Chapter 5 Notes on key cases

Impartiality and independence

R v Amber Valley DC, ex p Jackson [1985] 1 WLR 298: The Labour Party controlled both Derbyshire County Council and Amber Valley District Council; Derbyshire entered into a partnership with a private company to develop a theme park in Amber Valley, and the company asked the Amber Valley District Council for planning permission. The Labour group on the District Council decided in favour of the project before the District Council itself considered the matter. Jackson, a local protestor, asked for an order prohibiting the Council from giving permission, on the ground that they had proceeded unfairly and were biased. Woolf J in the Queen’s Bench Division held that the District Council had to act fairly, but that the political predisposition of the Labour councilors was not itself unfair; a challenge to the decision would have had to show that the councilors refused to consider the merits of the project.
R (Alconbury) v Environment Secretary [2001] UKHL 23: The House of Lords considered the compatibility of certain statutory powers of the Environment Secretary regarding planning matters with the Article 6(1) ECHR (see pp 173-6 for an outline of the planning process). The Lords held that there was no breach of Article 6(1). Where administrative decisions concerning civil rights were taken by elected officials subject to supervision by the courts in judicial review, regard must be had to both stages. The question was whether the reviewing court had sufficient control to ensure Article 6(1) compliance. Where the decision is one of administrative policy (such as planning), the present supervisory jurisdiction over legality and procedures is adequate to ensure Article 6(1) is complied with.
Porter v Magill [2001] UKHL 67: As Conservative leader of Westminster City Council, Dame Shirley Porter developed a policy of selling council houses in marginal wards, in order to increase the proportion of Conservative voters in those wards (council house residents were moved to wards that were expected to vote Labour in any case). The houses were sold at a discount that cost the City £31 million. An auditor investigated and concluded that Porter had engaged in wilful misconduct, and that she should reimburse the City for the £31 million. Porter appealed on the ground of apparent bias on the part of the auditor; he had given a press conference during his investigation which, she argued, showed an appearance of bias. Using the Human Rights Act and the Court of Appeal’s decision in In re Medicaments and Related Classes of Goods (No 2)[2001] 1 WLR 700, Lord Hope concludedthat ‘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’ [103].
Begum v Tower Hamlets LBC [2003] UKHL 5: Begum was homeless, and the Council offered her accommodation which she said was unacceptable. The Council’s rehousing manager conducted a review and decided that Begum should have accepted the flat. Begum appealed on the ground that she had not had a hearing before an independent tribunal, because the rehousing manager was not independent. The House of Lords held that the housing allocation decision was a ‘determination of civil rights’, so that Art 6 of the Convention applied. But they held that she had had a fair hearing before an independent tribunal, even though the rehousing manager was not independent. The whole review procedure (the reviewing officer's decision plus an appeal to the County Court (an independent tribunal) on a point of law) provided the protections required by Art 6. Where administrative decisions determine civil rights, Article 6 does not necessarilyrequire an independent tribunal to make the determination in the first instance; Art 6 is fulfilled so long as adequate fairness safeguards are in place, and there is ultimate control of the determination by a court with adequate jurisdiction according to the nature of the case.
Davidson v Scottish Ministers [2004] UKHL 34: Davidson was a prisoner who sought an order requiring the Scottish Ministers to transfer him from one prison to another. Lord Hardie sat on the court that refused to issue the order on the ground that such mandatory orders were not available against the Scottish Ministers. Davidson discovered that Lord Hardie, as Lord Advocate (a Government law officer), had advised the House of Lords during the passage of the Scotland Bill that such orders would not be available against the Scottish Ministers. Davidson appealed on the ground of bias; the House of Lords held that the Porter v Magill test for apparent bias was satisfied, and quashed the decision. The case shows how far the House of Lords will go to avoid a public perception of bias in a tribunal or court: there is no reason to think that there was unfair in the decision. Lord Hardie had no interest in the outcome, and had presumably told the House of Lords what he considered the law to be. The decision suggests that a judge’s view as to the law can sometime make it unlawful for him to decide a case.
R (Al-Hasan) v Home Secretary [2005] UKHL 13: A deputy prison governor had to decide whether an order to submit to searches complied with prison rules. The House of Lords held that there was an appearance of bias (on the Porter v Magill test), because the deputy governor had been present when the prison governor had approved the order (even though the deputy governor had no role in making the decision). It is another indication of the House of Lords’ anxiety to avoid a public perception of bias.
R (Lewis) v Redcar and Cleveland [2008] EWCA Civ 746: An opponent of a leisure centre development sought judicial review on the ground of apparent bias, arguing that the majority party members on the Council had pushed the matter through a vote before an election in a way that created an appearance of political bias. The Court of Appeal held that there was no bias. The Court approved the approach of Woolf J in Amber Valley, and insisted that councillors deciding planning applications ‘are not in a judicial or quasi-judicial position but are elected to provide and pursue policies’ [69]. Yet the Court held that he Porter test ‘should not be altogether excluded in this context’ [66]; the question should be whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the councilors made the decision with closed minds [71]. The case extends the idea of an appearance of bias to planning decisions; but since it approves Amber Valley, only an appearance of predetermination can make such a decision unlawful (and not an appearance that the councillors were acting politically) see p 178 for an argument that there should be no Porter-style appearance test for predetermination.