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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al -Fayed, (R. on the Application of) v Secretary of State for the Home Department (No. 2) [2000] EWCA Civ 523 (26 July 2000)
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Cite as: [2001] Imm AR 134, [2000] EWCA Civ 523

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Neutral Citation Number: [2000] EWCA Civ 523
Case No. C/2000/0168

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Ognall)

Royal Courts of Justice
Strand
London WC2
26th July 2000

B e f o r e :

LORD JUSTICE NOURSE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE KENNEDY and
LORD JUSTICE RIX

____________________

THE QUEEN
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
ex parte MOHAMED ABDEL MONEIM ALI FAYED
Applicant/Appellant

____________________

Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

The Honourable Michael J Beloff QC and Mr Rabinder Singh (instructed by Messrs D J Freeman, London EC4) appeared on behalf of the Appellant Applicant.
Mr Jonathan Crow and Mr Mark Hoskins (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. Lord Justice Nourse:
  2. Introduction
  3. Mr Mohamed Al Fayed, an Egyptian national, has applied to the Home Secretary for naturalisation as a British citizen. Before such an application can be granted the Home Secretary must be satisfied that the applicant is of good character. The Home Secretary, Mr Jack Straw, having dealt with the application personally, has said that he is not satisfied that Mr Al Fayed is of good character and has refused the application. Mr Al Fayed says that the Home Secretary's decision is disproportionate and irrational and, moreover, is biased in the sense that the application was prejudged before it came to be duly considered.
  4. In an application for judicial review Mr Al Fayed seeks an order of certiorari to quash the decision and a declaration that it was unlawful. The application came before Mr Justice Ognall who, on 21st October 1999, dismissed it and refused Mr Al Fayed permission to appeal. Permission having been granted by this court, the appeal came before us on 5th July 2000, when judgment was reserved.
  5. The material statutory provisions are contained in section 6(1) of and schedule 1 to the British Nationality Act 1981. Section 6 is headed "Acquisition by naturalisation". Subsection (1) provides:
  6. "If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
  7. So far as material, paragraph 1(1) of schedule 1 provides:
  8. ". . . . the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it
    . . . .
    (b)that he is of good character."
  9. It is not in dispute that Mr Al Fayed fulfils all the requirements of Schedule 1 other than that specified in paragraph 1(1)(b).
  10. The background facts
  11. The background facts can be briefly stated. I take them mainly from the judge's judgment. Mr Al Fayed has been living in the United Kingdom since 1964 and has indefinite leave to remain here. His wife is a Finnish national and their children all have British citizenship. He is a very well known and successful businessman who has more than 3,000 employees in this country and has generously supported various charities. In 1985 he acquired ownership of House of Fraser Holdings Plc after a bitterly fought battle with Mr Tiny Rowland. In 1987 the Department of Trade and Industry appointed inspectors to inquire into the circumstances of the acquisition. Their report, published in 1988, expressed adverse criticism of Mr Al Fayed's conduct in the acquisition.
  12. In February 1994 Mr Al Fayed applied to the Home Secretary for naturalisation as a British citizen. His brother Ali had made a similar application in January 1993. In February 1995 both applications were refused without reasons being given. The decision was challenged on the basis that the applicants had the right to know the case against them. The challenge failed at first instance but was successful in this court; see R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763. The Home Secretary was granted leave to appeal to the House of Lords. However, in December 1997, after the change of government, Mr Straw, having told the House of Commons that he had long been unhappy with the practice not to give reasons when refusing some applications for British citizenship, announced that the appeal was to be withdrawn. That meant that the decision of this court stood and the two applications had to be redetermined. Further representations were then made by or on behalf of Mr Al Fayed and his brother. Early in September 1998, while the Secretary of State's decision was still awaited, there occurred an event which has become of great significance in the case.
  13. The Sunday Express article
  14. On 6th September 1998 the Sunday Express published an article by Mr Andrew Pierce, who has been a journalist with the Times since 1988, except between August 1998 and March 1999 when he was with the Sunday Express. Under the heading "Al Fayed will be denied his British citizenship", the first three paragraphs read:
  15. "Harrods owner Mohamed Al Fayed has lost his long battle to become a British citizen.
    Home Secretary Jack Straw has told friends that the Egyptian-born businessman's payment to Tory MPs in return for tabling Commons questions should bar him from securing a British passport.
    'I just don't see how he can have citizenship if he paid MPs,' confided Mr Straw, who will take personal control of the citizenship application."
  16. Later appeared the following:
  17. " 'It is being conducted in a scrupulously fair way,' said a Home Office spokesman. 'Officials have been given a clear message. Bring back recommendations on the basis of facts alone.'
    The report has yet to arrive on Mr Straw's desk . . ."
  18. The article prompted a letter to be written on 8th September by Mr Al Fayed's solicitors to Mr Andrew Walmsley of the Immigration and Nationality Directorate, with whom they had been dealing. It said:
  19. "We are very concerned to see that it appears from the article that the Home Secretary has taken a decision in relation to Mr Al Fayed's application (indeed the Home Secretary is directly quoted in the article) yet the article also suggests that he has also not yet read the papers in relation to either of our clients' applications. Since you have not replied to our previous letters we do not know what position our clients' applications have reached but you will appreciate that it is disappointing, to say the least, that the only way our clients seem to be able to learn of what is happening to their applications is through the press.
    We would ask that you clarify urgently the position, in particular whether the Home Secretary has taken such a decision and whether he said the words attributed to him in the article."
  20. Mr Walmsley replied on 21st September 1998 saying that both applications remained under consideration and that no decision had yet been taken on either of them. He added that no advice on Mr Al Fayed's application had yet gone forward to the Home Secretary. He did not say whether or not the Home Secretary had said the words attributed to him in the article. On 5th October the solicitors wrote again, expressing concern that Mr Walmsley had given no explanation of why there had been such a delay and had not even attempted to deal with most of the questions they had asked of him. They added:
  21. "We find it in particular a matter for concern that your letter does not deny that the Home Secretary said the words attributed to him in the Sunday Express on 6th September."
  22. There were then further communications between the solicitors and Mr Walmsley. On 15th October the solicitors asked for a full response to their letter of 5th October, though after that the Sunday Express article seems to have been largely left to one side.
  23. Subsequent communications between the two sides
  24. The Home Secretary denies both that the application was prejudged and that it appeared to have been prejudged. In the alternative, it is contended on his behalf that any right to complain of the decision on that ground has been waived by Mr Al Fayed. That contention makes it necessary to examine the subsequent communications between the two sides with some care.
  25. On 19th November 1998 Mr L M Harris of Mr Al Fayed's solicitors made a file note of a telephone conversation he had had the previous day with Mr Walmsley. The libel action then pending between Mr Neil Hamilton and Mr Al Fayed was discussed, together with the possibility that the Home Secretary might defer his decision until after the trial. Mr Walmsley disclosed that the papers had not yet gone to the lawyers before going to the Home Secretary. The note continued:
  26. "I stressed to Mr Walmsley that I thought that deferral of Mohamed's application would put Mohamed in a very difficult position. The Home Secretary had said some time ago that he wanted the matter determined expeditiously. Yet all the press comment and speculation and quotes attributed to the Home Secretary were negative and Mr Walmsley would naturally understand if my client felt that the Home Secretary was not favourably disposed in the first place and that he was going to have to wait for yet another year and probably longer to get a determination.
    Mr Walmsley said to me that he understood entirely the point I was making; he assured me that the Home Secretary had not seen the detailed papers and although he had been involved to the extent of being asked for his views on the steps to be taken in dealing with the application, he is being particular in not seeing the papers so that he could take a complete view when the file was put before him for decision. Mr Walmsley was sure the Home Secretary had not yet formed a view on the matter (though he was quite careful with his words and I got the impression that he did not know whether the Home Secretary had privately expressed views on the application: he did not say to me that the Home Secretary had never said the words attributed to him in the press a couple of months ago although he would have had plenty of opportunity to do so during this part of the conversation)."
  27. On 11th February 1999 the solicitors wrote a long letter addressed to the Home Secretary personally. They said:
  28. "It is with considerable regret that we now feel obliged to write directly to you in this matter, in consequence of the continuing and inexplicable delay in the determination of our clients' applications which have been outstanding since 29 January 1993 and 15 February 1994 respectively. We do so in the knowledge that in a case of this unusual nature and history, you would be the actual as well as the constitutional decision maker."
  29. Towards the end of the letter, they said:
  30. "As Mohamed Al Fayed said to you in his letter of 30 July 1998, he and his brother continue to have every confidence that you will determine their applications for citizenship fairly but we hope that you will also appreciate that they cannot allow matters to continue as they stand any longer."
  31. The letter ended with a polite but firm threat of proceedings for judicial review.
  32. The minded to refuse letter and Mr Al Fayed's response
  33. That letter was acknowledged on 18th February 1999, when the Home Secretary's assistant private secretary said that advice was now being submitted to Ministers. On 11th March 1999 she wrote again at much greater length, saying, first, that the Home Secretary had decided to grant Mr Ali Fayed's application. She said that in reaching that decision he had concluded that he should not take into account the criticisms in the DTI Inquiry report about Mr Ali Fayed's past conduct on the ground of passage of time. With regard to Mr Mohamed Al Fayed, she said that the Home Secretary had also decided to discount the DTI Inquiry report on grounds of passage of time. However, while he had given considerable weight to the points made in Mr Al Fayed's favour (which were set out in the letter) and had also had regard to his compassionate circumstances, he had two areas of concern which made him minded to refuse granting citizenship but on which he would appreciate further comment from Mr Al Fayed:
  34. "the first concerns the judgment entered against him and others in the High Court on 5 November 1998 in the proceedings brought against him by Mr Rowland (and after his death by his widow); the second concerns Mr Mohamed Al Fayed's role in the 'cash for questions' affair."
  35. The two areas of concern were then developed at some length.
  36. The solicitors replied on 29th March 1999, enclosing further submissions on behalf of Mr Al Fayed running to nearly 35 pages. After an introduction there was a summary of the submissions which began thus:
  37. "The context in which our client's application has so far been dealt with is deeply and clearly prejudicial. In particular, the intense press speculation which our client's application has caused and the further frenzy of media comment and speculation following your press release of 11 March 1999 has allowed the media to adjudicate upon our client's application and on the remaining issues in a wholly unfair manner. Were your decision to be reached by a jury we have no doubt that a judge would have withdrawn the case from such jury because of the impossibility of a fair decision being reached. By the same token large sections of the media would be in contempt of Court. Whilst we do not suggest that you are incapable of reaching an unbiased decision, we must earnestly entreat you to be conscious of the risk that you may be, albeit unwittingly, adversely influenced against our client by an often orchestrated and venomous press assault on him."
  38. The last sentence of that passage was later repeated almost verbatim.
  39. Towards the end of the submissions, after a summary of six points with which the Home Secretary was said to be faced on the cash for questions issue, appeared the following:
  40. "On any objective analysis of these points, Mr Al Fayed has done nothing improper and all the evidence supports this. It would be wrong of you to conclude otherwise in the face of this evidence. To do so would be irrational and might suggest you had already made up your mind on the issue. It is to be noted the Sunday Express of 6th September 1998 directly quoted you as saying 'I just don't see how he can have citizenship if he paid MPs'. We have been told that you said these words which were then reported to Andrew Pierce, the author of the article. In our letter of 8th September 1998 we asked Mr Walmsley to confirm whether you had said those words attributed by the Sunday Express to you, but Mr Walmsley has never subsequently denied the point. Despite that, we hope and believe that you will exercise an independent judgment."
  41. The submissions ended by asking "that you now take a decision forthwith on our client's application". Attached to them was a detailed note prepared by leading counsel who had been retained by Mr Al Fayed and the other defendants in the High Court action.
  42. The two areas of concern
  43. It is necessary to summarise the points made in the minded to refuse letter of 11th March and the submissions of 29th March in relation to the two areas of concern. The proceedings which ended with the judgment in the High Court against Mr Al Fayed on 5th November 1998 arose out of the alleged breaking into and theft from a safe deposit box held by Mr Rowland at Harrods department store. Although that led to an investigation by the Metropolitan Police, no criminal proceedings were instituted against Mr Al Fayed. However, the basis on which judgment in the civil proceedings was entered was that, although Mr Al Fayed had not authorised or instructed the opening of the box, he had been present on three occasions when the contents of it were examined by members of his staff and had done nothing on any of those occasions to bring that unlawful conduct to an end or to prohibit its repetition.
  44. In the letter of 11th March it was said on behalf of the Home Secretary that the material events appeared to represent a serious want of probity on the part of Mr Al Fayed. In the submissions of 29th March it was contended that the events did not represent a serious want of probity by reason, first, of the limited nature of the judgment and the particular circumstances in which it was given; secondly, that Mr Al Fayed's error of judgment was a minor blemish on his character explicable and understandable in the context of Mr Rowland's vendetta against him; and, thirdly, that in any event a civil judgment of that nature was not evidence of a serious want of probity or otherwise a matter to be taken account of in the Home Secretary's consideration of the application.
  45. As for the cash for questions affair, the letter of 11th March expressed concern as to, first, the fact that, although the payments were made in cash over a period of years from July 1987 to late 1989 they were only publicised in 1994 (thus suggesting that Mr Al Fayed had condoned the secrecy surrounding the payments until it suited him to behave otherwise); and, secondly, that there had been several remarks which indicated that Mr Al Fayed was well aware that the payments were received corruptly, although he claimed that the corruption was only on the part of the recipient and not on the part of the payer. In the submissions of 29th March it was said that Mr Al Fayed had made no secret of the payments; that he did not believe that they were corrupt or unethical when he made them;on the contrary that he regarded them, although disgusting, as being the norm for Parliament; that he could not reasonably have been expected to believe that the payments were corrupt or unethical when he made them; and further, that he had not sought to keep the payments secret.
  46. The Secretary of State's decision
  47. The Secretary of State's decision was embodied in a letter from his assistant private secretary to Mr Al Fayed's solicitors dated 6th May 1999. It is necessary to read the letter almost in full. Having confirmed that the Secretary of State had decided to discount the DTI Inquiry report on grounds of passage of time, it said:
  48. "In considering your client's application, the Home Secretary has given considerable weight to his substantial charitable works, his employment of over 3,000 employees in this country, his full and substantial payment of UK taxes and his support rendered to British commercial interests. He has also taken into account your client's compassionate circumstances, particularly the interests of his family.
    However, the Home Secretary has also had regard to the circumstances surrounding the judgment entered against your client and others in the High Court on 5th November 1998 in the proceedings brought by Mr Rowland (and after his death by his widow) and your client's role in the events surrounding the safe deposit break-in. In addition, the Home Secretary has taken into account the fact that your client has admitted making payments to, and conferring benefits in kind on, MPs.
    As you will be aware, the law requires that the Secretary of State must be satisfied that an applicant meets the requirement in paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981 to be of good character. Having considered all of your representations, most recently your letter of 29th March 1999 and its enclosures, the Home Secretary is not so satisfied. As a result, the Home Secretary is unable to grant your client's application under section (1) of that Act."
  49. I interpose to say that it has not been suggested that the direction which the Secretary of State there gave himself was incorrect. Indeed, it is clear that it was an entirely correct direction.
  50. The letter continues:
  51. "In relation to the circumstances leading to the civil judgment against your client, the Home Secretary recognises that there are contradicting versions of events surrounding the break-in of the safe deposit box. For the purposes of reaching his decision, the Home Secretary accepts your client's version of those events. However, the Home Secretary considers that your client's admitted failure to put a stop to the examination of the contents of the box constitutes more than a 'minor blemish' (paragraph 22.2 of your recent letter) on his character. Having regard to your client's overall responsibility for conducting a safe deposit facility, the Home Secretary considers that your client's failure to intervene so as to prevent his staff from continuing their examination of the box was a very serious matter. In his view, your client could and should immediately have put a stop to the events in question as soon as they came to his attention. The Home Secretary regards the fact that he did not do so as illustrating a serious want of probity.
    Turning to your client's admitted payments of cash and provision of benefits in kind to MPs, the Home Secretary has considered all the representations put forward on behalf of your client. He notes in particular your client's continuing assertions that he thought that the payments were normal, that he was advised by Mr Greer that this was the proper way in which to combat the campaign launched against him by Mr Rowland and that the MPs themselves actively sought payment.
    However, the Home Secretary notes that your client has been resident in this country for many years. As a result he considers that he ought to have known that the making of secret payments to MPs is improper and unethical. Although he would not expect your client to know the detailed rules and regulations of Parliament, in his view it is obvious (and should have been obvious to your client) not only that accepting payments in these circumstances is improper but that the payment of them is improper too. He believes that several factors indicate that you client knew that the payments were improper. These include the manner in which the payments were made (in cash) and the fact that they were made over a period of years from July 1987 to late 1989 but that your client chose not to publicise the fact until 1994. In addition, there are your client's own comments about making the payments, for example, that he found them 'disgusting' (paragraph 2.10 of your recent letter). The Home Secretary finds it hard to reconcile these sentiments with your client's assertions that he did not believe the payments were improper.
    For the above reasons, the Home Secretary has decided to reject your client's application for naturalis-ation."
  52. Was the Home Secretary's decision disproportionate or irrational?
  53. The proceedings were commenced by Mr Al Fayed on 11th June 1999, his form 86A alleging that the Home Secretary's decision was unlawful on four separate grounds. In this court the written and oral submissions of Mr Beloff QC and Mr Rabinder Singh, who have appeared for Mr Al Fayed both here and below, have relied on two grounds: first, that the Home Secretary had prejudged the merits of the application and did not approach the matter with an open mind, or at least did not appear to do so; second, that the decision was disproportionate and, further or alternatively, irrational, in that the refusal was an excessive reaction to the facts relied on. I find it convenient to deal with those grounds in the reverse order, approaching the matter in the first instance on a normal footing and without regard to the extraneous allegation of actual or apparent prejudgment.
  54. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances. It being clear that the Home Secretary correctly directed himself, the present case falls into the second category. In simple language, what is said is that the decision was so out of proportion, or, in simpler language still, so much of an over-reaction, to the unimportance of the facts relied on that no sensible person could have made it. The case having been put in that way, the substance of it, as Mr Beloff has accepted, can be seen to be conventional irrationality. It is therefore unnecessary to enter into the question whether our law recognises disproportionality as a separate ground on which administrative decisions can be reviewed by the court.
  55. In R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763, 773F-G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances.
  56. In relation to the safe deposit box, the Home Secretary considered that Mr Al Fayed's admitted failure to put a stop to the examination of its contents constituted more than a minor blemish on his character; indeed, that, having regard to Mr Al Fayed's overall responsibility for conducting a safe deposit box facility, his failure to intervene was a very serious matter; and that the fact that he did not do so illustrated a serious want of probity on his part.
  57. Whatever may have been the degree of provocation, the failure, on three successive occasions, of the person who could at once have put a stop to the examination to do so constituted a gross betrayal of the trust placed in the facility by the owner of the box. The Home Secretary's view was that it constituted more than a minor blemish on Mr Al Fayed's character and that it "illustrated" a serious want of probity on his part; in other words, that it was indicative of a general defect in his character. In my judgment it is plain that that was a view which could reasonably be taken in the circumstances and, once taken, that that in itself was enough to justify the Home Secretary's inability to be satisfied that Mr Al Fayed was of good character.
  58. In relation to cash for questions, the Home Secretary considered that Mr Al Fayed, having been resident in this country for many years, ought to have known that the making of secret payments to MPs was improper and unethical; that it was obvious that not only the acceptance of payments in such circumstances was improper but that the making of them was improper also; and that several factors indicated that Mr Al Fayed knew the payments were improper. Those factors included the making of the payments in cash; their being made between July 1987 and late 1989 without any publicisation until 1994; and Mr Al Fayed's own comments about making the payments, for example, that he found them "disgusting".
  59. Mr Beloff has submitted that in the decision letter the Home Secretary did not make a finding that Mr Al Fayed knew that his actions were improper; only that he ought to have known that they were. I do not so read the material paragraph of the letter which, having stated the Home Secretary's view that Mr Al Fayed ought to have known that the making of secret payments to MPs was improper and unethical, goes on to express a belief that several factors indicate that he knew they were improper. Three such factors are then stated, in relation to the third of which it is said that the Home Secretary finds it hard to reconcile Mr Al Fayed's sentiments with his assertions that he did not believe that the payments were improper. In my view that paragraph, read as a whole, does amount to a finding of actual knowledge of the impropriety. In the circumstances the Home Secretary's inability to be satisfied that Mr Al Fayed was of good character was justified on that ground also. It cannot be said that the standard he applied was unreasonably high.
  60. For these reasons I conclude that the Home Secretary's decision to refuse the application was neither disproportionate nor irrational.
  61. The evidence of the alleged prejudgment
  62. An allegation that a minister of the Crown has prejudged or appeared to prejudge an application made to him in a quasi-judicial capacity is a grave one to make. It will not be upheld unless there is evidence of a corresponding gravity to support it. Here the evidence consists mainly of the Sunday Express article, a summary of the evidence of Mr Andrew Pierce (which has been treated as a witness statement) and a witness statement by the Home Secretary's assistant private secretary. No point has been taken on the admissibility of any of this evidence. We are only concerned with the weight to be attached to it.
  63. In the first three paragraphs of the Sunday Express article it is stated, first, that Mr Al Fayed has lost his long battle to become a British citizen; secondly, that the Home Secretary has told friends that his payment to Tory MPs in return for tabling Commons questions should bar him from securing a British passport; and, thirdly, that the Home Secretary has confided: "I just don't see how he can have citizenship if he paid MPs". Neither the first nor the second of those statements can be taken to add anything to the third, except that the confidence was made to "friends". In other words, together they amount to a statement that the Home Secretary has confided to friends: "I just don't see how he can have citizenship if he paid MPs".
  64. The next statement in point of time is that of the assistant private secretary, Miss Ailish King-Fisher, dated 27th August 1999. In it she states that on 14th April 1999 Mr Robert Walley, the Director of Immigration and Nationality Policy, approached her to ask if the Home Secretary wished to comment on the Sunday Express article or respond to Mr Al Fayed's solicitors' question whether he had said the words attributed to him. Her statement continues:
  65. "I consulted the Home Secretary on or around 19 April 1999. I asked him if he had made the comments attributed to him. He told me that he had no recollection whatsoever of making such comments to the Sunday Express . . . or to anyone else. He does not believe that he ever made such comments since he has always been very careful never to comment on individual cases under his consideration. He added that he did not issue any denial to the report because in any event the quotations were hearsay ('has told friends') something accepted by Mr Al Fayed's solicitors . . ., who state only that the words in question were 'reported to Andrew Pierce'.""
  66. The summary of Mr Pierce's evidence is dated 17th September 1999. It states that he has been shown a copy of Miss King-Fisher's statement; that he no longer has his notes from his time on the Sunday Express, though he recollects how he came to write the story very clearly; that about a week or two prior to publication of the article he had a conversation with the source of it; and that he will not identify the source, though he will say that he is absolutely impeccable, that he has access to the Prime Minister, to the Home Secretary and to the whole of the Cabinet and that he is a highly respected figure whose word would not be doubted.
  67. Having stated that the source told Mr Pierce that the Home Secretary had said to him the words quoted in the article, the summary continues:
  68. "The source also told him that the Home Secretary had not yet read the papers on the application and that it was clear that he had made up his mind on the issue. From his discussion with the source he was absolutely and completely convinced that the Home Secretary did say the words which the source told him; indeed he gained the impression from the source that the Home Secretary had told others apart from the source of his view and it was clear to him that the source was convinced that the Home Secretary had decided on the outcome of Mr Al Fayed's application.
    There was absolutely no doubt in his mind after his conversation with the source that the Home Secretary had expressed the view which he wrote in the article and that this was an important story which he wanted to write up."
  69. The summary adds that in a telephone call Mr Pierce put to a senior official within the Department, whom he knew worked with the Home Secretary, that he had been told by an absolutely reliable source that the Home Secretary had decided to reject Mr Al Fayed's application on grounds of payments to MPs; and that the official told him, he clearly recollects, that what was being put to him was " a scenario I recognise but I cannot be drawn further" (because of the judicial nature of the matter).
  70. Did the Home Secretary prejudge or appear to have prejudged the application?
  71. On that evidence two questions arise. Were the words quoted in the article, or something like them, spoken by the Home Secretary? If so, do they establish that he either prejudged or appeared to have prejudged Mr Al Fayed's application? In deciding whether the evidence is sufficiently convincing to support affirmative answers to both those questions it must be acknowledged that it suffers from three deficiencies, each of which must be dealt with in turn.
  72. First and foremost, Mr Pierce did not himself hear what the Home Secretary said. He relies on what a third party has told him the Home Secretary said. However impeccable the source may be, that is a serious objection to the court's acceptance of the evidence as sufficient to support the allegation. Mr Beloff has submitted that because section 10 of the Contempt of Court Act 1981 provides that Mr Pierce cannot be required to disclose the source of the information contained in the article there is no reason to doubt that the source exists. For myself, I do not doubt that he exists. The objection is that the evidence, being second-hand, is inherently less reliable than the evidence of the source himself. Mr Beloff further submitted that Mr Al Fayed had adduced the best evidence available to him. But that does not assist him if the evidence adduced is not sufficiently reliable to support the allegation.
  73. Secondly, we do not know who the source is. The assessment of his reliability given to us by Mr Pierce, though we may accept that it is genuine, is no substitute for one made by the court with knowledge of the source's identity. Thirdly, we do not know the context in which the words were spoken. All that the article tells us is that they were confided to "friends". That suggests that they may have been spoken on an informal occasion and without serious consideration having been given to them beforehand. Moreover, the suggestion that the words were spoken to more than one friend is put in doubt by Mr Pierce's evidence, which simply states that he "gained the impression" from the source that the Home Secretary had told others apart from himself. That is no basis for finding that the words were spoken to more than one friend.
  74. On the other side, Mr Beloff has objected that the Home Secretary has not himself put in a witness statement but has given his evidence through his assistant private secretary; that it is only at a very late stage that he has made any response to the requests that he should say whether he spoke the words attributed to him in the article or not and even now he has not denied that he said them; and that his explanation that he did not issue any denial because the quotations were hearsay both shows that he knew about the article at a much earlier stage and, because of its inadequacy, casts doubt on his veracity.
  75. I see nothing but forensic value in the first of Mr Beloff's objections. In this instance we are told by Miss King-Fisher what she has been told by the Home Secretary. There is no reason to doubt that her record is accurate and that, if the Home Secretary had himself put in a witness statement, it would have said neither more nor less. The second objection is hardly more substantial. It is not clear that Mr Walmsley passed on the requests and, even if he did, the Home Secretary's failure to respond to them does not amount to an admission that he spoke the words attributed to him. Moreover, if, as we are told, he has no recollection of making such comments to the Sunday Express or to anyone else, he could hardly have denied that he made them. There is a little more in the third objection. It does look as if the Home Secretary knew about the article at an earlier stage. However, while the explanation for his silence smacks rather of hindsight, it cannot be said to cast doubt on his veracity.
  76. Viewed as a whole, the evidence is not a satisfactory basis for finding that the words quoted in the article, or something like them, were spoken by the Home Secretary and, if it were necessary to do so, I would hold that it did not establish that that allegation was made out. But suppose that the words, or something like them, were spoken. What follows from that? In my judgment the evidence has signally failed to establish that anything the Home Secretary may have said shows either that he had prejudged or that he appeared to have prejudged Mr Al Fayed's application.
  77. The words themselves, sc. "I just don't see how . . . if he paid MPs", are consistent with the expression of a view which was only provisional. They must also be considered in the context of the source's having told Mr Pierce that the Home Secretary had not yet read the papers on the application, which, it must be inferred, was told to the source by the Home Secretary himself. That has been assumed in Mr Beloff's argument to have the sinister implication that he was either not going to read the papers or had already made up his mind that he would not be influenced by anything in them. But it is at the least equally consistent with a provisional view expressed by someone who had not yet considered the application and intended fully and properly to do so. There is also the Home Secretary's own evidence that he has always been very careful not to comment on individual cases under his consideration. That practice, which is no more than would be expected of him, coupled with his lack of recollection of having spoken the words attributed to him in this case, strongly suggests that anything he may have said was exploratory and preliminary or, at the most, did not amount to more than the expression of a preliminary view. In all the circumstances, I am unable to conclude, with the necessary degree of conviction, that if the words, or something like them, were spoken by the Home Secretary, he either prejudged or appeared to have prejudged Mr Al Fayed's application.
  78. Waiver
  79. The views so far expressed are enough to dispose of this appeal in favour of the Home Secretary. They make it unnecessary to consider the alternative contention made on his behalf, to the effect that any right to complain of the decision on the ground of actual or apparent prejudgment has been waived by Mr Al Fayed. However, since a large part of the argument of Mr Crow, for the Home Secretary, was devoted to that contention, it is right that it should have been fully considered, as it has been by Lords Justices Kennedy and Rix. Having had the advantage of reading their judgments in draft, I express my full agreement with them. The communications between the two sides set out above demonstrate that Mr Al Fayed and his solicitors, though knowing that the Home Secretary had not denied that he had spoken the words attributed to him, were nevertheless content that he should continue to deal with the application personally. In the circumstances, it could hardly have been expected that the law would now permit Mr Al Fayed to object to the decision on that ground.
  80. Conclusion
  81. I would dismiss this appeal.
  82. Lord Justice Kennedy:
  83. Background
  84. The facts are fully set out in the judgment of Lord Justice Nourse, with which I agree.
  85. On 11th June 1999 the appellant commenced these proceedings for judicial review in which he asserts that the decision of the Secretary of State is unlawful for four reasons -
  86. "(1) The Secretary of State approached or appeared to approach the decision without due impartiality.
    (2) The Secretary of State acted unfairly and/or in breach of the applicants' legitimate expectations and/or inconsistently in relying on the first matter, when his adviser (Mr Walmsley) had led the applicant and his representatives to believe that it would not be held against him in connection with his application for naturalisation.
    (3) The Secretary of State placed such excessive reliance on the two matters that he breached the principle of proportionality, which is now to be regarded as an independent head of review in English public law.
    (4) The Secretary of State's decision was so disproportionate as to be irrational."
  87. The specific point taken in the second ground was not pursued before us, and Mr Beloff QC for the appellant devoted most of his time to ground 1, which for convenience I shall refer to as bias.
  88. Bias - The Issues
  89. The complaint is that the Secretary of State said what the Sunday Express reported him to have said, and that the proper inference to be derived from what he said is that even before he saw the appellant's papers his mind was closed. That makes it necessary to consider three matters -
  90. (1) Whether the appellant has shown that it is more likely than not that the words were said:
  91. (2) What it would be reasonable to infer as to the Home Secretary's state of mind if the words were said in the context alleged:
  92. (3) Whether, knowing as he did what the Home Secretary is alleged to have said, the appellant waived his right to object to the Home Secretary acting as decision maker in his case.
  93. Likelihood of the words being used
  94. The journalist who wrote the article, Andrew Pierce, declined to give a statement. He was required to attend at court, and it was then agreed that the substance of what he would have said should be treated as his statement. It shows that he is an experienced journalist, but in September 1999 he had no access to any notes he had prior to writing the article published in September 1998. He claims it was based on a conversation about a fortnight earlier with an "absolutely impeccable" source who had access to cabinet ministers, and who told Andrew Pierce that the Home Secretary had said to him that he had decided that the appellant was not suitable to be a British citizen because of the payment of "cash for questions". The Home Secretary had said to the source "I just don't see how he can have citizenship if he paid MPs". The journalist gained the impression from the source that the Home Secretary had told others apart from the source of his view hence, it would seem, the reference in the article to the Home Secretary having "told friends". Of course journalists are entitled to protect their sources, but if they do then both the source himself and the rest of us are deprived of any opportunity of checking the accuracy of what the source is alleged to have said. At least if one knows who the source is one can evaluate for oneself whether that individual is likely to have got it absolutely right and he has an opportunity to consider whether or not the journalist has accurately recorded what he said.
  95. In a statement dated 27th August 1999 Ailish King-Fisher, who is assistant private secretary to the Secretary of State, says that on about 19th April 1999 she asked him if he made the comments attributed to him. He told her he had no recollection whatsoever of making such comments to the Sunday Express or to anyone else. Her statement continues -
  96. "He does not believe that he ever made such comments since he has always been very careful never to comment on individual cases under his consideration. He added that he did not issue any denial to the report because in any event the quotations were hearsay ('has told friends')".
  97. As Mr Beloff points out, those final words do suggest that the Secretary of State was aware of the Sunday Express article before he was questioned by Ms King-Fisher on 19th April 1999. Mr Beloff stresses that there is no outright denial - the Secretary of State does not say "I never said any such thing", and he has not made a statement himself. That point seems to me to be of no significance whatsoever given that there is no indication of any desire to cross-examine the Secretary of State, and that there is no reason to doubt that Ms King-Fisher has accurately set out what the Secretary of State said to her. As to the lack of an outright denial it seems to me to be of some importance to recognise that for most of us the ability to recall what we are alleged to have said is contingent, at least to some extent, on the content of the remarks attributed to us. If they are outrageous we can be reasonably confident in saying that we never said them, but here the remarks attributed to the Secretary of State cannot be so described, and his slightly more cautious approach when asked about them seems to me to be entirely apposite. I accept that if the article and the statement of its author stood alone the balance would seem to be in favour of the Home Secretary having said something along the lines reported in the press, but to my mind his reaction, as set out by Ms King-Fisher, destroys that balance. The position now is that he may have said something along those lines, and the journalist may accurately have reported what he was told, but, having regard to all of the available evidence, and bearing in mind that the journalist was only reporting what he was told by someone else about what the Home Secretary had said to that other person, the appellant has failed to satisfy me that it is more probable than not that the Secretary of State said precisely what he is alleged to have said, or indeed anything to the like effect. The decision of the Secretary of State not to deny the report when it first came to his attention seems to me to be understandable. It was no more than reported gossip. I regard it as unfortunate that his position was not made clear to the appellant's solicitors at an earlier stage, but that omission does not seem to me to call into question his credibility, and, as Mr Beloff accepts, unless he can satisfy us that it is likely that the words reported were said his whole case of bias simply falls away.
  98. What can reasonably be inferred
  99. Even if I am mistaken in my conclusion as to the likelihood of the words being said I would still find it difficult to accept that the words as reported in the circumstances alleged could reasonably be regarded as indicating that the Home Secretary had, even before he saw the application, reached such a firm conclusion in relation to it that it would not be proper for him to adjudicate upon it. What was reported was something allegedly said to friends - presumably from the Home Secretary's point of view the journalist's source can be so regarded. It was not therefore something allegedly said with any degree of formality. It may have been said at any time or anywhere. That being the position, and bearing in mind the Home Secretary had yet to see the application, it seems to me that the words, if said, cannot reasonably be regarded as anything more than a tentative expression of view - implicitly prefaced by the qualification "on what I know of the matter at the moment ......". The appellant's application for naturalisation was public knowledge in September 1998, and the Home Secretary was perfectly entitled to form a tentative view in relation to it without jeopardising his right to determine the matter properly when it was placed in front of him. I agree that it would have been better for him to avoid airing his views until the time came to grant the application or to set out on paper why he was minded to refuse it, but if there was a leak at an earlier stage that was only a leak of what in reality anyone with any sense would know to exist, namely a provisional view which a Home Secretary, just like a judge, can form without jeopardising his or her right to adjudicate. Of course the position would be different if what was allegedly said did indicate a closed mind. If the Home Secretary had said "I don't care what he says I am not going to grant him citizenship" that would indicate a closed mind, but it is to be noted that where the Sunday Express article says that the appellant "has lost" his battle that is simply the interpretation which the journalist and his source chose to put upon the words allegedly used.
  100. I am fortified in my conclusions as to what can reasonably be inferred from the words allegedly used by looking at the stance adopted by the appellant himself and his legal advisers after the article was published. If they thought the words reported were really indicative of a closed mind they would be anxious to satisfy themselves either that he had not said what was attributed to him, or that he referred the appellant's application to one of his ministers for determination. In fact that was never their stance. They reacted to the article as I have indicated, but, as they point out, until Ms King-Fisher made her statement on 27th August 1999 the authenticity of the attribution was never challenged. They must therefore have proceeded on the basis that the Home Secretary probably had said what he was alleged to have said, yet time and again they expressed confidence in his ability to make a proper decision. How could they have done that if the reasonable inference to be derived from the words allegedly used was that even before he saw the application he had a closed mind? I bear in mind of course the difficulty for an applicant of criticising a decision maker before a decision is made, but the attitude of the appellant and his lawyers does seem to me to be entirely in accordance with what I regard as the proper way in which to interpret the words allegedly used. That can be contrasted with the position in the recent Scottish case of Hoekstra and others v. HM's Advocate (unreported), 9th March 2000, Appeal Court, High Court of Justiciary, to which we were referred. There the Lord Justice General said that the article complained of "published very shortly after the decision in the appeal, would create in the mind of an informed observer an apprehension of bias on the part of Lord McCluskey against the Convention and against the rights deriving from it, even if in fact no bias existed in the way in which he and the other judges had actually determined the scope of those rights in disposing of the issues in the case." Clearly, as it seems to me, the informed observers in this case had no similar apprehension.
  101. Waiver
  102. That brings me to the question of waiver. Citing what was said by Lord Browne-Wilkinson in ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 at 285 C and by Lord Bingham CJ in Locabail Ltd v Bayfield Properties [2000] 2 WLR 870 at 883 Mr Beloff submits, and I accept, that any waiver must be clear and unequivocal and made with full knowledge of all of the facts relevant to the decision whether to waive or not.
  103. Mr Beloff then goes on to submit that until Ms King-Fisher made her statement the appellant was not fully informed, but although in one sense that is right, in the context of waiver and from the appellant's point of view the additional information which her statement provided cannot assist. As I have indicated, it is clear from the documents that from September 1998 onwards the appellant and his legal advisers were content to proceed on the basis that the Home Secretary had said what he was alleged to have said. They had no valid grounds for thinking otherwise, and on that basis they pressed for him to decide, with repeated expressions of confidence in his ability to do so fairly. In other words they were saying to the Home Secretary "even if you said what you are reported to have said we want you to decide this application". All that the statement of Ms King-Fisher did was to give substance to the possibility that the Home Secretary did not say what he was reported to have said. Thus, from the point of view of the appellant, there was even less reason for the Home Secretary not to deal with the appellant's application. In my judgment with all the relevant knowledge at his disposal the appellant clearly and unequivocally waived any right he may have had to object to the Home Secretary deciding his application. As is clear from cases such as R v Nailsworth Licensing Justices ex parte Bird [1953] 1 WLR 1046 a person such as this appellant who has information which may entitle him to object to someone such as the Home Secretary making a decision in his case cannot simply reserve his position until he sees how the decision goes. If with the relevant information he presses for a decision he thereby waives any right he may have to object to the decision maker. As Henchy J said in the Irish case of Corrigan v Irish Land Commission [1977] IR 317 at 326-
  104. "The complainant cannot blow hot and blow cold; he cannot approbate and then reprobate; he cannot have it both ways."
  105. Having said that, I accept that there may be cases of actual bias being shown which in the public interest the courts will say cannot be waived. In Najjar v Haines [1991] 25 NSWLR 224 Kirby P said at 229B -
  106. "My own belief remains that it is not competent to a party to waive the public's apprehension of bias on the part of an official decision-maker."
  107. In Goktas v Government Insurance Office of NSW [1992] 31 NSWLR 684 the same judge said at 687 B -
  108. "my own view is that it is not ordinarily open to a litigant unilaterally to waive an appearance of bias on the part of the judge. This is because the existence and appearance of impartiality on the part of the judiciary belongs not to the litigant alone but to the public at large and the legal system of which the judge is a member."
  109. That observation was considered by Cooke P in the New Zealand Court of Appeal in Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142. At page 152, having cited what was said in Goktas he continued -
  110. "With respect, there is force in that view. We ally ourselves with it to the extent that displays of blatant bias, likely to undermine public confidence in the justice system, should not necessarily be capable of private waiver."
  111. Tentatively I would be prepared to accept that the view of the New Zealand Court of Appeal accurately represents English law, but here there was on any view no display of blatant bias likely to undermine public confidence in the justice system. For the reasons I have given there was not even a public apprehension of bias, and the circumstances were therefore such that the appellant's right to waive was unfettered. That he availed himself of the right seems to me to be clear beyond argument.
  112. Proportionality and Irrationality
  113. Mr Beloff accepted that even if proportionality is now a free-standing aspect of English law, and there is still room for argument about that, there will be very few cases where a decision which would otherwise be regarded as rational is struck down because it is found to be disproportionate, and Mr Beloff further accepts that this decision cannot be said to fall into that narrow band. I therefore find it unnecessary to consider whether proportionality is now a part of English law which can be regarded as separate from and not simply an aspect of irrationality. As to rationality, Mr Crow for the Secretary of State was right to point out that there is no complaint here of the Secretary of State having taken into account irrelevant matters or failing to consider matters which he should have considered. The sole complaint is as to the merits of the decision, and the attack upon it can therefore only succeed if it be shown to be a decision which could not reasonably have been reached by any rational Secretary of State.
  114. As the Secretary of State recognised when considering whether or not the appellant is shown to be of good character, there are many positive points to be made - substantial charitable works, the appellant's role as an employer and tax payer, his support of British commercial interests, and his family situation, but on the other side of the balance there is the appellant's role in the Rowlands safe deposit box break-in, and his admission of making payments to and conferring benefits upon members of Parliament. As to the break-in Mr Beloff submits that it should be regarded as "one instance of a lapse of judgment not an indication of bad character". As to the transactions with members of Parliament it is submitted that the Secretary of State and others should not apply the standards of the late 1990's to the events in the 1980's, and that the payments may have shown that the recipients were of bad character, not that the maker was.
  115. No doubt the Secretary of State carefully considered the arguments of that kind which were fully advanced by the appellant's solicitors, but he was not considering, nor are we considering, a fundamental human right. Important though it is for those concerned this is simply the application of a foreign national for British citizenship, and the more one looks at the material the more obvious it seems to me that the conclusion of the Secretary of State as to the character of the appellant is a rational conclusion with which this court should not interfere.
  116. Conclusion
  117. For those reasons I agree that this appeal should be dismissed.
  118. Lord Justice Rix:
  119. I gratefully adopt the statement of the background facts set out in the judgment of Lord Justice Nourse. I agree that this appeal fails. There is nothing I wish to add to what Lord Justice Nourse and Lord Justice Kennedy have already written on the subject of proportionality and rationality, other than to say that with a balance to be performed between the positive points acknowledged by the Secretary of State and the two matters which caused him concern, the decision which he had to make was peculiarly one for his judgment, the merits of which this court cannot, in the absence of irrationality (ultimately the only ground of complaint) review. There was no irrationality.
  120. However, Mr Beloff QC's primary submission, and the one to which he devoted by far the greater part of his time, was that the Secretary of State's decision had been motivated by actual bias. In this connection the linch-pin of his case was that the Secretary of State had used the words "I just don't see how he can have citizenship if he paid MPs", as reported in Andrew Pierce's article in the Sunday Express of 6 September 1998.
  121. It seems to me that the two critical facts relating to this primary submission are first, that Mr Al Fayed did not himself believe that the Secretary of State had made up his mind on the subject of his application or was biased so as to be unable to make a fair decision on that application, even though he, Mr Al Fayed, was willing to believe, in the absence of a denial, that the reported words had been used; and secondly, that on the balance of probability it is not shown that those words had been used.
  122. It is important to observe that although the words upon which Mr Beloff relies are the only ones reported in inverted commas as having been used by the Secretary of State, the article as a whole went well beyond them in ascribing to Mr Straw a mind that was already made up and a decision that had already been taken. Thus the article appeared under a headline which stated that Mr Al Fayed "will be denied his British citizenship"; and its first paragraph reported that he "has lost his long battle to be a British citizen". This was despite later references in the article to a Home Office spokesman who is reported as saying that "It is being conducted in a scrupulously fair way(Officials have been given a clear message. Bring back recommendations on the basis of facts alone". Indeed, in the subsequent summary of the evidence that Mr Pierce would be able to give, and which was treated as though his witness statement, Mr Pierce said that it was his source's understanding that Mr Straw had made up his mind.
  123. It was not however so much Mr Beloff's submission that Mr Straw had made up his mind, rather that he had used the reported words and that it was to be inferred from them and from them alone that he had prejudged the matter and was biased. In my judgment, however, that inference becomes impossible or at least extremely difficult when it is seen how Mr Fayed himself reacted to the newspaper article. Thus, by their letter of 8 September 1998 Mr Al Fayed's solicitors asked Mr Walmsley to clarify
  124. "in particular whether the Home secretary has taken such a decision and whether he said the words attributed to him in the article".
  125. The first part of the question was answered, in the negative, by Mr Walmsley in his reply of 21 September, but the second part of the question was not answered, as was remarked upon in the solicitors' next letter of 5 October. On 15 October, the solicitors were still calling for "a full response", but thereafter the question of what Mr Straw had said was not further pursued. It would seem that Mr Al Fayed was prepared to think, in the absence of a denial, that the words had been used. But whether that is so or not, Mr Al Fayed thereafter made it clear not only that he accepted the explanation that Mr Straw had not made up his mind but also that he had confidence in Mr Straw's impartiality and ability to come to a fair decision. Thus in Mr Al Fayed's solicitors' letter dated 11 February 1999 directly to Mr Straw, they said -
  126. "As Mohamed Al Fayed said to you in his letter of 30 July 1998 [before the article], he and his brother continue to have every confidence that you would determine their applications for citizenship fairly..."
  127. On 29 March 1999, after receipt of the Secretary of State's "minded to" letter of 11 March, and in the knowledge that one of the two matters raised in that letter was the "cash for questions" affair, Mr Al Fayed's solicitors wrote again to Mr Straw with their detailed response, and in their covering letter asked him to come to his decision. Moreover the submissions enclosed with the letter accepted that Mr Straw was capable of reaching an unbiased decision, and entreated him to be alive to the substantial risk that he could be unwittingly influenced by the press against Mr Al Fayed. Close to the end of these submissions (in para 68) there was a specific reference to the words reported in Mr Pierce's article, and to the fact that they had never been denied, and the document then continued -
  128. "Despite that, we hope and believe that you will exercise an independent judgment."
  129. In these circumstances, Mr Al Fayed and his solicitors in writing on his behalf made it plain that, whatever might be the danger of succumbing unwittingly to what was described as a press campaign of vilification, there was confidence (at any rate before the "minded to" letter of 11 March) and a continuing belief (even thereafter) that Mr Straw could and would come to an independent judgment on the application. There was no suggestion that the decision should be delegated to someone else within the ministry. There was no attempt to rely on the opinion expressed by Mr Pierce in his article that Mr Straw had already made up his mind, even though that article was expressly referred to and quoted. There was no attempt to draw the inference that is now sought to be drawn from the quoted words ascribed to Mr Straw which were themselves set out in para 68 of those submissions. Mr Beloff submitted that these passages were merely "pious" expressions of confidence, and that an applicant who is minded to ask a tribunal to recuse itself on the ground of bias is in a difficult position. I bear that difficulty well in mind, but I think on the contrary that this was a genuine and entirely understandable response to the situation. Mr Al Fayed had the time to consider his position carefully. His response is wholly inconsistent with any belief that Mr Straw was actually biased. In my judgment the difficult submission that the reported words, even if actually used, should be regarded as evidence of actual bias, as distinct from an expression of a provisional view subject to further evidence and argument, is wholly undermined by Mr Fayed's own reaction.
  130. To the contrary, even if one assumes the reported words to have been used, I agree with what Nourse LJ and Kennedy LJ have said as to the most that could be reasonably inferred from them as to Mr Straw's attitude to the decision which faced him.
  131. Secondly, however, there remains the question whether those words had actually been said. Mr Beloff submits that Mr Pierce cannot be criticised for not identifying his source, when he would regard it as his journalistic duty, and was entitled, not to do so. Mr Al Fayed had therefore produced the best evidence that he could, and that was to be contrasted with the evidence produced on the part of the Secretary of State, which did not come directly from Mr Straw, but only through the witness statement of Ms King-Fisher. Moreover, the weight of that statement was undercut both by Mr Straw's failure to issue a prompt denial, and by the unsatisfactory nature of the technical reason now given for not doing so, namely that the reported quotation was hearsay.
  132. These submissions serve to show that it would, at any rate with hindsight, have been better if the Secretary of State through Mr Walmsley had responded to the specific request of Mr Al Fayed's solicitors regarding his use of the reported language and had made clear his position at that earlier time, even if he did regard it as mere gossip. Moreover, it is a reasonable inference from Ms King-Fisher's statement that the Secretary of State had considered the matter at an earlier stage. It would seem to follow that even at that time the Secretary of State was unable to be positive that he had not used the words reported, because if he had been able to be positive then, he ought to have been in the same position in April 1999 when Ms King-Fisher consulted him. It also follows, however, that if at that earlier stage he had thought that he had or might have made such a comment, then he would not be able to say at the later stage that he had "no recollection whatsoever" of doing so. This would of course be particularly the case if, as the subsequent correspondence did not allege but the current submission does, such a remark was born of actual bias and a mind that was determined and closed.
  133. That said, I do not regard the omission to respond to the solicitors' letters as undermining the Secretary of State's evidence, given through Ms King-Fisher, which is probably as categoric a response to an allegation that some remark was made in an informal setting as it is possible to give. Against that, there is the unverifiable evidence of an unidentified source, albeit described as "impeccable". Given that conflict, and bearing in mind the importance, in evaluating an allegation of actual bias, of complete accuracy as to the words used and full understanding of their context, I do not think that it has been proved that the reported words were used.
  134. In any event, even if I assume that they, or something like them, were used, I would regard them at highest as something that might support a case of apparent, but not actual bias. Apparent bias was Mr Beloff's fall-back position, but he did not devote much in the way of his submissions to that alternative. The test of apparent bias is that laid down in the House of Lords in R v. Gough [1993] AC 646: Is there in the view of the court a real danger that the judge was actually biased? In my view, there was not, and, although the arbiter of that question is the court and not the litigant, I am confident that if Mr Al Fayed, or his advisers, had themselves felt that there was a real danger that Mr Straw had prejudged the application through bias, then their apprehension would have been made known before the Secretary of State had taken his decision, rather than afterwards. As it was, although Mr Al Fayed's submissions drew attention to the dangers inherent, as it was put, in a press campaign of vilification against him, and to the words ascribed to the Secretary of State in the Sunday Express article, Mr Al Fayed asked him to take the decision and expressed belief in his personal ability to do so. In as much as those submissions expressed particular concern about the danger of unwitting prejudice being caused by what could be read in the press, that concern could in theory apply to any person, but perhaps least of all to the Secretary of State himself.
  135. But even if I assume that I am mistaken in that judgment, and that, on the further assumption that Mr Straw had used the words ascribed to him, there is or was a real danger that he was biased, there remains the further question of waiver.
  136. Mr Crow, who appeared for the Secretary of State, placed waiver very much in the forefront of his submissions. I have preferred to deal with it in its turn, in part because of a real doubt on my part that actual bias, which was the dominant theme of Mr Beloff's submissions on this appeal, can be waived. I am inclined to think that a case of actual bias, if established or obvious, could not be waived. So also if, although actual bias was obvious, the parties were agreed that the point was not to be taken. It seems to me that such a case would be like an obvious case of illegality, which the court would be obliged to take of its own motion. This is because of public policy and the overriding public interest in the judicial process. In Najjar v. Haines [1991] 25 NSWLR 224 at 229C Kirby P said -
  137. "My own belief remains that it is not competent to a party to waive the public's apprehension of bias on the part of an official decision-maker(That apprehension exists in the public. It is the public's confidence in its institution, which, notionally, this branch of the law is designed to protect."
  138. That was a case about apparent, and not actual bias, and in that context Kirby P was voicing a minority opinion in saying that it was not possible to waive apparent bias: cf Clarke JA at 241F/G and Rogers A-JA at 268C. In Goktas v. Government Insurance Office of New South Wales [1993] 31 NSWLR 684 at 687B Kirby P expressed the same personal view, again in the context of apparent bias, while accepting that the High Court of Australia had held that waiver was possible in Vakauta v. Kelly (1989) 167 CLR 568 at 586ff, another case of apparent bias.
  139. In this country there is clear authority that waiver is possible in the categories both of apparent bias and of the Dimes principle (nemo iudex in sua causa): see Regina v. Bow Street Magistrate, ex parte Pinochet (No 2) [2000] 1 AC 119 at 136/7, Locabail Ltd v. Bayfield Properties [2000] 2 WLR 870 at 883E, 888G. I do not, however, regard those passages as dealing with or extending to cases of actual bias. In the last of the passages which I have just cited there is a reference to Auckland Casino Limited v. Casino Control Authority [1995] 1 NZLR 142 where at 152 Cooke P (now Lord Cooke of Thorndon), having cited what Kirby P said in Goktas, added:
  140. "With respect, there is force in that view. We ally ourselves with it to the extent that displays of blatant bias, likely to undermine public confidence in the justice system, should not necessarily be capable of private waiver; while in criminal cases private waiver would not normally be possible at all; but the present is a borderline case not in either of those categories."
  141. The Auckland Casino case concerned an allegation of apparent bias, which, if it existed at all, had been waived. At 153 Cooke P said:
  142. "[The judge] spoke of "overwhelming evidence of knowledge by lawyers, directors, advisers and supporters at a variety of times prior to the conclusion of the hearing". At most this was a borderline case of presumptive or apparent bias. The appellant could reasonably have been expected to raise the matter before the interim decision if wanting to make anything of it. On the particular facts the finding of waiver should be upheld. This alone would be enough to dispose of the case."
  143. Like Cooke P I think there is force in what Kirby P had said, but directed to cases of established or obvious bias, rather than apparent bias.
  144. Of course, a waiver of apparent bias is only possible if there is full knowledge and the waiver is freely made and clearly and unequivocally demonstrated.
  145. Mr Beloff therefore submitted that the requisite knowledge was not complete until it was known how Mr Straw would deal with the allegation, until it was known, for instance, that he would not absolutely deny using the reported words. He also submitted that the language of the subsequent correspondence and submissions was equivocal; that Mr Al Fayed lacked a free choice in the matter because of the invidiousness of asking a decision maker to stand down on the ground of bias; and that the issue had to be looked at with realism (see Pinochet ( No 2) at 137C).
  146. Nevertheless, it seems to me that, even on the hypothesis that a case of apparent bias had been established on the basis of the words ascribed to the Secretary of State in the article, the required conditions for waiver have been met. Mr Al Fayed may not have known exactly how Mr Straw would deal with the allegation concerning the reported words in advance of Ms King-Fisher's witness statement, but he knew what the allegation was, drew attention to it in his solicitors' correspondence, and reverted to it in the closing paragraphs of the submissions sent forward on his behalf on 29 March 1999. He there made the point that the Secretary of State, through Mr Walmsley, had been asked to confirm whether the reported words had been spoken "but Mr Walmsley has never subsequently denied the point". The submissions immediately continue (as I have already cited above)-
  147. "Despite this, we hope and believe that you will exercise an independent judgment."
  148. That passage indicates that Mr Al Fayed was dealing with the matter on the basis that Mr Straw could not deny the words. Even so, he wished Mr Straw to proceed with his decision in the belief that he could do so and would do so with an independent mind. That seems to me to demonstrate full knowledge not only of the alleged case of apparent bias, but, as it was already assumed, of the Secretary of State's inability to deny the words: it also demonstrates a clear and unequivocal decision to waive a claim of apparent bias. That decision must of course be freely made; but there was no difficulty in requesting Mr Straw to stand down from the determination and allow it to be taken by a deputy; and Mr Al Fayed had plenty of time (unlike the position in Pinochet (No 2), where the question of realism was linked to the lack of time) to choose, with his legal advisers, his preferred course of conduct. Mr Al Fayed knew that at a previous stage of his application, Mr Michael Howard, the then Secretary of State, had stood down in favour of a deputy.
  149. The matter goes, I think, further than that because, in another part of his submissions of 29 March 1999 (at paras 9 and 10), Mr Al Fayed did seek to reserve a different, and more general point, about the process as a whole. That process was said to be unfair, in the light of the way the application had been dealt with throughout its course, and ( at para 9.9) in the light of the "press assault" against him. I set out the passage to give it its full flavour:
  150. "9.9 Fairness for the decision you have to take is a critical one for our client should have ensured that our client was treated no less favourably than if this matter had been one for judicial determination. Instead and in view of what has been published, our client is very concerned that you may be, albeit unwittingly, adversely influenced against our client. Whilst we do not suggest you are incapable of reaching an unbiased decision, we do suggest that there is now a very substantial risk of prejudice because of the often orchestrated and venomous press assault on our client, and it will be difficult in the extreme for you to disregard the media comment. That is unfair to our client, especially when the media comment is almost entirely due to the way this application has been handled by you and your officials."
  151. The submissions then continued:-
  152. "10. Regrettably, in consequence of these matters, our client has not had the fairness to which he is entitled. For this reason alone you should now grant our client his citizenship. In any event, the further submissions we make in this document should not be taken as accepting in any way as fair the procedure followed by you and your officials, or as any waiver of the argument that the process is not in accordance with Lord Woolf's observations in ex parte Fayed."
  153. This passage shows that Mr Al Fayed and his legal advisers were conscious of the concept of waiver, and were seeking to guard against it but in other and more general contexts, such as procedural fairness and abuse of process. The argument being floated, but with which we have not been concerned in these proceedings, is a submission that the press campaign spoken of had made a fair disposition impossible. That, however, is different from the submission before us, that the Secretary of State was himself subject to specific attack on the basis of the words ascribed personally to him. If that had been Mr Al Fayed's concern, then he should not have invited Mr Straw to press on with his determination, in the belief that he could do so with an independent mind.
  154. In these circumstances it seems to me that the present situation is covered by authorities which underline the waiver involved in a litigant, who has full knowledge of the ground of apparent bias subsequently relied upon, adopting a policy of "wait and see": see R v. Nailsworth Licensing Justices, ex parte Bird [1953] 1 WLR 1046 and Corrigan v. Irish Land Commission [1977] IR 317. The fact that in this case Mr Al Fayed was prepared to canvass the basis of his concern, as well as his confidence, in submitting himself to a determination by Mr Straw, does not in my judgment take this case out of the scope of those decisions. In my judgment it would be unrealistic to think otherwise.
  155. For these reasons, the appeal must be dismissed.
  156. Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.


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