On Time and Space: Proximity in the Law of Bias

Abstract

In this piece I address the common law of bias in administrative law and offer a proposal designed to enhance analytical clarity: Lawyers should incorporate proximity, with temporal and spatial dimensions, into the analysis of alleged bias. Simply put, the closer the source of bias in time and space to the decision at issue, the more plausible any claim that a decision-maker is biased.

My focus will be on administrative law, where the relevant general legal principles are highly contextual and unpredictable in their application to specific cases. As I explain in the first section of this contribution, the law of bias has evolved significantly over time, most importantly in response to the rise of the administrative state in the 20^th century: the hard-edged rules of natural justice became progressively softer and now form a context-sensitive set of principles to be applied with due attention to the nuances of particular areas of regulation, taking account of all the relevant circumstances of individual cases. Context-sensitivity comes at the expense of predictability, however, which is the problem I tackle in this contribution.

As I set out in the second section of this contribution, demonstrating bias requires an applicant to identify a relevant source of bias – such as a prior relationship between an adjudicator and one of the parties; prejudicial comments or predispositions; and prior involvement in a matter – and articulate a logical connection between the source and the decision made. I briefly introduce the test of a ‘reasonable apprehension of bias’ and discuss by reference to a series of cases involving statistical evidence the importance of articulating a logical connection between a source of bias and a decision.

With the groundwork laid, I then turn in the third section of this contribution to proposing greater analytical clarity, in the form of focus on spatial and temporal proximity. My proposal for greater analytical clarity in this context-sensitive area of law builds on the suggestion that a third step should be introduced to the assessment of bias cases. Their third step requires consideration of the reasonableness of the claim of bias. In my view, this third step is a valuable addition to the framework for assessing bias, but I would go further and introduce spatial and temporal proximity as key considerations. As I explain, by reference to decided cases, the closeness in space and time of a source of bias to the decision taken helps to sharpen the analysis of bias claims.

Keywords: bias, administrative law, proximity, judicial review, procedural fairness