Sanders & Anor v Airports Commission & Anor

Apparent bias is assessed objectively by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment must consider all relevant circumstances as they developed over time. Once apparent bias is established, the claimant need not prove that it had an operative effect. However, a perceived conflict may arise only when the circumstances create a sufficiently real possibility of influence; earlier, more remote circumstances may not suffice. Silence can amount to participation where the surrounding circumstances show that it influenced the decision-making process. A high-level, consultative framework adopted before the relevant conflict crystallised will not necessarily require retrospective reconsideration.

The claimants, members of Stop Stansted Expansion, sought judicial review of the Airports Commission’s sift criteria for assessing proposals for additional UK airport capacity. They alleged that the criteria and subsequent process were tainted by apparent bias because one Commissioner, a former chief executive and continuing consultant to Manchester Airports Group, participated in their formulation while MAG was considering proposals involving Stansted Airport.

The Commissioner stepped down after MAG submitted its proposals. The claimants sought a declaration, quashing relief and an order preventing publication of the Commission’s shortlist until the criteria had been reconsidered. The central issues were whether apparent bias arose at earlier stages, whether the sift criteria had retrospective operative effect, and whether delay should preclude relief.

1. Outcome. Permission to bring the judicial review was granted, but the substantive claim was dismissed. The declaration and orders sought were refused.
2. Applicable test. The court applied the fair-minded and informed observer test. The question was whether, considering all the circumstances, there was a real possibility of bias. The assessment had to reflect changing circumstances at different stages of the process. Once apparent bias was established, it was unnecessary to prove actual or operative effect.
3. Initial appointment and criteria. At appointment, and during the formulation of the sift criteria through March 2013, the Commissioner’s relationship with MAG was too remote to create a real possibility of apparent bias. The criteria were developed iteratively, involved public consultation, and were expressed at a high level. Their treatment of local environmental impacts was not shown to be slanted in favour of Stansted. The Commissioner’s silence did not establish operative influence, although silence can amount to participation in an appropriate case.
4. Change in circumstances. MAG’s submission on 19 July 2013 materially changed the position. The Commissioner should then have stepped down because he would be involved in assessing a proposal from his longstanding former employer. His continued participation until 20 September was less than ideal. Nevertheless, the relevant September decisions were provisional, limited to removing fundamentally flawed or duplicative options, and were reconsidered after his departure. The fair-minded and informed observer would not conclude that there was a real possibility that apparent bias had affected the process.
5. Retrospective effect and delay. The sift criteria had been adopted four months before the relevant change in circumstances. Their general character, iterative development and consultation meant that retrospective operative effect was not established. The court observed that, if necessary, it would have extended time because the claimants lacked access to the material explaining how the criteria had been developed.

First-instance judicial review in the Administrative Court. No prior decision or appeal is stated in the judgment.