Administrative Law Values III: Institutional Review
I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here.
Institutional Review: Bias
Different jurisdictions formulate the test for impartiality differently, but as a general rule: where a decision-maker’s participation in a decision would cause a reasonable apprehension of bias, she must recuse herself unless the party or parties concerned waive their right to object. Such is the importance of impartiality to the legal system that the test operates in cases where bias might merely be perceived. Lord Hewart’s formulation is well known: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
In part, the rule against bias is a device to serve the “overriding public interest that there should be confidence in the integrity of the administration of justice”, a concern of good administration. However, it is plain that rule-of-law concerns underpin the operation of the bias test. Lord Hope of Craighead noted in R. v. Bow Street Magistrates, ex parte Pinochet (No. 2) that the applicant was “entitled to the judgment of an impartial and independent tribunal” on the question at issue. In their comprehensive review of the cases on bias, an extremely strong bench of the Court of Appeal of England and Wales emphasized at the outset the personal interest of individuals in impartial decision-making:
In determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights, is properly described as fundamental…Any judge…who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice.
That this individual interest may be waived, if “clear and unequivocal” and “made with full knowledge of all the facts relevant to the decision whether to waive or not” serves to emphasize the rule-of-law concerns underlying the rule against bias. Good administration may, moreover, intervene to ensure that the mere fact of an interest in the outcome of the litigation is not sufficient to require recusal. “[P]ersonifying the reasonable man”, the reviewing court takes rule of law and good administration concerns into account in determining whether a decision-maker ought to have recused himself or herself.
Democracy is present too in the area of bias. In situations involving elected officials, the threshold for reasonable apprehension of bias is raised. Where the legislature has confided a discretionary power in an elected official or bodies of elected representatives, “[i]t would be naïve to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views” that they hold about questions submitted to them. Municipal politicians, similarly, are not required to “cast aside views on planning policy they will have formed when seeking election or when acting as councillors”. The imperative of democracy demands that an applicant demonstrate that an elected official had a ‘closed mind’ in order to justify judicial intervention. Good administration may further underpin the democratic imperative. Electing or appointing representatives to regulatory bodies may make those bodies more effective: “No doubt many boards will operate more effectively with representation from all segments of society who are interested in the operations of the Board”.
Decision-making that would otherwise raise a reasonable apprehension of bias may sometimes be permissible. The doctrine of necessity also has a democratic pedigree. Where the legislature has provided for an administrative mechanism to determine rights and liabilities, the indirect interests that, say, members of a self-regulated profession might have in disciplinary matters, cannot justify judicial intervention to quash a decision on the ground of bias: “the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it”.
A super-added requirement of independence is inspired by separation of powers concerns. As has been said, “One of the cornerstones of our legal system is the impartiality of the tribunals by which justice is administered”. Independence and impartiality are “closely linked”:
Impartiality is the tribunal’s approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also in the perception of the public.
The rule of law and good administration are in part secured by ensuring that external checks and balances are imposed on the exercise of administrative power.
 See generally Adrian Vermeule, “Contra ‘Nemo Iudex in Sua Causa’” (2012), 122 Yale L.J. 384.
 R. v. Sussex Justices, ex parte McCarthy,  1 K.B. 256, at p. 259. In the foundational case on direct interests in litigation, Dimes v. Proprietors of Grand Junction Canal (1852), 3 H.L. Cas. 759, it was the “appearance of labouring under” a personal interest that grounded a finding of a reasonable apprehension of bias against the judge.
 R. v. Gough,  A.C. 646, at p. 659. See similarly Gillies v. Secretary of State for Work and Pensions,  UKHL 2,  1 All E.R. 731, at para. 23.
  1 A.C.119, at p. 143.
 Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.,  I.R.L.R. 96, at pp. 98-99. This case involved judicial bias but the same doctrinal rules apply to administrative decision-makers.
 See e.g. Ebner v. Official Trustee in Bankruptcy (2000), 176 A.L.R. 643, at para. 54: “we do not accept the submission hat there is a separate and free-standing rule of automatic disqualification that applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding”; Old St. Boniface Residents’ Association v. Winnipeg (City),  3 S.C.R. 1170, at p. 1196: “Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty”.
 Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.,  I.R.L.R. 96, at p. 101.
 CREEDNZ Inc. v. Governor General,  1 N.Z.L.R. 172, at p. 179, per Cooke P.
 R. (Lewis) v. Persimmon Homes,  EWCA Civ. 746,  L.G.R. 781, at p. 802, per Pill L.J. See similarly ibid. at p. 809, per Rix L.J.: “there can be no pretence that such democratically accountable decision-makers are intended to be independent and impartial just as if they were judges or quasi-judges. They will have political allegiances, and their politics will involve policies, and these will be known”; Old St. Boniface Residents’ Association v. Winnipeg (City),  3 S.C.R. 1170, at p. 1192:
I must assume that the Legislature was aware that in this capacity the members of Council will have fought an election in which the matter upon which they are called upon to decide may have been debated and on which the would‑be councillors may have taken a stand some pro and some con. Indeed, the election of a particular councillor may have depended on the position taken.
 See also R. v. Amber Valley District Council, ex parte Jackson,  1 W.L.R. 298; Condron v. National Assembly for Wales,  L.G.R. 87. In Canada, conduct prior to an adjudicative hearing is subject to the ‘closed mind’ standard but conduct during the hearing is subject to the ordinary standard for reasonable apprehension of bias. See Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),  1 S.C.R. 623.
 Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),  1 S.C.R. 623, at p. 635.
 See e.g. Pearlman v. Manitoba Law Society,  2 S.C.R. 869.
 Laws v. Australian Broadcasting Tribunal (1990), 170 C.L.R. 70, at p. 89, per Mason C.J. and Brennan J.
 R. v. Bow Street Magistrates, ex parte Pinochet (No. 2),  1 A.C.119, at p. 140, per Lord Hope of Craighead.
 Gillies v. Secretary of State for Work and Pensions,  UKHL 2,  1 All E.R. 731, at para. 38, per Baroness Hale.
This content has been updated on July 9, 2014 at 09:08.