Two jurisprudential strands were brought together by the Court of Appeal on 19 October 2011 when determining a challenge brought by Darsho Kaur, a student member of the Institute of Legal Executives (ILEX).

Ms Kaur contended that decisions made by both the disciplinary and appeal tribunals of ILEX that she had cheated in examinations were tainted by apparent bias and in breach of natural justice. This was because an ILEX Council member and director had sat on the disciplinary tribunal (DT) and the vice-president of ILEX had been on the appeal tribunal (IAT). As part of the governance of ILEX they had therefore been acting as judges in their own cause (ie that of ILEX). Kaur’s application was successful in that the orders of both the DT and the IAT were quashed (see R (Kaur) v Institute of Legal Executives Appeal Tribunal and another [2011] EWCA Civ 1168). The substantive judgment was given by Rix LJ with which Sullivan LJ and Black LJ agreed.

The modern law of apparent bias was settled by Lord Hope in Porter v Magill [2001] UKHL 67, where Lord Hope indicated that 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’. However, before Porter the House of Lords (in R v Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119) held that Lord Hoffman had been automatically disqualified from sitting on the House of Lords judicial committee when hearing Pinochet No 1 because he was an unpaid director of a subsidiary of Amnesty International when the latter had intervened as a party in the proceedings. Although Lord Hoffman had no personal interest in the case, both Amnesty International and its subsidiary were parts of a movement working towards the same goals with an interest in the outcome of the proceedings. The House therefore applied the doctrine of ‘automatic disqualification’ on the basis that no one should be a judge in his own cause.

In a subsequent case (Davidson v Scottish Ministers [2004] UKHL 34) Lord Bingham remarked that what ‘…disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge's judgment’. For: ‘In maintaining the confidence of the parties and the public in the integrity of the judicial process, it is necessary that judicial tribunals should be independent and impartial, and also that they should appear to be so’. The judge must therefore ‘…be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge's judgment, and must appear to be so’.

Lord Hope subsequently remarked in Meerabux v The Attorney General of Belize [2005] UKPC 12 that, if the House of Lords had felt able to apply the apparent bias test in the Pinochet case ‘it is unlikely that it would have found it necessary to find a solution to the problems… by applying the automatic disqualification rule’. Rix LJ in the present case was consequently ‘somewhat sceptical’ that apparent bias and ‘automatic disqualification’ (per Pinochet) ‘remain to this day separate doctrines’. For he found force in Lord Hope’s Meerabux indication that if the Porter v Magill development had been available to the House of Lords in Pinochet they would have turned more naturally to that doctrine. Rix LJ therefore thought that it may be possible in the present case to see the two doctrines ‘…as two strands of a single overarching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased’.

In the light of the jurisprudence, the Court of Appeal noted that participation ‘…in a prosecutorial capacity, even if not in the case in question, will disqualify or else raise concern in the mind of the fair-minded observer about the appearance of impartial justice’. Consequently, applying either test, the vice-president of ILEX was disqualified from sitting on a disciplinary or appeal tribunal on account of her leading role in ILEX and her consequent ‘inevitable interest in ILEX’s policy of disciplinary regulation’. The doctrines in question, said Rix LJ, ‘are to guard against the insidious effects of which those concerned are not even conscious’. And the necessary insulation between regulation and representation are prejudiced ‘if those principally concerned in governance are permitted to move from representative to regulatory functions as ex officio members of disciplinary or appeal tribunals’.

Public authority fairness

The modern law of public authority fairness (of which bias and apparent bias is arguably part) has evolved in various sophisticated branches from the canonical rules of natural justice (the need to hear both sides and that no one should be a judge in their own cause). Kaur demonstrates that (however the jurisprudence is framed) a perception of bias can unconsciously be built into institutional structures. Local authorities and other institutions which have in place (or may be setting up for various purposes) appeal machinery will therefore need to have regard to this decision.

But the potential extent of the judgment remains to be seen. Will it, for instance, require local authorities to institute independent appeals panels for disciplinary issues, particularly when employees also have general law remedies of wrongful and unfair dismissal? As Lord Steyn pointed out in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532: ‘In law, context is everything.’ We will nevertheless need to await future decisions to see what balance the courts are tending to strike in such matters between acknowledging organisational practicability and securing fairness to the subject. The decisions will inevitably be fact-sensitive.

Given drafting uncertainties in the Localism Act 2011 the Association of Council Secretaries and Solicitors (ACSeS) sought the opinion of Clive Sheldon QC on two issues. These were whether former independent standards committee members could become independent persons under the 2011 act and also on the lawful scope of available sanctions for members found to have breached new codes of conduct.

The opinion is now available and Sheldon considers that, on a literal reading of the 2011 act, former independent members (ie those within five years of prospective appointment as independent person) are not permitted to become independent persons. As to sanctions, the opinion regards the following as lawful (subject, of course, to the particular facts and circumstances, and lawful and proportionate manner of application): a formal letter to the councillor found to have breached the code; formal censure by motion; removal by the authority of the member from committee(s) (subject to statutory and constitutional requirements); and a press release/other appropriate publicity. ACSeS members can view the opinion.

Blocking a forecourt

Highway authorities wishing to take action to prevent vehicles exiting a forecourt onto a public highway should take a look at Cusack v London Borough of Harrow [2011] EWCA Civ 1514. The council sought to prevent - by the erection of barriers - a solicitor’s practice from allowing vehicles parked on its front forecourt from reversing out onto the highway. This was to ‘prevent further footpath damage and increase pedestrian safety’.

The council wished primarily to rely on section 80 of the Highways Act 1980 which (at section 80(1)(a)) enables a highway authority to erect and maintain fences or posts for the purpose of preventing access to a highway maintainable at the public expense by them. As a fallback, however, the council would use section 66(2) of the 1980 act which enables the highway authority to erect pillars, walls, rails or fences where they think that they are necessary for the safety of highway users. As Lewison LJ, who gave the lead judgment in Cusak pointed out, that ‘ …safety is the main concern is reinforced by the fact that section 66 appears in a group of sections under the heading "Safety provisions"’. However, the problem with section 66 from the council’s point of view was section 66(8) which requires a highway authority to pay compensation to anyone sustaining damage because of works conducted under the section.

While the council accepted that it had a choice of powers (either section 80 or section 66) it wished, as custodian of public funds, to use section 80 to avoid paying compensation. However, the Court of Appeal drew upon a well-established interpretational rule that, where there are general and specific provisions covering the same area, the court will apply the specific to the issues in question (see Pretty v Solly (1859) 26 Beav 606). For lovers of Latin, the maxim is ‘generalia specialibus non derogant’. In the circumstances, section 66 was the applicable power.

However, the court would not say that section 80 could never be used to curtail a frontager right of highway access. Nor was Mr Cusak entitled to an injunction restraining the council from erecting forecourt barriers. Moreover, the council’s proposed action was found not to breach the convention right to peaceful enjoyment of possessions, since it sought to ­control use rather than achieve ­deprivation of possessions. Nevertheless, the court did grant ­permission to appeal.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors