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Cite as: [2003] ScotCS 342
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Singh v. Secretary of State for the Home Department [2003] ScotCS 342 (24 December 2003)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Kirkwood Lord Weir
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P114/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in RECLAIMING MOTION in PETITION and ANSWERS in the cause CHARANJIT SINGH (A.P.) Petitioner and Respondent; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent and Reclaimer: for JUDICIAL REVIEW _______ |
Act: Bovey, Q.C., Collins; Lindsays, W.S. (for Gray & Co., Solicitors, Glasgow) (Petitioner and Respondent)
Alt: Davidson, Q.C., Lindsay; H. Macdiarmid (Respondent and Reclaimer)
24 December 2003
[1] The petitioner, who was born on 10 November 1963, is an Indian citizen, and is married with three children. In 1995 he left India and in July 1995 he entered the United Kingdom. In his petition for judicial review he sets out the circumstances in which he left India. He avers inter alia that he was assaulted by members from one of the movements for an independent Khalistan and that he was also threatened by the police in the Punjab. On or about 19 July 1995 the petitioner applied for leave to remain in the United Kingdom as a refugee. By letter dated 17 September 1997 his application was refused by the Secretary of State for the Home Department (hereinafter referred to as "the respondent"). The petitioner appealed against the respondent's decision. The appeal was heard in Glasgow on 21 November 1997 by a special adjudicator who, at the conclusion of the hearing, announced that the appeal was refused. The special adjudicator's written decision was issued on 27 February 1998. [2] In the petition the petitioner seeks reduction of (1) the decision by the respondent dated 17 September 1997 refusing the petitioner's application for asylum in the United Kingdom and (2) the determination of the special adjudicator dated 27 February 1998 refusing the petitioner's appeal against that decision. [3] The petition came before the Lord Ordinary at a first hearing, and the submissions of the 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 constituted an "independent and impartial tribunal" when he heard and decided the petitioner's appeal.[4] The factual background relating to the appointment of the special adjudicator, and his conditions of service, were not in dispute. Mr. Pieri is a qualified lawyer and a member of the Faculty of Advocates. Throughout the period when he considered and determined the petitioner's appeal, namely from 21 November 1997 to 27 February 1998, he was in private practice as an advocate.
[5] 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 parts 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. ...
......
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 ... Like those doing other part-time judicial work, they are not normally permitted to do more than 50 days a year ...
......
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.
...... "
[8] 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. However, since his re-appointment changes have been made to the terms of service upon which part-time immigration adjudicators and special adjudicators are appointed. 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. He 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.
[9] 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 and 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;
(c) persistent failure to comply with sitting requirements (without good reason);
(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. ...
......
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;
(c) failure to comply with training requirements;
(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. ... ".
Since 29 August 2000 Mr. Pieri has held appointment as a full-time immigration adjudicator.
[10] The right of appeal to a special adjudicator against a refusal of asylum by the respondent 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.[11] The submissions which were made to the Lord Ordinary on behalf of the petitioner were directed to the petitioner's third plea-in-law which is in the following terms:
"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 21st November 1997 and 27th February 1998 should be reduced as craved."
[13] In his Opinion, the Lord Ordinary sets out the submissions which were made to him by the parties in relation to the common law issue, and there is no need for us to rehearse them. In reaching his decision the Lord Ordinary referred to the fact that, at the time when the special adjudicator decided the petitioner's appeal, he held a part-time appointment of one year's duration. The Lord Ordinary stated that the critical question was 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. The Lord Ordinary referred to the case of Starrs v. Ruxton 2000 JC 208 where it was 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, and that in such circumstances a temporary sheriff was not an "independent and impartial tribunal" within the meaning of Article 6(1) of the Convention. The Lord Ordinary accepted that the case of Starrs v. Ruxton was primarily concerned with the issue of compliance with Article 6(1) in the context of criminal cases, but stated that there had been no suggestion in the opinions in that case, or since, that the system of appointing temporary sheriffs would have been acceptable if temporary sheriffs had been confined to civil cases.
[14] The Lord Ordinary went on to make the following observations:
"[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."
[16] On the whole matter the Lord Ordinary pronounced an interlocutor dated 10 October 2001 in which he reduced (one) the decision of the Secretary of State for the Home Department dated 17 September 1997 and (two) the determination of the special adjudicator dated 27 February 1998, and remitted the petitioner's appeal against the respondent's decision of 17 September 1997 to a different special adjudicator for a fresh hearing.
[17] Before us, the submissions which were made on behalf of the parties were confined to the Lord Ordinary's decision that the petitioner was entitled, at common law, to reduction of the decision of the special adjudicator. There was no personal criticism of Mr. Pieri or of the way in which he had conducted the hearing of the appeal. In particular, it was common ground that he had not displayed any bias or partiality.
[18] Counsel for the respondent and reclaimer accepted at the outset that, at common law, the petitioner was entitled to have his appeal against the respondent's decision to refuse his application for asylum heard and determined by an independent and impartial tribunal. Counsel advanced two principal submissions. In the first place, it was submitted that the Lord Ordinary had misunderstood and misapplied the common law test. If he had properly understood and applied it, he would have found in favour of the respondent. In the second place, it was submitted that the Lord Ordinary had failed to have regard to the relevant primary legislation which had created the structure which included immigration adjudicators and special adjudicators, and the effect which the legislation had on the application of the common law test for apparent bias.
[19] With regard to the first submission, the test of the reasonable man in relation to apparent bias was set out in Bradford v. McLeod 1986 S.L.T. 244, and in Porter v. Magill [2002] 2 A.C. 537 the House of Lords held that, at common law, the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. However, the common law focuses on the conduct and the impartiality of the particular judicial officer involved. In the present case there was no suggestion that the special adjudicator had not conducted the hearing fairly or that he had displayed any lack of impartiality. Any suspicion of bias had to be founded on factors specific to the particular administrative decision-maker. There was no reported case in Scotland where a decision had been overturned, at common law, on the basis of a lack of independence alone. The Lord Ordinary had erred in holding that the common law test for apparent bias, in relation to an administrative decision, was met where there was an alleged lack of structural or institutional independence. In the circumstances of this case, which related to an administrative decision taken in 1997, the common law test had to be applied from a pre-Convention perspective. In a case of this nature, the pre-Convention and the post-Convention perspectives were not the same. Over the years society changes, the common law develops and perceptions alter. Prior to the introduction of the Convention the reasonable observer would have been content to accept the system which was in place. He would have focused on the actions of the decision-maker. At common law the terms and conditions of employment of the decision-maker would not have had any relevance. Prior to the Convention there had never been any challenge at common law broadly on the grounds advanced in Starrs. Since the Convention came into force, the common law test had effectively remained the same, but there had been a change in the way it has been applied. In the present case the court had to shut its eyes to the Convention and how it had developed. Reference was made to R. v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, Hoekstra v. H.M. Advocate 2000 S.C.C.R. 367 and MacFarlane v. Gilchrist 2002 S.C.C.R. 333. However, senior counsel for the respondent accepted that there was a close link between impartiality and independence, and he also conceded that, if the common law test had to be applied in what he described as the post-Convention world, then he would be in difficulties.
[20] The Lord Ordinary had relied on the decision in Starrs v. Ruxton, but he had erred in stating that passages from the Opinion of the Lord Justice Clerk and Lord Reed were as relevant to the position at common law, in the present case, as they would be if the provisions of Article 6(1) were applicable to the proceedings before a special adjudicator. Counsel stated that the case of Starrs could readily be distinguished. First, it related to the application of Article 6(1) of the Convention, and not to the common law test. Secondly, in Starrs the trial had not yet taken place, whereas in the present case the proceedings were over and the way in which they had been conducted could be ascertained. Thirdly, there were considerable differences in fact between Starrs, which involved criminal proceedings, and the present case which involved an administrative decision. Further, the special adjudicator had been appointed by the Lord Chancellor and not by the Home Secretary, although counsel accepted that they were both members of the Government. There were significant differences between the position of a special adjudicator and that of a temporary sheriff. In the particular circumstances of this case the fair-minded and informed observer, having considered the facts, would not have concluded that there was a real possibility that the special adjudicator was biased.
[21] In relation to their second principal submission, counsel for the respondent and reclaimer contended that the Lord Ordinary had failed to consider what effect the relevant primary legislation had on the application of the common law test for apparent bias. He should have held that, by reason of the sovereignty of Parliament, the common law test for apparent bias was subordinate to the terms of the applicable primary legislation, which was section 8(5) of the Asylum and Immigration Appeals Act 1993. Where primary legislation specified particular procedures for the taking of administrative decisions, and those procedures had been properly implemented, then in the absence of any particular allegations relating to the conduct of the administrative decision-maker, the common law test for apparent bias had no application. In the present case, as the primary legislation provided for the appointment of part-time special adjudicators, any common law rules to the contrary were displaced and could not affect the legality of the decision under review. Reference was made to Clancy v. Caird 2000 S.C. 441. In this case the terms and conditions on which the special adjudicator was employed were consistent with the relevant statutory provisions. It was for the Lord Chancellor to determine the period of a special adjudicator's employment. It was, however, accepted that the second submission was not a free-standing argument and that, if the respondent's first submission in relation to the test to be applied at common law, and how it fell to be applied, was not accepted by the court, then the argument relating to the effect of the relevant primary legislation would not enable the respondent to succeed in the reclaiming motion. On the whole matter the reclaiming motion should be allowed and the interlocutor of the Lord Ordinary recalled.
[22] Counsel for the petitioner invited us to adhere to the interlocutor of the Lord Ordinary. It had been conceded by the respondent and reclaimer that the petitioner was entitled, at common law, to have his appeal heard and determined by an independent and impartial tribunal. The Lord Ordinary (in para. [24]) had correctly identified the critical question in this case, namely, 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 contract. The answer to that question involved a consideration of all the relevant circumstances, including those which were personal to the special adjudicator and related to this particular appeal, and also systemic factors which were common to other part-time special adjudicators. The special adjudicator's lack of security of tenure, the renewable nature of his appointment and his aspirations to such renewal were all relevant factors to be taken into account. The requirements of the common law are not cut down by referring to the special adjudicator simply as a "decision-maker", because his function was essentially a judicial one. He was deciding a dispute between parties on matters of fact and law.
[23] Counsel submitted that there was no difference in principle between the common law right to an independent and impartial tribunal and the corresponding right under Article 6(1) of the Convention. The objective of each is the same, namely to preserve public confidence in the administration of justice. The concepts of impartiality and independence were closely linked (Millar v. Dickson 2002 SC (PC) 30 per Lord Clyde at para. [80]). It was wrong to suggest that the Convention standard was now higher than the common law standard. However, in applying the common law test, it was present day standards, not the standards or perceptions which existed in 1997, which fell to be applied (Boncza-Tomazewski v. H.M. Advocate 2000 J.C. 589 per the Lord Justice General (Rodger) at page 589). The court's analysis in Starrs was, as the Lord Ordinary rightly observed, equally applicable to the common law test, and this was in accordance with the Strasbourg jurisprudence which has applied the principle which has for long been enshrined in Scots law. While the respondent had sought to distinguish Starrs, there were no proper grounds for doing so. It was not the correct approach to look back to 1997 and ignore the problems relating to temporary sheriffs which had arisen in that case. The common law had developed in this field as it had in other respects. While it had been suggested that, prior to the coming into force of the Convention, there had been no case where a systematic objection had been advanced, the situation was that where an important common law principle existed, the lack of authority had never prevented the court from giving effect to that principle. In Lawal v. Northern Spirit Limited [2003] ICR 856 the House of Lords upheld a systemic challenge at common law in the context of a statutory tribunal. Reference was also made to Barrs v. British Wool Marketing Board 1957 S.C. 72, Attorney General v. Times Newspapers [1990] AC 109, H.M. Advocate v. Montgomery 1999 S.C.C.R. 959, Porter v. Magill, supra, Davidson v. Scottish Ministers 2003 S.C. 103, Delcourt v. Belgium (1970) 1 EHRR 355 and Borgers v. Belgium (1991) 15 E.H.R.R. 92. In applying the common law test, systemic issues were relevant. It was important to recognise that the degree of independence could affect the perception of impartiality. Indeed, it could be said that independence is the corner-stone of judicial impartiality. The petitioner's criticisms related, not to the appointment of the special adjudicator by the executive, but to the fact that, after appointment, he was dependent on the executive. If there was a lack of proper independence, or a perception of such a lack, there would be a perception of bias or partiality.
[24] In this case the special adjudicator heard the petitioner's appeal near the end of his initial period of appointment which was only for one year, although his appointment was renewable. He had been appointed by the Lord Chancellor, and the respondent in the petitioner's appeal was the Secretary of State for the Home Department, both of whom were members of the government. In the circumstances the reasonable observer would have a legitimate concern that the special adjudicator would be seeking to have his appointment renewed, and that there was a real possibility that he would subconsciously fear that, if he decided a case against the Government, then his appointment would not be renewed. It was significant that since 1997 there had been a substantial improvement in the security of tenure of special adjudicators.
[25] With regard to the respondent's second principal argument, counsel submitted that the petitioner's right to an independent and impartial tribunal was a fundamental one, and it could only be taken away by a clear and unambiguous statutory provision, or by necessary implication (R. v. Secretary of State for the Home Department, ex parte Simms, [2000] 2 AC 115, R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2003] 1 AC 563 per Lord Hoffmann at para. 8). In this case, the petitioner's right was not excluded by statute. The fact that the special adjudicator held an appointment within the statutory framework, and used powers derived from the statute, did not have the effect of depriving the petitioner of his right to an independent and impartial tribunal. It was significant that, without any change in the statutory provisions, special adjudicators had, since the hearing in 1997, been given substantially increased security of tenure. On the whole matter the reclaiming motion should be refused.
Decision
[26] The submissions which were made to us in the course of the reclaiming motion were confined to the application of the common law test for apparent bias, it being accepted that Article 6(1) of the Convention did not apply as the Convention was not in force at the time of the hearing of the petitioner's appeal.[27] There is no suggestion in this case of actual bias on the part of the special adjudicator. The issue is whether there was, in the view of the fair-minded and informed observer, a real likelihood of unconscious bias on the part of the special adjudicator. Parties were agreed that the proper approach was to begin by identifying the circumstances which were said to give rise to the apparent bias and then apply the common law test. The facts of the case are not in dispute and are set out in full in the Lord Ordinary's opinion.
[28] It was common ground that the petitioner was entitled at common law to have his claim for asylum heard by an independent and impartial tribunal. In Scotland it is a long-established principle that justice should not only be done, but should also be seen to be done. That assumes the presence of an observer, and the idea that the observer may be concerned about the possibility of a lack of independence is not new. The principle of the common law, which has long recognised the requirement for a tribunal to be both independent and impartial, is based on the need to preserve public confidence in the administration of justice.
[29] In Bradford v. McLeod 1986 S.L.T. 244 the Lord Justice Clerk (Ross), after referring to the above principle, made the following observations (at page 247):
"This principle which applies to criminal trials also applies to persons performing judicial duties in a domestic forum. The rule was well expressed by Eve J. in Law v. Chartered Institute of Patent Agents at p. 289 where he said: 'Each member of the council in adjudicating on a complaint thereunder is performing a judicial duty, and he must bring to the discharge of that duty an unbiassed and impartial mind. If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty,. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), 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 exits.' That dictum, in my opinion, also represents the law in Scotland upon this matter."
"Freedom from bias may be analysed into distinct considerations of structural independence and objective impartiality, but the two concepts are closely linked and it may be sufficient to speak simply of independence. Judicial independence is of fundamental constitutional importance. It is an indispensable condition for the preservation of the rule of law. It is a principle which has been stoutly protected by the Scottish judges for centuries (Mitchell, Constitutional Law, 2nd edition, 1968)".
It is, in our view, clear that for very many years, and long before the introduction of the Convention, the common law, through the concept of the independent observer, has been concerned with the independence of a tribunal, with its close link to the issue of impartiality. It has not been restricted to consideration of the personal conduct of the decision-maker, but could take into account any lack of independence which was established, and which was such as to give rise, in the mind of the observer, to the real possibility that the tribunal was biased.
[31] In this case, as we understood the submissions, parties were content to adopt the common law test set out in Porter v. Magill [2002] 2 A.C. 537 (at para. [103]), namely, whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. That test, which involved a very minor modification of the test set out in R. v. Gough [1993] AC 646, was recently applied by the Appellate Committee of the House of Lords in Lawal v. Northern Spirit Limited, supra. Lord Steyn, who presented the report of the Appellate Committee, made the following observations (at para. 14):
"In the result there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context ... Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson (2000) 200 C.L.R. 488, 509, at para. 53, by Kirby J. when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'".
[33] As we have said, the principal dispute between the parties related to when, and on what basis, the common law test of apparent bias fell to be applied. For the respondent, it was contended that it fell to be applied as at November 1997 and on the basis of the facts and perceptions which existed in 1997, without reference to any later Convention law or subsequent development of the common law. In particular, the argument was that a fair-minded and informed observer would have been content to accept the special adjudicator's employment position, and lack of security of tenure, in 1997, but that, after the introduction of the Convention, the public perception of acceptable standards changed and the special adjudicator's lack of security of tenure may well have become unacceptable. For the petitioner it was submitted that present-day standards of public perception had to be applied, and the post-Convention developments in relation to the issue of perceived bias of tribunals could not be ignored.
[34] In the particular circumstances of this case, when consideration is being given to the view of the fair-minded and informed observer in relation to the hearing of the petitioner's appeal, the common law test for apparent bias falls, in our opinion, to be applied as at the date of the hearing, and in light of the factual circumstances which existed at that time. The question must be whether the observer would have concluded that there was a real possibility that that particular tribunal was biased when the hearing took place. In this connection we agree with the observation of Lord Clarke in Rimmer, Petitioner 2002 S.C.C.R. 1 at page 16 that the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seised of the case.
[35] The second matter principally in dispute is the basis on which the test fell to be applied, particularly having regard to the respondent's argument that prior to November 1997 the common law had focused on the behaviour of the decision-maker and not on his terms and conditions of employment. The Lord Ordinary, in reaching his decision, founded on the case of Starrs v. Ruxton, supra, and observed that the correctness of that decision had not been criticised. He stated that passages from the Opinions of the Lord Justice Clerk (Cullen) and Lord Reed were as relevant to the position at common law, in this case, as they would be if the provisions of Article 6(1) had been applicable. We agree with that observation as, in our view, the common law test for apparent bias and the Article 6(1) requirement of an independent and impartial tribunal are effectively the same, and can be expected to produce the same result.
[36] In Starrs, it was held that there was 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 and that he was therefore not an independent and impartial tribunal within the meaning of Article 6(1), the power of recall and the one year limit to the appointment being incompatible with independence and appearance of independence. The Article 6(1) issue was raised, by virtue of section 57(2) of the Scotland Act 1998, in respect of proceedings which called before a temporary sheriff on 5 May 1999. The present case relates to the decision of the special adjudicator which was taken in November 1997, some 18 months earlier. The Lord Ordinary observed that, if an independent and reasonable observer of the system to which temporary sheriffs were formally appointed could have thought that a temporary sheriff might be influenced by his hopes and fears as to his prospective judicial appointment, there was no reason in principle why an independent observer of the system of part-time adjudicators, as it existed in November 1997, could not have taken the view that the special adjudicator might be similarly influenced.
[37] It was submitted on behalf of the respondent that over the years society changes and perceptions alter. Prior to the Convention coming into force, the reasonable observer, in relation to the issue of apparent bias, would have focused on the behaviour of the decision-maker and would not have regarded his terms and conditions of employment, and any consequent lack of security of tenure, as having any relevance. It was suggested that the approach of the reasonable observer would have been different after the Convention came into force and, in particular, after the decision in Starrs v. Ruxton. We recognise that public perceptions and sentiments can vary with the passage of time. However, the common law test for apparent bias is essentially the same today as it was in 1997 and, in our opinion, there has been no significant difference between the common law test and the test to be applied in relation to Article 6(1) on the issue of independence and impartiality. The issue of a lack of structural independence and consequent lack of security of tenure was sharply raised for the first time in Starrs in the context of the Article 6(1) requirement of an independent and impartial tribunal. We accept that, particularly after the decision in Starrs, there has been greater public awareness of the prospect of a successful challenge of a decision of a tribunal based on a lack of structural independence. However, as we have already observed, the common law test has for long been able to take into account a lack of independence which may give rise to apparent bias, and in the years preceding the commencement of the Scotland Act 1998 and the Human Rights Act 1998 the Strasbourg jurisprudence was increasingly being considered by the courts and having an influence on our law. We have no reason to suppose that, if the issues which were raised in Starrs had been raised at common law prior to the coming into force of the Convention, the decision would have been any different. The present case raises questions similar to those which were raised in Starrs, and we do not consider that the approach of the fair-minded and informed observer at the tribunal hearing in November 1997 would have differed significantly from the approach towards apparent bias which the court held in Starrs that the observer would have adopted in the case of temporary sheriffs.
[38] The Lord Ordinary applied the common law test for apparent bias to the undisputed facts, and recognised that there were certain similarities between this case and the case of Starrs. He reached the conclusion that the common law test for apparent bias had been met. In the particular circumstances of this case, we consider that that was a conclusion which he was entitled to reach, and we do not consider that he has been shown to have erred in his general approach to the case. We are fortified in this conclusion because counsel for the respondent and reclaimer did not attempt to argue that there was any significant difference between the situation in this case and that in Starrs and, as we have already noted, conceded that he would be in difficulties if we found that there was no difference between the common law approach and the approach based on Article 6(1).
[39] In the circumstances, as we have rejected the first submission advanced on behalf of the respondent and reclaimer, and in view of the concession which was made by counsel to the effect that the second main submission was not a free-standing argument, it is not necessary for us to consider that submission.
[40] There is one other matter with which we must deal. The Lord Ordinary, in paragraph [39] of his Opinion, held that the petitioner was 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, and that the petitioner was also entitled to reduction of the special adjudicator's written determination of 27 February 1998. The Lord Ordinary sustained the petitioner's third plea-in-law, which sought those remedies, and remitted the petitioner's appeal against the respondent's decision of 17 September 1997 for a fresh hearing before a different special adjudicator. We note, however, that the Lord Ordinary's interlocutor of 10 October 2001 has, presumably per incuriam, reduced the respondent's decision of 17 September 1997, and the reduction of that decision is neither necessary nor appropriate. In the circumstances we will recall that part of the interlocutor which recalls "the decision of the Secretary of State for the Home Department dated 17 September 1997" and substitute a reference to the decision of the special adjudicator dated 21 November 1997. Quoad ultra we will adhere to the Lord Ordinary's interlocutor and refuse the reclaiming motion.