject to a de minimis exception^[1663] and thus weakened where the relevant interest is �remote and contin- gent’^[1664]—there is also the possibility of waiver of an objection—the common law’s basic approach is to exclude decision-makers with financial interests in the dispute. Decision-makers are likewise excluded where the interest is proprietary.

[7.68] The same presumption applies where the decision-maker is a party to the dispute. At its broadest, an individual decision-maker (typically a judge) may be held to be a party where he or she is a member of an organisation that is one of the parties to the proceedings, or where he or she has a close institutional link to the party/ organisation.^[1665] However, there is also authority to suggest that simple membership is not enough to justify automatic disqualification and that the decision-maker must have been actively involved in the institution of the proceedings in question.^[1666] In the event that the decision-maker is merely a member of an organisation it may therefore be that the issue of bias can no longer be resolved on the basis of the presumption.

Other Forms of Disqualifying Bias

[7.69] Where a claim for automatic disqualification is rejected or is not made the reviewing court must, as per Porter v Magill ([7.63]), ascertain all the circumstances that have a bearing on the suggestion of bias.^[1667] Depending on the context, this may require the court to draw inferences from any gaps or inconsistencies in evidence before it and, in that light, to ask whether the fair-minded and informed observer would conclude that there was a real possibility of bias.^[1668] The corresponding assessment of bias should be �objective’^[1669] and account for the understanding that the �indispensable requirement of public confidence in the administration of justice requires higher stand­ards today than the case even a decade ago’.^[1670] This is thus consonant with the concern, expressed in Porter v Magill, that the legal process should be seen to link the resolution of disputes about bias to public perception of those same disputes. The fair-minded and informed observer is, in consequence, expected to adopt a balanced approach and not to be �wholly uncritical’ of legal culture.^[1671]

[7.70] Given the context-driven nature of the rule against apparent bias, there are many different circumstances that have given rise to disqualification in practice.^[1672] Some examples in Northern Ireland include cases where: the decision-maker had formed a concluding view of a matter in advance of hearing the applicant’s representations on the matter;^[1673] where the decision-maker in disciplinary proceedings had liaised with legal advisers who were also advising the party that had brought the proceedings;³⁰⁶ and where the decision-maker had performed intermingled functions in the sense of initiating an application to discharge the applicant and then authorising the subsequent discharge.³⁰⁷ The appearance of bias has also been found in circumstances where the decision-maker had direct contact with a representative of a party to the dispute and where the corresponding explanation given to the court was confused and contradictory.³⁰⁸

Politics, Policy, and Bias

[7.71] Cases concerning the rule against bias have historically centred on whether a particular judge should be disqualified from hearing a case, or whether a disciplinary tribunal has been properly constituted. A related issue is how far the rule against bias applies to political decision-makers and decision-making officials within public authori­ties. To take the example of political decision-makers, a Minister or local councillor may have previously voiced a particular political opinion on a matter and then subse­quently be required to make a decision, within the framework of statute, in respect of that same matter.³⁰⁹ Under those circumstances, the potential for the decision-maker to be guided by his or her earlier viewpoints is self-evident and the question is whether the decision should be regarded as vitiated by bias. That same question may arise where officials in a public authority have adopted a more general policy to guide them when making decisions in respect of matters of the kind before them.

[7.72] The basic response to the question is that elected representatives and officials in public authorities are under a duty to act fairly³¹⁰ but that the manner of application of the rules of fairness will depend on context.³¹¹ The common law has thus long

May 2002, unreported (Gillen J declining to disqualify himself from a hearing in a family law matter involving parties who had also been party to a previous dispute heard by the judge and in which he had been critical of one of the parties: legal and factual differences in the two disputes meant that McCaffery' could be distinguished). And see too Re Treacy and Macdonald’s Application, 6 January 2000, unreported (Kerr J declining to disqualify himself from hearing an application for judicial review which challenged the lawfulness of the declaration of office taken by Queen's Counsel: judge rejected the argument that he had formed a concluding view in favour of the retention of the declaration).

³⁰⁶ Re O’Connor’s and Broderick’s Application [2006] NI 114 (a police disciplinary panel hearing proceed­ings brought in the name of and on the authority of the Chief Constable obtained legal advice from the head of legal services to the Police Service: the head of legal services was also legal adviser to the Chief Constable). But see too Re Glasgow’s Application [2006] NIQB 42 (officer who was subject to disciplinary proceedings alleged bias in the light of the finding in Re O’Connor’s and Broderick’s Application: held on the facts that the applicant had waived his objection).

³⁰⁷ Re BWs Application [2004] NIQB 39 (argument of apparent bias made out as the General Officer Commanding in Northern Ireland had initiated the application to discharge the applicant from the armed forces and then authorised the discharge; upheld on appeal, NICA, unreported).

³⁰⁸ Re Moore’s Application [2004] NIQB 49 (explanation offered for contact between a Planning Appeals Commissioner and a representative of the Department of the Environment was insufficient for the purposes of the fair-minded and informed observer test, ie it had been confirmed to the court that the contact had concerned the contest between the parties and there were unresolved questions about precisely what had been discussed).

³⁰⁹ See, eg, Re Cullen’s Application [2005] NIQB 9 (Minister with well-known anti-coursing views was required to determine, among other things, whether a licence for hare coursing should be granted).

³¹⁰ R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Limited [1996] 3 All ER 304, 323, Sedley J, cited in, eg, Re Buick’s Application, 3 June 1999, unreported.

³¹¹ R v Amber Valley DC, ex p Jackson [1985] 1 WLR 298.

recognised that the decisions of Ministers and locally elected representatives may legiti­mately be predisposed towards a particular outcome;^[1674] and it has also accepted that officials in public authorities may adopt policies to guide them in the exercise of their discretion. The common law does, however, at the same time require that political and administrative decision-makers give full consideration to any matter that comes before them.^[1675] Failure to do so in the sense of pre-determining the matter could amount to an unlawful fettering of discretion.^[1676]

Article 6 ECHR: �Bias’, �Independent and Impartial Tribunals’, and �Full Jurisdiction’

[7.73] The requirement that determinations about an individual’s civil rights and obligations be made by an independent and impartial tribunal established by law is central to Article 6 ECHR’s guarantee of the right to a fair hearing (on which see [7.15]-[7.17]). In terms of identifying bias (in the language of the common law) or an absence of impartiality (in the language of Article 6 ECHR), the ECtHR uses a test that is both subjective and objective in form.^[1677] The subjective part of the test corre­sponds with the actual bias element of the common law rule ([7.65]) and enquires into the personal convictions of the decision-maker in a particular dispute (the burden of establishing subjective bias is a heavy one and the decision-maker is presumed to be impartial until otherwise is shown^[1678]). The objective part of the test, which has since supplanted the old common law approach to apparent bias (see [7.66]), in turn centres on the question whether a legitimate doubt as to the impartiality of the tribunal can be �objectively justified’.^[1679] The underlying rationale here is of the need for justice not only to be done but to be seen to be done^[1680] and, in making its enquiry, the ECtHR will thus consider whether the decision-maker offered guarantees sufficient for the purposes of excluding doubts as to impartiality^[1681] or whether there are ascertainable facts that allow doubts to remain.^[1682]

[7.74] Article 6 ECHR’s requirements of independence and impartiality were originally intended to apply to courts or tribunals that are making determinations about civil, or private, law rights and obligations (the word �independent’ in the text of the Article has thus historically denoted the need for the judicial decision-maker to be independent of the executive; independence may be lost if, for example, the decision-maker does not have security of tenure^[1683]). Where the decision-maker in question is acting in a judicial capacity and a lack of impartiality is established he or she must therefore stand aside. However, more complex is the position where the decision-maker is not a judge but is, for instance, a government Minister or an administrator who is making a decision within the framework of statute. In such circumstances, the decision-maker may be neither independent of the executive/administration nor impartial, for instance where a Minister is giving effect to government policy^[1684] or where a local authority officer is conducting an internal review of a decision of the authority.^[1685] While such decision­making processes may not thereby be compliant with Article 6 ECHR, the ECtHR has held that there will be no violation of Article 6 ECHR so long as the affected individual can have subsequent recourse to an independent and impartial tribunal that has �full jurisdiction’ in the matter before it.^[1686] This �composite’^[1687] approach to compliance thus recognises the undesirability of subjecting administrative decision-making processes to the totality of Article 6 ECHR’s judicial model of decision-making,^[1688] although the requirement that any subsequent tribunal should have �full jurisdiction’ has raised dif­ficult questions about whether judicial review is sufficient for the purposes of Article 6 ECHR. This is because the traditional grounds for review—viz illegality, Wednesbury unreasonableness, and procedural impropriety— have been structured around a �review, not appeal’ distinction that has sought to preclude judicial assessment of the merits of a decision under challenge.^[1689] The corresponding query, therefore, is whether the High Court can be said to have the requisite jurisdiction when it cannot, among other things, substitute its own decision for that of the original decision-maker.

[7.75] The corresponding domestic case law in this area is complex and continues to evolve.^[1690] However, there are four main points that may be distilled from the existing authorities. The first is that the concept of �full jurisdiction’ is context-dependent and does not always require that a court or tribunal is able to substitute its decision for that of the original decision-maker (factors to be taken into account include �the subject matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal’^[1691]). In Alconbury the House of Lords thus held, for reasons associated with the separation of powers doctrine,^[1692] that the traditional grounds for judicial review were sufficient where a Minister who was responsible for planning policy made determinations in respect of individual planning applications. Although the Minister clearly was not impartial, the House of Lords considered that judicial restraint of the kind associated with the traditional grounds was appropriate both because Parliament had entrusted the Minister with a particular policy-making function that was accompanied by detailed procedural rules and because the Minister was thereafter answerable to Parliament for the manner in which he performed the function.^{[1693] [1694] And in Runa Begum—a ruling that has been overtaken on its facts by the Supreme Court’s ruling in Ali v Birmingham City Council331 (see [7.78])—the House of Lords likewise held that the traditional grounds were sufficient in a social welfare case centred on a factual dispute about the suitability of housing that had been offered to a person who had become homeless.[1695] The indi­vidual had here argued that the grounds were insufficient precisely because they did not enable the court to substitute its finding of fact for that of a local authority official who had been deputed to conduct a review of the authority’s original decision. However, in holding that Article 6 ECHR did not require an independent fact-finder in the case, the House of Lords emphasised that �the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators’.[1696] Situating the case within its welfare context the House of Lords thus concluded that it was perfectly legitimate for the legislature to entrust decisions of the kind at hand to administrators with specialist expertise in the area, as they would be required to reach their decisions in accordance with particular proce­dures and their decisions would thereafter be subject to review on the traditional grounds. This, it was held, would avoid an over-judicialisation of the workings of the welfare state and, by analogy, other regulatory areas such as those concerned with licensing and planning.[1697] In contrast, a more involved role for the courts was envisaged where decisions had implications for the private rights of individuals or where they were concerned with alleged breaches of the criminal law.}

[7.76] The second point is that the courts in Article 6 ECHR cases have emphasised that �the spectrum of challenge by way of judicial review is not inconsiderable’ and that �[t]he breadth of challenge available... must go some considerable way to assuage concerns about the protection of such rights as may arise under [Article 6]’.^[1698] The significance of this understanding is that, even though judicial review may not permit of an appeal on the merits, there remains a wide range of arguments that may be made even within the parameters of the traditional grounds for review. In Runa Begum Lord Bingham thus said that the traditional grounds allow the courts �not only to quash a decision. if it is held to be vitiated by legal misdirection or procedural impropriety or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact’.^[1699] While this perhaps begs the question of the degree of elasticity in the error of fact doctrine^[1700] (see

[7.77] )—there are also well-worn criticisms of irrationality as a ground for review^[1701]— his Lordship’s comments are indicative of the potential scope for judicial intervention. Indeed, it might be said that the scope for intervention may be drawn even more broadly where other rights are affected by a decision, as the courts may here apply the propor­tionality principle.^[1702] On the other hand, the wider body of case law on the proportionality principle has highlighted a judicial concern to avoid being drawn towards forbidden merits review and there is, in consequence, a parallel �discretionary area of judgment’ doctrine that emphasises the need for restraint in many cases.^[1703]

[7.77] The third point is that there have been some cases in which it has been held that judicial review has not been able to ensure composite compliance with Article 6 ECHR; that is, cases that have been taken to fall outside the reasoning in Alconbury and Runa Begum. The leading case is the ECtHR’s judgment in Tsfayo v UK,^[1704] which arose out of a local authority housing benefit review board’s decision that the individual had not shown good cause for a delay in making a claim for welfare entitlements (the review board was comprised of three councillors from the local authority and was therefore neither independent nor impartial). In finding that there had been a violation of Article 6 ECHR, the ECtHR drew a distinction between cases involving disputed questions of fact that �required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims’ (as in Runa Begum) and those, such as the instant case, in which the decision-maker �was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim’.^[1705] In cases of this latter kind, the ECtHR considered that a reviewing court should be able to substitute its findings for those of the original decision-maker as

no specialist expertise [is] required to determine this issue... [Nor]... can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.^[1706]

However, the ECtHR noted that there had been no possibility of such review in the instant case as the domestic error of fact doctrine does not extend so far as to permit the High Court to substitute its own findings of fact for those of the original decision- maker.^[1707] There was, in the result, no composite compliance with Article 6 ECHR.^{[1708] [1709]}

[7.78] The fourth point is that the Supreme Court has, since Tsafyo, narrowed the scope of application of Article 6 ECHR in the public law context. The ruling in question was given in Ali v Birmingham City Council,³⁴ which involved a challenge in the County Court to the Council’s determination that it had discharged its statutory duties under the Housing Act 1996 when offering a homeless single mother accom­modation which she subsequently rejected as unsuitable. The powers of the County Court on appeal were essentially the same as those of the High Court on an application for judicial review—viz there was limited scope for assessing matters of fact—and the applicant argued that she thereby had not had access to a court of â€?full jurisdiction’. This was a legal argument that had already been before the House of Lords in the earlier case of Runa Begum, where it had been assumed that Article 6 ECHR had been engaged but where it was held that there had been no violation of the individual’s rights given the wider legal context to the challenged decision (see [7.75]). However, rather than consider the â€?full jurisdiction’ issue in Ali, the Supreme Court focused on the anterior question of whether Article 6 ECHR was even engaged by the disputed housing decision.^[1710] Holding that it was not engaged, the Supreme Court drew a distinction between the class of social security and welfare benefits whose substance was defined precisely, and which could therefore amount to an individual right, and those benefits which were essentially dependent upon the exercise of judgement by the relevant authority.^[1711] Noting that the disputed benefit in Ali was of the latter kind, the Supreme Court held that Article 6 ECHR was not engaged precisely because the award of the benefit was dependent upon a series of evaluative judgements by the provider (ie a local authority officer was required, among other things, to assess the suitability of accom­modation that had been refused). To the extent that Tsfayo suggested that judicial review may be unable to ensure â€?composite compliance’ with civil rights in some catego­ries of cases, Ali has apparently rendered the point moot for other disputes by placing them beyond the reach of Article 6 ECHR.^[1712]

[7.79] It is important to consider quite what Ali does, and does not, do. At a minimum, it would seem that the ruling has gone some way towards preventing an over-judicial- isation of the workings of the welfare state, viz by obviating the need for complicated internal hearings and subsequent appeal or review proceedings within the rubric of Article 6 ECHR. That was the unwelcome possibility that had been noted by the House of Lords in Runa Begum (see [7.75]), and Ali has apparently addressed that concern by redefining evaluative decisions under housing legislation as decisions that do not affect �civil rights’. That said, it remains unclear whether Ali is a precedent that will be limited to essentially its own facts or whether it will apply to evaluative decisions taken across the welfare state more generally.^{[1713] [1714] Moreover, to the extent that Article 6 ECHR may no longer apply on the facts of a dispute, it may be that other Articles of the ECHR will apply and that these may require the courts to engage in �closer look’ review of the kind associated with �full jurisdiction’. The significance of the point can be seen in Manchester City Council v Pinnock (Nos 1 & 2),3sl where the local authority had brought County Court proceedings for a demotion order against one of its secure tenants under section 82A of the Housing Act 1985 for the reason that the family of the tenant had been involved in anti-social and criminal behaviour. The tenant wished to invoke his Article 8 ECHR rights by way of defence and the corresponding question for the Supreme Court was whether the County Court should thereby have the power to assess the proportionality of making an order and, in undertaking that assessment, to resolve any relevant dispute of fact. Holding that such powers of enquiry were neces­sary, the Supreme Court departed from an earlier, well-established line of House of Lords authority that had rejected the need for any such judicial assessment of the respective interests and rights of authorities and tenants.[1715] Given the point, it may be that the courts will still be required to have what would amount to �full jurisdiction’ in some cases, albeit that the language and elements of Article 6 ECHR will be absent.}

Exceptions to the Rule against Bias: Statute, Necessity, and Waiver

[7.80] Although the rule against bias is regarded as a fundamental precept of both the common law and the ECHR, there are some limited circumstances in which it is accepted that the rule will not apply. For instance, primary legislation may be read as expending with the rule,^[1716] and the common law, on a traditional constitutional under­standing, will here cede to the superior force of statute.^[1717] On the other hand, much will depend on how the statute is interpreted by the courts, as the common law has long held that fundamental rights at common law can only be interfered with through the use of express terms or by way of necessary implication.^[1718] Moreover, should the legislation have implications for an individual’s rights under Article 6 ECHR, this will require that it be read, �so far as it is possible to do so’, in a manner that is consistent with the international guarantee.^[1719] In the event that the legislation cannot be read as ECHR-compatible, a declaration of incompatibility should be made.^[1720]

[7.81] The common law also recognises that the rule against bias may not apply for reasons of necessity, for instance where no other qualified person is available to hear a dispute. Such arguments are most likely to arise in the context of judicial decision­making, where the common law may accept that the rule against bias should yield to the need to prevent a failure of justice (although it might be argued that this line of reasoning is a non sequitur). However, the common law will at the same time accede to such arguments only where the circumstances are truly exceptional.^[1721]

[7.82] It is also possible for objections based on bias to be waived by the affected party

(waiver is possible both at common law and under Article 6 ECHR^[1722]). The governing principles here are the same as those that apply to waiver of the right to a hearing (see [7.61]).

Breach of the Rule against Bias: Remedies

[7.83] Where a decision is reached in breach of the rule against bias this will mean that the decision is unlawful.^[1723] Under such circumstances, the High Court on an appli­cation for judicial review will thus typically grant a remedy to the affected individual, for instance by quashing the original decision and requiring that it be retaken in the light of the demands of fairness. However, the remedies available in judicial review are discretionary and the High Court may refuse a remedy where, for instance, the appli­cant has not exhausted alternative remedies or where the applicant has acted without candour and integrity. A remedy may also be refused for reasons of utility, viz where the court considers that a retaken decision would be no different from that under challenge (on the discretionary nature of the remedies see further [7.57]-[7.60]).