‘Apparent bias’ revisited in Jenrick case

The Times reported on 27 May: “The housing secretary unlawfully approved a property development of a billionaire tycoon who once donated to the Conservative Party.” The underlying facts, so far as they are known, are mundane. A company, Northern & Shell (NS) sought planning permission for the redevelopment of the Westferry Printworks by Canary Wharf to provide 1,500 homes. The local authority, Tower Hamlets Borough Council, failed to reach a decision on the application, and the failure was appealed to the Planning Inspectorate. It decided the appeal would be determined by the secretary of state. To resolve the appeal, a public enquiry was held, which resulted in a planning inspector’s report to the secretary of state recommending that the application be refused on the footing that it would damage views of Tower Bridge, and did not provide the maximum reasonable amount of affordable housing. Despite that report, in January the secretary of state, Robert Jenrick, decided the appeal in NS’s favour. He held that the inspector’s concerns were outweighed by the public benefits of the plans, including the overall provision of housing. There is nothing extraordinary about any of that: secretaries of state do sometimes, albeit rarely, go against their inspectors. But this is where it gets interesting. Tower Hamlets was suspicious: Jenrick’s decision in January was published the very day before Tower Hamlets approved a new rate for its community infrastructure levy, which would have increased NS’s financial liability by about £40m. As it happens, NS is also on record as a substantial donor to the Conservative Party. According to The Times, Tower Hamlets initiated legal action against Jenrick in March, alleging that the timing of the decision appeared to show bias. It asked the court to order the government to disclose all correspondence by Jenrick and government officials on the decision, which it argued could show he was influenced by a desire to help the developer save money. The secretary of state agreed that his decision should be quashed – on the footing that he had shown apparent bias in making it. The appearance of bias Ironically, the case which would have been determinative in establishing whether Jenrick was apparently biased was another concerning the propriety of a Conservative administration. In Fetherstonhaugh’s early years of practice, and Crampin’s early years of political consciousness, we were all gripped by the unfolding tale of gerrymandering in Westminster City Council. The leader of the council, Dame Shirley Porter, had instituted a secret policy to ensure the re-election of her party by giving priority in marginal wards to various council services, including the right to buy council properties. In what came to be known as the “homes for votes” case, the district auditor intervened, declared the policy had been unlawful, and ordered Lady Porter and others to pay the costs. The auditor’s conclusions were challenged, principally on the ground that he had been biased. The case ultimately went up to the House of Lords, which upheld the auditor: see Porter v Magill [2002] 2 AC 357. The decision is important for its restatement of the test for apparent bias: having first ascertained all the circumstances which have a bearing on the suggestion there was bias, the court must then ask whether those circumstances would lead a fair-minded and informed observer to conclude there was a real possibility the tribunal was biased. Why does any of this matter? Because it is fundamental that citizens should be able to place trust in the fairness of their dispute resolution processes. One of our foremost jurists, Lord Justice Mummery, put it in these words in a case in which a judge was forced to recuse himself, AWG Group Ltd (formerly Anglian Water plc) v Morrison [2006] EWCA Civ 6: “The paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.” The legal system for these purposes embraces arbitration, very probably expert determination, and perhaps, though with some tension, party wall surveyors exercising their quasi-judicial role. For many years now, the guidance notes for arbitrators and independent experts in commercial property rent reviews have stressed the fundamental requirement that third parties be impartial and disclose potential conflicts of interest, while the forthcoming second edition of the RICS guidance note Conflicts of interest for members acting as dispute resolvers will be at pains to deal with the different situations in which an appointee should tread carefully. Had Jenrick consulted the first edition of that guidance note, he would have learned that NS’s past relationship with his party triggered a serious potential conflict. Done, and seen to be done An illuminating exposition of the genesis of these rules was provided earlier in May by Judge Paul Matthews in Brake v Swift [2020] EWHC 1156 (Ch). He drew attention to the two overlapping principles which govern the administration of justice in this respect. The first, enunciated in 1852, is that no one should be a judge in his own cause. The second is that justice should not only be done, but also must be manifestly and undoubtedly be seen to be done. As the judge said, the law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge’s state of mind, while the latter is objective, and deals with the judge’s conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done – as Jenrick has belatedly been forced to recognise. Guy Fetherstonhaugh QC and Cecily Crampin are members of Falcon Chambers