Lawal v Northern Spirit Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] UKHL 35 |
| Date | 19 June 2003 |
| Court | House of Lords |
[2003] UKHL 35
HOUSE OF LORDS
st REPORT
from the Appellate Committee
June 2003
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill (Chairman), Lord Nicholls of Birkenhead, Lord Steyn, Lord Millett and Lord Rodger of Earlsferry) have met and have considered the cause Lawal v. Northern Spirit Limited. We have heard the appellant in person and counsel on behalf of the Lord Chancellor's Department in intervention. We have heard counsel on behalf of Her Majesty's Attorney General as amicus curi'.
This is the considered opinion of the Committee.
I. The Issue.
The issue in this appeal is whether, in circumstances in which a Queen's Counsel appearing on an appeal before the Employment Appeal Tribunal ("EAT") had sat as a part-time judge in the EAT with one or both of the lay members (called the "wing members") hearing that appeal, the hearing before the EAT was compatible with Article 6 of the European Convention on Human Rights and the common law test of bias. It is not suggested that there was actual bias. The question is whether in the view of a fair-minded and informed observer there was a real possibility of subconscious bias on the part of the lay member or lay members.
The question is important because the current practice of the Lord Chancellor's Department is to appoint leading counsel, who are Recorders and who have experience of employment law, to sit as part-time judges in the EAT. They undertake to sit at least 20 days a year. Until called in question in the present case, it was thought that there were no restrictions on the freedom of such individuals to appear as counsel before the Tribunal of which they are part-time members. The challenge before the House, as it was before the EAT and the Court of Appeal, is not tied to the particular circumstances of the case. Indeed, the House has before it only the bare facts as incorporated in the issue outlined. The attack is on the system. If it is well founded the current practice must come to an end.
II. The case before the Employment Tribunal.
Given the systemic issue involved, it is possible to summarise the background briefly. The appellant brought a claim for racial discrimination on the ground of the failure of his employers to produce a reference following the termination of his employment. The employers put forward a substantive defence. The Employment Tribunal dismissed the case on the grounds that the Race Relations Act 1976 only gives rights to current employees. In so deciding the Employment Tribunal followed a decision of the Court of Appeal in Adekeye v Post Office (No. 2) [1997] IRLR 105, the correctness of which was subsequently the subject of an appeal heard by the House of Lords in D'Souza v London Borough of Lambeth [2003] UKHL 33.
III. The case before the EAT.
Initially the appellant raised before the EAT the broader contention that it was objectionable in principle for the EAT to hear argument from one of its own members. Once it became clear that the Recorder had previously sat with one of the wing members the broader question was no longer pursued before the EAT and the Court of Appeal. The issue became confined to the particular systemic challenge described.
On 10 October 2001 the appeal came before the EAT. The Recorder, who had previously sat with one of the lay members of the EAT then sitting, appeared as counsel for one of the parties. The appellant raised the so-called Recorder objection. Without ruling on the objection the tribunal adjourned the appeal to be heard before a tribunal differently constituted. On 18 December 2001 a tribunal chaired by Lindsay J heard the appeal. He sat with two wing members with whom the Recorder had not sat. Strictly, the Recorder objection no longer arose. But the tribunal was rightly anxious to determine the point of procedural principle. The tribunal heard the procedural issue first. It reserved its decision on this point. But the tribunal proceeded to hear the substantive appeal. In a reserved decision the EAT dismissed the procedural objection on the ground that in the eyes of a fair-minded observer who had considered the facts "there is no real possibility that the Employment Appeal Tribunal is biased where the only objection is that either one or both of the lay members hearing an appeal have previously sat with a Recorder who, as counsel, is appearing for a party in that appeal": [2002] IRLR 228, 235 at para 34. In respect of the substantive appeal the tribunal held that it was bound by the decisions of the Court of Appeal in D'Souza and Adekeye and accordingly dismissed the appeal.
IV. The Court of Appeal.
On appeal to the Court of Appeal it was agreed to hear the Recorder objection first. The reason for this course was that the case of D'Souza was then pending in the House of Lords: the decision in that case was likely to be determinative of the substantive issue. (The House has recently given its decision in D'Souza [2003] UKHL 33). By a majority the Court of Appeal dismissed the appeal on the Recorder objection: [2002] EWCA Civ 1218; [2002] ICR 1507. Lord Phillips of Worth Matravers MR and Mummery LJ gave the judgments of the majority. Pill LJ gave a dissenting judgment.
The essential thrust of the reasoning in the Court of Appeal must be identified. Giving the first judgment, Mummery LJ concluded (para 20):
"The Recorder objection amounts to no more than an assertion that a lay member might possibly be more disposed to accept the submissions of one party's legal representative than those of the other side, as a result of the professional experience of having sat on the tribunal with him in his capacity as a part-time judge. That is merely a speculative and remote possibility based on an unfounded and, some might think, condescending assumption that a lay member sitting with another judge on the hearing of an appeal cannot tell the difference between the impartial decision-making role played by a tribunal panel of a judge and two lay members and the adversarial role of the partisan advocates appearing for the parties."
The Master of the Rolls expressed his agreement with this view as follows (para 50):
"… there are no grounds for doubting the capacity of a lay member of an Employment Appeal Tribunal to reach a decision uninfluenced by the fact that he has, on a previous occasion, sat with the advocate for one of the parties, in a judicial capacity. Lay members normally serve on the Tribunal for many years, once appointed. They will have experience of some of those who appear before them, and they are likely to be those who appear often in that forum, occasionally sitting as judges. They will rightly perceive them as advocates who occasionally sit as judges, not as judges who occasionally stand down to act as advocates. It is not reasonable to apprehend that the lay member will, even subconsciously, react more favourably to such an advocate than to one who does not sit part-time in the Tribunal."
The Master of the Rolls added a qualification. He said [para 52]:
"… A recorder agrees to sit at least 20 days in the year. There is no maximum to the days that he can sit, if so requested. I consider that there would be more substance to the concerns raised by Mr Lawal if, in this specialised Tribunal, advocates were requested to sit with a frequency that might lead lay members to view them as judges,...
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