R ((1) Peter Sanders (2) Brian Ross) v(1) Airports Commission (2) Secretary of State for Transport [2013] EWHC 3754 (Admin)

The Airports Commission was set up by the Secretary of State for Transport in September 2012 to examine the need for additional UK airport capacity and to make recommendations to government on how this can be met in the short, medium and long term. The Secretary of State appointed Sir Howard Davies to chair the Commission along with five other Commissioners. One of these was Mr Geoff Muirhead CBE who, until October 2010, had been the Chief Executive of the Manchester Airports Group (“MAG”) and whose role as a paid ambassador for MAG continued after his appointment to the Commission, finally ending in January 2013. At the date of Mr Muirhead’s appointment,it was widely expected that MAG would acquire Stansted Airport, something which subsequently happened, with the acquisition taking effect on 28 February 2013.

Mr Sanders and Mr Ross are key members of a campaign organisation called Stop Stansted Expansion (“SSE”), the objective of which is to contain the development of Stansted Airport within sustainable limits. Over a period of many months, SSE expressed concerns about Mr Muirhead’s involvement on the Commission given his links with MAG and MAG’s ownership of Stansted. Despite this, Mr Muirhead was not removed from the Commission even after MAG submitted detailed proposals for expansionof Stansted on 19 July 2013. It was only after pre-action protocol letters from SSE that it was announced on 20 September 2013 that Mr Muirhead had stepped down from the Commission by mutual consent with the Secretary of State.

Despite having achieved this key objective, Mr Sanders and Mr Ross remained concerned that Mr Muirhead had infected the proceedings of the Commission through apparent bias, in particular the so-called “sift criteria”, which were published on 3 May 2013 and which are being used by the Commission to guide it in its work. When the Airports Commission and Secretary of State refused to revisit these sift criteria, Mr Sanders and Mr Ross issued judicial review proceedings.

The claim came before Mrs Justice Patterson by way of a rolled up hearing. In a judgment of 2 December 2013 she accepted that Mr Muirhead’s position on the Commission had become untenable following MAG’s 19 July 2013 proposal. She also criticised his actions in remaining a Commissioner until 20 September, and those of the Commission in retaining him) as not “the most wise”, characterising the conduct of both in this regard as “less than ideal”. However, although she considered the case to be

arguable and granted permission, she did not consider in all the circumstances that there was a real possibility that Mr Muirhead had tainted the proceedings of the Commission with apparent bias, given his limited knowledge of MAG’s intentions prior to the 19 July 2013 proposal.

The case is of broad interest in terms of the Judge’s treatment of operative effect. In particular, the Commission had asserted that,since the sift criteria were adopted prior to the 19 July 2013 proposal, the claim sought to “invent a doctrine of retrospective operative effect which is unknown to the law of apparent bias”. Though she did not consider apparent bias to have arisen on the facts, the Judge accepted the principle of retrospective operative effect, i.e. that bias already inherent could become operative as a result of a later development. If the dice are loaded but only rolled much later, there are circumstances in which the claimant can wait until they are rolled before seeking judicial review.