The right to an impartial adjudication under English and American law

Abstract

Deeply rooted in Anglo-American Jurisprudence is the concept that when factual issues arise in an adjudicatory proceeding whether before a court or an administrative authority, they must be tried impartially i.e. without any interest or bias. Impartiality is essential not only for safeguarding the rights, liberty and property of citizens, but also for maintaining their faith in the due administration of justice. The rule that "no man shall be a Judge in his own cause"' is a fundamental principle of natural justice and has become the rule against interest and bias. Once it was regarded as immutable, universal and even as being supreme over statute law. Now it is considered as no more than a principle of common law applied in the interpretation of statutes which often authorities or Parliament Itself will try to exclude whenever it frustrates their wishes. English Judges try to uphold this rule by means of prerogative writs and private-law remedies, though the effectiveness of these is limited by technicalities and procedural difficulties. Further, the Judges are powerless when the legislature denies the rule. On the other hand, the Americans who inherited this principle as a part of English common law have preserved its supremacy through their Constitution. Building upon the "due process" concept and strengthened by particular statutes, the American courts have constructed an important edifice of Impartiality. Their statutory procedure and guidelines for disqualification and comprehensive judicial review have added a strength and character to the concept distinct from English law. Despite these differences, English and American courts are producing substantially similar results. The basic principle is the same, the limitations upon it are similar but American procedures are more formalised, and more effective. For the proper development of English law, the existing remedies should be reformed and the introduction of disqualifying statutes on the American model should be considered.