UK: Bias And Didactic Dogs

Last Updated: 16 January 2007
Article by Nicholas Dobson
Bias seems to have gone to the dogs recently. Not only did we have Collins J in Island Farm ([2006] EWHC 2189 (Admin)) taking a different approach from that of Richards J (as he then was) in Georgiou ([2004] EWHC 779 (Admin)), but we now have the 21 December 2005 decision of Lindsay J in Condron v National Assembly for Wales ([2005] EWHC 3007) shot down in (respectful) flames. Has someone got it in for bias?

Well no. For Richards LJ (as he now is) on 7 November 2006 in Condron v National Assembly for Wales and another [2006] EWCA Civ 1573 did not in fact depart from the fundamental principles of bias but essentially highlighted some key ingredients of the proper approach as noted in (amongst others) Flaherty v National Greyhound Racing Club Ltd. [2005] EWCA Civ 1117 (see my 2006 Weekend School Paper). And the Club in question was as near as bias got to the dogs.

But first to the definition of bias. Following Porter v Magill; Weeks v Magill [2002] LGR (per Lord Hope) this is now well charted:

'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.'

Condron, it will be recalled, concerned an alleged brief exchange between Mrs. Jennie Jones, a protester in respect of a proposed development for opencast mining and related operations and Mr Carwyn Jones the Minister for Environment, Planning and Countryside in the Welsh Assembly Government. In the course of this exchange Mr. Jones was alleged to have said that he was 'going to go with the Inspector's Report'. Whilst Richards LJ in the Court of Appeal upheld the 'implicit finding' of Lindsay J that Mr. Jones did in fact say these or similar words, he did not agree that these were sufficient to constitute bias.

As to the greyhounds, in Flaherty Scott Baker LJ noted the two-stage process of the test for apparent bias:

  1. The Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased;
  2. The Court must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased. . . An allegation of apparent bias must be decided on the facts and circumstances of the individual case . . . The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing . . .' (emphasis added).

Richards LJ in the instant case mentioned the reference by Lord Hope in Porter v Magill [2002] 1 All ER 465 to strands in Strasbourg jurisprudence emphasising that what is decisive is whether any fears expressed by the complainant are objectively justified. Consequently, whilst in that case the complainant's fears were clearly relevant at the initial stage when the court had to decide whether the complaint was one that should be investigated, they lost their importance once the stage was reached of looking at the matter objectively.

Observations of Lord Hope elsewhere were also noted by Richards LJ. The case was Gillies v Secretary of State for Work and Pensions [2006] UKHL 2. Lord Hope was colouring in the rather monochrome character of the classic 'fair-minded and informed observer' (no doubt following a congenial journey together on the Clapham omnibus):

'It is to be assumed. . . that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant'.

The crux of the first instance decision in Condron was whether the alleged observation of Mr Jones as formulated by Lindsay J (i.e. 'I'm going to go with the report of the inspector') did in fact 'suggest a mind made up'. Richards LJ 'respectfully' took a different view. In the light of the principles outlined above, he 'would not place any weight on how Jennie Jones reacted to the words spoken'. In addition:

'. . . when they are viewed objectively and in their context, the words appear to me to be consistent with the speaker having a predisposition to follow the inspector's report without necessarily having a closed mind on the subject.'

The distinction between a legitimate predisposition and an unlawful predisposition is of course well established. For instance as Ouseley J had pointed out in R. (Cummins) v Camden LBC [2001] EWHC 1116 (Admin):

'There is an important distinction between bias from a personal interest and a predisposition, short of predetermination, arising say from prior consideration of the issues or some aspect of a proposal. The decision-making structure, the nature of the functions and the democratic political accountability of Councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision.'

On the other hand, predetermination is a different beast and one that prowls outside the law. As Ouseley J pointed out in Bovis Homes Limited v New Forest District Council and others [2002] EWHC 483 (Admin), a Council acts unlawfully when its decision-making body:

'. . .has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or . . . by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is seen in a corporate determination to adhere to a particular view, regardless of the relevant factors or how they could be weighed.'

And:

'The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decisionmaking process will not then have proceeded from reasoning to decision, but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham.'

In the present Condron case, Richards LJ noted that predisposition was consistent with 'a preparedness to consider and weigh relevant factors in reaching the final decision' whilst predetermination 'involves a mind that is closed to the consideration and weighing of relevant factors'.

Richards LJ also considered that it was necessary to bear in mind the context in which the words in question were spoken. Whilst Lindsay J had observed that a 'throw-away' remark 'can be more revealing than might have been a more prepared or studied one', Richards LJ thought that 'a remark made in circumstances such as these needs to be treated with a considerable degree of caution'. In his view, it was 'a case where the wider picture is particularly important in assessing the significance of the words used'.

Given the content of the Inspector's report which (amongst other things) concluded that 'the scheme would be in accordance with [the] development plan and national policy and that the benefits would far outweigh the objections', Richards LJ felt that there would be nothing surprising in Mr. Jones' having a predisposition in favour of the grant of planning permission as recommended by the inspector. In addition, the Court of Appeal noted that the Committee meeting in question (the Planning Development Committee - PDC) 'was unusually prolonged as Carwyn Jones AM (who chaired the meeting) and the other Assembly Members on the Committee fully explored the many issues and representations about the scheme before coming to a final decision.' In his view that '. . .tells against any predetermination on the part of Carwyn Jones or the . . .[Committee]. . .as a whole'.Wall LJ also noted the 'unusually prolonged' PDC proceedings and the fact that 'the deliberations lasted so long smacks much more of open minded debate than of blind, pig-headed adherence to precast, set views 'which 'militates against the possibility of bias'.

But there was also a fatal legal flaw in the decision of Lindsay J who took the view that it was wrong in considering an issue of apparent bias to stray beyond what 'what one could fairly postulate to be available to and to come to the mind of the hypothetical fair-minded and informed observer'. Richards LJ took the view that the judge had been wrong to adopt that approach. For the court:

'. . .must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision.'

Consequently, Lindsay J had been wrong to disregard the evidence of the Assembly's independent Commissioner for Standards (who had earlier investigated the matter and set out his findings). The judge had thereby left out of consideration an important part of the overall circumstances. He also appeared to have concentrated unduly on the encounter between Jennie Jones and Carwyn Jones and 'how it would have appeared to an observer at the time, rather than taking into account the totality of circumstances apparent to the court upon investigation' (emphasis added).

Richards LJ also took particular note of the qualifications for membership of the PDC. These include the necessity of completing a course of relevant training and agreement to be bound by the current Code of Conduct for members of Planning Decision Committees as issued by the Presiding Officer. As Richards LJ noted (echoing his judgment in Georgiou) 'Even the most basic course of training in planning matters would bring home the importance of approaching decisions with an open mind and having regard to all relevant considerations.' But this would be reinforced by the requirements of the Code of Conduct which included the following:

'. . . Our aim is to ensure that the parties involved in planning cases are dealt with fairly, justly and openly; that all the evidence is fully considered and that decisions are based only on material planning considerations to which all the parties have access. . .

'. . . Members of a Planning Decision Committee must: act, and be seen to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to their consideration of the matter. . .

'. . . Members of the Planning Decision Panel should avoid commenting on any planning application, or matter that might become the subject of a planning application, in case they might be considered to have pre-judged the matter if it subsequently came before the Assembly. If that were the case, the member could not take part in making the decision. . .'

The Courts have, it was noted by Richards LJ, placed weight on the judicial oath of office and the fact that professional judges are trained to judge objectively and dispassionately (e.g. Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071). Whilst the position of even Assembly planning committee members is very different from that of judicial office-holders, the fact that they have received relevant training and have agreed to be bound by a code of conduct is a consideration to which 'some weight can properly be attached when determining an issue of apparent bias'.

Dependent of course upon the particular facts and circumstances of any individual case, these factors may well affect the way in which member evidence is regarded in bias cases and may consequently resolve the issue of the different approaches taken by Richards J in Georgiou and by Collins J in Island Farm. It will be recalled that on 7 April 2004 in Georgiou, Richards J said that having regard to the objective nature of the question of apparent bias, he did not think that any significant weight was to be attached to the members' own witness statements in which they stated that they did in fact approach the planning decision with open minds. However, on 25 August 2006 Collins J in Island Farm doubted this approach and (in accepting the evidence in question) observed that:

'. . .unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision'.

Whilst Richards LJ did not in terms resile from the approach he took on this aspect in Georgiou the emphasis on member training and the code of conduct may well provide a practical route through this particular labyrinth.

Wall LJ in similar vein noted that the members in question had '. . .completed a course of relevant training, they had agreed to be bound by the current Code of Conduct and that required their "bringing an unbiased, properly directed and independent mind to their consideration of the matter." Consequently it would be 'a total abnegation of those duties to enter the Committee Room with a mind immovably made up'.

In all the circumstances Richards LJ concluded that:

'. . .a fair-minded and informed observer, having considered all the facts as they are now known, would not conclude that there was a real possibility that Carwyn Jones himself or the PDC as a whole was biased when reaching the decision to grant planning permission. Viewed in its wider context, the brief remark by Carwyn Jones that is at the centre of the case provides an insufficient basis for the suggestion that the decision was approached with a closed mind and without impartial consideration of all relevant planning issues.'

So where does the law stand on bias following Condron? It seems to me that (the emphasis on training and adherence to a relevant code of conduct apart) the case has not changed the law in any fundamental particular but has somewhat readjusted the focus on existing and wellaccepted legal propositions. It consequently appears that:

  1. The key proposition highlighted in Condron from existing law is that having firstly (per Flaherty) ascertained all the circumstances which have a bearing on the suggestion that the decision was afflicted by bias, the 'court must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision'.
  2. The important dictum in Georgiou which found bias in members approaching the decision in question 'with a closed mind and without impartial consideration of all relevant planning issues' remains intact. Indeed Richards LJ in Condron repeated this formulation only to find that the 'brief remark' in question provided an 'insufficient basis' for it.
  3. The law concerning lawful predisposition and unlawful pre-determination also remains intact. This must be right and recognises the realities of the decision-making process, and particularly in a political environment.
  4. Proper training of decision makers (particularly in relation to public law decisions like planning) is essential and (together with suitable code of conduct provisions) will apparently be a factor weighing in favour of the decisionmaking body (all other considerations of course being equal). If these factors are in place this may well provide a practical solution to the different approaches in Georgiou and Island Farm as to the weight to be attached to member evidence.
  5. Evidence of deliberation and open-minded debate may well be factors militating against the possibility of bias.

So, for Mr. Jones and the Assembly, all's well that ends well. And it also goes to show just what we can learn from the dogs. For if it hadn't have been for them, Mr. Flaherty back in March 2003 would never have brought his case.

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