Tuesday, February 22, 2005

Bias and expertise

At common law the absence of bias includes the absence of the appearance of bias. Consequently, a tribunal may be impugned for bias without actual bias needing to be proved, and its decision quashed without any aspersion being cast.

This happened in R v Secretary of State for the Home Department, ex parte Al-Hasan [2005] UKHL 13 (16 February 2005). Proceedings were quashed because the common law test was satisfied (para 37); in summary, this amounts to asking whether a fair-minded observer would think there was a real possibility that the tribunal had been predisposed, that it lacked impartiality, that it may have been improperly influenced. An honest doubt about this, entertained by the fair-minded observer, is sufficient, even if the doubt is unfounded.

In that case a prison official (deputy governor) presided over a disciplinary hearing in which the validity of an order promulgated by the prison governor was challenged. When the order had been formulated, the official had been present and had implicitly agreed to it. It was therefore unlikely that he would hold that the order was invalid. The House of Lords stressed that there was no suggestion that in presiding over the hearing he had intentionally acted wrongly.

Baroness Hale, para 16, concluded

"…Giving the order and deciding upon its lawfulness could have been more clearly separated.
… however professional the Deputy Governor was in his approach to his task, a fair-minded and informed observer would conclude that there was a real possibility that he would be pre-disposed to uphold the legality of the order."

Plainly, a line had to be drawn between this unacceptable overlap of functions (participating in promulgating a rule and subsequently deciding on its lawfulness), and the position of judges, who often have extra-judicial experience involving the expressing of views on the appropriateness of legislation, or even proposing law reforms which are later enacted. Lord Rodger addressed this issue, para 9, concluding:

"The knowledge and expertise developed in these ways can only help, not hinder, their judicial work."

And adding, para 10:

"Judges have not infrequently been party to decisions overruling their own previous decisions."

As an example, Lord Rodger referred to (also para 10):

"In In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, Lord Mackay of Clashfern took part in a decision in which the House struck down a system adopted by a local authority for "starring" the essential milestones of their care plan adopted under the Children Act 1989. The appeal turned on identifying a cardinal principle of the Act - a piece of legislation for which Lord Mackay, as Lord Chancellor, had been the lead minister when the Bill was going through this House in its legislative capacity. More than that, as he explained, at p 327, para 108, he had actually given a lecture in which he suggested the idea of starring stages. At the beginning of the appeal, however, he informed counsel of this and they did not object to his sitting. So any question of apparent bias was resolved. Again, since Lord Mackay agreed with the decision to disapprove the starring system, the informed and fair-minded observer would have seen that he was well able to judge the matter independently and impartially when called upon to do so."

Thus Lord Rodger recognises that judges can be vulnerable to giving the fair-minded observer an impression of bias, and the way of overcoming that is to inform counsel of potentially embarrassing matters at the beginning of the hearing and to invite objection to their continued sitting.

Lord Brown, delivering the leading speech in Al-Hasan, referred to the common law test for bias (para 30):

"The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2004] 1 All ER 187:
"The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased".

The correct procedure was (para 41):

"… to have avoided the appearance of bias [the deputy governor] would either have had to make plain at the adjudications that he himself had actually been present when the squat search order was confirmed (rather than give the impression, as he appears to have done, that he had known nothing of it) and sought the prisoners' consent to his nevertheless hearing the charges, or alternatively stood down to enable them to be heard by a different governor (if necessary from another prison) without any such previous involvement in the case."

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