The second Principle of Natural Justice is Nemo Iudex In Causa Sua which means that a person is not allowed to be a judge in his own cause. This ancient principle is the basis for the concept of bias in our law.
Bias can be defined as a predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination. Phew, what a mouthful. In other words, bias in its ordinary sense is a form of prejudice that prevents a decision maker from being impartial or neutral.
However, as I hope to explain, the legal concept of bias goes much further than the factual question of whether a person is biased or not. In the law, bias is all about perception – it is a question of whether the public think that a person is biased, and that is far more important than the question of whether he or she is actually biased.
The basis for the rule against bias is the need to maintain public confidence in the legal system.
When looking at the courts, a judge who demonstrates bias in a hearing over which he or she presides has a mental attitude toward a party that prevents the judge from making sure that both the plaintiff and the defendant enjoy a level playing field during their trial. In other words, bias deprives a party of the constitutional right to a fair trial. A judge may recuse himself or herself (i.e. remove themselves as decision maker on that case) to avoid the appearance of bias. This is even where the judge personally knows that he or she will be fair. Their own view is secondary to the importance of letting the public know that there must be no doubts over the impartiality of a judge hearing the case.
Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice and only occurs in the most obvious cases – where a judge refuses to let a witness or his lawyer speak, for example.
Imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. The most common form of imputed bias is where the judge or the decision-maker is a party to a suit – in other words they are actually involved in the dispute that appears before them; or having a pecuniary or proprietary interest in the outcome of the decision, which means they stand to lose or gain (power, influence, money or other assets) depending on which way the decision goes.
Those are the ‘easy’ situations and they rarely happen anyway. It is really situations of apparent bias that stir up the most controversy. This is where the concept of ‘justice must not only be done, it must be seen to be done’ comes to the fore. If the public are to have faith in the system, they must be able to see for themselves that the system is fair. It is for that reason that it is not so much a case of whether the judge or other decision maker is biased or not, but whether there is a danger that the public might think that they are biased. If so, the public will lose faith in the system and so will take steps to resolve their problem outside the system – for example, vigilantism. Therefore, it is the perception that is all important – if the ordinary bloke in the street is thinking – “geez, why is that guy carrying on hearing that dispute? They should get somebody else to do it – I wouldn’t trust that decision”, it is time for that decision maker to walk away from the dispute – i.e. to recuse himself or herself.
In Ireland the test is one of “reasonable apprehension”. If the average reasonable person would be suspicious of the impartiality of the decision maker, that decision maker should recuse himself or herself. The leading case in Ireland is Orange Communications v Director of Telecommunications Regulation  4 IR 159, where the Supreme Court confirmed the ‘reasonable apprehension’ test for apparent bias.
That is what goes for the judges, but what about government-appointed officials acting in an administrative capacity?
A casual onlooker might say, “So what if they are biased, they are government-appointed, what do you expect?”
This raises the question concerning the nature of the function carried out by An Bord Pleanála and the legal and ethical principles connected with that function.
An Bord Pleanála (ABP) is an independent, statutory, quasi-judicial body that decides on appeals from planning decisions made by local authorities in Ireland. As of 2007, the ABP directly decided major strategic infrastructural projects (for example, the Grid25 projects of EirGrid) under the provisions of the Planning and Development (Strategic Infrastructure) Act 2006. The Board also hears applications from local authorities for projects which would have a significant environmental impact. The Board was established by the Local Government (Planning and Development) Act 1976, whose provisions were for the most part carried over into the Planning and Development Act, 2000.
Let’s just clear one thing up very quickly. The simple fact that you are appointed by the government does not automatically mean you are expected to favour the government in your decisions. A judge is also appointed by the government but once appointed is expected to carry out his or her duties with absolute fairness and impartiality. If there is any suggestion of bias, that judge must recuse immediately and another judge will hear the case. In other words, the duties of your office should erase any question of you being biased towards the government simply because they gave you a job.
Can the decision makers of the APB be compared to judges? The short answer is yes, they can. They are carrying out an administrative duty that is quasi-judicial in nature. In other words, they are doing a lot of things a judge will do – hear witnesses, consider evidence and legal argument, and make a decision that might have huge legal consequences. Therefore it is only fair that the public can expect the same fairness and appearance of neutrality in order to keep public faith in the planning permission system.
The Orange Communications judgment of the Supreme Court was followed in the case of Usk and District Residents Association Ltd v An Bord Pleanala  IR 184 where MacMenamin J. said:
“More fundamentally, were there any doubt on the question, it is quite clear that as a matter of Irish law a finding of objective bias can be made even against a judge in the performance of his or her legal and constitutional duty qua judge: ( Dublin Wellwoman Centre Ltd. v. Ireland  1 I.L.R.M. 408). The taint there was not personal prejudgment, but the perception of it by dint of the judge’s membership of a council which had expressed views on a sensitive social and moral issue. The circumstances there were far more remote than in the instant case, yet the Supreme Court held the judge should have recused herself so that there would be no appearance of bias. As explained earlier it is not dominant doctrine and can never supplant a reasonable fear of bias properly based on evidence and reasonable inference.
 For the reasons outlined, the evidence establishes objective bias on the part of four out of the six decision makers by way of prejudgment of the same issue. It has not been justified by way of legal defence. I must therefore find that the residents are entitled to have the decision quashed on this ground.”
The judge was damning in his criticism of the way that the APB had carried out their functions and he made a clear finding of ‘objective bias’ (i.e. factual bias rather than just perceived bias). He also made it clear that even if there was only apparent bias, this was enough to necessitate the APB members to recuse themselves.
Against this background, the recent statement by Wind Aware Ireland needs to be taken very seriously:
“Wind Aware Ireland: Press release 9th July 2014″
Has our planning process been corrupted? Key members of An Bord Pleanála have strong links to the wind industry and have granted controversial permissions for wind energy and Grid25 projects.
Concerns regarding conflicts of interest on the board of An Bord Pleanála (ABP) have been mounting, especially in relation to the connection between several board members and the private wind industry. Several controversial decisions have been made by the board in recent months regarding wind farms and the associated grid upgrade. Local people are disillusioned and disheartened by the apparent fait accompli of these projects, despite massive resistance on the ground by those who have to live with the consequences.
Coillte’s application for a wind farm in Cullenagh, Co. Laois was turned down by Laois County Council. ABP’s inspector also recommended the application be refused on the grounds of visual impact in this scenic, elevated area, the effect of noise and shadow flicker on the local community and concerns about the haul route for construction. Of note is the proximity of the Timahoe Round Tower which is only metres from the centre of the small road which will carry over size, heavy trucks. In addition 15 families on the Stoney Road in Timahoe village will have 130m turbines 600m in front of and behind their houses.
The Yellow River wind farm in Rhode Co Offaly was a development considered to be strategic infrastructure (SID). Despite a petition by over one thousand residents, no oral hearing was granted and ABP granted permission.
The North-South interconnector is part of Eirgrid’s planned cabling for pylons to connect Ireland’s electricity gird with that of Northern Ireland. The plan has been challenged by communities who were particularly incensed by the energy regulator’s proposal that Eirgird be paid a bonus for pushing the pylon project through speedily.
These three projects have been granted permission by the same board members, these being; Mary Kelly, Conall Boland, Fionna O’Regan and Gabriel Dennison. In addition, Nicholas Mulcahy was part of the group for the North-South Interconnector and Cullenagh decisions.
• Conall Boland, was originally appointed by Dick Roche and reappointed by Phil Hogan. He is deputy chairperson of the board. He was formerly the technical director of RPS Consultants, the company who prepared and lodged the application for Coillte in Cullenagh.
• Fionna O’ Regan, appointed by Eamon O Cuiv, previously worked for Fehily Timoney Engineers and has carried out work on over 50 wind farms in Ireland, including preparing planning applications, licensing and grid connections. Prior to this she worked for ‘a renewable energy development company’. She was quoted in Wind Power Monthly in an article entitled ‘Speed is of the Essence’as ‘identifying the appeals board as an obvious bottleneck’.
• Gabriel Dennison, appointed by Phil Hogan, was involved in renewable energy projects in Ireland and abroad as an advisor and investor.
• Mary Kelly was appointed chairperson of ABP by Phil Hogan in 2011. In her previous incarnation she was a member of the EPA, which controversially approved the Poolbeg incinerator in 2007, before the EPA hearings on the matter in 2008.
• Nicholas Mulcahy was appointed by Phil Hogan and has no known connections to the wind industry.
The members of An Bord Pleanála are political appointees and the Planning Act 2010 Amendment 41 allows a quorum of three members to decide in case of SID and 2 in other cases. This means that, in a case like Cullenagh, despite refusal by the local authority and their own inspectors two political appointees of ABP could grant permission.”
If Wind Aware Ireland was prepared to make these serious allegations in the form of a press statement, one must assume that they carefully researched their information before issuing this press release. In other words, a reasonable person would be justified in believing the contents of this statement. This is not some lunatic spraying mad slogans on the train station wall, or an anonymous posting on Facebook; this is a national organisation identifying themselves in the national media.
On the basis of the reasonable apprehension test, and the Usk judgment (which followed the Supreme Court’s Orange Communications judgment), these four members of ABP should recuse themselves immediately whenever they are asked to preside over a planning application or a planning appeal concerning wind farms or wind turbines. It is not a question of whether they are biased or not, and I have no doubt that they are all fine upstanding citizens who do their best to be impartial, it is just that the public will never believe they are impartial in their decisions. This will completely undermine any public confidence in the planning system (assuming any remains) which in turn undermines our entire administrative system, and in so doing removes one of the most important constitutional rights of the Irish citizen – the protection provided by our laws.
At the time of the Usk judgment, Paudie Coffey TD, who is now in government and was recently appointed Minister of State at the Department of the Environment with Special Responsibility for Housing, Planning and Coordination of the Construction 2020 Strategy (in other words, he will deal directly with the ABP), said the following:
“I have no issue concerning the planning matters and An Bord Pleanala needs to be independent of all politics and any interventions. However, I have a problem with the whole procedure, including the transparency and accountability with which An Bord Pleanala does its work. Perhaps the Minister of State can clarify whether section 21 allows An Bord Pleanala to recover costs owing to some crazy decisions it has made to defend decisions without proper accountability and transparency. I certain hope it does not. It has been found by the courts to have objective bias, which is a serious attack on the fundamental integrity of the planning process. An Bord Pleanala failed to oversee and ensure proper procedures within the decision-making process.
I asked this question at a sitting of an Oireachtas joint committee and I was told that the judge had made a wrong assumption. That was a serious statement of arrogance by An Bord Pleanala. The following day the Courts Service took issue with that assertion by the head of An Bord Pleanala. I have concerns about the transparency, accountability and integrity of An Bord Pleanal’s planning process and how it arrives at its decisions. Perhaps the Minister of State can clarify whether any element of this section refers to the recovery of costs where An Bord Pleanala has made decisions that were wrong and should never have been taken. I would appreciate some clarity on that matter.”
It would be interesting to know if Minister Coffey is currently pursuing that line of enquiry with the same level of zeal that he showed when in opposition?