Lawal v Northern Spirit Limited

The House considered whether it is compatible with Article 6 ECHR and the common law test for bias for a Queen's Counsel who has sat as a part-time judge of the Employment Appeal Tribunal to appear as counsel before a panel including lay members with whom he had previously sat. Applying the objective test approved in Porter v Magill (whether a fair-minded and informed observer would conclude there was a real possibility of subconscious bias), the House held that the practice of part-time judges appearing as advocates before lay wing members with whom they had previously sat tends to undermine public confidence and should be discontinued. The House declared that the appellant was entitled to succeed on the Recorder objection in principle, but on the facts of his case the rule had not been breached and his substantive appeal was to be remitted to the Court of Appeal to be decided in light of the House's decision in D'Souza.

Background and parties: The appellant, Mr Lawal, brought a claim for racial discrimination arising from the respondent employer's failure to provide a reference after termination of employment. The Employment Tribunal dismissed the claim on the ground that the Race Relations Act 1976 protects only current employees. The matter proceeded to the Employment Appeal Tribunal, then to the Court of Appeal and by leave to the House of Lords.

Nature of the application: The appellant challenged the practice of part-time judges (Recorders, many of whom are Queen's Counsel) of the EAT appearing as advocates before panels including lay members with whom they had previously sat, arguing that this practice gave rise to a real possibility of unconscious bias contrary to Article 6 and the common law.

Procedural history: The Recorder objection was raised before the EAT, which reserved and then dismissed the objection ([2002] IRLR 228). The Court of Appeal, by majority, dismissed the Recorder objection ([2002] EWCA Civ 1218). The appellant obtained leave to appeal to the House of Lords.

Issues framed:

• Whether the practice of part-time EAT judges later appearing as advocates before lay wing members with whom they had previously sat is compatible with Article 6 ECHR and the common law test of bias;
• Whether, applying the objective test of a fair-minded and informed observer, there was a real possibility of subconscious bias in the appellant's case.

Court's reasoning: The House adopted the modified common law test of bias approved in Porter v Magill: the relevant question is whether a fair-minded and informed observer would conclude there was a real possibility of bias. The court reviewed analogous restrictions in judicial practice (Recorder terms and conditions, Magistrates' Court practice and rules applicable to part-time chairmen of Employment Tribunals) and considered their relevance. It concluded that lay wing members can reasonably be expected to look to a judge for guidance on the law and may develop a relationship of trust with that judge; therefore the appearance of that judge as an advocate before those lay members may give rise to a real possibility of subconscious bias or, at least, the perception that public confidence in impartiality is undermined. The House therefore found the systemic practice unacceptable and should be discontinued. On the facts of Mr Lawal's appeal, however, no breach occurred in the reconstituted EAT hearing, and the House remitted the substantive issue to the Court of Appeal to consider in light of D'Souza.

Relief sought and disposition: The appellant sought disqualification/remedy on bias grounds. The House allowed the appeal in part by declaring the Recorder objection well-founded in principle and remitted the substantive appeal to the Court of Appeal.

Appeal allowed in part. The House held that, applying the Porter v Magill test, the practice of part-time judges of the Employment Appeal Tribunal later appearing as advocates before lay wing members with whom they had previously sat gives rise to a real possibility of subconscious bias and undermines public confidence; accordingly the practice should be discontinued. On the particular facts no rule was breached in the rehearing before Lindsay J and the substantive appeal was remitted to the Court of Appeal to be determined in light of D'Souza.

Employment Tribunal: claim dismissed (followed Adekeye v Post Office (No. 2) [1997] IRLR 105). Employment Appeal Tribunal heard procedural Recorder objection and substantive appeal; procedural objection dismissed (reported at [2002] IRLR 228). Court of Appeal (majority) dismissed the Recorder objection: [2002] EWCA Civ 1218. Appeal to the House of Lords allowed in part: [2003] UKHL 35.