You may not be making a multi-million pound bid for a licence to operate your business, but you are entitled to have Government officials exercise their discretion and decision-making in an open and fair manner.

So how would you challenge a decision by a Minister, local authority officer or some other Public body that directly affects you?

People can challenge Public law decisions (such as a local authority etc grant of a licence or planning permission) by a complaint to the Local Government Ombudsman and ask them to investigate the refusal as a complaint – or they might ask the High Court to judicially review the decision.

Administrative law, and the grounds for bringing a successful complaint, are complicated – but there is a free resource that can set you on your way to deciding whether you want to pursue your case.

The “Judge Over Your Shoulder” is written in accessible English for lay-people – and will guide you through whether you have standing to bring a case, the grounds of review, possible remedies and judicial review procedure and time limits.

Bias

Now, and hypothetically, if an applicant discovered that a Minister or local authority officer had texted a rival applicant, congratulating him on receiving first stage clearance and stating “Just [my decision] to go!”, one might wonder if a subsequent decision made by said texting government officer might be improper on the basis of bias.

A texting relationship between a government officer and the owner of a company making a licence bid may give rise to a suspicion of bias because justice must not only be done – it has to be seen to be done.

So if a decision-maker is pre-disposed against (or in favour) of a person’s application, for reasons unconnected with the merits of that application, that decision-maker’s involvement might invalidate that decision.

Direct bias

For example, if an officer has a financial interest in an outcome, as, let’s say, as an investor, then a presumption of direct bias would arise and that officer would be automatically disqualified from acting as decision-maker in that case.

Further, a decision-maker cannot be a “judge in his own cause” as Lord Hoffman was determined to be in the Pinochet case – despite there being no evidence he was actually biased against Pinochet. That Lord Hoffman “had an interest in the outcome of the proceedings” by way of his relationship with Amnesty International was enough to disqualify him from being a decision-maker in Pinochet’s case and for the court to order a fresh hearing.

Indirect bias

Alternatively, even where there is no direct link to an interest in the outcome of a case, because justice must be seen to be done, a texting close relationship may give rise to apparent bias. In the “homes for votes” case of Porter v Magill, the House of Lords said the test for apparent bias is whether:

“a fair minded and informed observer, having considered the facts, would concluded there was a real possibility that the tribunal was biased”

In a hypothetical close texting (such as the above) relationship between licence-granter and licence-bidder, an objective observer might reasonably consider that the decision-maker might seek to protect the interests of a friend – and thus be biased. If such a case were to be judicially reviewed, it’s highly likely the judge would send it back to be re-determined by a new decision-maker.

What next?

Ministers, local authority officers and Public bodies need to be mindful that there’s a judge looking over their shoulder – and that their decision-making can be subject to scrutiny.

Government decisions can be reviewed by the Ombudsman and the Court.

As always, think very carefully and get independent legal advice before starting court proceedings – or indeed, before making any accusations of impropriety.

NB

Apropos nothing, John Prescott’s just tweeted:

“You know you’re finished when they do jokes about you deleting texts on a #Jubilee broadcast to a world audience of billions!”