Port Regis School Ltd., R (on the application of) v Gillingham and Shaftesbury Agricultural Society

Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment extends beyond financial or proprietary interests and considers whether the decision-maker could approach the issues impartially.

Membership of a broad organisation does not, without more, establish apparent bias merely because another member or autonomous branch has an interest in the decision. The court must examine the organisation’s structure, rules, obligations and the circumstances of the particular decision. Disclosure of the membership and compliance with statutory and professional duties may be relevant to the informed observer’s assessment.

Port Regis School Limited sought judicial review of North Dorset District Council’s decision to approve, in principle, a planning application by the Trustees of the Gillingham and Shaftesbury Agricultural Society. The proposed development included a showground and pavilion, with a proposed role for a local Masonic lodge.

Two councillors who participated in the decision were Freemasons. The claimant alleged apparent bias, contending that membership of Freemasonry alone created a real possibility that the councillors would favour another Freemason or Masonic body. The central issue was whether that membership, without membership of the particular lodge concerned, required disqualification.

1. The claim was dismissed. The participation of the two councillors did not make the Council’s decision unlawful on grounds of apparent bias.
2. The applicable test was whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. The assessment was not confined to pecuniary or proprietary interests. It also required consideration of whether the councillors approached the planning issues without impartial consideration of the relevant merits, applying Porter v Magill [2002] LGR 51 and Georgiou v London Borough of Enfield [2004] EWHC 779 (Admin).
3. The court rejected the contention that Freemasonry’s secrecy or alleged bonds of brotherhood automatically created apparent bias. The constitutional evidence showed that individual lodges were essentially autonomous. The relevant Masonic obligations concerned assistance and charity, subject to observance of the law and equal treatment of others.
4. The councillors had disclosed their Masonic membership under the Council’s Code. They were also bound by the Code and by law to act impartially and in the public interest. The Masonic materials themselves required obedience to the law and proper discharge of civil duties. An informed observer would therefore not conclude that membership of general Freemasonry created a real possibility that the councillors would favour the interests of another lodge or Freemasonry generally.
5. The court treated the observations in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 as supporting the conclusion that Masonic associations would not ordinarily require recusal. The case was neither one of automatic disqualification of the kind illustrated by Dimes case 3 H.L. Cas 759, nor one in which the decision-maker was determining a cause regarded as his own, as in R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119.

First-instance judicial review proceeding. The judgment does not state any subsequent appellate decision.