Mrs Justice Patterson :
- Peter Sanders and Brian Ross are members of the Executive Committee of Stop Stansted Expansion ("SSE"). They seek to challenge decisions on the part of the Airport Commission ("AC") and the Secretary of State for Transport ("Secretary of State") which relate to a time when Mr Geoff Muirhead CBE (Mr Muirhead) was a Commissioner with the AC.
- The claimants seek a declaration that the sift criteria adopted by the AC for use in assessing proposals for long term capacity at UK airports are infected by apparent bias, an order quashing the sift criteria and an order prohibiting the AC from publishing its "short list" of proposals until such time as (i) the sift criteria have been re-determined, (ii) further appointments have been made to the expert panel in the light of the re-determined sift criteria; and (iii) the re-determined criteria have been used to produce the short list.
- On the 23rd October 2013 Mr Justice Ouseley ordered that the application was to be listed in court as a "rolled up hearing", on notice to the defendants, for one day on the 22nd November 2013. As part of the listing directions the parties were ordered to agree a timetable enabling oral submissions to be concluded within the day of the hearing. It was noted also that the case had been put in at short notice because of the urgency.
- The urgency is because the Airports Commission has been set up by the Secretary of State under terms of reference which require it to publish an interim report by the end of 2013. As the report has been directly commissioned by government the latest day for publication is the 18th December 2013 as the House of Commons rises the following day and it is inappropriate to publish a directly commissioned report in parliamentary recess.
- The Airports Commission has been given the task by the Secretary of State to examine the "scale and timing of any requirement for additional capacity to maintain the UK's position as Europe's most important aviation hub. It is to identify and evaluate how any need for additional capacity should be met in the short, medium and long term." It is to report "no later than the end of 2013 on:
• Its assessment of the evidence on the nature, scale and timing of the steps needed to maintain the UK's global hub status; and
• Its recommendations for immediate actions to improve the use of existing runway capacity in the next five years – consistent with credible long term options.
The assessment and recommendations in the Commission's Interim Report should be underpinned by a detailed review of the evidence in relation to the current forecast in the UK with regard to aviation demand and connectivity, forecasts for how these are likely to develop, and the expected future pattern of the UK's requirements for international and domestic connectivity."
- A final report is to be published no later than the summer of 2015 on,
i) An assessment of the options for meeting the UK's international connectivity needs, including their economic, social and environmental impact;
ii) Its recommendations for the optimum approach to meeting any needs;
iii) Its recommendations for ensuring the need is met as expeditiously as practicable within the required timescale;
iv) As part of the final report the AC is to provide materials based on a detailed analysis which will be contained within the report which will support the government in preparing a National Policy Statement to accelerate the resolution of any future planning applications for major airports infrastructure.
- The Commission was established on the 7th September 2012 under the chairmanship of Sir Howard Davies, former deputy governor of the Bank of England and director of the London School of Economics. The other members of the Commission were announced on the 2nd November 2012. They were Sir John Armitt CBE, Professor Ricky Burdett, Vivienne Cox, Professor Dame Julia King and Geoff Muirhead CBE.
- In outline the claimants assert that the role of Mr Muirhead as a Commissioner tainted the activities and decisions of the AC by reason of apparent bias because of his links with Manchester Airports Group (MAG).
- In fact, Mr Muirhead stepped down from his role as a Commissioner on the 20th September 2013. He has not been involved with the Commission since that date. It is said by the defendants that the reason for Mr Muirhead stepping down was as a precautionary measure as there was a risk that his continued involvement on the Commission might give rise to an appearance of bias. That is because his former employers, MAG, submitted a proposal concerning the long term expansion of Stansted Airport which MAG had acquired on the 28th February 2013.
- The defendants' case is that with Mr Muirhead stepping down the claimants achieved their main objective. The attempt to impugn the Commission's sift criteria which were adopted on the 3rd May 2013 is misconceived and is out of time.
- The claimants maintain that their claim is perfectly valid because of the retrospective operative effect of the apparent bias of Mr Muirhead. They did not know that he had participated in the determination of the sift criteria until the AC responded to its pre-action protocol letter on the 20th September 2013. The claimants had asked the AC to look afresh at the sift criteria if it transpired that Mr Muirhead had been involved in their determination and likewise had asked the Secretary of State, as the sponsoring department, to require the Commission to do so. Both have refused. If the court considers the more appropriate target for the judicial review is against the original decision to adopt the sift criteria then the claimants ask for an extension of time within which to do so. For reasons set out they lacked the necessary knowledge to bring such a challenge until receipt of the responses to the letters before claim.
- SSE was established in 2002 in response to the government's consultation on expanding UK airports and, in particular, to address the threat posed by expansion plans for Stansted Airport. Its objective is to contain the development of Stansted Airport within tight limits that are truly sustainable and, in that way, to protect the quality of life for residents over wide areas of Cambridgeshire, Essex, Hertfordshire and Suffolk, to preserve the heritage of the area and to protect the natural environment.
- The claimants are long standing and key members of SSE's executive committee: Mr Sanders is chairman, a post he has held since July 2004 and Mr Ross is SSE's economic advisor, a position he has held since 2003.
- As set out the Commission is an advisory body set up by the Secretary of State for Transport to advise the government on the need for additional UK airport capacity and to provide recommendations based on an objective appraisal of the evidence. Its role is limited to that of an advisor based on the findings of its reports.
- The Department for Transport is the sponsoring department for the Commission and responsible for its creation and findings. It was the Secretary of State who appointed Sir Howard Davies as chair along with the other five Commissioners. The Secretary of State has not committed to be bound by the conclusions of the Commission but has said that he will take its conclusions into account.
- From 1994 until the 1st October 2010 Mr Muirhead was chief executive of MAG. He is a qualified civil and structural engineer with in depth experience of airports operations and management. He had worked at MAG from 1988.
- From his retirement from MAG until January 2013 Mr Muirhead was in receipt of consultancy fees from MAG. First, he had an arrangement whereby for a period of two years until the 1st October 2012 for the provision of consultancy services he was paid an annual sum of £75,000. In fact, he was not asked to provide any such services. Second, he had an arrangement for a period of three years (until October 2013) during which he agreed to be nominated by MAG to be a member of, or to provide advice to, a number of regional and industry bodies. His responsibilities included membership of the North-West Business Leadership team which mainly involved promoting economic investment in North-West of England, acting as a special advisor to the Airports Council International (ACI) world board and European board, which involved providing advice on international and European aviation legislation and as Chair of the North West Campaign for Rail which lobbied for rail investment across the north west England. The North West Business Leadership team nominated him to be a non-executive director on the board of the Atlantic Gateway project which is a body promoting various investment schemes linking the ports of Liverpool and Manchester. He continues with that work on a pro bono basis as chair of that project. For the second arrangement Mr Muirhead was paid an annual sum of £75,000. That arrangement terminated in January 2013 because his work with ACI, the North West Rail Campaign and the North West Business Leadership team had ended. None of the bodies were related to MAG's core business and none involved access to any information about MAG's core business. No contribution is made by MAG to the Atlantic Gateway project.
- Mr Muirhead was one of six members of the Commission. Commissioners were not appointed as specific experts in their field; it was expected that they would be able to contribute broadly to discussions across a full range of issues under consideration. Whilst Mr Muirhead was the main Commissioner with significant aviation experience other Commissioners had some related experience.
- On the 19th of November 2012 the Commissioners held their first formal meeting. Amongst other things they considered a draft guidance document which included a list of factors for assessing long term options.
- On the 18th December 2012 the second Commission meeting was held at which a second draft of the factors to be contained within the draft guidance document was considered. Under the factor headed "Local Environmental Impact" it is noted that, "proposals may also wish to highlight any other local environmental impacts such as implications for heritage buildings and towns, protected sites, bio-diversity and flood protection."
- In January 2013 Mr Muirhead received the final payment under the second part of his consultancy agreement.
- On the 18th January 2013 MAG announced it had been successful in its bid to acquire Stansted Airport. The acquisition took effect on 28th February 2013.
- On the 1st February 2013 the Commission published Guidance Document 01 which set out key dates for work on short, medium and long term measures. It explained how a key part of the work over the coming months would be to develop in more detail the specific criteria to be used in identifying those options which merit more detailed consideration. More was to be said once the AC had had an opportunity to consider the Government's final Aviation Policy Framework. At that time the Commission identified "six broad categories of factors which we would encourage scheme promoters to consider in developing their (long term) proposals." Those factors were,
i) economic factors;
ii) social factors;
iii) climate change impacts;
iv) local environmental factors;
vi) feasibility considerations.
- The Commission invited responses to proposed sifting criteria by the 15th March 2013. Proposals for providing additional airport capacity in the longer term required confidential expressions of intent to be submitted to the Commission by 28th February 2013. Outline proposals were to be submitted to the Commission by the 19th July 2013.
- On the 4th February 2013 in light of the announcement that MAG was to acquire Stansted Airport SSE wrote to Sir Howard Davies copying the same to the Secretary of State expressing SSE's concern about apparent bias in the light of Mr Muirhead's position and stating that it was unclear when Mr Muirhead ceased to be employed by MAG. By that time Mr Ross had discovered, through his examination of the MAG annual accounts, about the consultancy agreement between Mr Muirhead and MAG.
- On the 5th February 2013 Mr Muirhead attended a Commission meeting and participated in the Commission's consideration of the sift criteria.
- On the 20th February 2013 the claimants attended a briefing seminar with Mr Graham, head of the Commission's Secretariat. At the end of the seminar Mr Sanders raised with Mr Graham his concerns about Mr Muirhead and apparent bias. Mr Graham confirmed that the earlier letter had been received and defended Mr Muirhead's role on the Commission
- On the 26th February 2013 the Commission received MAG's expression of intent. That was reported to the Commissioners on the 13th March 2013. The expression of intent was vague but indicated that MAG intended to submit proposals on airport capacity needs and options to the Commission in accordance with its timetable. It recognised that, in the longer term, additional capacity will be required in the South East and looked forward to the Commission's view on long term demand for aviation. It intended to look closely at how its airports and, in particular, Manchester and Stansted could help to meet increasing aviation demand. MAG said it would be in a position by the second deadline date of the 19th July to make a more substantive submission to the Commission.
- On the 13th March 2013 a Commission meeting was held which Mr Muirhead attended. Commissioners were informed of expressions of intent via a summary paper including a narrative and table. Four other confidential expressions of intent had been received for expansion of Stansted, two of which proposed that it be made into a four runway hub airport. The meeting also considered a paper on the sift criteria which had been expanded to include an additional factor entitled "Strategic Fit". The two criteria of climate change and local environmental impacts were amalgamated under one heading of "environment". It was agreed that the criteria would be considered further at the next meeting.
- On the 14th March SSE wrote again to Sir Howard Davies reiterating its concerns about apparent bias, now heightened by the fact that MAG was the owner of Stansted Airport. It had not received a reply to its initial letter on the topic dated 4th February 2013. A reply was subsequently received by way of a letter dated the 25th February but posted on the 11th March.
- On the 15th March 2013 SSE submitted a detailed consultation response on the criteria to be used by the AC for assessing long term options. The response dealt with the sifting process and indicated that the intention to narrow down all the options in one step to a short list by the end of 2013 was ambitious and challenging. The short listed options would then need to be subjected to a far more detailed assessment including a Sustainability Appraisal and Strategic Environmental Assessment before any final recommendations are made. On the criteria to be used it emphasised the importance of taking fully into account the landscape and cultural heritage impact of any airport development proposal. It stated also that an assessment of market demand at the different airport sites where major expansion was proposed was a logical starting point of the Commission's work.
- On the 19th March 2013 SSE sent a further letter expressing its concern about apparent bias on the part of Mr Muirhead.
- On the 25th March 2013 the Commission met to consider the sift criteria in light of the public responses that had been received. Eight draft sift criteria were proposed and approved (adding accessibility to the earlier seven criteria).
- On the 17th April 2013 Sir Howard Davies met with the new chief executive of MAG, Charlie Cornish. The notes record that MAG was still reviewing its position but that it expected to provide input on traffic growth, the role of regional airports, the views on second runway and hub options of Stansted and options for funding.
- On the 30th April 2013 the Commission met. Although not minuted it is likely that Sir Howard Davies reported to the Commission on his meeting with Mr Cornish. There was no time to comment on the draft sift criteria document. Commissioners were, therefore, invited to provide comments by email subsequently. Mr Muirhead did not but Professor Ricky Burdett and Professor Julia King communicated further comments.
- On the 3rd of May 2013 the Commission published its sift criteria with the eight criteria that had been approved. Environment was expressed to include air quality, noise, designated sites, climate change and other environmental impacts. Those were described as follows,
"Where proposals may have other significant environmental impacts beyond those outlined above, these should be identified and documented. This might include, for example, impacts on landscape and/or townscape, water availability and flooding, bio-diversity or historical and archaeological sites…"
- On the same day the Commission issued a press release announcing a new expert panel to support the Commission in their assessment of options for expansion. They were appointed to bring a wide range of skills and experience and to ensure the Commission had access to a broad spectrum of quality scientific and technical expertise as the work progressed. Some 13 experts were listed. None were described as having expertise on matters of landscape, countryside or cultural heritage.
- On the 8th May 2013 Sir Howard Davies wrote to SSE in response to their concerns about apparent bias on the part of Mr Muirhead indicating that there was nothing improper about Mr Muirhead's involvement with the Commission.
- On the 17th May 2013 SSE wrote again to the AC, copied to the Secretary of State as they had done before. The letter said,
"I am very surprised that Mr Muirhead was still employed by MAG until January this year. This is quite contrary to the impression given to Mr Ross on the 2nd November last year when he said he had retired from MAG two years ago.
I note your conviction that there is nothing improper about Mr Muirhead's involvement with the Airports Commission. I beg to differ. In any court proceedings however the test would be not your view or mine, but what view a fair minded and informed observer would take.
As yet, however, it may be that the question of operative effect has not arisen - whether or not Mr Muirhead's participation could influence your Commission's deliberations in favour of MAG. We are aware that you have invited those with an interest in developing proposals for airport expansion to submit expressions of intent by the 28th February 2013 and outline proposals by the 19th July 2013. We are also aware that you do not intend to publish the expressions of intent but that you do intend to publish the outline submissions. We are therefore reserving judgment on the question of apparent bias until the outline submissions are published. When we have an opportunity to review these we shall be better placed to form a view on whether it is appropriate and proper for Mr Muirhead to continue as a member of your Commission. I shall write to you again at that stage.
Finally, I have to express dismay that the Commission's sift criteria relegate the impacts of landscape and cultural heritage to the final residuary line of the environmental section i.e. other. Are there other significant local environmental impacts which should be taken into account?
Whenever the government has allowed an independent voice to be heard in the past… the conclusion reached has been that there should be no development at Stansted beyond the existing single runway. And on the most recent occasion when the question was considered and rejected by Inspector Sir Graham Eyre in the airports enquiry 1981-1983 (reporting 1984) he made it very clear that the special character of the local landscape and cultural heritage was a critical factor in his decision."
- On the 29th May 2013 Sir Howard Davies replied to SSE. In relation to the sift criteria he said,
"I can assure you that, as for all criteria in the decision making process, local environmental impacts will be given full consideration in the course of our work."
In relation to Mr Muirhead he repeated that there was no impropriety involved through Mr Muirhead's role with the Commission but advised that it was the Department for Transport which had selected and recruited Commissioners and if SSE wished to pursue the matter they should address their concerns directly to that Department.
- On the 12th of June 2013 SSE wrote to Rosie Snashall, at the Department for Transport, who Sir Howard Davies had suggested they communicate with referring her to previous correspondence.
- On the 4th July 2013 the Commission published a discussion paper on aviation noise. That included their own analysis and contained the information that almost 50 times more people were affected by aircraft noise at Heathrow per passenger than at Stansted.
- On the 9th July 2013 at a Commission meeting a template was reviewed that was to be used to allow an equitable assessment against the sift criteria. The timetable proposed was for a first sift in September, a second sift in October and then agreement of the final list of options for the interim report in November.
- By the 19th July more than 50 proposals for long term options for new airport capacity had been received by the Commission. One was from MAG entitled Capacity for Growth.
- On the 26th July 2013 SSE wrote to the Secretary of State for Transport, copied to Sir Howard Davies, referring to the MAG submission saying that the apparent bias previously brought to the attention of both the Commission and the Secretary of State had clearly now had an operative effect. The letter continued,
"In the circumstances we consider it unacceptable for Mr Muirhead to continue to serve on the Airports Commission and the longer he continues to serve, the more the process risks being tainted. Mr Muirhead is bound to have significant influence within the Commission since he is the only member with first hand knowledge and experience of the aviation industry, having spent 24 years with MAG. Moreover as its Chief Executive, he led MAGs expansion policy and the construction of the second runway and terminal at Manchester Airport. In the light of MAGs submission to the Commission on the 19th July, we regard it as imperative that Mr Muirhead steps down from the Commission forthwith. Failing this, and in the absence of any satisfactory commitment from you within 14 days, we will take further legal advice with a view to initiating legal proceedings to challenge Mr Muirhead's role on the Commission."
- On the 7th August all of the long term options that had been received were published by the Commission with an invitation to the public to submit their views on them by the 27th September 2013. More than 250 responses were received by that date including one from SSE.
- On the 19th August the claimants sent pre-action protocol letters to the Commission and the Secretary of State. The letters stated that Mr Muirhead's continued presence on the Airports Commission fatally tainted its proceedings, as a matter of law, by reason of operative apparent bias. It sought;
"1. To require that Mr Muirhead ceases to have any role in the Airports Commission forthwith.
2. If it transpires that Mr Muirhead was involved in the determination of the "sift criteria for long term capacity options UK Airports" to require the Airports Commission to look afresh at the said sift criteria upon Mr Muirhead's ceasing to be a member of the Airports Commission.
3. To require the Airports Commission's "short list", at present due to be published in December 2013 not to be published until it has been looked at afresh upon Mr Muirhead ceasing to be a member of the Airports Commission."
- On the 4th September 2013 the Commission met. The Chair updated the meeting on the threat of judicial review to the membership of the Commission. Mr Muirhead agreed to withdraw from those parts of the meeting which were to deal with the
i) Surface Access Investments;
ii) The fiscal incentives to redistribute services between airports.
This was because both of these, if implemented, could have specific benefits for Airports owned by MAG. The Secretariat and the Chair did not consider it was necessary for Mr Muirhead to withdraw from the meeting's discussion of long term options for new runways and airports, as the agenda focused only on removing the least credible options from consideration. In addition, as with the short term options, any decisions taken would be provisional and would need to be re-confirmed following the end of the ongoing consultation period on 27th September.
- The Commission provisionally agreed to sift out 23 proposals on the basis that they had significant flaws or were inconsistent with the Commission's remit or there was another equivalent proposal which was more fully developed. It provisionally agreed to remove ten surface access proposals from further consideration and to develop templates for a do nothing option and a maximum use of existing capacity option as comparative to the aviation based options under consideration. The provisional conclusions were to be reviewed by the Commission at the October meeting in the light of any relevant submissions received through the ongoing consultation process on long term options.
- On the 20th September 2013 the AC announced that Mr Muirhead had stepped down from the Commission by mutual consent with the Secretary of State. The press release continued,
"The members of the Airport Commission would like to thank Geoff Muirhead for his valuable and insightful contributions to their work programme. Throughout his time at the Commission, he has consistently demonstrated his impartiality. However, while they regret that this decision has been necessary, they accept that in the changed circumstances following Manchester Airport Groups submission of its proposals for expanding Stansted Airport it has become appropriate for Geoff to stand down to safe guard against any perception that the integrity to the process may be compromised."
- On the same day the Commission responded to the pre-action protocol letter. That confirmed that Mr Muirhead had stepped down with immediate affect. The letter continued,
"Mr Muirhead and the Secretary of State for Transport have decided by mutual consent that on a precautionary basis, and without any acceptance whatsoever of any bias towards MAG's proposals, the prudent course is for him not to continue as a Commissioner. …we do not consider that there can have been any operative bias prior to Stansted Expansion Proposals being under consideration by the Commission and accordingly, there is no need for the Commission to take any retrospective action in respect of its process to date. …. Mr Muirhead had no involvement with MAG's bidding process for Stansted Airport and was not aware of this until it was announced in the press. He did not seek advice regarding a conflict of interest at this time as far as the Commission were aware, and the Commission does not consider that there was any such conflict. Manchester Airport Group sent an expression of intent to submit to the Commission on the 27th September 2013, but this was not specific as to the expected content of its submission. Mr Muirhead was not aware of what, if any, proposals for expansion MAG would make in relation to Stansted Airport until its submission was received by the Commission on 19th July 2013. …the sift criteria were agreed by the Commission as a whole in the course of the Commission meetings. In this regard, it is to be noted that these are generic objective criteria. Moreover, "local environmental considerations" are one of the environmental criteria which the Commission will be using. The allegation is that these have somehow been "relegated" is not accepted; this criterion will be given appropriate weight in the decision making process according to its relevance in any given proposal… regarding the process of sifting the proposals received by the Airports Commission, the only discussion that has so far been undertaken by Commissioners in this regard was on Wednesday 4th September 2013. This preliminary discussion has focused only on identifying on a provisional basis options which are fundamentally unworkable, duplicatory or outside the Commission's remit. Mr Muirhead participated in this sift. Given the nature of the initial sift it was not considered that it was necessary for Mr Muirhead to withdraw even on a precautionary basis. No substantive discussion of MAGs proposals at Stansted Airport took place at that meeting. The provisional sift results from the September meeting will be reviewed by the Commission in due course in the light of any relevant evidence submitted through the Commissions current consultation process."
- On the 26th September 2013 the Secretary of State for Transport sent his response to the claimants' letter before claim.
- On the 27th September 2013 the time for responding on the long terms options expired. SSE provided a detailed response by reference to the sift criteria and including comments on market demand and commercial viability, landscape and heritage impacts and historical and listed buildings.
- On the 7th October 2013 Sir Howard Davies gave a speech setting out the Commission's provisional conclusion that some net additional runway capacity will be needed in the south east of England in the coming decades.
- On the 10th October 2013 the Commission met to consider the second provisional sift of long term proposals following the closure of public consultation.
- On the 14th October 2013 the claimants commenced the current proceedings.
- There is little dispute between the parties as to the correct legal approach.
- The law on apparent bias has recently been summarised by the Court of Appeal in BAA Limited v Competition Commission (2010) EWCA Civ 1097 where Maurice Kay LJ said:
"10. There is no dispute as to the relevant legal principles. In Porter v Magill UKHL 67,  2AC 357, Lord Hope expressed the objective test as follows (at paragraph 103):
"Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
11. In Helow v Secretary of State for the Home Department  1 WLR 2416, Lord Hope returned to the attributes of the fair-minded and informed observer. He said (at paragraphs 2 to 3):
"The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The 'real possibility' test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
Then there is the attribute that the observer is 'informed'. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."
12. Further elucidation was provided by Richards LJ in National Assembly for Wales v Condron  EWCA Civ 1 573 (at paragraph 50):
"The court must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision."
13. It is common ground that the question whether, on the facts found by the CAT, apparent bias exists is a question of law: Gillies v Secretary of State for Work and Pensions  1 WLR 781, per Lord Hope at paragraphs 2 to 7. At appellate level, it is for the courts
"To assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances. It must itself make an assessment of all the relevant circumstances and then decide whether there is a real possibility of bias." (AWG Group Ltd v Morrison  EWCA Civ 6 per Mummery LJ, at paragraph 20)
14. It is also pertinent to keep in mind the words of Lord Bingham in Locabail (UK) v Bayfield Properties Ltd  QB 451, 472, that, because proof of actual bias is very difficult,
"The policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring to show that such bias actually exists.""
- Maurice Kay LJ then proceeded to consider the circumstances of the case by specific reference to different periods of time (at paragraph 15). He observed that "different considerations arise at different points along the temporal way" (at paragraph 16).
- The judgment continues at paragraph 31:
"It is important in this regard to keep in mind that we are considering apparent and not actual bias and that, for this purpose, "appearances are not without importance": R v Abdroikov  UKHL 37,  1 WLR 2679, at paragraph 16, per Lord Bingham. I accept Lord Pannick QC's submission that BAA ought not to be put in the position of having to prove operative effect once apparent bias has been established. That would be to blur the distinction between actual and apparent bias..."
- In Locabail (UK) Limited v Bayfield Properties Limited (2000) QB 431 it was stated, at paragraph 18:
"When applying the test of real danger or possibility (as opposed to the test of automatic disqualification under Dimes and Pinochet (No. 2) it will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled. As the Court of Appeal of New Zealand observed in Auckland Casino Ltd v. Casino Control Authority  1 NZLR 142 at 148, if the judge were ignorant of the allegedly disqualifying interest:"
- The other case relied upon is that of R v Secretary of State for the Environment and Another Ex Parte Kirkstall Valley Campaign Limited (1996) 3 All ER 304 at page 328 (a) (b) where Sedley J said:
"Participation can manifestly be more than voting or discussion. A justice who, on retirement, tells his colleagues that it is his car which the defendant is charged with taking and wrecking, and who then sits with arms folded while the other justices reach a conclusion, might not be regarded by this court as having abstained from participation simply by having declared his or her interest and neither spoken nor voted."
- The claimants submit that it is clear why Mr Muirhead was appointed to the Commission. They point to a letter from the Secretary of State for Transport dated 2nd September 2013 to the Right Honourable Sir Alan Haselhurst MP, whose constituency includes Stansted. It was in reply to one from the MP who had written expressing concerns about Mr Muirhead's connection with the Manchester Airports Group. The Secretary of State said,
"I note your concerns. However the Department for Transport is satisfied with the way that the Airports Commission is conducting its assessment of all the options for maintaining the UK's international connectivity. Geoff Muirhead, who is no longer an ambassador for MAG, is only one of six Commissioners, who were each selected to bring different perspective and areas of expertise. Mr Muirhead's expertise in the Airport's industry is the very reason he was appointed. We are content that he is well qualified to fulfil his role within a well balanced team of Commissioners."
- It is clear the claimants say that with his background Mr Muirhead was likely to exert a disproportionate influence over the selection of the sift criteria.
- Any fair minded and informed observer, having considered the facts, would conclude that someone who had worked as a chief executive for 16 years and been involved at the highest level with a company for some 22 years could not cleanse his heart and mind both consciously and sub-consciously of all his loyalties to MAG especially when he had continued to act as a highly paid ambassador for them. That is not to cast aspersions on Mr Muirhead but it is what a fair minded observer would conclude. As such the Secretary of State, the Commission and Mr Muirhead were right to agree that he should step down from the Commission as his presence tainted the Commission's proceedings in respect of its consideration of any potential expansion of Stansted Airport by apparent bias.
- If that was the case in respect of any future decision making by the Commission then the claimants assert that it must equally be so in respect of any past decision making on the part of the Commission. That means that there would be an impact upon the Commission's consideration of any potential airport expansion, including the sift criteria adopted by the Commission to assist it as it progressed its work and appraised the various options including those for Stansted as submitted by MAG and others.
- They do not suggest that Mr Muirhead had knowledge of the MAG proposals to purchase Stansted until it became public. It was no secret that MAG was interested in the purchase for some three months or so before Mr Muirhead joined the Commission. The Financial Times carried an article on the 3rd of August 2012 setting out that MAG had entered into an agreement with Industry Funds Management to enable it to raise funds to bid for Stansted. Mr Muirhead must have been aware, therefore, that there was a strong possibility that MAG would own Stansted.
- The claimants accept, also, that Mr Muirhead had no inside knowledge of MAG's intent to develop Stansted once MAG had purchased it. However, whilst Mr Muirhead did not know precisely what was intended he knew enough to recognise that there was a strong possibility that MAG would submit proposals for additional runways at Stansted.
- On the 13th March 2013 Mr Muirhead was informed, alongside other Commissioners, of the expression of intent by MAG which had been submitted on the 26th February. By then, if not before, he must have recognised that there was a likelihood that MAG would make a submission involving additional runways at Stansted.
- By the 30th April 2013 Mr Muirhead received a brief report at the Commission meeting of an earlier meeting of the 17th April which had taken place between Sir Howard Davies, Charlie Cornish and Phil Graham. It must have been obvious by then that there was a strong possibility that MAG would submit proposals for more than one additional runway at Stansted.
- On the 1st May 2013 the sift criteria were approved for publication. Mr Muirhead did not comment on them on or after the 30th April as some of his fellow Commissioners did but the fact that he remained silent was indicative of his consent to their formulation. They contained no criteria relating to market demand or historic and cultural interest. Mr Muirhead's silence was akin to a passive involvement as per Kirkstall (supra).
- The sift criteria were published on 3rd of May 2013. They have an ongoing reach. Mr Muirhead has participated and played an active role in their determination. They set the direction of travel and have an enduring influence on aviation policy making.
- Their importance is underlined by the contemporaneous appointment, on the 3rd May of an expert panel who were described by Sir Howard Davies as bringing,
"A wide range of skills and experience, and will ensure the Commission has access to a broad spectrum, of quality scientific and technical expertise as we progress our work."
- The claimants point out that no member of the expert panel had any qualifications in landscape and cultural or historic heritage. Yet the criteria were to be specific and were designed to enable the Commission to discriminate between proposals. The slant of the sift criteria gives an impression that some environmental impacts were of lesser importance. Air quality and noise were the first items but listed and historic buildings were not present at all. They came in under a residual catch all under the heading of "other".
- The approach of the Commission is seen in its other publications and announcements. It had published discussion papers on climate change and noise indicating the importance it attached to those criteria. Within the latter document it had a new category of assessment, those persons who were affected by noise on a per passenger basis. That was bound to favour proposals for development at Stansted due to the lesser population around it. Sir Howard Davies in his speech on 7th October 2013 made repeated references to noise but no mention of landscape, countryside or cultural heritage impacts. It is not possible to dismiss the approach to the criteria on the basis that they were dealing with generic factors only; they set the direction of travel.
- Indeed, the sift criteria have the strong appearance of having been designed to ensure that Stansted options would be favourably assessed. It is not right to say that Mr Muirhead's involvement in the decision making process gave rise to no apparent bias of operative effect upon the basis that MAG did not commit to any specific proposal for the expansion on the 26th February 2013. First, that blurs the distinction between actual and apparent bias as was recognised in paragraph 31 of BAA. Second, Mr Muirhead was conflicted when he was appointed due to his ongoing relationship with MAG. Third, it is not tenable for the Commission to claim that Mr Muirhead had no knowledge at all of MAG's plans for the expansion of Stansted when the sift criteria were formulated and adopted because,
i) Whilst MAG's expression of intent on the 26th February 2013 was not as specific as Commission Guidance Note 1 had requested it recognised that in the longer term additional capacity would be required in the south-east;
ii) The reference to additional capacity made it obvious that MAG was contemplating submitting outline proposals for additional runways and not simply proposals to increase the utilisation of the existing capacity;
iii) At the meeting on the 17th April the chief executive of MAG had told the Chairman of the Commission that MAG expected to submit views to the Commission on both second runway and hub options at Stansted. Mr Graham, in his witness statement, expected that the Commission members would have been informed of the content of the discussion with Mr Cornish at their meeting on the 30th April 2013. Mr Muirhead confirms in his witness statement that the matter was briefly mentioned;
iv) It was, therefore, absolutely clear to the Commission by the very latest on the 30th April 2013 that steps were being taken that had the potential to benefit MAG. All of that was before the sift criteria were determined;
v) In view of that it is not credible for the Commission to say that it was caught by surprise by the proposals for additional runways at Stansted submitted by MAG on the 19th July 2013 as they do in their summary grounds of resistance. The information identified should have put them on notice as to the likelihood of such proposals. In those circumstances paragraph 18 of Locabail is not on point. There was sufficient knowledge of matters which appear to undermine the impartiality of Mr Muirhead.
- Fourth, in any event all Commissioners had been made aware of expressions of intent by other parties which related to proposals for additional runways at Stansted as well as the fact that consideration was being given to the same by MAG.
- Strikingly, even after submission of the specific proposals by MAG on the 19th July the Commission continued to defend Mr Muirhead's position. He failed to resign in response to the request that he do so by SSE in their letter dated 26th July. His departure came mainly in response to the pre-action protocol letter by which time there had been a sift of the proposals in which Mr Muirhead had participated. 33 of the submitted proposals were sifted out. All six for Stansted survived.
- The claimants contend that it makes no sense for the Commission to assert that Mr Muirhead withdrew from one part of the discussion on 4th September 2013 precisely because the matters had the "potential" for direct impact on Stansted Airport. If Mr Muirhead's involvement in the decision making process may have given rise to a risk of apparent bias then his participation in the determination of the sift criteria equally had that potential.
- From the speech made by Sir Howard Davies on the 7th October 2013 and his response to questions afterwards when he said that there was no useful purpose to be served by replacing Mr Muirhead at that stage it was clear that the Commission's thinking on its interim report was already at a "well advanced" stage. The interim report is expected to include the short list of options for long term airport expansion and the Commission's recommendations for immediate action to improve the use of existing runway capacity in the next five years. Stansted is likely to be affected by both. It is clear that the Commission's thinking reached the "well advanced stage" when Mr Muirhead was an active and influential member of the Commission. His retention until the 20th September was a striking defect in the decision making process.
- I deal with the issue of delay as a separate topic below.
- The first defendant submits that the critical question is what Mr Muirhead knew about MAG's proposals when the sift criteria were being formulated. It relies on paragraph 18 in Locabail (supra). In the circumstances here, the Commission submits:
i) At the time of appointment Mr Muirhead's witness statement makes it clear that his involvement with the core business at Manchester Airport ceased in October 2010. Thereafter, he was appointed on a consultancy basis but separate from the core business. At all times he had nothing to do with Stansted. That all goes to the question of remoteness.
ii) It is clear from Mr Muirhead's witness statement that he made a disclosure to the Department for Transport of his ongoing work with MAG. At that time he did not consider that there was any conflict of interest. Mr Muirhead's witness statement concludes,
"As I have made clear above, at the time sift criteria were being considered and adopted in May 2013 and prior to that, I was not aware of any proposal being made by MAG for expansion at Stansted Airport. I cannot therefore understand how it is said that there would have been appearance of bias in my involvement in the sift criteria at that time. Moreover, as Mr Graham has explained in detail in his evidence, the sift criteria are generic objective criteria which included local environmental factors in any event."
iii) Elsewhere in his witness statement Mr Muirhead deals with his knowledge as follows,
"As I confirmed above, I had no knowledge of MAG's purchase of Stansted Airport prior to that which was in the public domain. Once it had been announced on the 18th January 2013 that the purchase would be completed by MAG on the 28th February 2013 I was privy to no information other than that provided to the Commission regarding MAG's intentions for Stansted as set out below.
… I did not become aware of the fact that these expressions of interest had been made until 13th March 2013 when a summary was presented to the Commission's meeting of that date. Mr Graham's evidence deals with the summary and the paper. The relevant section of the paper regarding Stansted stated,
" The responses for proposals for Stansted including one from the Airport management saying they would like to submit but have to wait for the new owners and one from the new owners mentioning that they have the intention of looking at options for all their airports, but particularly Stansted and Manchester…"
"I now understand that there was a further meeting between Sir Howard and Charlie Cornish, the MAG CEO, on the 17th April 2013 but I was not present at this meeting. My recollection is that this was briefly mentioned at the Commission meeting of the 30th April 2013, in line with Sir Howard Davies' usual practice, which was to update us at the next Commission meeting as to any stakeholder meetings which he had attended in the interim (but I understand that the minutes of that meeting do not specifically record this). I do not recollect discussing the content of the meeting in detail, however I now understand that in fact Charlie Cornish's' position was MAG had not yet reached a corporate position regarding airport expansion at this stage at any event. …..
Subsequently MAG and others made their outline proposals by the deadline of the 19th July 2013. Stop Stansted Expansion have noted that this came as a "complete surprise" to them. As far as I was personally aware, the extent of the proposal by MAG for expansion at Stansted Airport was not a matter that I had anticipated either by reference to the summary of expressions of intent which we had been provided or otherwise."
iv) The MAG letter of the 26th February 2013 did not give an indication of what would be forthcoming. The reference to additional capacity did not necessarily equate to runways in the long term.
- Mr Philip Graham is the senior civil servant working as the head of the Commission secretariat. He has filed witness statements in the proceedings which make it clear that when the expressions of intent were received by the secretariat they were summarised for the Commissioners in the table presented to their meeting on the 13th March.
- Mr Graham in his witness statement deals with how the Commission are investigating the nature, scale and timing of any need the UK might have for additional airport capacity. It is being considered through a series of short thematic consultations with discussion papers published on aviation demand forecasting (published 1 February 2013), aviation connectivity and the economy (8 March 2013), aviation and climate change (5 April 2013) and airport operational models (16 May 2013). Although the papers show significant demand pressures in London and the south east a key proposal made by a number of stakeholders has been that one way to address that would be to make better use of regional airports. Indeed, the claimants' view was to encourage the Commission to take a less London centric view. As a result he was of the view that it was entirely possible that MAG's submission might have argued in favour of investment at Manchester Airport as an alternative to expansion in the south east.
- By the time of the meeting of the Commission with MAG on the 17th April MAG were still reviewing their position. There was nothing tangible at that stage of the process. At the time of the publication of the sift criteria there was no further information from MAG.
- The secretariat continued to have meetings with various stakeholders. On the 5th June 2013 they had a meeting with MAG. The notes of the meeting read,
"TH (MAG) offered to talk in more detail about any aspects of their possible proposals but reiterated that the new owners were still deciding on their options. The purchase plan for Stansted did not rely on additional capacity but the airport was keen to play an active role in the future work of the Commission. Many options were possible at Stansted, both two and four runways were possible and depend somewhat on the decisions taken by the Commission with regards to whether or not the future relied on a hub or a dispersed model."
- On the 19th of June 2013 a further meeting was held between the secretariat and MAG. The meeting notes relate to MAG's submission on short and medium term options. The meeting focused entirely upon Stansted and Manchester operations within their current capacity limits.
- The critical moment, the defendant submits, is when MAG said that it was going to pursue an option of expansion. Here, that critical moment is the 19th July. In so far as BAA suggests that there should be concern when there was a real "possibility" that was in the context of a much closer relationship. Here, Mr Muirhead was too remote from MAG prior to the July date. It is not possible to attribute to Mr Muirhead a position which is ahead of that of the MAG management.
- The MAG submission document is entitled Capacity for Growth. It points out that the maximum use capacity of Stansted's single runway is between 40 and 45 mppa. Based on current passenger throughput of about 17 mppa that means that Stansted has the potential to serve around 25 million more passengers every year than it does now. Stansted already has the necessary planning consents for most of the infrastructure needed to grow to 35 mppa. The Stansted options assessments were assessed against the criteria of strategic fit including maximum use of the existing runway, one new runway and a hub option. A section of the document dealt with cultural heritage including landscape, character and archaeological and historic buildings. Each of the possible options was appraised in terms of their likely effect upon the cultural heritage interest. Under "next steps" the document concluded,
"In view of this we are not at this stage putting forward a single fixed option. Rather, we have concluded that Stansted can deliver additional capacity in a number of different ways, ranging from maximum use of its single runway through to development of an effective hub to replace Heathrow. We have explained why, at this early stage, MAG does not itself have a preferred view. Much more needs to be done before that point it reached."
- Based on that document and earlier statements the first defendant submits that whilst there is a possibility of expansion at Stansted by MAG it was possible to achieve that within the existing physical infrastructure.
- In so far as there were other expressions of interest in relation to expansion at Stansted in February 2013 Mr Muirhead was far too remote from the proponents of those proposals for them to have any effect.
- On the sift criteria there were meetings on the 19th November and 18th December 2012. On the 1st February 2013 the Commission published a guidance document which set out how third parties could engage with the Commission's work programme. It contained also a preliminary list of six factors for sifting of proposals. Submissions on those criteria were invited by the 15th March 2013.
- A paper on the sift criteria was provided to the Commission for its meeting on 5th February 2013. A further meeting was held on the 13th March 2013 where it was suggested that an additional criterion be included. On the 25th March after the consultation, including a response from the claimants, a further criterion was identified. A final updated draft was then circulated and comments from Commissioners were requested. It is submitted that the process that was undertaken shows a gradual procedure whereby the criteria were settled after a consultation exercise and with secretariat input.
- Against the background that Mr Muirhead did not know what MAG were going to do, the question is asked whether it was credible that he was going to go out of his way to influence proposals for sifting when he did not know what the MAG proposal was likely to be.
- The claimants' submission that the sift criteria were loading the dice in favour of Stansted was moving into the realms of fantasy. Local environmental effects were clearly relevant. It was a broad descriptive category to cover local environmental considerations. What weight was to be attached to them was for the decision maker. That might be different at different stages. When Sir Howard Davies responded to the letter from the claimants dated 17th May about Mr Muirhead's membership of the Commission he had gone on to say,
"Thank you for your comments regarding the sift criteria for long term capacity at UK airports. I can assure you that, as for all criteria in the decision making process, local environmental impacts will be given full consideration in the course of our work."
- On the sift criteria there is nothing which indicated that there is any ranking between the various factors. On the expert panel a consortium of technical advisors had been retained by the Commission to advise generally including Jacobs UK Limited whose expertise, amongst other matters, included environmental assessment.
- The White Paper, Aviation Policy Framework, was published in March 2013. It is clear that air quality and other local environmental impacts will be very much part of any consideration on future airport capacity. Having dealt with the prospect of the Commission's Interim Report the White Paper continues, at paragraph 3.55,
"It is likely that any proposals for a new hub airport or nationally significant infrastructure would be taken forward through an Airport National Policy Statement (NPS). This would take a similar approach to existing NPSs and be consistent with the government's stated policies on sustainability and environmental protection. Loss of protected habitats, protected species, protected landscape and building heritage and significant impacts on water resources and eco-systems would only be advocated if there were no feasible alternatives and the benefits of proposals clearly outweighed those impacts. Any unavoidable impacts would be mitigated or compensated for. Our policy would be to ensure that there is full consideration of the environmental impacts of the most credible options for maintaining out international connectivity."
- On market demand Mr Graham's witness statement makes it evident that all proposals will be measured against an emerging assessment of demand. Demand therefore is very much on the agenda as is evident from Sir Howard Davies' speech on the 7th October 2013.
- On the 4th September 2013 meeting Mr Graham's witness statement makes it clear that the Commission did not engage in detail in most of the submissions at this point as public consultation on the proposals was ongoing until the 27th September 2013. Any views were provisional. A further sift was then carried out on the 10th October which included a more detailed consideration of the proposals including an independent assessment of scheme costs and impacts which involved the production of maps showing potential local environmental impacts including unprotected sites and listed buildings.
- The first defendant contends that the claim is a collateral attack on the sift criteria adopted by the Commission on the 3rd May 2013. The timing of the collateral attack is particularly problematic because the many stakeholders who have engaged in the Commission's process have done so by reference to the sift criteria.
- That it is a collateral attack is evident from the limited complaint that was made by the claimants about the sift criteria on the 17th May 2013 which was responded to by Sir Howard Davies on the 19th May 2013. Thereafter, the claimants were inactive on the topic for over three months while all other participants in the Commission's process were treating the sift criteria as the relevant criteria against which any proposal made should be explained and as the framework for commenting on proposals made by others.
- Although the claimants say that they now know that Mr Muirhead was actively involved in the determination of the sift criteria and did not know before asking questions it was self evident that all Commissioners would have been involved in the Commission's decision making process. The pause in activity from the 3rd May 2013 until the issue of proceedings is a delay which cannot be explained in a time critical process.
- The claimants submit that they did not know that Mr Muirhead participated in the determination of the sift criteria until the Commission responded to its pre-action protocol letter on the 20th September 2013. If they had made an earlier application for judicial review that would have been too much like an "unduly sensitive or suspicious" observer, someone who had not adopted the balanced approach of the fair minded observer.
- In anticipation that Mr Muirhead might have been involved in the sift criteria the claimants asked the Commission to look afresh at them if that was the case. Both the Commission and the Secretary of State refused to accede to that request. They have therefore acted promptly in the challenge.
- If the court does find there is a risk that Mr Muirhead may have tainted the Commission's determination of the sift criteria with the potential to impact adversely millions of citizens it would be wrong for the court to exercise its discretion to refuse relief by reason of delay.
- Alternatively, if the court considers the more appropriate target is to challenge the sift criteria then the time for bringing the claim should be extended as the claimants lacked the necessary knowledge to bring such a challenge until confirmation of the involvement of Mr Muirhead which was given in the response to the pre-action protocol letter of the 20th September.
Role of the Secretary of State for Transport
- The Secretary of State adopts and endorses submissions made by the Airports Commission.
- Before examining the timeline of events I remind myself that I am in the role of the fair minded and informed observer who is neither unduly sensitive nor suspicious, exercising an objective approach to the relevant circumstances as they appear from material before me.
- I am informed, in the sense described by Lord Hope in Helow. My exercise is to consider whether, as a fair minded and informed observer, in all the circumstances, there was a real possibility of bias on the part of Mr Muirhead in his position with the Airports Commission. In carrying out that exercise I bear in mind that different circumstances arise at different points along the temporal way as is made clear in BAA. I bear in mind also the words of Lord Bingham in Locabail that because proof of actual bias is very difficult,
"The policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring to show that such bias actually exists."
- Further, influence can be exerted by silence; see Kirkstall.
- In considering apparent bias appearances are not without importance. Once apparent bias has been established a claimant should not be put in the position of having to prove operative effect.
- Given the changing circumstances over time from the establishment of the Commission I have set out the following section in different parts dealing with the relevant circumstances of each part whilst coming to a conclusion as the fair minded and informed observer.
Appointment of Mr Muirhead
- In his witness statement Mr Muirhead says that he was approached by the Department for Transport regarding the possibility of becoming involved with the work of the Airports Commission on the 25th September 2012. By that time he had been retired from MAG for almost two years. He began his employment there in 1988 as Director of Development and Planning and then held the post as Chief Executive for 16 years from 1994. Before his retirement Mr Muirhead had made it clear within the company that he was not likely to bid for Stansted should the airport come up for sale. By the time BAA did announce its intention to sell Stansted in July 2012 Mr Muirhead had been retired for almost two years. Notwithstanding that, by the time of Mr Muirhead's retirement MAG owned Manchester Airport, Bournemouth and East Midlands Airports and had a majority shareholding in Humberside International Airport. On any view a fair minded and informed observer would regard MAG as a sizeable and significant player in the UK aviation industry. Inevitably, it would have an interest in the development of UK aviation policy.
- Upon Mr Muirhead's retirement on the 1st October 2010 he entered into two consultancy agreements with MAG. The first was for two years expiring in October 2012 for the payment of £75,000 per annum. The second was a role of being nominated by MAG to be a member of, or to provide advice to, a number of regional and industry bodies. Again, that was for the payment of £75,000 per annum. That was to be for a three year term until October 2013. Mr Muirhead's membership of the various bodies was not related to MAG's core business and did not involve access to any information about MAG's core business. His work, as he set out in his witness statement, involved attending meetings of the various bodies and participating in discussions and providing an industry view based on his previous experience. He had no involvement with, or access to, information on MAG's core business or long term plans. He did meet MAG's chief executive a few times after his retirement but on each of those occasions they had short discussions covering Mr Muirhead's involvement with external bodies and social events.
- When approached by the Department for Transport in the autumn of 2012 Mr Muirhead informed them of his ongoing consultancy work with MAG. He did not consider that that constituted any conflict of interest which ought to preclude him from acting as a Commissioner.
- Mr Philip Graham deals with the process of appointment in his first witness statement. He says that the consideration of candidates was organised around a range of fields that were considered relevant to the work of the Commission and in which knowledge and experience on the part of the Commissioners would be of value. Commissioners were not, however, appointed solely as experts in a given field. It was expected that they would be able to contribute broadly to discussions and decision making across the full range of issues under consideration.
- In seeking candidates with experience of the aviation sector a challenge was to identify candidates who had neither recently worked for an organisation with a direct interest nor publically expressed clear views on the issues under consideration. Having retired in October 2010 Mr Muirhead was considered to be a credible candidate with in depth experience of airport operations and management and did not appear to present any issues in terms of prior involvement or public pre-disposition to any specific outcome. Further, he was able to bring a regional perspective which was thought to be of value to the Commission's deliberations. His continuing consulting relationship with Manchester Airports Group was not considered to be so significant as to constitute a conflict of interest.
- When Mr Muirhead's appointment was announced on the 2nd November 2012 the Department for Transport published a short CV for Mr Muirhead which contained no reference to his consulting arrangements with MAG.
- By the time Mr Muirhead was appointed his first consultancy with MAG, which had in any event not yielded any work, had concluded. The second consultancy involving representation for MAG on various boards was of a different nature and by way of providing advice to the regional and industry bodies based on Mr Muirhead's past experience. Knowing that and being cognisant of the fact that Mr Muirhead had no knowledge of MAG's ongoing core business, nor had he had since his retirement, a fair minded and informed observer, not being unduly suspicious or sensitive, would not have concluded that there was a real possibility of bias upon Mr Muirhead's appointment.
- Undoubtedly it would have been better for the press release concerning Mr Muirhead's appointment to have been more transparent about Mr Muirhead's consultancy arrangements. Failure to be so was likely to engender suspicions on behalf of the claimants. Notwithstanding that, the failure to be as open as might be desirable, would not in the eyes of the fair minded and informed observer raise suspicions to the appropriate degree to support a finding of apparent bias. It is material that one consultancy arrangement had finished and the other was terminated in January 2013.
- There was, by way of ongoing background, at the time of Mr Muirhead's appointment the prospect of a sale of Stansted Airport. It is said by the claimants, supported by newspaper articles, that MAG was the front runner as purchaser. That may well have been the case: by 18th January 2013 MAG made an announcement that they were to purchase Stansted Airport. In the autumn of 2012, however, whilst MAG may have had an interest in acquiring Stansted and taken steps to arrange for the funding of that purchase that interest was unrealised and it was uncertain whether it would be. Any purchase of Stansted was, in any event, taking the company in a different business direction to that which Mr Muirhead had indicated when he was chief executive when he had expressed clear views within MAG that he would not purchase Stansted. The fact that Mr Muirhead had been retired for almost two years and had been absent from MAG's core business and long term plans for what would be a lengthy period of time in a dynamic industry meant that he was too distant from a main bidder for Stansted for that factor not to play in any significant way in the mind of the fair minded and informed observer. It follows that the fair minded and informed observer would not regard the appointment and initial presence on the Commission of Mr Muirhead as giving rise to a real possibility of apparent bias.
From appointment until March 2013
- Mr Graham's witness statement explains that the Commission's term of reference required three distinct work streams ahead of the interim report:
i) assessment of need (does the UK need more airport capacity?),
ii) a study of short and medium terms measures for making the best use of existing airport capacity,
iii) a process for determining the most plausible options for adding new airport capacity in the longer term, should any be needed.
- The first meeting of the Commission took place on the 19th November 2012. There was a discussion at that meeting of a draft guidance document which was due to be published in January 2013 setting out a timetable for the Commission's work, how third parties could engage with that work and the nature of that work. It was minuted as follows:
"There were suggestions that the document was not clear enough in its intent and that the timing for receipt of proposals needed to be clearer along with the fact that the thematic papers would allow for further submissions at a later date. Ricky Burdett suggested that as this would be the first paper of the Commission, it needed to be taken as an opportunity to demonstrate that the Commission would be looking at a range of issues and needed to open the door to taking a fresh look at the matrix of criteria used to evaluate proposals."
- The next Commission meeting was held on the 18th December 2012 when, again, there was discussion about the Commission's guidance document. It is minuted that key points discussed were that the proposed factors for consideration for long term options did not focus enough on the social impacts. No mention is made of any contribution from any particular Commissioner. There was an accompanying paper entitled "Long term options - factors for consideration". Amongst the various factors was one entitled "local environmental impacts". Included within the bullet points for consideration under that heading were the following,
• Expects to provide input on traffic growth, role of regional airports, views on both second runway and hub options at Stansted, options for funding;
• MAG explained that they were not intending to align themselves with the work of Mayor of London on SE airport options.
• to support the growth of Manchester to the capacity of its two existing runways and a throughput of 55 mppa.
• that Stansted's long term options provide flexible, affordable and deliverable capacity and merit inclusion on the Commission's short list for further study. Additional capacity there can be delivered in a number of different ways, ranging from maximum use of the single runway through to the development of an effective hub to replace Heathrow. The document continued that MAG " does not have a preferred view. Much more needs to be done before that point is reached."