The importance of decision-makers acting in a judicial or
quasi-judicial capacity has been a cornerstone of administrative law from at
least the late nineteenth century. In terms of judges such cases as Locabail (UK) Ltd v Bayfield Properties Ltd
& Anor  1 QB 451,  EWCA Civ 3004,  1 QB 451 and Magill v Weeks (otherwise Porter v Magill)  UKHL 67,  2 AC 357, 
2 WLR 37 stress the point. The Court of Appeal dealt with the
question only last week in Otkritie International Investment
Management & Ors v Urumov  EWCA Civ 1315, where Longmore LJ said:
' It is a basic principle of
English law that a judge should not sit to hear a case in which "the
fair-minded and informed observer, having considered the facts, would conclude
that there was a real possibility that [he] was biased" (Porter v Magill  2 AC 357 para  per Lord
Hope of Craighead) ... The concept of bias includes any personal interest in the
case or friendship with the participants, but extends further to any real
possibility that a judge would approach a case with a closed mind or, indeed,
with anything other than an objective view; a real possibility in other words
that he might in some way have "pre-judged" the case.'
The common law asserts the importance of impartiality in the
context of inquiries. The law can be said to be represented by Inquiries Act
2005, s 9 (and the Home Secretary accepts that this applies to non-statutory
inquires: see eg letter drafted by her officials https://childsexualabuseinquiry.independent.gov.uk/wp-content/uploads/2014/10/Letter-to-the-Home-Secretary.pdf
9 Requirement of impartiality
(1) The Minister must not appoint a person as a member
of the inquiry panel if it appears to the Minister that the person has —
(a) a direct interest in the matters to which the
inquiry relates, or
(b) a close association with an interested party,
unless, despite the person's interest or association,
his appointment could not reasonably be regarded as affecting the impartiality
of the inquiry panel.
(2) Before a person is appointed as a member of an
inquiry panel he must notify the Minister of any matters that, having regard to
subsection (1), could affect his eligibility for appointment.
If a party to litigation wishes to challenge the ‘bias’ of a
judge, application is made in the proceedings. How does a person interested in
the appointment of an inquiry chair or panel challenge the appointment
decision? In R (ota Howard and anor) v
Secretary of State for Health  EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State
for Environment, Food and Rural Affairs  EWHC 371 (Admin), Divisional
Court (Simon Brown LJ and Scott Baker J) applicants sought review of decisions
to hold a private, not public, inquiry. In each case the challenge was based on
the rights to freedom of expression under Art 10 (not as here under fairness
where bias may apply: European Convention 1950 Art 6(1)); and both applications
That both applications achieved a full hearing suggest that
judicial review was the appropriate forum for such a challenge.
In very broad terms, an inquiry can be under Inquiries Act
2005 or non-statutory. The 2005 Act gives defined powers to the inquiry panel,
for example to take evidence on oath (s 17(2)). The powers and duties of a
statutory inquiry are not so clear.
This inquiry has eight members as well as its chair. But is
the Home Secretary clear as to the difference between a judicial
decision-making process (which at root is the object of an inquiry) and
evidence to an inquiry: experts and lay evidence. For example Inquiries Act
2005, s 11 empowers a minister to appoint assessors. It is not clear that one or
two of the panel members are unengaged personally with the issues involved in
the inquiry; though they might be eminently appropriate as witnesses or
The Home Secretary might think a single family
law specialist High Court or Court of Appeal judge could more appropriately
take on chairmanship of this inquiry.
David Burrows acts for a survivor who has issued
a judicial review application in respect of the inquiry.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.