The rule against bias - a problem-based essay

George is a lay member of an Employment Tribunal. He regularly hears cases on a panel with Fiona the Tribunal’s chair. Fiona is a lawyer with specialist knowledge of accidents at work and a member of a firm of consultants that advises construction companies on Health and Safety issues. The third member of the Tribunal is Geoffrey, a member of a trade union and employed in the construction industry. Gareth is a claimant alleging that he was unfairly dismissed by The Construction Company Ltd., (fictitious) on the grounds that he could have prevented an accident after a worker fell off some unsafe scaffolding and that he was negligent in undertaking the risk assessment for the company. The Tribunal ruled against Gareth who unsuccessfully appealed to the Employment Appeal Tribunal. Gareth wishes to apply for judicial review on the grounds that the Tribunal was biased. It emerges that (a) George is married to Gareth’s second cousin, but has never met Gareth and did not know of this relationship; (b) Fiona’s company advised the Construction Company Ltd on Health and Safety matters and (c) Geoffrey is a member of the same golf club as George and Gareth but has not met Gareth. However, Geoffrey’s wife is a close friend of Gareth’s aunt and they meet regularly at a health club owned by Gareth’s trade union and organise social events for all their neighbours. Advise Gareth as to the law on bias as a ground for review.

a. Introduction

This problem-centred essay deals with all facets of bias that may affect the judiciary. It will give an answer to the problems raised in the case above as well as trying to give an impression of what bias actually is and where the law on bias as a ground for judicial review stands today.

b. The law on bias

Judicial impartiality is a fundamental characteristic of a civilised legal system under the rule of law. In the UK the rule against bias together with the right to be heard form the principles of natural justice. Consequently ‘the non-observance [of this rule] is a basis for judicial review.’^[1]

The origins of this principle date back to Roman times where the maxim was expressed with the Latin terms nemo judex in causa sua^[2] or ne quis in sua causa iudicet (vel sibi ius dicat) which both mean that ‘no man [could be] a judge in his own cause’^[3]

The significance is reflected by the implementation of this right into domestic law with the creation of the Human Rights Act 1998. Article 6 of the European Convention on Human Rights (ECHR) establishes the right to a fair trial^[4].

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

Two main grounds of personal interest for which a judge can be automatically disqualified from sitting in a case are established.

Probably the most common ground for such a judicial review is a pecuniary interest like in the ‘ Dimes ’ decision.^[5] Since the famous ‘ Pinochet ’ case,^[6] a non-pecuniary interest could also lead to the exclusion of a judge. The case involved whether the dictator, Pinochet, could be extradited. A member of the judiciary, Lord Hoffmann, was involved in Amnesty International Charity Ltd. (AICL), an organization closely related to the accuser Amnesty International (AI) but Hoffman did not make public his link to the organization.

Other personal interests, however, need a more qualified suspicion of bias. In this category fall family relationships, business connections and commercial ties, as well as membership of an organization interested, as we have just seen in the Pinochet case.^[7]

The House of Lords has held in ‘ Porter ’ that overriding consideration to be taken into account 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^[8]

This decision ‘resolved the long-standing uncertainty’^[9] concerning the question to what extent an objective observer would doubt the impartiality of a judge, whether a ‘reasonable suspicion’ was sufficient, or if 'real likelihood' or even 'real danger' has to be present.

This new threshold set by the House of Lords does not require a real likelihood which underscores the long-standing rule that ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’^[10]. Therefore ‘the answer to the question [whether a judge was biased] depends not upon what actually was done but upon what might appear to be done.’ The canon of judicial impartiality has been rescaled and secured.

c. Application to the case

The Employment Tribunal in the case is composed under the Employment Tribunals Act (ETA) 1996, s.4 with Fiona as the chairman and two lay members, Geoffrey and George. One of these lay members is representing the employees, the other one the employers and both are appointed by the Secretary of State for Trade and Industry. The reason for this representation through lay members is ‘to give balance and to bring to the decision-making process an element of industrial relations knowledge, which a legally qualified person might not have. It is important to know that they all have an equal say in the judgement.^[11] A system with such a peculiarity in the composition of the panel has to meet concerns about the independence of their members and arising conflicts of interest. This certainly does not per se cause a higher suspicion of bias. Such a system is wanted and it lies in itself that the lay members are part of the environment that they represent. As any other judge, the members of an Employment tribunal are expected to be unbiased and specially trained for this. In real life it is often the case that one of the lay members may have a connection to a trade union or a particular company. Of course this is valid for the chairperson as well.

1. Geoffrey

This member of the panel is obviously representing the employees as he is member of a trade union. The fact that he plays in the same golf club as George and the appellant Gareth, although he never met him before may rise the suspicion that he is not impartial. It can be seen as established that ‘…close personal friendship will give rise to a real possibility of bias’^[12], as well as kinship when it is close enough.^[13] Neither the one nor the other is true for the ‘relationship’ between Geoffrey and Gareth, if we can speak of ‘relationship’ at all. Applying the Porter principle the fact that they play in the same golf club would need to give rise to the conclusion that there was a real possibility that Geoffrey could be biased. An objective observer would most certainly not come to such a conclusion. In addition to this, Geoffrey did not even know about this fact. As a result Geoffrey can without any doubt sit as a lay member in this panel.

Moreover we could see that, everyday life activities and memberships in sport clubs or something near it, however harmless they seem to be, need to be examined in more detail.

2. Fiona

The chairperson of the Employment tribunal is a lawyer with specialist knowledge of accidents at work and a member of a law firm that advises construction companies on Health and Safety issues. That is why her company also advised the sued Construction Company Ltd. on Health and Safety matters.

There is no reason why Fiona should be excluded automatically. Once again we have to ask whether a fair-minded and informed observer knowing all the facts would come to the conclusion that there is a real possibility that Fiona is biased. As well it is essential that we take a look on the relevant case law to job-related bias.

Fiona advised the company on health issues. She might have an interest that the company is not condemned as it was her who gave them the legal advice. If they had adhered to these instructions this never would have happened. That would be the ideal case. Potentially it was miscouncelling. But apart from losing a good reputation she might have an interest in continuing the business relationship with this company. This must not mean that a pecuniary interest is predominant. But it can mean that she does not want the company to be condemned as this would mean that they do not provide enough or efficient job safety.

Case law does provide a panoply of examples where bias might occur in relation to the job. In R. v. Altrincham Justices ex parte Pennington from 1975 a solicitor, who was representing a client, who sued a motorist for damages, later acted as the clerk in the criminal case for dangerous driving^[14]. This case does certainly not apply to Fionas’ case, but it is useful to show up an extreme example of conflict of interest. We have to keep in mind that Fiona is not representing the construction company.

The recent case Jones v. DAS Legal Expenses Insurance Co Ltd from 2004 seems to be applicable. Here the chairman’s husband, a barrister, was occasionally instructed by the respondents^[15]. Indeed, in Fiona’s case we even have a direct relationship. The Jones case was therefore based on the fact that the chairman knew of her husband’s relationship.

Unfortunately, the facts do not say enough about her awareness towards her involvement.

Two cases that were heard together in 2000, the Locabail and the O’Callaghan case, showed on the other hand that a certain threshold has to be established. It was held that ‘a court judge was not disqualified because the solicitor’s firm, of which he was a partner, without his knowledge, was involved in related litigation.’^[16]

Some say that the rules of bias should not ‘inhibit the increasingly valuable contribution which solicitors were making to the discharge of judicial functions.’^[17]

In the case Director General of Fair Trading v The Proprietary Association of Great Britain and another,^[18] a lay member of the court was held to be biased only because she had applied for a job with a firm of one of the consultants to the court. It was held that she would be ‘unable to make an objective and impartial appraisal of the expert evidence placed before the court.’^[19]

The practical application of the Porter- test in this context that Fiona as an employment tribunal chairman was biased would be to say "If it would appear to a reasonably informed bystander that the Chairman was showing favour to one side unfairly as against the other, the Chairman would have acted in breach of [his][her] duty"^[20].

After having balanced these arguments carefully we can come to the conlusion that Fiona should resign as chairman. There is a real possibilty that Fiona might be influenced by her relationship as a lawyer towards the company and we must say that this appearence of bias is sufficient to justify this claim. The fact that she could be outvoted by the other two tribunal members ‘is not of itself sufficient reason for [her] to refuse to recuse [herself] if [s]he is accused of bias’.^[21]

3. George

George is married to the appellant’s second cousin, but has never met him and does not even know of his relationship. The question is whether this family relationship may be sufficient to support an allegation of bias and which role his non-knowledge plays in this context. An arbitrator should certainly not hear a case involving a member of his family. It is questionable if this is only true for immediate or as well for the extended family, certainly without going back to Adam and Eve.

It is often said that a judge automatically disqualifies in case of family relationship up to the third degree to the party. George is married to the appellant’s second cousin, so that he stands in a 5th degree relationship to her^[22], which is relatively remote already. In addition to this, a preferential treatment of such far family members seems to be very escapist. Although there is no need to show whether he was conscious or not of this fact in Geoffrey's case it is important to mention this circumstance. It has been argued that the subjective element is of importance as an arbitrator who is not even aware of his relationship cannot favour the party, or one of the parties, intentionally. There would not be any danger, or not more danger than in any other trial, that the procedure is unjust and violating the principles of natural justice.

d. Conclusion

The exclusion of judges who appear to be involved in some way with one of the parties or to be biased in any other way does ‘protect the integrity of the decision-making process’^[23] and strengthens confidence in our legal system. It is of foremost importance that this rule is abided by and that no exceptions may be made.

Danger faces this awareness of bias solely if it is turned into a means to exclude judges that are disagreeable to one of the parties. The danger mentioned above lies in a widening of this ground to appeal more to the social background. Slapper & Kelly paint the image of law firms that might use special units focusing on the judges’ private life^[24] and trying to exclude certain judges. We should not forget that courts are not helpless against arbitrary pursuits of alleged bias and may put the party that raises such allegations at risk of an order for costs.

The case above gave a good impression of how bias can affect our legal system of the day. And the examples given are certainly not unlikely. They can occur every day.

As Gareth’s legal advisor, I would appeal against the decision of the Employment tribunal within 42 days according to the EAT Tribunal Rules 1993, which means from the date on which the written record of the judgment was sent to Gareth.^[25] I would submit a complaint under regulation 20 or 21 of the 1999 Regulations Act, made in the required way, which means in writing and accordance with the provided Form 4A of the Schedule to these Rules.^[26] It is important that the complaint against the conduct of the Employment Tribunal, here bias of the Chairman Fiona, includes in the Notice of Appeal all necessary information to have chances of success.

References and Bibliography:

Books & Articles

Abbildung in dieser Leseprobe nicht enthalten

Cases

Abbildung in dieser Leseprobe nicht enthalten

http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f00feb13.htm

Online

The Employment appeals Tribunal Website

http://www.employmentappeals.gov.uk/

[Last accessed on 04.04.2006]

The Corpus Iuris Civilis

http://web.upmf-grenoble.fr/Haiti/Cours/Ak/Corpus/CJ3.htm

[Last accessed on 03.04.2006]

The European Convetion on Human Rights

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf

[Last accessed on 03.04.06]

[...]

^[1] Gordon, R., Judicial Review, p. 30

^[2] Codex Iustinian 3,5 http://web.upmf-grenoble.fr/Haiti/Cours/Ak/CJ3.htm

^[3] Wade / Forsyth, Administrative Law 9th edition, p. 450

^[4] see Convention on http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf

^[5] Dimes v. Grand Junction Canal Co Proprietors [1852] 3 H.L.C. 759.

^[6] R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.2) [2000] 1 A.C. 119.

^[7] Enumeration found in Craig, p. 459.

^[8] Lord Hope in Porter v. Magill [2001] UKHL 67 at para 103

^[9] Bradley / Swing, Constitucional and Administrative Law, 13th edition, 2003, p.713.

^[10] R. v. Sussex Justices e x parte McCarthy, [1924] 1 KB 256,p. 259

^[11] Manley, Isabel and Heslop, Elaine; Employment tribunals : a practical guide , London : Law Society, 2004, p. 8-10

^[12] De Smith, Wolf & Jowell’s, p. 430.

^[13] Ibid, p. 430

^[14] R. v. Altrincham Justices ex parte Pennington [1975] QB 549.

^[15] Jones v. DAS Legal Expenses Insurance Co Ltd [2004] IRLR 218

^[16] Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] 2 WLR 870 (CA).

^[17] The Independent (London), November 23, 1999, Tuesday; TUESDAY LAW REPORT: DISQUALIFICATION OF JUDGE ON GROUND OF BIAS, p. 7.

^[18] [2001] ICR 564; [2001] 1 WLR 700.

^[19] The Independent (London), January 12, 2001, Friday, p. 2; CORRECT TEST TO BE APPLIED WHEN DISQUALIFYING JUDGE ON GROUND OF BIAS

^[20] Thompson v Age Concern EAT 2004 on 2nd February 2004, see http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f00feb13.htm, last accessed on 20th March 2006.

^[21] Lodwick v London Borough of Southwark [2004] EWCA Civ 306, 18th March 2004.

^[22] For a better understanding of the relationships under civil law see this consanguanity chart: http://www.gen-find.com/resources/family_relationship_consanguinity_chart.html

^[23] De Smith, Woolf & Jowell's, principles of judicial review, 1999, p.413.

^[24] Slapper & Kelly, the English Legal System, p. 562.

^[25] A PRACTICE DIRECTION for EMPLOYMENT APPEAL TRIBUNAL - PROCEDURE http://www.employmentappeals.gov.uk/practice_direction/practice_direction.htm

^[26] This Form can be found in the schedule of the following document, see Form 4A: http://www.employmentappeals.gov.uk/publications/documents/rules.pdf