Making Moral Sense of the Law on Bias: Public Confidence in the Rule of Law

According to the standard, textbook view, the law on bias is concerned with public perception. The public can only have confidence in the administration of justice, on this view, if there is no appearance of bias on the part of an official decision-maker. It is of secondary importance whether a decision-maker’s interest or conduct in fact caused unfairness to the complainant. My aim in this article is invert this orthodoxy (and with it, the celebrated ruling of Lord Hewart in McCarthy that it seeks to resurrect). Drawing on the ‘interpretive’ legal theory of Ronald Dworkin, I contend that judicial decisions on bias do not plausibly give effect to public perception; and I say that public perception is, in any case, a poor moral basis for public confidence. This area of law makes better empirical and moral sense when understood in terms of judicial assessments of actual unfairness. The article is in four parts. I begin with an elaboration of the orthodox understanding of the law of bias. I then consider two illustrative cases which cast doubt on that understanding, in that judges appear to disagree about the correct legal test. I then briefly examine contrasting understandings of these disagreements through the lens of a positivist and interpretive (anti-positivist) theory of law, settling on the latter. That takes me to the central preoccupation of the article: an interpretive defence of an actual unfairness conception of bias. My core argument is that public confidence is best secured if courts assess bias complaints consistently in light of established principles of justice and fairness. It is best secured, that is, by the rule of law.