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Cite as: [2001] ScotCS 231

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OUTER HOUSE, COURT OF SESSION

OPINION OF LORD MACKAY OF DRUMADOON

in Petition

CHARANJIT SINGH (AP)

Petitioner

for

Judicial Review of (i) a decision of the Secretary of State for the Home Department and (ii) a determination of a Special Adjudicator

________________

Petitioner: Bovey, Q.C., Collins; Lindsays

Respondent: O'Neill, Q.C.; H. MacDiarmid

10 October 2001

Introduction

[1] The petitioner is an Indian citizen. He was born on 10 November 1963. The petitioner left India in 1995 and travelled to the United Kingdom. In this petition for judicial review, the petitioner has set out his reasons for leaving India, claiming, amongst other things, that he was assaulted by members of a movement seeking an independent Khalistan and that he was threatened by the police in the Punjab.

[2] The petitioner entered the United Kingdom in July 1995. On 19 July 1995 he applied to the respondent, the Secretary of State for the Home Department, for leave to remain in the United Kingdom as a refugee. By letter dated 17 September 1997, that application was refused by the respondent. The petitioner appealed against the respondent's decision. On 21 November 1997, a Special Adjudicator considered the petitioner's appeal, at a hearing that took place in Glasgow. The Special Adjudicator refused the appeal. He announced his decision to that effect at the conclusion of the hearing. The Special Adjudicator's Determination, in respect of the appeal, was subsequently promulgated on 27 February 1998.

[3] In this petition, the petitioner seeks reduction of (i) the decision by the respondent, dated 17 September 1997, refusing the petitioner's application for asylum in the United Kingdom and (ii) the Determination of the Special Adjudicator, dated 27 February 1998, refusing the petitioner's appeal against that decision of the respondent.

[4] The petition came before me at a First Hearing. At that First Hearing, the submissions of parties focused on one issue, namely whether the Determination of the Special Adjudicator, Mr Frank Pieri, should be reduced on the ground that the Special Adjudicator had not been an "an independent and impartial tribunal established by law", when he heard and decided the petitioner's appeal.

Factual background

[5] Before turning to the legal issues, which arise for consideration, it is necessary to set out the factual background to the appointment of the Special Adjudicator, Mr Frank Pieri. Mr Pieri is a qualified lawyer, who is a member of the Faculty of Advocates in Scotland. Throughout the period, covering 21 November 1997, when the Special Adjudicator decided the petitioner's appeal, and 27 February 1998, when he issued his Determination, Mr Pieri was in private practise as an advocate. By letter dated 2 January 1997, the Lord Chancellor had offered Mr Pieri an appointment as a part-time Immigration Adjudicator. That letter contained a paragraph in the following terms:

"The appointment would initially be for a term of approximately one year made on the understanding that while the Lord Chancellor would normally hope to renew it upon its expiry, it will be understood that this cannot always be possible, and indeed there may be reasons sometimes for terminating an appointment before its expiry. If the Lord Chancellor decided to stand you down at any time, he would endeavour to give you reasonable notice but such notice might not be practicable in every case."

The letter went on to state that, subject to the availability of work, the Lord Chancellor hoped that Mr Pieri would be able to sit as an Immigration Adjudicator for between twenty and fifty days a year.

[6] A memorandum giving details of the conditions of service for part-time Immigration Adjudicators was enclosed with the letter. Certain paragraphs of that memorandum are of relevance.

"2. Qualifications

The primary qualification for appointment is the ability to conduct hearings and decide appeals impartially and in a judicial spirit. Legal qualifications are now essential and relevant legal experience is desirable.

......

5. Length of appointment

Appointments in the first instance are normally made for a period of one year, but thereafter may be renewed from time to time at the discretion of the Lord Chancellor for such periods as he may determine. This memorandum applies on appointment and re-appointment. Each appointment is made on the understanding that there is no legitimate entitlement to renewal upon its expiry. An appointment may be terminated at any time by one month's notice in writing on either side, without cause assigned. In addition, the Lord Chancellor reserves the right to suspend or terminate an appointment at any time if, in his opinion, the person appointed becomes unsuitable to perform the duties of the office by reason of inability, misbehaviour, or any other cause, or there is any likelihood that public confidence in his impartiality would be impaired. An Adjudicator should report it to the Lord Chancellor's Department at once if charged with any criminal offence. A copy of a letter from the Lord Chancellor to the Lord Chief Justice dated 19 July 1994 is attached and you are asked to note the contents.

......

8. Availability

The services of part-time Adjudicators are called upon as the need arises; their own commitments are borne in mind but they may at present be expected to do this work for an average of one day a week; in a few instances it may be possible to arrange consecutive sitting days. They may be called upon when necessary to hear appeals outside normal working hours. Like those doing other part-time judicial work, they are not normally permitted to do more than 50 days a year, including any other judicial work for the Lord Chancellor; some latitude is allowed in respect of those who are not in full-time employment.

......

11. An Adjudicator should not preside in circumstances which might give rise to doubt regarding his impartiality. Accordingly an Adjudicator should not preside at the hearing of a case if:

(1) he or she has any personal, professional or pecuniary interest in that case; or

2) any firm or business of which he or she is a member in any capacity, has such an interest.

In either of these eventualities, an Adjudicator should, at the earliest opportunity, make arrangements with the Clerk for the case to be heard before another Adjudicator.

...... "

The letter dated 19 July 1994, referred to in Paragraph 5, was written by the Lord Chancellor and set out his views on judicial conduct and his approach to issues of judicial misbehaviour.

[7] Mr Pieri accepted the Lord Chancellor's offer of an appointment. Later in January 1997 Mr Pieri was appointed as a part-time Immigration Adjudicator, for the period until 31 January 1998. On 4 September 1997, pursuant to Section 8(5) of the Asylum and Immigration Appeal Act 1993 and section 3(3) of the Asylum and Immigration Appeal Act 1993 and for the purposes of those sections, the Lord Chancellor also designated Mr Pieri as a Special Adjudicator, with effect from 8 October 1997 and until 31 January 1998. Mr Pieri's initial appointment as a part-time Immigration Adjudicator and Special Adjudicator accordingly covered the period during which he heard and decided the petitioner's appeal and issued the Determination, which the petitioner now seeks to reduce.

[8] During the hearing before me, some reference was also made to the terms of service upon which part-time Immigration Adjudicators and Special Adjudicators have been appointed since the end of December 1997. Accordingly it is appropriate that I should set out the details of certain of the changes to the terms of service that have been introduced since Mr Pieri refused the petitioner's appeal. By letter dated 19 December 1997, Mr Pieri was re-appointed as a part-time Immigration Adjudicator and Special Adjudicator for the period from 1 February 1998 until 31 January 2001. That letter of re-appointment contained a paragraph in similar terms to the paragraph that I have already quoted from the letter of 2 January 1997. The letter of re-appointment, dated 19 December 1997, also advised Mr Pieri that the Lord Chancellor reserved the right to suspend or terminate an appointment at any time, if, in his opinion, the person appointed became unsuitable to perform his duties by reason of inability, misconduct or any other cause. Enclosed with the letter of re-appointment was a revised Memorandum of Conditions of Service. That memorandum was in similar, albeit not identical, terms to the memorandum, which Mr Pieri received when he was first offered a part-time appointment by the Lord Chancellor.

[9] By letter dated 12 April 2000, headed "PART TIME JUDICIAL APPOINTMENTS", Mr Pieri and all other part-time Immigration Adjudicators and Special Adjudicators were advised that the Lord Chancellor had adopted a new policy and procedure for the part-time judicial appointments for which he was responsible. The letter stated that the new arrangements, which had been agreed between the Lord Chancellor and the Lord Chief Justice, were "to ensure the impartiality and independence of all part-time holders of judicial office in compliance with Article 6 of the European Convention on Human Rights". Mr Pieri was advised that these new arrangements would come into effect immediately. Mr Pieri was also informed that his current appointment had been extended for such period as would bring it to the maximum (renewable) period of five years. He was advised, in outline, of the grounds upon which decisions as to removal from appointment and the non-renewal of appointments would be taken.

[10] Subsequently, in a letter dated 29 August 2000, headed "PART-TIME TRIBUNAL APPOINTMENTS", Mr Pieri was informed that his appointment as a part-time Immigration Adjudicator/Special Adjudicator had been extended until 31 January 2005. A copy of the revised Terms and Conditions and Terms of Appointment for Part-Time Immigration Adjudicators was enclosed with the letter. Certain paragraphs of that document demonstrated significant changes from the terms and conditions upon which Mr Pieri was initially appointed and which applied to his appointment, on the date he refused the petitioner's appeal:

"DURATION OF APPOINTMENT

8. An appointment as a part-time Immigration Adjudicator is for a (renewable) period of five years.

RENEWAL OF APPOINTMENT

9. At the end of the initial five-year appointment, renewal for further successive periods of five years is automatic subject to the individual's agreement and the upper age limit unless a question of cause for non-renewal is raised, or the individual no longer satisfies the conditions or qualifications for appointment.

There are seven grounds for non-renewal:

(a) misbehaviour;

(b) incapacity;

(d) failure to comply with training requirements;

(e) sustained failure to observe the standards reasonably expected from a holder of such office;

(f) part of a reduction in numbers because of changes in operational requirements;

(g) part of a structural change to enable recruitment of new part-time Adjudicators.

10. All decisions not to renew on grounds (a) - (e) are taken by the Lord Chancellor with the concurrence of the Lord Chief Justice. Such decisions are taken following an investigation made at the request of the Lord Chancellor, conducted by a judge nominated by the Lord Chief Justice, in consultation with the Chief Adjudicator, who will report to the Lord Chancellor and the Lord Chief Justice.

All decisions not to renew on grounds (f) and (g) will be on a first in first out principle, and the decision to use such grounds and the extent to which they will be used will be taken by the Lord Chancellor with the concurrence of the Lord Chief Justice.

......

REMOVAL FROM OFFICE

25. The Lord Chancellor may if he thinks fit terminate the appointment of a part-time Immigration Adjudicator on specified grounds. There are five grounds for removal from appointment:

(a) Misbehaviour;

(b) incapacity;

(d) persistent failure to comply with sitting requirements (without good reason;) and

(e) sustained failure to observe the standards reasonably expected from a holder of such office.

26. All decisions to remove are taken by the Lord Chancellor with the concurrence of the Lord Chief Justice. Such decisions are taken following an investigation made at the request of the Lord Chancellor, conducted by a judge nominated by the Lord Chief Justice, in consultation with the Chief Adjudicator, who will report to the Lord Chancellor and the Lord Chief Justice.

...... "

Since 29 August 2000, Mr Pieri has held appointment as a full-time Immigration Adjudicator.

[11] Prior to the enactment of the Asylum and Immigrations Appeal Act 1993, there was no "in-country" right of appeal against a refusal of asylum by the Secretary of State for the Home Department. Such a right of appeal to a Special Adjudicator was created by the provisions of the 1993 Act. Section 8(5) of the 1993 Act gave the Lord Chancellor power to designate Immigration Adjudicators, appointed for the purposes of Part II of the Immigration Act 1971, as Special Adjudicators to hear such appeals. The statutory provisions permit such Special Adjudicators to hold full-time or part-time appointments.

The petitioner's submissions

[12] The submissions advanced by senior counsel for the petitioner were directed to the petitioner's third plea in law:

"3 The special adjudicator not being an independent and impartial tribunal established by law, and the petitioner being entitled to determination of his claim for asylum by such a tribunal as condescended upon, the decision of 21^st November 1997 and 27^th February 1998 should be reduced as craved."

[13] The submissions on behalf of the petitioner can be summarised thus. The petitioner was entitled to have his appeal against the respondent's decision of 17 September 1997 determined by an independent and impartial tribunal. That entitlement arose in three different ways: (a) at common law; (b) by reason of legitimate expectation and (c) by operation of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It was contended that each of these approaches towards identifying a legal basis for that entitlement, although free standing, informed and affected the others. The entitlement had not been met, because Mr Pieri, the Special Adjudicator, who heard and decided the petitioner's appeal on 21 November 1997, had not been an independent or an impartial tribunal.

The position at common law

[14] In opening his submissions, senior counsel for the petitioner relied on the factual background, which I have sought to summarise. He pointed out that Special Adjudicators, such as Mr Pieri, are referred to by the Lord Chancellor and his officials as being "judicial officers". In this regard, reference was made to a variety of official publications, which had been lodged as productions, dating back to the Report on Immigration Appeals of the Wilson Committee, dated August 1967 (Cmnd. 3387), through to "Fairer, faster and firmer", a White Paper presented to Parliament by the Home Secretary in July 1998, and "Review of Appeals", a Consultation Paper prepared and issued by the Home Office Immigration and Nationality Directorate and the Lord Chancellor's Department in the same month. Drawing upon the letters and memorandum, setting out the terms and conditions of the Mr Pieri's appointment as a Special Adjudicator, as at 21 November 1997, and the relevant statutory provisions, underpinning the appointment of Special Adjudicators, senior counsel submitted that Mr Pieri (a) did not enjoy any legal security of tenure, merely holding office at the pleasure of the Lord Chancellor until 31 January 1998, (b) did not enjoy any de facto security of tenure, in the absence of any independent review mechanism, which could be invoked in the event that the Lord Chancellor sought to remove him from office, (c) had no guarantee of a minimum number of days of engagement and, consequently, no guaranteed income from his appointment, (d) did not exercise any control over the dates upon which he was engaged to hear appeals or as to the location of such engagements and (e) was dependent upon the Government, in the form of the Lord Chancellor, for re-appointment, a decision as to which had been imminent, when Mr Pieri had heard and decided the petitioner's appeal.

[15] It was submitted, on behalf of the petitioner, that, viewed objectively, the situation in November 1997 had been such as to give rise to a lack of confidence that the Special Adjudicator was independent of the respondent, and the Government to which the respondent and the Lord Chancellor both belonged, and that he could constitute an independent and impartial tribunal. As far as the manner of the Special Adjudicator's appointment was concerned, in November 1997 it would have appeared that the duration and terms of the part-time appointment had lain entirely within the discretion of the Lord Chancellor. Indeed, viewed objectively, it would have appeared that had there been any complaint about Mr Pieri's work as a Special Adjudicator, the Lord Chancellor would have been the sole arbiter as to the merits of such a complaint, could have prevented Mr Pieri from being allocated any further work and could have terminated his appointment on one month's notice. Similarly, there had been objective grounds for concern about the fact that the Special Adjudicator was entirely dependent on the Lord Chancellor for re-appointment, when his current appointment expired. There had thus been legitimate grounds for concern that the Special Adjudicator had lacked the constitutional security to enable him to function as an independent and impartial tribunal. There had been an objective basis for concern that the Special Adjudicator was biased and would favour the respondent, who was a member of the Government, as was the Lord Chancellor. Counsel for the petitioner stressed that no specific complaints were made about the actual conduct of the Special Adjudicator. Nevertheless, the objectively based concerns, as to the position of the Special Adjudicator, that existed in November 1997 were such as to warrant examining whether there had been sufficient safeguards in place to meet those concerns about the existence of bias. He argued that there had not been.

[16] Counsel for the petitioner submitted that it was an unwritten norm of our common law that an individual has a right to an independent and impartial tribunal in deciding an appeal, such as the petitioner's appeal against the Home Secretary's refusal of his application for leave to remain in the United Kingdom. It was not merely by virtue of rights under the Convention (or indeed by virtue of "Convention rights", within the meaning of the Human Rights Act 1998,) that an individual was entitled to a tribunal which gives the appearance of being independent and impartial. Reference was made to Reference re: Territorial Court Act (N.W.T.), s.6(2) 152 D.L.R. (4^th) 132, Cameron v King and Others (1902) 10 S.L.T. 429, Mackay & Esselmount v Lord Advocate 1937 S.C. 860, Barrs v British Milk Marketing Board 1957 S.C. 72, Bradford v Mcleod 1986 S.L.T. 244, Starrs v Ruxton 2000 JC 208 and Clancy v Caird 2000 S.C. 441.

[17] Particular reliance was placed on the Opinion of Lord Justice Clerk Ross in Bradford v Mcleod, in which, at p. 247 F - H, the Lord Justice Clerk approved, as representing the law in Scotland, a passage from the Judgment of Eve J. in Law v Chartered Institute of Patent Agents [1919] 2 Ch. 276 at p 279 in the following terms:

"... if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists."

[18] Senior counsel for the petitioner also relied on In re Medicaments and Related Classes of Goods (No.2) [2001] 1 W.L.R. 700, in which, following the coming into force of the Human Rights Act 1998, the Court of Appeal in England had taken the opportunity to review the test for determining whether the decision of a court or tribunal should be set aside on account of apparent bias. That test had been laid down by the House of Lords in R v Gough [1993] AC 646, in terms which had attracted a measure of criticism in some Commonwealth countries. In its Judgment, the Court of Appeal defined "apparent bias" as describing the situation where circumstances exist which give rise to a reasonable apprehension that the judge may have been, or may be, biased. Having reviewed a variety of authorities and having taken into account the coming into force of the 1998 Act, the Court of Appeal held, in paragraph 85 of its Judgment, that the approach to be taken, when examining an allegation of apparent bias was as follows:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased."

Counsel argued that were such an approach to be applied in the present case, it would fall to be held that the Special Adjudicator was apparently biased. Counsel also stressed that, as Lord Goff had indicated in R v Gough (at page 760), the same test fell to be applied to all cases of apparent bias on the part of a person performing a judicial role, whether that person be a judge, a justice or a member of an inferior tribunal.

[19] Counsel for the respondent accepted that at common law the appropriate test for apparent bias is whether the circumstances might give rise to a suspicion of bias in the mind of a reasonable man. It was submitted, however, that the common law test required any such suspicion of bias to be founded on factors specific to the conduct of the case under scrutiny by the particular judge or other individual exercising a judicial function. The making of remarks indicative of having pre-judged a case or the failure to afford all parties an equal opportunity to present their submissions were offered as examples of conduct that could properly found a suspicion of bias. In the present case no specific allegations could or had been made against Mr Pieri himself. Indeed, the petitioner's submissions proceeded on the explicit understanding that Mr Pieri's conduct of the appeal had been free from any impropriety. All that could be said was that shortly after he had decided the petitioner's appeal, Mr Pieri had accepted a renewed appointment.

[20] Counsel for the respondent argued that the common law entitlement to a tribunal free from bias was only breached if it was possible to point to something specific to the instant case, as justifying the contention that the requirements of independence from the parties and impartiality were not being met. The common law test was not met in a case, such as the present, where what was being alleged was a general lack of structural (or institutional) independence or impartiality. In such cases, what was effectively being criticised were the statutory procedures, in terms of which a particular court or tribunal had been constituted or its judges or tribunal members had been appointed and could be removed from office. Counsel for the respondent submitted that if statutory provisions laid down a particular machinery for dispute resolution, and those provisions had been implemented, then, in the absence of any specific allegation as to the conduct of the particular judicial officer involved or as to him being affected by a specific conflict of interests, the common law test had no application. By reason of the doctrine of the sovereignty of Parliament, the common law test must be and always had been subordinate to statute. It was suggested that the decision in Gibbs v Ruxton 2000 JC 258 illustrated the point.

[21] The issue as to whether the common law entitles the petitioner to reduction of the Special Adjudicator's decision to refuse the appeal and of his Determination is by no means a straightforward one. As the respondent's counsel stressed during the course of his submissions, on the date when the Special Adjudicator decided the petitioner's appeal, he held a part-time appointment of one year's duration, that had been made entirely in accordance with the statutory regime laid down by Parliament. Furthermore, that appointment was subject to terms and conditions, laid down by the Lord Chancellor, which were entirely consistent with the provisions of that statutory regime. In my opinion, however, those considerations do not provide a complete answer to the submissions advanced on behalf the petitioner. Those considerations are not the only factors of relevance in the application of the test for apparent bias, as approved of in Bradford v MacLeod.

[22] There are, it is true, a number of other factors that point away from the existence of any suspicion of bias. The Special Adjudicator is a qualified lawyer. On the date when he decided the petitioner's appeal, he was subject to the rules of professional discipline of the Faculty of Advocates to which he belongs. His appointment had been made, as would any reappointment, by the Lord Chancellor, who holds a senior judicial position, in addition to his membership of the Government. The appointment may have been part-time, but the petitioner's workload was allocated to him by the Chief Immigration Adjudicator, who is independent of the Government and holds a full-time appointment. The Special Adjudicator was required to conduct the appeal in accordance with procedures, which were designed to ensure that the hearing was fair. He was bound, as a matter of law, to decline jurisdiction if the case was one in which he had any personal or professional interest. His decision in the appeal was one that was susceptible to review in this Court. All this, of course, is against the background that there was a complete absence of any factual circumstances, peculiar to the Special Adjudicator himself, which could have founded any suspicion of bias or impartiality on his part.

[23] Senior counsel for the petitioner submitted, however, that there were factors pointing in the opposite direction. When the Special Adjudicator was first offered appointment, he was informed that the appointment would initially be for a term of approximately one year. Accordingly, as at the date when Mr Pieri decided the petitioner's appeal, his appointment was a temporary one. Furthermore, the documentation made clear, that, for all practical purposes, Mr Pieri did not enjoy any security of tenure. The appointment was terminable at one month's notice, without any cause requiring to be assigned. Moreover, when the Special Adjudicator's appointment was made, it was made "on the understanding that while the Lord Chancellor would normally hope to renew it upon its expiry, it will be understood that this cannot always be possible". Those words clearly did not create any entitlement to re-appointment. Indeed, the memorandum enclosed with the letter of 2 January 1997 made clear that appointments were made on the understanding that there was no legitimate entitlement to renewal. The documentation was, however, capable of founding an expectation or hope on the Special Adjudicator's part that, when his initial period of appointment expired, he would be re-appointed for a further fixed period. In the event, by the date he issued his Determination, the Special Adjudicator had received a renewal of his part- time appointment for a period expiring on 31 January 2001. Senior counsel for the petitioner recognised, however, that in all these respects, the Special Adjudicator was in an identical position to all other part-time Special Adjudicators, who held office in November 1997. Having said that, there may well have been some such Special Adjudicators who had decided that they would not seek re-appointment, when their current appointments came to an end.

[24] For my part, I do not consider that in November 1997 there was any basis for a reasonable observer to have been concerned that the Lord Chancellor would have exercised his statutory responsibilities, vis-à-vis the Special Adjudicator or indeed any other part-time Special Adjudicator, in anything other that a responsible manner. The critical question is whether the circumstances in November 1997 were such as to be calculated to have created, in the mind of a reasonable and independent observer, a suspicion that when dealing with the petitioner's appeal, the Special Adjudicator might have been influenced by his hopes and fears about retaining and obtaining the renewal of his part-time appointment.

[25] As I have already indicated, Starrs v Ruxton was one of the authorities upon which counsel for the petitioner relied. In that case, the High Court of Justiciary held that temporary sheriffs, serving on renewable appointments of one year duration, that were recallable at any time by the Scottish Ministers, did not enjoy any security of tenure. The Court held that in such circumstances the Temporary Sheriffs were not "independent and impartial tribunals" within the meaning of Article 6(1) of the Convention. However, in the Opinions of the members of the Court, a number of observations are to be found which appear to me to be of relevance to the position at common law, in the present case. At p. 230 D, the Lord Justice Clerk, having stated that he regarded the system of one year appointments and the power to recall such appointments, as being incompatible with the independence and appearance of independence of Temporary Sheriffs, went on to say:

"I also accept that in this case there is a link between perceptions of independence and perceptions of impartiality, of the kind which had been categorised in Canada as institutional impartiality. I consider that there is a real risk that a well informed observer would think that a temporary sheriff might be influenced by his hopes and fears as to his prospective advancement."

Those observations were, of course, made in the absence of any suggestion that Secretaries of State or the Scottish Ministers had ever acted improperly in the making, renewal or recalling of the appointments of Temporary Sheriffs and of any allegation of impropriety directed against Temporary Sheriff Crowe, the Temporary Sheriff involved in the case. Lord Prosser indicated his agreement with the views expressed by the Lord Justice Clerk (p.231). Lord Reed, at pp. 253 A - 254 D, for his part, also touched on the issue of institutional impartiality, as a term used to address the issue of whether a judicial system is structured in such a way, at the institutional level, as to give rise to a reasonable perception that the judge may not be impartial.

[26] The decision of the High Court of Justiciary in Starrs v Ruxton was not appealed to the Judicial Committee of the Privy Council. Moreover in subsequent cases, before the Court of Session, the High Court of Justiciary and the Judicial Committee itself, the correctness of that decision has not been criticised, whether at the instance of the Scottish Ministers or the United Kingdom Government. Indeed, in Millar v Dickson 2001 SLT 989, which has been reported since the First Hearing before me, at para. [6] Lord Bingham of Cornhill records that the correctness of the decision in Starrs v Ruxton was not questioned by the Crown, before he quotes extensively from the Opinions of all three of the judges in Starrs v Ruxton. Furthermore, Lord Hope of Craighead's discussion of the common law authorities relating to impartiality, clearly supports the view that the decision in Starrs v Ruxton is consistent with such authorities:

"[65] The principle of the common law on which these cases depend is the need to preserve public confidence in the administration of justice: see Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759; R v Gough at {1993] 1 AC , p 661, per Lord Goff of Chievely. It is no answer for the judge to say that he is in fact impartial, that he abided by his judicial oath and there was a fair trial. The administration of justice must be preserved from any suspicion that a judge lacks independence or that he is not impartial. If there are grounds which would be sufficient to create in the mind of a reasonable man a doubt about the judge's impartiality, the inevitable result is that the judge is disqualified from taking any further part in the case."

[27] I accept that both Starrs v Ruxton and Millar v Dickson were primarily concerned with the issue of compliance with Article 6(1) of the Convention in the context of criminal cases. But neither in the Opinions in Starrs v Ruxton, nor since, has there been any suggestion that the system of appointing Temporary Sheriffs would have been acceptable if Temporary Sheriffs had been confined to civil cases. The passages from the Opinions of the Lord Justice Clerk and Lord Reed, to which I have referred, appear to me to be as relevant to the position at common law, in the present case, as they would be if the provisions of Article 6(1) are applicable to proceedings before a Special Adjudicator.

[28] In my opinion, if an independent and reasonable observer of the system to which Temporary Sheriffs were formerly appointed, could have thought that a Temporary Sheriff might be influenced by his hopes and fears as to his prospective judicial appointment(s), there is no reason in principle why an independent observer of the system of part-time Special Adjudicators, as it existed in November 1997, could not have taken the view that Mr Pieri might be similarly influenced. That is particularly so, when the cases with which Mr Pieri required to deal, in his capacity as a part-time Special Adjudicator, involved disputes between those seeking asylum in the United Kingdom, as refugees, on the one hand, and a member of the Government, namely the respondent, on the other. In my view, the type of case, which the holder of a part-time judicial or tribunal appointment is required to conduct, is a relevant factor in considering whether there exists a reasonable basis for a suspicion of partiality or bias on the part of the part-time judge or part-time tribunal member. As far as guarantees against bias are concerned, all that existed in the present case were the factors that the Special Adjudicator was a qualified lawyer, subject to the rules of professional discipline of his profession, and was bound to disqualify himself from any case in which he was affected by a conflict of interests. In my opinion, having regard to the guidance I consider that I should take from Starrs v Ruxton, those safeguards were not such as to necessarily exclude from the mind of a reasonable man a suspicion of bias - a suspicion founded upon the lack of any security of tenure for the Special Adjudicator, the renewable nature of his part-time appointment and the hope the Special Adjudicator had that his time-limited appointment would be renewed.

[29] The position would be the same if the test approved of in R v Gough and reviewed in In re Medicaments and Related Classes of Goods (No 2) was applied. In my opinion, in November 1997, the circumstances relating to the appointment, removal from office and renewal of appointment of Special Adjudicator were such as could have led a fair-minded and informed observer to have concluded that there was a real possibility or a real danger that the Special Adjudicator, in the present case, was biased.

[30] In reaching these views, I am conscious of the changes that the Lord Chancellor has made, since November 1997, to the terms of service of the holders of part-time judicial office. In addition to the correspondence, which I have mentioned and quoted from, I was referred to the contents of the Chapter 2 of the Annual Report of the Lord Chancellor on Judicial Appointments for 1999-2000. Paragraphs 2.15 of that report summarise those changes, which were implemented after a review of the terms of service of part-time judicial office holders in England and Wales, following upon the decision of the High Court of Justiciary in Starrs v Ruxton 2000 JC 208. The changes in the terms of service were applied to "all part-time appointments in the ordinary courts in England and Wales ... and the part-time judiciary who sit on tribunals or as adjudicators which fall within the scope of Article 6 and who have some form of limited appointment". Those changes, and, in particular, those relating to the length of appointments, renewal of appointments and removal from office may have been considered necessary to ensure compliance with the provisions of Article 6 of the Convention. In my opinion, they are also consistent with the view that the application of the common law test as to the existence of apparent bias on the part of the Special Adjudicator, as at November 1997, falls to be decided in favour of the petitioner.

[31] In the whole circumstances, therefore, I am satisfied that at common law, the petitioner is entitled to reduction of the Special Adjudicator's decision of 21 November 1997 to refuse the petitioner's appeal against the respondent's decision of 17 September 1997. It follows, automatically, that the petitioner is also entitled to reduction of the Special Adjudicator's Determination as promulgated on 28 February 1998.

Legitimate expectation

[32] Having regard to the views I have already expressed, it is unnecessary for me to reach any decisions on the second and third branches of the submissions advanced on behalf of the petitioner. I should, however, record in outline what was said under reference to each branch. Founding upon passages from the Judgment delivered by Lord Fraser of Tullybelton in Attorney-Genera of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, at pp. 636D - 638G and from the Judgment of Simon Brown L.J. in R v Devon County Council , ex parte Baker and another [1995] 1 All ER 73, at p.89 e-f, senior counsel for the petitioner argued that if the common law did not entitle the petitioner to reduction of the Special Adjudicator's decision, then the petitioner was nevertheless entitled to found on the Government's failure to have provided an independent and impartial tribunal to deal with his appeal against the respondent's refusal to grant him leave to remain in the United Kingdom as a refugee. It was submitted that such a system of review had been promised when the Government of the day had responded to the Report of the Wilson Committee and Parliament had enacted the Immigration Appeals Act 1989. Reference was made to paragraphs 83-84, 87, 93, 100, 105, 110, 141, 144 and 152-154 of the Wilson Report and passages in Hansard for Session 1968-69, HC Debates Volume 776 col. 490 and HL Debates Volume 1417 col 1418. It was argued that the petitioner had had a legitimate expectation that the Government would provide an independent and impartial appeal system, to deal with his appeal against the decision of the Home Secretary. Although the Consultation Paper: "Review of Appeals" was published after the petitioner's appeal had been refused, its contents were said to provide confirmation that the system of appeals, of which the Special Adjudicator had formed a part, had been intended to be independent of the Government and to act judicially. That was also clear from the decision of the Court of Appeal in Secretary of State for the Home Secretary v Jafar Danaie [1998] Imm AR 84, which is a decision dated 12 November 1997.

[33] In responding to those submissions, counsel for the respondent attacked this branch of the petitioner's case as incoherent and inspecific. The United Kingdom Government had introduced a statutory appeal structure to determine appeals against decisions in immigration and asylum cases. It had set up the Immigration Appellate Authority, which acts independently of the Government. Adjudicators and members of the Immigration Appeal Tribunal had been appointed. They hold and vacate office in accordance with the terms of their appointment. The precise terms of appointment had not been specified by statute. On the contrary, statute had provided that those terms of appointment were matters for determination by the Lord Chancellor. It could not be said, therefore, that as at November 1997 the petitioner could have had any legitimate expectation as to any particular terms of service of a part-time Special Adjudicator, whether as to the duration of his appointment, his removal from office or the possible renewal of his appointment.

[34] In my opinion, this branch of the petitioner's submissions adds nothing to the merits of his case. It is by no means clear to me what the petitioner was liable to have read or relied on, as he approached the hearing of his appeal against the respondent's decision to refuse him leave to remain in the United Kingdom. There are no pleadings, let alone is there any evidence, as to what the petitioner expected after he sought to appeal against the respondent's decision. But if one approaches the issue on a fairly broad basis, it appears very unlikely that any asylum seeker, who had followed the history of immigration and asylum law and practice since the publication of the Wilson Report and had kept himself abreast with the relevant legislation, from the 1969 Act onwards, would have understood that the Government had promised to introduced an appellate system different in any significant respect from that which was in fact in existence during November 1997. As far as the appellate system for asylum cases was concerned, that included a right of appeal to a Special Adjudicator and the right to seek judicial review of the Special Adjudicator's decision by this Court.

[35] In my opinion, the appellate system in existence satisfied what was recommended by the Wilson Committee, accepted by the Government, when responding to the Wilson Committee's Report, and subsequently promised by the Government, when the relevant legislation, including the 1969, 1971 and 1993 Acts, was enacted. In November 1997, Special Adjudicators were part of an appellate system independent of the Home Secretary and the Immigration Service, at least in the sense that the term "independent" was commonly used, until the enactment of the Human Rights Act 1998. Moreover, the petitioner did not point to any specific pronouncement made, or practice followed, prior to November 1997 that led him to hold any belief that his appeal would be dealt with any differently than by a part-time Special Adjudicator, such as Mr Pieri, and in accordance with a procedure, similar to that which was in fact followed. In these circumstances, the petition, insofar as it purports to proceed on the basis that the Respondent has acted illegally and to the prejudice of the petitioner, in failing to meet the petitioner's reasonable, albeit unspecified, expectations, adds nothing to the common law case, which has been pled.

Article 6 of the Convention

[36] Under this third branch of the petitioner's case, the principal question that was raised was whether, since the enactment of the Human Rights Act 1998, the provisions of Article 6(1) are applicable to claims for asylum. The petitioner argues that they are, the respondent that they are not. There is a body of authority that favours the respondent on this issue. As far as Strasbourg jurisprudence is concerned, the European Commission of Human Rights consistently rejected, as inadmissible, claims based on alleged breaches of Article 6(1) in asylum, expulsion and deportation proceedings. The Commission did so on the grounds that the Convention does not create any civil right to nationality or to a right of residence (see, e.g, Application 7729/76 Agee v United Kingdom 7 DR 164, para. 28, P v United Kingdom (1987) 54 D.R. 256 and Application 26373/95 Askar v United Kingdom, Admissibility decision of 16 October 1995, para. 2.) More recently, the European Court of Human Rights ("ECtHR") in Application 39652/98 Maaouia v France, Judgement of 5 October 2000, has held that proceedings for the expulsion of aliens are not included within the scope of Article 6(1) of the Convention. As counsel for the petitioners pointed out, the case concerned the rescission of an exclusion order, rather than a claim for refugee status. Moreover, in reaching its decision, the ECtHR founded on the existence of the provisions of Article 1 of Protocol 7 of the Convention, to which the United Kingdom is not a contracting party. Nevertheless, the decision in Maaouia v France is clearly of some assistance to the respondent.

[37] As far as domestic authority is concerned, in MNM v Secretary of State for the Home Department, 1 November 2000, an Immigration Appeal Tribunal, chaired by Collins J., held that Article 6(1) did not apply to asylum cases. In reaching their decision, the Immigration Appeal Tribunal relied on the decision in Maaouia v France, although as counsel for the petitioner pointed out, the Tribunal did not afford counsel the opportunity to make submissions on the detail of the ECtHR's Judgement. Nor in their own Judgment do they mention the fact that the ECtHR had founded its decision on the provisions of Article 1 of Protocol 7, as opposed to a distinction between private law rights and public law rights. For these reasons, the Immigration Appeal Tribunal's reliance on Maaouia renders its own decision of less assistance than it would otherwise have been. On the other hand, it appears that the Immigration Appeal Tribunal also took account of the Commission's decisions. To that extent their decision supports the respondent's position on this particular issue. Moreover, the petitioner's counsel was unable to cite any case in which either the Immigration Appeal Tribunal or a court of law in the United Kingdom has held that the provisions of Article 6(1) are now applicable to asylum proceedings before Special Adjudicators. Indeed, when reference is made to the views of textbook writers on the Human Rights Act 1998, the prevalent view would appear to be that Article 6(1) has no application to proceedings involving asylum and immigration (see, e.g., Human Rights Practice, Simors and Emmerson (Editors), para. 6.033, Human Rights: The 1998 Act and the European Convention, Grosz, Beatson and Duffy, para C6-18 (d) and The Law of Human Rights, Clayton and Tomlinson, para. 11.272)). In these circumstances, had it been necessary for me to decide the issue, I would have held that notwithstanding the coming into force of the provisions of the Human Rights Act 1969, Article 6(1) is not applicable to proceedings of the nature that the Special Adjudicator was conducting, when he refused the petitioner's appeal.

[38] That being so, a further argument advanced on behalf of the petitioner would have become redundant. That argument was to the effect that the provisions of section 6(1) of the Human Rights Act 1998 now placed on me, as a public authority, the duty to ensure that the Special Adjudicator had acted in a manner that had complied with the provisions of Article 6(1) of the Convention. That was so, notwithstanding the fact that the Special Adjudicator had dealt with the petitioner's appeal, long before the provisions of the 1998 Act came into force. Counsel for the petitioner submitted that the compatibility of the determination of the petitioner's claim for asylum with the provisions of Article 6(1) of the Convention required to be judged by reference to the proceedings as a whole. Those proceedings included not just the hearing before the Special Adjudicator, but also the judicial review that is before this Court. In the event, the Special Adjudicator had not been an "independent and impartial tribunal", within the meaning of Article 6(1). If the Court did not now act to cure that "failure", by reducing the Special Adjudicator's decision and remitting the petitioner's appeal for a rehearing, the proceedings as a whole would be incompatible with the petitioner's Convention rights under Article 6(1). As I have indicated, however, I need not express any view on this further argument advanced on behalf of the petitioner.

[39] For the reasons I have endeavoured to set out, I hold that the petitioner is entitled to reduction of the decision of the Special Adjudicator, dated 21 November 1997, refusing the petitioner's appeal against the decision of the respondent. It follows automatically, that the petitioner is also entitled to reduction of the Special Adjudicator's Determination of 27 February 1998. I accordingly sustain the petitioner's third plea in law and remit the petitioner's appeal against the respondent's decision of 17 September 1997 for a fresh hearing, before a different Special Adjudicator.

Postscript

[40] I should record, as a postscript, that during the hearing there was a tentative attempt on the part of the respondent's counsel to raise the issue of waiver. The argument mooted was that by failing to take any objection to his appeal being heard by Mr Pieri, before the appeal hearing actually began, the petitioner had waived any right to raise questions as to the lack of independence and impartiality of the part of Mr Pieri. As the issue of waiver had not been raised in the respondent's pleadings and was not in fact mentioned until the outset of the submissions of counsel for the respondent, I refused to allow that issue to be ventilated.