Now we turn to the second principle of fairness: nemo judex in sua causa debet esse (“No one must be the judge in his own cause”) - the rule against bias.
Again, I am grateful to David Phillip Jones, QC and Anne S de Villars, QC, Principles of Administrative Law, 5th edition (Toronto: Carswell, 2009) for the principles of the Duty to be Fair. (Page numbers below refer to that book.) Again, what follows is entirely my responsibility and any deficiencies are mine.
As with the duty to take all relevant (and no irrelevant) information into account in making decisions, it seems intuitively obvious that no-one with a known bias should be involved in making a decision that affects someone’s rights or privileges. That would obviously include someone judging his own case, whether he is the defendant or the complainant.
In the proposed Covenant we find only one stated restriction on who may participate in the process: “participation in the decision making of the Standing Committee or of the Instruments of Communion in respect to section 4.2 shall be limited to those members of the Instruments of Communion who are representatives of those churches who have adopted the Covenant, or who are still in the process of adoption.” (s. 4.2.8) (And what, exactly, does “still in the process of adoption” mean here? Does that include all the Churches of the Anglican Communion that have not yet voted not to adopt the Covenant?)
It would seem obvious, but it is not stated, that the representative either of a Church that has “raised a question” pursuant to s. 4.2.3, or of a Church about which a question has been raised, should be excluded from participating in the decision-making processes. They should certainly be heard, but they should not be making decisions. But what about an Instrument of Communion that raises a question? Is it proper for that Instrument or its members to be making decisions about the question that it has raised? Would that not be the same as being the judge of its own cause? If so, we have a problem, and this time we can’t easily solve the problem by slipping in a clause about respecting Natural Justice! Consider, for example, what happens if the Lambeth Conference raises a question. That would mean that the Conference itself, all the bishops, including the primates and hence the Primates’ Meeting, and including the Archbishop of Canterbury in all of his roles, should be excluded from the process. That means we are left with part of the Anglican Consultative Council and less than half the Standing Committee to do the job. The process would be either intrinsically unfair or impossible.
In effect, then, the only solution would be to bar the Instruments of Communion from raising questions at all, for there is a similar difficulty if any of them raises a question. But even that would not solve all the problems of potential bias in the process. Jones and de Villars list five types of bias which are included in the rule against bias (pp. 403ff). The first four are personal and the fifth is structural. They are:
- financial interest in the outcome of the dispute;
- relationships with persons involved in the dispute;
- outside knowledge of or involvement with the matter in dispute;
- inappropriate comments or behaviour;
- institutional bias.
1) Financial Interest in the Outcome of the Dispute
The first type of bias is probably the least likely to occur in the process, though it is not impossible. If there were some sort of money trail to be followed, some financial connection between a Standing Committee member, or his or her Church, and a position or point of view in the question at hand, it would create the sort of financial interest that could lead to bias, and require the exclusion of a Church’s representatives from the process.
2) Relationship with Persons Involved in the Dispute
It is the nature of the Anglican Communion and the bodies that would be involved in the process that there would be some relationships among the various players. At a minimum, the primate of the Church about which a question has been raised and the primate of a Church raising a question would know the other primates from the Primates’ Meeting and perhaps from other contexts. But in order for a bias to exist the relationship in question would have to be so close as to raise concerns about impartiality. It seem unlikely that there would be close family members or spouses, for example, involved in different roles in the process. But one area to watch for potential bias would be a case in which the decision maker is an employer of someone involved in the process. This is most likely to occur with respect to staff acting for or advising the Standing Committee or Instruments of Communion. And again, we are speaking here of the test of a reasonable apprehension of bias, not alleging any actual bias.
3) Outside Knowledge of or Involvement with the Matter in Dispute
It is the nature of the Standing Committee members that they will have extensive knowledge of the Anglican Communion, its history, faith and practices. This does not necessarily create the apprehension of bias, in my view. Nevertheless, it is important for decision makers to approach a question with an open mind, and in general this test for bias raises the concern that someone with extensive knowledge of a subject matter may find it difficult to avoid being predisposed to a certain decision. Fairness dictates that the decision makers listen to the actual case at hand, and not simply rely on what they think they already know.
4) Inappropriate Comments or Behaviour
Recent or ongoing participation in, say, an advocacy group with a specific opinion or position related to the matter in question would create the impression of bias. Strong public remarks on the subject matter by a decision maker himself or herself would similarly create the impression of bias. Impartiality is required for fairness; clear partiality renders a decision intrinsically unfair.
All of the foregoing forms of bias are both possible in the membership of the Standing Committee and the Instruments of Communion, and avoidable in the process if persons whose activities or comments or associations might create the apprehension of bias are excluded from the process. Unfortunately, in the absence of any guidance in the proposed Covenant, there is no assurance that any effort will be made to address possible sources of the apprehension of bias. And in the absence of any opportunity to amend the proposed Covenant no such assurances can now be included in it.
It is important to note, as well, that the apprehension of bias may arise, not only with respect to decision makers themselves, but also with respect to staff who assist the decision makers. As Jones and de Villars put it, “if a subordinate who makes a recommendation to the ultimate decision-maker plays an important role in the decision-making process, a finding of bias on the part of the subordinate can invalidate the decision even if there is no suggestion of bias on the part of the decision-maker himself or herself.” (p. 397) In our case, this means that staff who serve the Standing Committee and Instruments of Communion would need to be scrupulous in their impartiality. Similarly, national staff of the Churches who participate in a meaningful way in advising primates who are on the Standing Committee would need to be free of a reasonable apprehension of bias.
As with the question of the duty to hear the other side, questions of the possibility of personal bias can be addressed by fair procedure. In both cases, there is no requirement in the proposed Covenant that fair procedure be used, but there is nothing stopping fair procedure from being followed, provided that those charged with making decisions are sufficiently aware of the need to do so. But, again, in the absence of any guidance, much depends on the judicious and demonstrably fair use of discretion.
And so, we turn to the final consideration with respect to the rule against bias.
5) Institutional Bias
“Institutional bias cases concern situations in which a reasonable apprehension of bias is alleged to be generated by the structure or operation of a decision-making body, rather than the words or actions of an individual decision-maker.” (Jones and de Villars, p. 421) In other words, the concern is whether the system itself is designed or operates in such a way as to promote decisions which are demonstrably fair and impartial. A key concern in this area has to do with overlapping roles in the decision-making process. It is obvious, for example, that no single individual should play the various roles of prosecutor, judge, jury and executioner. Nor should the same individual be both defence attorney and judge. Either case would be an obvious recipe for bias. But does the very design of the tribunal prevent such overlapping of roles? In one case cited by Jones and de Villars, they note “that there was no evidence that a director played more than one role in relation to the case of the bar itself. The possibility that a director might play more than one role was held to be sufficient to invalidate the proceedings.” (p. 427, emphasis in original)
Here we have a serious problem. The process outlined in section 4.2 of the proposed Covenant is rife with overlapping roles. The lynchpin of the process is the role of the Standing Committee, which is empowered both to determine whether an action or proposed action is or would be “incompatible with the Covenant” (s. 4.2.6) and then to recommend “relational consequences” to the Instruments of Communion and/or the Churches of the Communion. (s. 4.2.7) In its deliberations, the Standing Committee may solicit or receive advice “from such bodies as it deems appropriate” and in certain (unspecified) cases it “shall refer the question to both the Anglican Consultative Council and the Primates’ Meeting for advice.” (s. 4.2.4)
But we must recall the make-up of the Standing Committee. It consists of 15 persons, seven of whom are appointed by and from the Anglican Consultative Council, and five by and from the Primates’ Meeting. In addition, the chair and vice-chair of the Anglican Consultative Council are ex-officio members of the Standing Committee. Rounding out the number is the President of the Standing Committee, who is the Archbishop of Canterbury.
So it seems that the Standing Committee, which consists of members of the Anglican Consultative Council and the Primates’ Meeting, may (and in some cases shall) consult the Anglican Consultative Council and the Primates’ Meeting for advice on reaching a decision, and then, having reached a decision, may recommend action to the Anglican Consultative Council and the Primates’ Meeting. A process in which a body consults itself and makes recommendations to itself does not exactly suggest independence of decision making!
And if that’s not bad enough, consider the role of the Archbishop of Canterbury, who has no less than six different, overlapping roles. He is:
- the Primate of a Church;
- an Instrument of Communion;
- convenor of the Primates’ Meeting (another Instrument of Communion);
- convenor of the Lambeth Conference (a third Instrument of Communion);
- president of the Anglican Consultative Council (the fourth Instrument of Communion);
- president of the Standing Committee (which might consult and advise the above five bodies!)
In fact, the process of section 4.2 has “institutional bias” written all over it. Four years ago, I wrote that “if some form of dispute-settling mechanism is to be included in a Covenant, care will have to be taken not to undermine the roles of the Instruments of Unity by involving them too closely in the mechanism. The Instruments of Unity must remain free to convene and to gather, and thus continue to be forces that draw the Communion together. Perhaps this can best be accomplished by attending to the usual question of separation of powers in governance, and establishing a fully independent body rather than the Council of Advice as currently envisioned..” Having an independent body to play the role of decision maker would introduce extra cost into the system, but it would also promote institutional fairness.
Grave questions of fairness arise with respect to the need to observe the duty to hear the other side, that is, to ensure that all relevant and no irrelevant information is taken into consideration in the decision making process. The vagueness of the proposed Anglican Covenant’s process for dispute resolution and the unfettered and unguided discretion of the Standing Committee in conducting the process underline the gravity of these questions. Nevertheless, these concerns are not fatal to fairness if the discretion of the Standing Committee is exercised judiciously and fairly.
Similarly, there are possibilities of personal bias entering into the process. But again, in my view, these possibilities are not necessarily fatal to fairness if the Standing Committee in exercising its discretion attends to the need to declare any potential causes for the apprehension of bias and exclude any persons so implicated from the process.
But the question of institutional bias cannot be addressed by judicious use of discretion. There is no remedy for the multiple overlapping roles of the members of the Standing Committee. In my view, the use of the Standing Committee as decision maker in the process is fatal to the Duty to be Fair. The proposed Anglican Covenant does not meet the standards of Natural Justice. It is intrinsically incapable of rendering decisions which are demonstrably fair.