#10528 - Bias Impartiality And Independence - Administrative Law

Why is procedural fairness important?

• Instrumental importance: see, eg, Raji v. General Medical Council [2003] UKPC 24 [2003] 1 WLR 1052 at [13], per Lord Steyn. Promotes good decision-making.

• Normative importance: for discussion, see Galligan, “Procedural Fairness” in Birks (ed), The Frontiers of Liability (volume one) (Oxford 1994); Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford 1996); Allan, “Procedural Fairness and the Duty of Respect” (1998) 18 OJLS 497. Recognises the dignity of individuals. It doesn’t ‘characterise them as objects of an arbitrary and authoritarian government process.

But does the distinction matter? E.g. what if a fair hearing ‘would make no difference’. Sometimes the rationales can point in different directions – the instrumental view in this situation suggest that we can safely dispense with procedural fairness. A normative view would insist on it anyway.

There are three dimensions to procedural fairness: the rule against bias, hearings (better thought of as a ‘right to participate’), and reasons (the newest limb – fairness requires the person whom a decision impacts to know why the DM made that decision).

Importance of a rule against bias to the notion of ‘fairness’:

• See, eg, Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford 1996).

There is a difference between bias and fairness – can a decision be fair if taken by a biased decision maker? No. ‘Whatever reasons are good reasons, those displaying bias will never be among their number.’ Further, being an attack on the idea that in any legal context, there are authoritative standards to apply, the absence of impartiality is a fundamental flaw which renders the process illegitimate. [Refers to real bias, and not the appearance of bias.]

What are the objectives of the rule against bias?

• Actual fairness (actual absence of bias)

• Appearance of fairness: R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 – ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (per Lord Hewart CJ) (absence of perceived bias)

Whitworth was a motorcyclist who had a traffic collision with McCarthy, also on a motorbike. He made a claim through his solicitors for damages from McCarthy. In addition, a criminal prosecution for dangerous driving was brought, and McCarthy was convicted by a magistrates’ court. Clerk to justices happens to be a partner in the law firm representing C in the civil proceedings.

The clerk wasn’t actually consulted by the magistrates – he had no impact. However, it was held that the conviction should be quashed, as “justice should not only be done, but should manifestly and undoubtedly be seen to be done” (Lord Hewart CJ). The rationale behind this is that if people are to rely on the system, and put their trust on it, it should not only be fair – but should also seem to be fair. In order to achieve this aim we have an over-inclusive rule.

The European jurisprudence is very clear – it seeks to preserve confidence in the administration of justice. WE use the FMIO, because after all it is him that we need to ensure confidence in.

There are three aspects to the rule against bias:

• Actual bias (very little case law)

• Automatic disqualification rule (certain factual matrices exist, which if met result in bias being irrebutably presumed).

• In the absence of automatic disqualification, there may be circumstances where upon more thorough examination there is a perceived risk or appearance of bias sufficient to disqualify the decision maker.

It is a well established rule that, if a decision maker has a

• ‘Disclosure’ and ‘disqualification’: Jones [1999] PL 391 at 399

We ought to refer to the rule as one of automatic disclosure not automatic disqualification. In practice what should happen is that judges disclose interests to the parties, and then the parties can object, or waive their right to object – it is an irrevocable decision of the parties (Locabail).

In an ideal word this would always be the case – but in the real world judges forget, interests aren’t noticed etc. – this is where the case law arises.

• Note possibility of waiver: Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451 at 475

[See facts below: Herbert Smith case.] If there is an appearance of bias which arises on the facts, a party can other object, or must waive their right to object. The waiver must be clear, equivocal and informed.

On the facts, after the Judge’s disclosure of his (albeit de minimis, see below) financial interest, by not doing anything Mrs Emmanuel was treating the disclosure as being of no importance. By her inaction she had impliedly waived any right to object. (The objection only arose after Mrs E lost – she ‘wanted the best of both worlds, and the law will not allow her to do so’.

• Note Dimes v. The Proprietors of the Grand Junction Canal (1852) 3 HLC 759

Lord Chancellor (sitting as a judge) granted a remedy to a company, and it turned out that he was a shareholder in that company, a fact that he had not disclosed. His decision was quashed in Dimes. Lord Campbell had said that ‘no one can suppose [he] was influenced’, yet there must be a rule that no one is to be a ‘judge in his own cause’.

It often aids judges to apply the automatic disqualification rule against other members of the judiciary, as it avoids having to cast judgement on whether they might actually have been, or be perceived to have been influenced.

There was automatic disqualification which was applied (as Jones notes) retrospectively.

• Per Lord Campbell in Dimes: ‘[n]o one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interests that he had in this concern’

• Which (if any) part of the rationale underlying the rule against bias is furthered by the decision in Dimes, and the principle for which it now stands?

Potency of financial interest – appearance of bias is inevitable. It also aids the courts to have a ‘bright-line’ rule. A financial interest test is an easily applicable standard, there is no ambiguity. There is a difficulty though – if no one could suppose the Lord Chancellor to be influenced, does the decision serve any instrumental or normative aim at all?

If there is no conceivable possibility of anything untoward having happened, surely the financial interest test doesn’t actually help the rule against bias serve its function of ensuring public perception of fairness.

• Is automatic disqualification on grounds of financial interest unduly insensitive to contextual factors?

The very essence of the rule holds that a direct financial interst should disqualify the decision maker irrespective of the context, abd wthout the need for detailed evaluation of the facts. Olowofoyeku argues that such an approcach risks elevating expediency above a range of competing – and arguably more compelling – policy factors.

• Note the criticism made by Olowofoyeku, ‘The Nemo Judex Rule: The Case Against Automatic Disqualification’ [2000] PL 456:

‘automatic disqualification is draconian, disproportionate and unnecessary. There is nothing that can be achieved by automatic disqualification that cannot be achieved by an application of the real danger/reasonable apprehension test. On the other hand, application of the automatic disqualification rule may well lead to the disqualification of judges in situations wherein a closer inspection of the circumstances would reveal that there was never any realistic possibility of bias.’

Not only is the rule unnecessary, it has been argued that it is also damaging.

Dimes could also have been decided on the basis of the real likelihood or danger, or reasonable apprehension of bias test. Lord Cottenham’s ‘several thousand pound interest’ back in 1852 would translate to several hundreds of thousands of pounds today. It is not fanciful to suppose that such a large amount of money might have had an impact on the his judgement, notwithstanding his eminence. Dimes was an example of a case where the case should not have been allowed to stand, but there have been examples where the decision should have swung the other way, and the AD rule is ‘draconian’.

• For recent discussion of the relationship between automatic disqualification and the fair-minded and informed observer test, see R (Berky) v Newport City Council [2012] EWCA Civ 378, [2012] 2 CMLR 44.

• R v. Rand (1866) LR 1 QB 230 at 232, per Blackburn J: ‘any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter’

• See also R v. Camborne Justices, ex parte Pearce [1955] 1 QB 41 at 47, per Slade J

Similarly exacting formulation of ‘any direct pecuniary interest, however small’ applied here. N.B the financial interest rule applies to administrative decisions as much as judges.

The primary criticism of AD lies in it’s undiscriminating nature. It is ostensibly very rigid, with scant regard for the broader context within which issues arise. However, there are some financial interests which are recognised as being so remote or indirect that they fall outside of the scope of automatic disqualification. This more subtle approach was adopted in Locabail:

• Cf the view of the Court of Appeal, refusing to apply...