Letter from a leftie lawyer: 15 October 2020

Faulks: bias and chair of the administrative law review

At the week-end I wrote a letter here about my response to the government’s ‘Independent Review of Administrative Law (IRAL)’ . My response is more or less complete. The review is ‘independent’ by no meaning of that word. It is chaired by Edward Faulks (orse Lord Faulks QC a former government minister and side-kick of failing Grayling as Lord Chancellor in his legal aid destruction phase) who cannot – by definition – be ‘independent’.

Faulks knows that when you have a personal or political interest in a question you cannot be independent. It is one of the most fundamental tenets of English law – and of society as a whole – that anyone who adjudicates must be impartial, that is free from bias.

‘A real possibility of bias’

I know that he is not acting as a judge; but honesty should have taught him that to chair a body such as he is to do must involve freedom from bias. In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Lord Phillips MR at [37] said: ‘Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve.’ Lord Hope spoke of the ‘fair-minded’ and ‘informed’ observer ‘who always reserves judgment on every point until she has seen and fully understood both sides of the argument’ (Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] WLR 2416 at [2] and [3]).

A judge must ask (as in Re Medicaments (above)) whether there is a ‘real possibility’ of bias.

Would ‘… 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…’ (at [85]).

Faulks was part of the disastrous Grayling’s group of ministers in the Ministry of Justice when they nearly destroyed our legal aid system. He spoke enthusiastically in the House of Lords of the then proposed legal aid destruction. He still sits in the Lords (I assume) and takes the Tory whip. He cannot say he is independent of the present government.

If he had any real understanding of the legal tradition from which he comes – as I am sure he has – Faulks should declare his interest (ie his ‘bias’) and have the decency to resign the job to another person who can give it detached assessment. He should recuse himself (take himself off the job).

If Faulks stays, the work of this committee will be irremediably tarnished.

David Burrows

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