due process-rule against bias

Question 1

Pinochet [2000]

Answer 1

• The House of Lords (3:2) held that Pinochet did not have a right to immunity.
• After the decision, Pinochet’s lawyers argued that Lord Hoffmann was not impartial.
• Lord Hoffmann had connections with Amnesty International, which had intervened in the Pinochet litigation.
• Pinochet’s lawyers applied to the House of Lords to set its judgment aside.
• They won: the court held that Lord Hoffmann was automatically disqualified.
• Lord Goff:
  
  • ‘Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial.’

Question 2

R v Gough [1993]

Answer 2

• A man was convicted of conspiring with his brother to commit robbery.
• The convicted man appealed because a member of the jury was the next-door neighbour of his brother.
• The jury member swore an affidavit stating that she was not aware of the connection until after the jury had delivered its verdict.
• The House of Lords dismissed the appeal.
• Lord Goff: the court should look through the eyes of the ‘reasonable man’, personified by the court.
• Lord Goff:
  
  • ‘[T]he court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.’

Question 3

Porter v Magill [2002]

Answer 3

• An auditor ruled that the Conservative-led council had acted corruptly in selling council houses in marginal wards to gain political support.
• The auditor convened a press conference to announce his findings.
• The problem was that the auditor acted as investigator, prosecutor, and judge.
• The court held that there was not a real possibility of bias.
• Lord Hope made a ‘modest adjustment’ to the law.
• Lord Hope:
  
  • ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

Question 4

‘Fair-minded and Informed Observer’

Answer 4

• How ‘informed’ is this notional observer?
• A common criticism is that the courts have made the observer so informed that she seems to have become an insider.
• Does the observer’s perception really diverge from the court’s?
• Or does this collapse back into the Gough test?
• Does it fail to meet the rationale for the law of apparent bias: i.e., public trust and confidence in the decision-maker’s impartiality?

Question 5

Belize Bank Ltd v Attorney General of Belize [2012]

Answer 5

• Belize Bank Ltd appealed against a directive requiring it to transfer US$10m to the government.
• Two members of the appellate board were appointed by the Minister for Finance.
• In the Privy Council, the majority held that there was no real possibility of bias. The observer must have sufficient information, even if not in the public domain.
• Lord Brown dissented, arguing that the (less well-informed) public would perceive a real possibility of bias.

Question 6

Kirkstall Valley Campaign [1996]

Answer 6

• There was alleged bias in local planning decisions because councillors had publicly aired views.
• But we legitimately expect councillors to have policies. Are they biased by their policies?
• Sedley J: ‘In the case of an elected body the law recognises that members will take up office with publicly stated views on a variety of policy issues. … [T]he court will be concerned to distinguish … legitimate prior stances or experience from illegitimate ones.’
• The normal test for bias applies, but the court clarified that the test is for the appearance of inappropriate bias.

Question 7

Bryan v United Kingdom (1996)

Answer 7

• The case concerned a planning inspector’s decision to uphold an enforcement notice.
• The lack of independence at one stage of the administrative process can be cured by access to a judicial body with ‘full jurisdiction’.
• Full jurisdiction does not necessarily have to entail full decision-making power to determine the facts.
• It may be sufficient that there is judicial review of the legality and ‘irrationality’ of the decision.
• But there is uncertainty over when judicial review, directed towards errors of law, will be sufficient.

Question 8

Alconbury

Answer 8

• The Secretary of State has power to ‘call in’ nationally significant planning decisions.
• Does Article 6 apply? Do planning decisions involve a ‘civil right’? The ECtHR had—controversially—interpreted civil rights broadly to include planning decisions of this kind.
• The Divisional Court held that this power was incompatible with Article 6, creating serious problems for the administrative planning decisions.
• The House of Lords reversed that decision, holding that the system is compliant with Article 6.

Question 9

Three reasons for the House of Lords’ judgment in Alconbury

Answer 9

1. The importance of democratic accountability
   
   • Lord Hoffmann: ‘The Human Rights Act 1998 was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers.’
2. The Secretary of State was acting administratively.
3. Judicial review can make it Article 6 compliant.
   
   • Was it ‘full jurisdiction’? In determining the scope of judicial review, the court has no function to review the policy-making role of the minister.

Question 10

Runa Begum

Answer 10

• Begum was offered housing, but complained of racism, drug problems, and muggings in the area.
• A senior housing manager concluded that the offer of housing was suitable.
• Begum argued that the housing manager was not independent and impartial under Article 6.
• The House of Lords rejected that argument.
• Again, the court could not take the easy way out and say that Article 6 was never meant to apply in this context.

Question 11

Tsfayo v United Kingdom

Answer 11

• Was the Housing Benefit Review Board independent for the purpose of Article 6?
• The ECtHR held that there had been a violation of Article 6 because:i.Bryan and Begum concerned exercises of discretion, whereas the present case concerned a question of fact;ii.judicial review for mistake of fact was not sufficient; andiii.the HBRB not only lacked independence from the executive but was ‘directly connected to one of the parties to the disp

Question 12

Ali v Birmingham City Council

Answer 12

• The local authority’s reviewing officer held that Ali had declined suitable accommodation.
• The Supreme Court held that the Housing Act 1996 did not confer a ‘civil right’, meaning that Article 6 did not apply.
• Lord Hope drew a line between:
  
  • ‘an individual right of which the applicant can consider himself the holder’, and
  • a benefit which is conferred on the individual through ‘a series of evaluative judgments by the provider’.
• The scheme in question fell in the latter category.

Question 13

Ali v United Kingdom

Answer 13

But in 2015 the European Court of Human Rights rejected that approach!

• ‘It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of art.6(1) of the Convention.’
• The need for an discretionary, evaluative judgment did not necessarily militate against recognition of the entitlement as a civil right.
• However, the ECtHR held that Article 6, although engaged, had not been breached because of the degree of subsequent scrutiny.

Question 14

Poshteh v Kensington and Chelsea RLBC

Answer 14

• Ms Poshteh turned down an offer of housing. The local authority decided that its duty had ceased.
• UKSC revisited the Article 6 compliance in such cases.
• UKSC said the ECtHR had failed to address the reasoning of the UKSC, especially the concerns about judicialization of welfare services.
• UKSC decided not to follow Strasbourg. The Justices saw no reason to depart from the UKSC’s own decision in Ali.