Monday, 8 September 2014

Open Letter to Theresa May on Woolf and Bias

By popular request this letter is produced on its own with a link to the original



Dear Lady Woolf
Perceived bias: the law
I write to you as one solicitor to another and as one officer of the Supreme (‘Senior’) Court to another. I am aware of the concerns expressed in the press and other media at your appointment to chair an inquiry on the variety of the long-standing child abuse allegations. I write to you as one solicitor to another to ask you to say what is your side of the story in relation to published allegations about your personal and public relations with individuals who may be required to give evidence; and to ask you to reflect upon whether or not you can be said to be biased in the light of your own contacts and the people who may be inquired into by the panel.
First, I assume you and the Home Secretary consider that you have the ‘necessary expertise’ to conduct this inquiry. Inquiries Act 2005 s 8(1)(a) requires that when a minister appoints, s/he must consider that, ‘as a whole… [an inquiry panel member has] the necessary expertise to undertake the inquiry’.
Inquiries Act 2005
The relevant parts of statute law on which your appointment turns is Inquiries Act 2005 s 9. This I believe can be explained, at common law, by reference to recent Supreme Court authority on the subject of ‘perceived bias’.
I take it as axiomatic that like any judicial or administrative process or inquiry the appointment, and operation of, the inquiry is bound by ordinary common law and other rules of fairness. I start from the assumption that, as stated by Administrative Law (2009) Wade & Forsyth (10th Ed) at page 801: all forms of inquiry have in common is ‘the independence of the person (or persons) who conducts the inquiry and writes the report’
The common law of England and Wales can reasonably said to be summarised in European Convention 1950 Art 6(1) and that this guarantees freedom of bias in any judicial or administrative process; and I assume that an inquiry like this comprises elements of both. Further Inquiries Act 2005 s 9 makes specific provision as to ‘impartiality’ (ie freedom from bias):
9 Requirement of impartiality
(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—
(a)a direct interest in the matters to which the inquiry relates, or
(b)a close association with an interested party,
unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.
(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.
(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.
In what follows I shall assume that s 9(1)(a) approximates to ‘actual’ bias (as defined below); and that in all other respects normal common and administrative law principles apply (see eg Porter v McGill (orse McGill v Weeks) [2001] UKHL 67, where the challenge of Porter was to a local authority appointed auditor and his inquiry).
Bias at common law
It has been said by the Court of Appeal that judicial impartiality is ‘thefundamental principle of justice, both at common law and under European Convention 1950 Art 6’ (Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 per Mummery LJ at para [6]). If it is breached a judge is disqualified from hearing a case. If ‘bias’ – in the technical sense of the term, as considered below – is found then recusal (ie the judge must take him/herself off the case) must follow as a matter of law.
Bias arises where a judge may be said to be unsuitable to try a case because of a personal interest (however remote; and compare this with Inquiries Act 2005 s 9(4) above) in the outcome of the case; or because the judge is in some other way is, or appears to be (appearance of bias may be critical to this, as explained below), unable to form an independent view of the case before the court. Thus bias may arise in two ways:
  • ‘Actual bias’ – That the judge has, as a matter of fact, a personal interest in the outcome of the case; or
  • ‘Perceived or apparent bias’ – for example, because of an expressed point of view or because of the judge’s personal opinion of a matter in issue or a party in the proceedings.

The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias (Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67). In either case bias – in the general sense of the word – may not actually exist.

In the case of ‘actual’ bias it arises automatically on the facts of a case (eg a relationship with a party or witness in the proceedings; or where a judge owns shares in a company involved in the litigation). This may be equivalent to the impartiality required by s 9(1)(b). I shall assume that the Mayor has given sufficient thought (though in truth I wonder) to the question of ‘actual’ bias or s 9(1)(b) impartiality. I shall concentrate on perceived bias.
‘The fair-minded and informed observer’ – perceived bias
The modern test as to whether judicial bias may be present, as applied to civil proceedings, is defined by Lord Hope in Porter v Magill [2008] UKHL 62 and this test can be taken now to be the authoritative distillation of recent case law variants on a similar theme:
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.
Since that quote coined the terms the ‘fair-minded and informed observer’ and Lord Hope has  returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another  ([2008] UKHL 62 where he further explained his use of the term:
[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
Partiality and the informed observer
So how does Lord Hope’s formula in Helow fit with Inquiries Act 2005 s 9? In the final analysis it must be recalled why inquiries are set up under the 2005 Act. Section 1(1) provides:
1 Power to establish inquiry
(1)A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—
(a)particular events have caused, or are capable of causing, public concern, or
(b)there is public concern that particular events may have occurred.
I would suggest to you, Lady Woolf, that this requires a particularly high duty on you and the Minister. Further you must both have careful regard for the variety of ‘informed observers’ and commentators; and that you examine very carefully your standing in terms of that high duty given the reasons for and the background to the inquiry. Perhaps you should, as quickly as possible, make public your thoughts on Inquiries Act 2005 s 9.
I cannot be an ‘informed observer’ yet: I have not heard your side of the story (para [2] or Helow above). I do hope we shall all hear your side very soon. Then we the observer can consider how s 9 applies to you and whether in common law you can be regarded as biased in your proposed role.

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