1. What is the point of quashing decisions for the mere appearance of a possibility of bias? Is it to avoid damage that would be done to the good repute of the legal system if bystanders are shocked at an unfairness? Or is it to protect the affected party from abuse?

• In AWG Group Ltd v Morrison [2006] EWCA Civ 6 [29], Mummery LJ says ‘both’, and that is the orthodox position; Lord Goff was in favour of the latter in R v Gough [1993] AC 646. Whether bystanders are shocked or not depends on their own perceptions, and is not in the control of the court. But the House of Lords cases since Porter v Magill show a very anxious concern for perceptions.

2. Can it ever count as bias, for an administrative authority to base a decision on its policy?

• Are all decisions by administrative authorities policy decisions?
• It should never count as bias for a planning authority to pursue planning policy. If they refuse to listen to an affected party at all, then there is a lack of due process and the decision is unlawful, but it adds nothing to call the problem ‘bias’.
• What about Ridge v Baldwin? The authority claimed to be acting on a policy that required it to dismiss a police chief who was tainted in the way they thought Ridge had been tainted. Was that bias?

3. The common law of due process applies broadly, but flexibly, to administrative decisions, and that is ‘one relevant divergence’ between and the common law and the European Convention (R (Wooder) v Feggetter [2002] EWCA Civ 554 [46]). What other divergences are there?

• The other divergence mentioned by Lord Justice Sedley in Wooder’s case is that the right to respect for private and family life in Article 8 of the Convention requires processes that the common law does not require [47].
• Here are two more divergences:
• (1) if a statute provides for a decision making structure that lacks due process, the common law provides no redress. But the Strasbourg Court can hold that the United Kingdom has violated a Convention right, and an English court can give a declaration of incompatibility.
• (2) the common law does not have the distinct requirement of independence that Article 6 imposes (where it applies).

4. What difference is there, if any, between making an unreasonable decision, and being biased?

• Is it ever reasonable to make a biased decision?
• Is it possible to make an unreasonable decision without being biased?

5. It would have taken a ‘study of the division of power between administrative and judicial organs’, in order for the framers of the European Convention to deal explicitly

with the role that independence ought to play in administrative decision making (see section 5.3.1). What would that study have to accomplish? How could Art 6 be redrafted to address the problem explicitly?

• Many administrative decisions, such as those in Begum v Tower Hamlets, or Lewis v Redcar and Cleveland or Alconbury, determine civil rights and obligations. Is there any good reason to require them to be made by an independent tribunal? Can the requirements of due process (which Art 6 is designed to protect) be met through independent review of such decisions by administrative authorities?
• If independent review can meet the needs of due process for some decisions, the ‘study’ would presumably need to distinguish between those decisions that must be made in the first instance by independent decision makers (such as, e.g., sentencing decisions), and those that can be made by administrative authorities and then reviewed by an independent tribunal (such as planning decisions). How would you go about drawing that distinction in general terms?

6. The emphasis in Chapter 4 was on due process, which means proportionate process. Can the law on impartiality and bias be explained as a set of requirements of proportionate process? Or is impartiality (where it is required) an all-or-nothing matter that does not involve proportionality?

• Is an improper interest in the outcome (as, e.g., when a lawsuit concerns a company in which a judge or a juror owns shares) an all-or-nothing matter, or is the question whether the decision maker has too much of an interest?
• If your answer to the first question was ‘all-or-nothing’, what about an interest of a local council in a property development proposal?
• What about adverse comments made by a decision maker, which the complainant says show that the decision maker was biased. Does the right decision depend on whether the decision maker was disproportionately disposed to decide against the complainant?