Lawal (Appellant) v. Northern Spirit Limited

The common law and Article 6 apply the same objective test for apparent bias. The court must identify the relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias, including subconscious bias.

A part-time Employment Appeal Tribunal judge appearing as counsel before lay members with whom that judge has previously sat creates such a possibility. The relationship of trust, the lay members’ reliance on judicial guidance about law and the need for public confidence require a systemic restriction. The extent or recency of the previous sittings is immaterial. The restriction is not breached where the deciding panel contains no lay member with whom counsel previously sat.

The appellant brought a racial discrimination claim concerning his former employer’s failure to provide a reference. The Employment Tribunal dismissed the claim after following Adekeye v Post Office (No. 2) [1997] IRLR 105 on the rights of former employees.

When the appeal first came before the Employment Appeal Tribunal, counsel for one party had previously sat there as a part-time judge with one of the lay members. The objection was adjourned to a differently constituted tribunal. That tribunal contained no lay member with whom counsel had sat, but it determined the procedural issue and rejected the apparent-bias objection: [2002] IRLR 228. It also dismissed the substantive appeal.

The Court of Appeal, by a majority, dismissed the appeal on the procedural objection: [2002] EWCA Civ 1218; [2002] ICR 1507. Pill LJ dissented. The central issue before the House was whether the practice of permitting a part-time Employment Appeal Tribunal judge to appear as counsel before lay members with whom that judge had previously sat was compatible with Article 6 of the European Convention on Human Rights and the common law test for apparent bias.

Held, allowing the appeal to the stated extent and remitting the matter to the Court of Appeal: Lord Steyn delivered the considered opinion of the Appellate Committee. Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Millett and Lord Rodger of Earlsferry agreed, and the report was adopted without dissent.

1. Per Lord Steyn for the unanimous Committee, the common law and Article 6 of the European Convention on Human Rights applied the same objective test for apparent bias. Following and applying Porter v Magill [2002] 2 AC 357, the court must ascertain the circumstances bearing on the allegation and ask whether a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. Actual bias was unnecessary. The observer was balanced, neither complacent nor unduly sensitive or suspicious, and public perception of possible subconscious bias was decisive.

2. Per Lord Steyn, applying that test systemically, lay members of the Employment Appeal Tribunal were legally unqualified and looked to the presiding judge for guidance on questions of law. Joint service could create a close professional relationship of trust and confidence. A fair-minded observer could reasonably consider that, when the same judge later appeared as an advocate, the lay members might subconsciously accord additional authority to that advocate’s submissions. The analogous restrictions applying to Recorders, jurors and part-time chairmen of Employment Tribunals reinforced that conclusion.

3. Per Lord Steyn, variations in the frequency or recency of previous joint sittings did not alter the principled answer to the systemic challenge. Contemporary standards of public confidence required the practice to end. Part-time Employment Appeal Tribunal judges should therefore be prohibited from appearing as counsel before a panel containing one or two lay members with whom they had previously sat. Possible loss of experienced part-time judges could not justify a practice inconsistent with the governing bias principle. No criticism attached to judges who had acted under the previous understanding.

4. Per Lord Steyn, the restriction had not been breached in the appellant’s eventual hearing because the reconstituted tribunal contained no lay member with whom counsel had previously sat. The appellant nevertheless succeeded on the Recorder objection as a matter of principle. The House declared that he was entitled to succeed on that objection and remitted the substantive issue to the Court of Appeal for determination in light of D’Souza v London Borough of Lambeth [2003] UKHL 33.

1. House of Lords: In Lawal (Appellant) v Northern Spirit Limited [2003] UKHL 35, the House unanimously allowed the appeal to the extent of declaring that the appellant succeeded on the Recorder objection. It remitted the substantive issue to the Court of Appeal for determination in light of D’Souza v London Borough of Lambeth [2003] UKHL 33.
2. Court of Appeal: By a majority, the court dismissed the appeal on the Recorder objection. Pill LJ dissented: [2002] EWCA Civ 1218; [2002] ICR 1507.
3. Employment Appeal Tribunal: A reconstituted tribunal rejected the procedural objection because there was no real possibility of bias where its lay members had not previously sat with counsel. It also dismissed the substantive appeal: [2002] IRLR 228.
4. Employment Tribunal: The tribunal dismissed the racial discrimination claim after concluding that the Race Relations Act 1976 protected only current employees.