Adekuwle Adejare Lawal v 1. Northern Spirit Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,SIR CHRISTOPHER SLADE,LORD JUSTICE KEENE,Lord Justice Mummery,Lord Justice Pill,Lord Phillips of Worth Matravers,LORD JUSTICE PETER GIBSON,LORD JUSTICE LAWS,Lord Justice Peter Gibson,LORD JUSTICE LONGMORE |
| Judgment Date | 19 February 2004 |
| Neutral Citation | [2004] EWCA Civ 208,[2002] EWCA Civ 1218,[2002] EWCA Civ 17,[2002] EWCA Civ 327 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2002/0149,A1/02/0149,Case No: A1/2002/0149 |
| Date | 19 February 2004 |
[2002] EWCA Civ 1218
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Phillips of Worth Matravers
Lord Justice Pill and
Lord Justice Mummery
Case No: A1/2002/0149
MR AA LAWAL in person
MS SARAH MOORE (instructed by the Treasury Solicitor to appear as advocate of the court)
MR PHILIP SALES (instructed by the Treasury Solicitor for the Lord Chancellor's Department as an Interested Party)
Introduction
The issue on this appeal is whether a real possibility of bias exists when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge. Although there is a growing body of jurisprudence on actual and apprehended judicial bias, there are no decisions of the English Courts or of the Strasbourg Court covering this point.
The appeal, brought with the permission of this court, is from the ruling of the Employment Appeal Tribunal on 15 January 2002 on the objection ("the Recorder objection") taken by the appellant, Mr AA Lawal, who is acting in person. Applying the test of "the fair-minded and informed observer, who had considered the facts", the Appeal Tribunal, comprising the President (Lindsay J) and two lay members, who had never sat with the part time judge, concluded that there was no possibility of bias.
As was the case in the Employment Appeal Tribunal, valuable submissions were received from Mr Philip Sales, appearing for the Lord Chancellor's Department, as an interested party, and from Ms Sarah Moore, advancing, as an advocate of the court, the arguments which a legal representative of Mr Lawal could have put on his behalf. Mr Lawal added some personal comments of his own. Northern Spirit Limited, the respondent to Mr Lawal's claims of race discrimination and victimisation, submitted a short skeleton argument from its Leading Counsel (Mr Nicholas Underhill QC, who is the part time judge in question), explaining the reasons for its decision not to be represented at the hearing.
The Proceedings
The proceedings in which the Recorder objection is taken were commenced on 7 October 1999 when Mr Lawal, who is black, presented to the Employment Tribunal a complaint of "a racially motivated post-employment reference." The respondent was Northern Spirit, who had employed him as a conductor from 25 April 1977 until he resigned on 20 March 1997. He alleged that Northern Spirit had caused him detriment and had victimised him on racial grounds by deliberately omitting to supply references requested by him on 17 February 1998 and on 14 September 1999. In its Notice of Appearance Northern Spirit denied the allegations of discrimination and asserted that the claim was out of time. It later made an application for the Employment Tribunal to consider whether it had jurisdiction under the Race Relations Act 1976 (the 1976 Act) to hear a claim based on an alleged act of discrimination occurring after the termination of employment.
In its Extended Reasons sent to the parties on 12 July 2000 the Employment Tribunal accepted the submission that there was no jurisdiction to hear such a claim, as the liability of an employer for race discrimination under section 4 (2) of the 1976 Act is limited to the case of "a person employed by him." The tribunal followed the decision of this court in Post Office v. Adekeye (No 2) [1997] IRLR 105.
On Mr Lawal's appeal the Employment Appeal Tribunal cited subsequent Court of Appeal decisions, notably D'Souza v. London Borough of Lambeth [2001] EWCA Civ 794, in which Adekeye has been followed. It rejected Mr Lawal's application for an adjournment of his appeal pending the outcome of Mr D'Souza's petition to the House of Lords for leave to appeal and dismissed his appeal on the jurisdiction point. Since then the House of Lords have granted Mr D'Souza leave to appeal. A number of cases on the 1976 Act and on similar provisions in the Disability Discrimination Act 1995 concerning the liability of an employer for alleged post termination discrimination will soon be heard by the House of Lords. In those circumstances this court granted Mr Lawal permission to appeal on the jurisdiction point and adjourned the hearing of that part of the appeal pending the decision of the House of Lords. There was, however, no need to postpone the hearing of the appeal on the Recorder objection. It has been expedited, as it is in the public interest that the objection should be resolved one way or the other as soon as possible.
Part-time Judges and Lay Members of the Employment Appeal Tribunal
In 2000 the Lord Chancellor appointed five Leading Counsel, who were already Recorders, to be part time judges of the Employment Appeal Tribunal. They are all practising members of the Bar with experience of Employment Law. They undertake to sit for at least 20 days a year. Their sittings have become a regular feature of the Daily Cause List. It is reasonable to assume that, if possible, regular use will be made of the existing part time judges and that it is likely that more will be appointed. The terms of appointment do not place any restriction on them continuing to appear as counsel in the Employment Appeal Tribunal. As in the case of full time judges of the Employment Appeal Tribunal, two lay members sit with the part time judges both at preliminary hearings and on full appeals.
Mr Lawal's objection was raised when one of the part time judges, Mr Nicholas Underhill QC, was instructed to appear for the respondent at the hearing of his appeal on 10 October 2001 before Her Honour Judge Wakefield and two lay members, one of whom had previously sat with Mr Underhill. After argument the matter was adjourned to be re-heard by the President and two other lay members, neither of whom had sat with Mr Underhill. The Lord Chancellor's Department was added as an Interested Party. In view of the general importance of the point an advocate of the court was appointed.
The ground of the Recorder objection is that the presence on the Employment Appeal Tribunal of a lay member, who had sat with Mr Underhill in his capacity of a part time judge, constituted a violation of Mr Lawal's Convention right to a hearing of his appeal by an impartial tribunal under Article 6 (1) and of his common law right to an unbiased judge. No objection has been taken to the use of part time judges as such. The essence of the argument is that lay members of the Appeal Tribunal are colleagues of the part-time judges with whom they have sat from time to time; that such lay members might be subconsciously influenced by that previous professional relationship formed in the tribunal and by a sense of collegiate loyalty to him; and that, as the part time judge is the only legally qualified member of the tribunal, the lay members would tend to look to him for guidance on the law, thereby creating an opportunity for the development of a degree of authoritative personal influence by the part-time judge over the lay members. So, it is contended, this objection is "more specific and worrying" than a generalised allegation of the lay member's predisposition to favour one side rather than the other. It is submitted that, in the absence of proper safeguards, such as a "cooling off period" between sittings, there is a real possibility of bias.
It is common ground that, following the decision of this court in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and of the House of Lords in Magill v. Porter & Magill v. Weeks [2002] 2 WLR 37, the same test of objective justification, based on the need to inspire public confidence in the courts, applies under the European Convention on Human Rights and at common law:
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased": per Lord Hope of Craighead at p.84, paragraph 103.
The first stage of the inquiry is to ascertain the relevant facts, which the informed observer would consider before coming to a conclusion on the question of bias.
The Relevant Facts about the Employment Appeal Tribunal
Ms Moore submitted that the ascertainable facts giving rise to legitimate doubts about the impartiality of the Appeal Tribunal are that counsel for the respondent to Mr Lawal's appeal on occasion chairs a panel of the Appeal Tribunal and that he has in the past sat with one of the lay members on the tribunal hearing Mr Lawal's appeal. Put more graphically the suggestion is that the fair minded observer would conclude that there was a real possibility of bias if he attended the tribunal on a day when he could see Mr Nicholas Underhill QC chairing an appeal hearing with a lay member on either side and then returned a week later only to see Mr Underhill now appearing as Leading Counsel for the respondent and addressing his submissions to a panel, which included one or more of the lay members with whom he had been seen sitting a week earlier.
In my opinion, it should not be assumed that the fair-minded observer would rashly jump to an adverse conclusion of bias solely on the limited basis of what he had heard and seen. Rather, it should be assumed that the fair-minded observer would take reasonable steps to become sufficiently well informed to reach a balanced view on the possibility of bias. If what he had heard and seen gave rise to doubts about the...
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