Porter v Magill

Facts

In the mid-1980s Westminster City Council, led by Dame Shirley Porter, pursued a policy of selling council homes in electorally marginal wards with the aim of improving the electoral prospects of the party in control. The district auditor, John Magill, concluded that the policy was adopted for an improper party political purpose, found wilful misconduct by Dame Shirley Porter and another senior councillor, David Weeks, and certified that they were liable to surcharge for the resulting loss to the council. Before reaching his final decision the auditor announced his provisional findings at a press conference. The councillors challenged the findings, including on the ground that the auditor was biased.

Issue

What test applies to apparent bias in English law, and whether the auditor was disqualified by the way he had announced and pursued his provisional findings.

Held

The challenge based on apparent bias failed. The auditor was not disqualified, and the House restated the test for apparent bias.

Ratio

• The test for apparent bias is whether, having considered the relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the decision-maker was biased.
• Announcing provisional views, while making clear that they are provisional and that representations will be heard, does not show a closed mind, and does not disqualify a decision-maker who has statutory functions that involve investigating and then deciding.

The judgments

Key reasoning

• The earlier formulation in R v Gough [1993] AC 646 had been criticised as appearing to depend on the court's own assessment of whether bias was likely, and as inconsistent with the objective test applied in Strasbourg; substituting real possibility for real danger removed the appearance of divergence, and the House considered that the difference in practice was slight.
• The court must first identify all the circumstances which have a bearing on the suggestion of bias, and then ask what a fair-minded and informed observer would make of them; the observer is not hypersensitive or unduly suspicious.
• The auditor's statutory role combined investigation, the formation of provisional views and a final decision after hearing representations, and forming and announcing provisional conclusions is a normal part of such a process; the way he had expressed himself conveyed that the views were provisional and that he would listen.

Where it fits in the module

On the FHS Administrative Law list as a starred case within the study of procedural fairness, although the listed topic is closed proceedings and special advocates. The case supplies the test for apparent bias and prejudgment, the impartiality limb of fair procedures: an objective observer, a real possibility, and a distinction between a provisional view and a closed mind. It is useful for asking whether the standard of impartiality differs between courts and administrative decision-makers who combine investigation and decision, and for the interplay of the common law with Article 6 of the European Convention. It can be set beside Pinochet (No 2) [2000] 1 AC 119 on automatic disqualification and Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, and the same concern with how fairness appears to an observer runs through the debates on closed material proceedings.

Criticisms

• Replacing real danger with real possibility is a change of wording that has no demonstrable effect on outcomes, so the test remains indeterminate about how likely bias must appear, and the fair-minded and informed observer is a legal construct whose knowledge and reactions the court itself defines.
• Accepting that a statutory officer may investigate, announce provisional findings and then decide applies a lenient view of impartiality, in tension with the principle that no one should be judge in their own cause.
• Publicity given to provisional findings at a press conference carries a risk of anchoring the decision-maker to his stated view, a risk which the focus on whether the observer would see an open mind does not capture.