Presumptive & Actual Bias 1. What is the difference between actual and presumptive bias? 2. Why are there more cases about presumptive or apparent bias than about actual provable bias? 3. If the rule against bias applies to those who are making judicial and quasi judicial decisions, what similar rule applies to those who make administrative decisions? 4. What exceptions exist to these two rules? 5. Problem Question Assume that the Primary Products Marketing Act provided; "s27 Board may grant licences to private persons for marketing overseas - (1) Every three years from the date of the commencement of its operations, the Board shall by public notices published on at least three occasions in the newspapers, radio and television operating in the country invite tenders from interested persons in the private sector to market designated primary products overseas for a period of three years. (2) The Board shall conduct a hearing to consider the tenders, at which all the applicants are entitled to be present, and if it is satisfied that one or more of the applicants can offer a marketing service that is cheaper than that provided by the Board, it shall issue a licence for that person or persons to market designated products overseas for a period of three years, subject to such terms 2 and conditions, including the payment of licence fees not exceeding $100,000 per year, as it considers appropriate. (3) If the Board is satisfied, after due inquiry, that a licensee is not operating in accordance with the terms and conditions of his licence, the Board may revoke such licence.' a. The Board issued public notices calling for tenders, and four companies applied for a licence. The Board conducted a hearing at which all applicants fully presented their submissions, and then they all withdrew. After a discussion lasting about two hours, the Board decided to issue a licence to one of the applicants, Overseas Marketing Ltd. Could this decision be challenged by judicial review issued by an unsuccessful applicant on grounds of bias, if: (1) One of the members of the Board, and the manager of Overseas Marketing Ltd, and their respective families, have been close friends for the last five years. The minutes of the meeting of the Board indicate that the member spoke in favour of Overseas Marketing Ltd and voted in favour of the decision to grant the licence to that country. (2) One of the members of the Board, was a director of Moses' Holdings Ltd, the company that owned 80% of the shares in Overseas Marketing Ltd. He sent an email to the manager of Overseas Marketing Ltd a week before the meeting of the Board: "You can rest assured that I will see that you get the licence. It is vital for both your company and our company." The minutes of the meeting indicate that this member spoke strongly in support of application by Overseas Marketing Ltd, and voted in favour of the decision to grant the licence to that company. (3) One of the members of the Board was an accountant but he had not done any professional work for Overseas Marketing Ltd and he had no social connections with the company or its staff. The minutes of the meeting disclose that this member spoke strongly in favour of Overseas Marketing Ltd, and voted in favour of the licence being granted to Overseas Marketing Ltd.(4) One of the members of the Board had been a lover of the manager of Overseas Marketing Ltd, for about two years, when they had both been working for another employer. They separated after a bitter argument about 3 four years ago, and have seen little of each other since then. The minutes of the meeting disclose that this member discussed all applications, but voted in favour of the licence being granted to Overseas Marketing Ltd. (5) About six years ago, the Board had granted a licence to market overseas for four years to Overseas Marketing Ltd, and had been favourably impressed with the efficiency of the operations of that company. The minutes of the meeting of the Board indicate that the members of the Board recalled that satisfactory relationship and hoped that a similar relationship would develop again in relation to Overseas Marketing Ltd, although they discussed all applications fully. b. Assume now that the Board had decided not to conduct a hearing to hear all the applicants, but decided to consider them all at a private meeting, which was not attended by the applicants. After a discussion lasting about two hours, the Board decided to issue a licence to one of the applicants, Overseas Marketing Ltd. Could this decision be challenged by judicial review issued by an unsuccessful applicant on grounds of bias, if: (1) A female member of the Board was a great friend of the wife of the manager of the Overseas Marketing Ltd. Yesterday she sent an email to her friend: "Tell your husband not to worry about the licence. I will make sure that he gets it." The minutes of the meeting indicate that this member spoke strongly in support of the application by Overseas Marketing Ltd. (2) One of the members of the Board was an accountant, and had provided accountancy services to the company for the last four years, and had provided business advice to the manager of the company on eight occasions. The minutes of the meeting of the Board indicate that the member discussed all the applications fully, and voted in favour of the decision to grant the licence to the company. (3) One of the members of the Board belonged to the same church and the same golf club as the manager of Overseas Marketing Ltd, but although they knew 4 each other they were not close friends. The minutes of the meeting disclose that this member discussed all the applications, but voted in favour of the licence being granted to Overseas Marketing Ltd. (4) Until about six months ago, one of the members of the Board was a nephew of the manager of Overseas Marketing Ltd, and had worked with the company as a section manager, but had resigned and taken a position in another company at a higher salary. The minutes of the meeting disclose that this member spoke strongly in favour of Overseas Marketing Ltd, and did not discuss any of the other applications, and voted in favour of the licence being granted to Overseas Marketing Ltd. (5) Last year, some of the wharf equipment of the Board had been accidentally damaged and Overseas Marketing Ltd had allowed the Board to use some of its equipment free of charge for about 10 months. The minutes of the Board indicate that the members recalled very favourably this generous gesture by the company, and they all spoke strongly in support of the company's application, before voting in favour of the licence being granted to the company