United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A A LAWAL IN PERSON MS SARAH MOORE AMICUS CURIAE
For the Respondent	MR NICHOLAS UNDERHILL QC (of Counsel) Instructed By: Messrs Kennedy Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4DW MR PHILIP SALES (of Counsel) Interested party (Lord Chancellor's Dept)


 


MR JUSTICE LINDSAY (PRESIDENT):

Introduction

1. The Appellant, Mr A.A. Lawal, a black litigant in person, appeals against the decision of the Employment Tribunal at Sheffield that it had no jurisdiction to hear his complaint. That complaint was that, after he had left its employ, he had been discriminated against and victimised by his erstwhile employer, Northern Spirit Ltd., upon racial grounds. We shall deal with that substantive appeal below but, before we get to it, we shall deal first with a procedural complaint of some general importance which Mr Lawal raises. He objects that arrangements made for the hearing of his appeal at the Employment Appeal Tribunal ("the EAT") breach Article 6 (1) of the Human Rights Convention ("right to a fair trial") and the Common Law. His objection, which we shall for convenience call "the Recorder objection" concerns a particular consequence of the use at the EAT of Recorders to sit as part-time Judges, they sitting, as is customary, with 2 lay members.
2. Five Leading Counsel, each already a Recorder and a person with especial experience in employment law, were appointed in 2000 by the Lord Chancellor to be part-time Judges eligible to sit as Judges at the Employment Appeal Tribunal - see Employment Tribunals Act 1996 section 24. By accepting such appointment each Recorder accepted an obligation to make him - or herself so available for not less than 20 working days per year. In the event all 5 Recorders have sat as part-time Judges at the EAT and a number of them, as part of their continuing practices as Queen's Counsel at the Bar, have also since appeared at the EAT as Leading Counsel representing arguing parties in appeals before the EAT.
3. The Recorder objection is this: that there is a breach of Article 6 (1) and of the Common Law where, in a case in which a Recorder appears as Counsel representing a party, he addresses an EAT which includes one or two lay members who have previously sat with that Recorder in his other capacity as an EAT Judge. In any such case, says Mr Lawal, there is a real possibility of bias.
4. Before we explain in more detail the circumstances in which the Recorder objection is made we need first to say something about lay members at the EAT.

Lay Members

5. The membership of the EAT includes some 64 or so "appointed members" appointed by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State - Employment Tribunals Act 1996 s. 22 (1) (c). Some 52 or so sit in England and Wales, the rest in Scotland. The appointed members are lay persons who have appeared to the Lord Chancellor and to the Secretary of State to have special knowledge or experience of industrial relations either as representatives of employers or representatives of workers - 1996 Act s. 22 (2). In 1999 some changes were made as to the methods used in the selection for appointment of lay members; open competition is now used. The terms of the appointment of lay members were fully described in an affidavit sworn in another case, Scanfuture UK Ltd. -v- Bird and others [2001] IRLR 416 EAT. In Scanfuture Miss S.E. Rhodes, Assistant Director of Tribunals Policy and Appointments at the Department of Trade and Industry, swore an affidavit on the 19th December 2000, copies of which were made available to the parties in this appeal and to which affidavit Mr Lawal referred. Miss Rhodes deposed, inter alia, as follows:-

"Lay members serve under a warrant from the Queen ... They are usually appointed for a term of three years or until their 70th birthday if this is within 3 years. The basic terms and conditions of their appointment are set out in the Employment Tribunals Act 1996 and under section 25 (1) they hold and vacate office in accordance with their terms of appointment, subject to their resignation or removal from office. Lay members may only be removed from office on specified grounds. Stated grounds for removal are absence from sittings for a period of longer than 6 consecutive months without the permission of the President, bankruptcy, incapacity by reason of physical or mental illness or if they are otherwise unable or unfit to discharge the functions of a member. Under section 25 (4) of the Employment Tribunals Act 1996, removal is the responsibility of the Lord Chancellor, after consultation with the Secretary of State.

Lay members are normally reappointed at the end of their term unless they had reached retirement age or chose to resign. I am only aware of one instance where a lay member was not reappointed. This was because of prolonged absence from sittings and was on the recommendation of the President. The Lord Chancellor and the Secretary of State do not monitor the performance of lay members and would not be aware that a lay member was absent unless the President drew it to their attention. I believe there was also one case where a lay member was asked to resign on the grounds of bankruptcy. Under the terms of the Act, resignations are made to the Lord Chancellor and the Secretary of State.

As with Employment Tribunal appointments, a new memorandum of terms of conditions of service has been drafted to implement the Lord Chancellor's guidance on part-time judicial appointments ... The new memorandum was issued to lay members on the 5th December 2000. ...... The new memorandum offers greater security of tenure for lay members, and provides that appointments are automatically renewed at the end of their term unless specified grounds exist. There are 9 grounds for the non-renewal of a member's appointment;

(i) Inability or unfitness to discharge the functions of a member;

(ii) Misbehaviour;

(iii) Incapacity;

(iv) Bankruptcy or an arrangement with creditors etc. under section 25 (4) (b) of the 1996 Act;

(v) Persistent failure to comply with sitting requirements (without good reason);

(vi) Failure to comply with training requirements;

(vii) Sustained failure to observe the standard reasonably expected from a holder of such office;

(viii) Part of a reduction in numbers because of changes to operational requirements;

(ix) Part of a structural change to enable recruitment of new members.

All decisions not to renew on grounds (i)-(vii) are to be taken jointly by the Lord Chancellor and the Secretary of State for Trade and Industry. Such decisions are to be taken following an investigation made at the request of the Lord Chancellor and the Secretary of State, conducted by a Judge nominated by the Lord Chief Justice, in consultation with the President. While all decisions not to renew [on other grounds] will be on a first in first out principle, the decision to use such grounds and the extent to which they will be used will be taken jointly with the President of the EAT and with the concurrence of the Lord Chief Justice.

The new memorandum provides that, as with non-renewal, members may only be removed where specific grounds are found, following investigation by a Judge, to have been made out. All decisions to remove are taken by the Lord Chancellor after consultation with the Secretary of State, with the concurrence of the Lord Chief Justice."

There has been no contest on any of the matters described in Miss Rhodes's affidavit. The job description used in the course of advertising for and selection of persons to be lay members of the EAT includes:-

"Applicants must:

•    Be able and willing to prepare for hearings

•    Have good analysis and comprehension

•    Have good judgment

•    Be able to operate effectively as a member of a team

•    Be able to command trust and respect from colleagues and applicants

•    Be below the age of 67 on appointment

•    Be able to sit for a minimum of 2 days a month during the judicial year (the EAT sits for about 35 weeks a year)

•    Have recent (i.e. the last 5 years) employment relations experience at the senior level."

The EAT's own notes for guidance of lay members includes:-

"It is widely acknowledged, especially among the Judges who serve at the EAT, that the presence of lay members adds to the authority of the judgments made there, and to the acceptability of judicial intrusion in employment matters."

The present terms and conditions of service of lay members of the Employment Appeal Tribunal draw attention to the fact that such members are expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality.

6. So numerous are the applicants for the position of lay members of the EAT that current arrangements for selection include that, first of all, applicants should be short-listed by outside professionals experienced in such a task and that there should then be interviews of the short-listed candidates undertaken by a panel consisting of the President of the EAT, a member of the Judicial Appointments staff at the Lord Chancellor's Department, a member from the Department of Trade and Industry and an experienced independent lay assessor. It should be little surprise that, amongst the characteristics looked for in candidates by the interviewing panel, one is "an ability to demonstrate impartiality and independence ....".
7. The EAT acts by a majority; the Judge in the chair has but one of the three votes. Although this has been described as a "remarkable fact", there is thus a majority of lay members even though the EAT has jurisdiction only to deal with questions of law - see Carmichael -v- National Power plc [2000] IRLR 43 at para 28 per Lord Hoffmann. It is not unknown for one lay member to have his or her dissenting view recorded in the judgment (which is invariably delivered by the Judge). There are, indeed, examples of cases where the only qualified lawyer on a particular panel at the EAT has been outvoted on a question of law by the lay members. That, though, is a very rare occurrence. In the ordinary course the lay members can be expected to look to the Judge with whom they are sitting for particular guidance on the law but they are not bound to accept whatever guidance he gives.

Under this heading of "Lay members" we have at some points relied not on formal evidence but on matters of which the President has judicial notice as such; those matters were described in the course of the hearing and no objection was raised.

Mr Lawal's IT1 and his Appeal to the EAT

8. Turning from the general to the particular, on the 7th October 1999 Mr Lawal presented an IT1 for "racially motivated post-employment references detriments by voluntary resignation-malice for defamation case". He said he had been employed by Northern Spirit Ltd. from 25th April 1977 to the 2nd March 1997. He had prepared his IT1 himself. Box 11 of the IT1 (marked "please give particulars of your complaint") indicated that Mr Lawal had resigned from the employment on the 20th March 1997, that he had almost a year later requested a reference from the former employer on the 17th February 1998 but that by the time of the IT1 he believed that the erstwhile employer had refused to supply one in retaliation for a discrimination case which he had brought against it. There is no suggestion that such previous discrimination case had been one alleging sex discrimination and we shall assume that what it had alleged was a case within the Race Relations Act 1976.
9. In October 1999 Northern Spirit's solicitors took the point that Mr Lawal's complaint was made outside the 3 months' time limit, time running, they said, from February 1998. They asked for a Preliminary Hearing on that point although they also denied that there had been any refusal to supply a reference. Subsequently it was found by Northern Spirit that there had been a request for a reference later than the one, of the 17th February 1998, relied upon by Mr Lawal in his IT1; there had been one on the 14th September 1999 which had been replied to ("I am sorry but it is not our policy to answer specific questions on discipline, performance, personal attributes of former employees etc. .....") on the 20th September 1999. That, of course, was a date well within the 3 month period before the presentation of the IT1. It was presumably for that reason that Northern Spirit switched the jurisdictional point it sought to raise and the Preliminary Hearing which was eventually raised did not deal with the 3 months' time bar issue but with the more fundamental (and less escapable) issue of whether the Employment Tribunal had jurisdiction to hear a case alleging victimisation within the Race Relations Act when the events complained took place wholly after the relevant employment had ended.
10. That Preliminary Hearing took place at the Tribunal at Sheffield under the Chairmanship of Miss H.A. McWatt on the 16th June 2000. Mr Lawal appeared in person; Northern Spirit was represented by Junior Counsel. On the 12th July 2000 the Tribunal sent its decision to the parties; it held that it did not have jurisdiction to hear Mr Lawal's complaint. The Tribunal considered Adekeye -v- Post Office (No. 2) [1997] IRLR 105 C.A. and the decisions of the European Court of Justice and of the EAT in Coote -v- Granada Hospitality Ltd. at [1998] IRLR 625 and [1999] ICR 942 respectively. The Employment Tribunal considered itself bound by Adekeye to hold that the Race Relations Act did not permit complaints based wholly on post-termination events.
11. Mr Lawal's invitation to the Employment Tribunal that it should review its decision was refused on the ground that it had no reasonable prospect of success.
12. On the 13th July 2000 Mr Lawal lodged his Notice of Appeal at the EAT. On the 15th January 2001 the EAT allowed that Notice of Appeal to go forward to a full hearing. Reference was made at that Preliminary Hearing to the then-recent cases of Relaxion Group -v- Rhys-Harper [2000] IRLR 810 EAT and D'Souza -v- London Borough of Lambeth, unreported, heard at the EAT on 7th June 2000. Both of those cases were thereafter dealt with by the Court of Appeal but at the EAT in January 2001 the view was taken that it could not be confidently said that there was no arguable point underlying the Appellant's case. Mr Lawal on that occasion had the assistance of Counsel under the ELAAS Scheme and the opportunity was taken totally to supplant Mr Lawal's original home-made Notice of Appeal with an amended one of the 26th February 2001.
13. The 10th October 2001 was fixed as the date for the full hearing of Mr Lawal's amended Notice of Appeal. Northern Spirit instructed Mr Nicholas Underhill Q.C. to appear for it on the appeal and he prepared a Respondent's Skeleton Argument, a copy of which was sent to Mr Lawal. Shortly after receiving it Mr Lawal wrote to the Registrar at the EAT inter alia raising, albeit in extravagant terms, the Recorder objection. He amplified his objections on the 3rd October 2001. He was told that he could raise the point at the hearing on the 10th October 2001.

The Recorder Objection

14. On the 10th October the matter opened before Her Honour Judge Wakefield. The Respondent, Northern Spirit was represented then, as it was before us, by Mr Underhill. It transpired that one of the two lay members sitting with Judge Wakefield had previously sat with Mr Underhill on a case in which Mr Underhill had sat as one of the Recorders appointed as a part-time Judge at the EAT. It was immediately recognised that that fact made Judge Wakefield's panel an inappropriate Tribunal to rule upon the Recorder objection. The hearing was adjourned to come before an Appeal Tribunal consisting of the President and two lay members who had never sat with Mr Underhill. That has been done. Further, since the 10th October the Lord Chancellor's Department has been added as a party because of its interest in the Recorder objection. It appears by Mr Philip Sales. Miss Sarah Moore has been appointed amicus curiae. Given that Northern Spirit and the Lord Chancellor's Department were both already comprehensively represented before us, Miss Moore very usefully sought to put forward such arguments as an appellant might wish to raise to show breach of Article 6 (1) and of the Common Law. In the event we have therefore not only heard Mr Lawal's argument to that end but Miss Moore's. We are very grateful to her for the well prepared and thoughtful argument she thus put before us; the case for such breach could not, we think, have been better put and Mr Lawal was wise to adopt Miss Moore's argument as part of his own.
15. The argument that there has been a breach of Article 6 (1) begins by underlining that the Tribunal in issue must be "independent and impartial". This part of the law has been very recently considered in Magill -v- Porter in the House of Lords [2001] UKHL 67. Lord Hope's speech on the subject attracted the concurrence of Lord Bingham (para 57), Lord Steyn (para 59), Lord Hobhouse (para 131) and Lord Scott (para 161). Lord Hope at para 88 said:-

"There is a close relationship between the concept of independence and that of impartiality. In Findlay -v-United Kingdom (1997) 24 EHR 221, 244, para 73 the European Court said:-

"The Court recalls that in order to establish whether a Tribunal can be considered as "independent" regard must be had inter alia to the manner of appointment of its members and their term of office, the presence of guarantees against outside pressures and the question of whether the body presents an appearance of independence.

As to the question of "impartiality" there are two aspects of this requirement. Firstly, the Tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The concepts of independence and objective impartiality are closely linked ..."

In both cases the concept requires not only that the Tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities."

16. As for any subjective element, whilst some of Mr Lawal's writings may have suggested that it was to be in dispute, it has not been raised by Mr Lawal in argument and the Recorder objection has been exclusively put on the basis that there was (or threatened to be) an EAT panel for the hearing of Mr Lawal's appeal which was not "impartial from an objective viewpoint".
17. As to that, Lord Hope in Magill said:-

"In Hauschildt -v- Denmark (1989) 12 EHR 266, 279, para 48 the Court also observed that in considering whether there was a legitimate reason to fear that a Judge lacked impartiality, the standpoint of the accused is important but not decisive:

"What is decisive is whether this fear can be held objectively justified."."

That became, said Lord Hope, a question of:-

"Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."

18. It is especially appropriate to concentrate on the possible conclusions of a fair-minded and informed observer rather than those of Mr Lawal as, to judge from some of his writings, Mr Lawal could not be described as always an observer of that class.
19. Mr Lawal and Miss Moore accept that mere generalised allegations of a pre-disposition to favour one party to proceedings as against another are insufficient to create any legitimate doubt as to impartiality. Something more is required. What Mr Lawal and Miss Moore find as that necessary extra ingredient is this; Mr Underhill in his capacity as a Judge at the EAT had sat, as we have said, with one of the lay members proposed to hear Mr Lawal's appeal. Mr Underhill therefore had been a colleague of one of the three persons listed to hear Mr Lawal's appeal. There was a risk, so runs the argument, that that lay member might subconsciously continue to be influenced by the previous professional relationship that would have grown up when he had sat with Mr Underhill as a Judge. That lay member, it is said, would naturally have looked to Mr Underhill as the only legally qualified member of that particular panel and in that way Mr Underhill would have developed a degree of personal influence over the lay member, at any rate in relation to issues of law. The lay member, later hearing Mr Underhill as Counsel, might subconsciously continue to be influenced by a form of collegiate loyalty to Mr Underhill. An informed observer, say both Mr Lawal and Miss Moore, would expect the legally qualified Chairman to give a degree of guidance on the law to the lay members with whom he had sat and those lay members would have been entitled to look to him for such guidance and thus, when he appeared before the same one or two lay members in his rôle as Counsel, there would be an appearance of bias because of the likelihood, consciously or not, on the part of the lay member to defer to the Recorder's submissions. Moreover, say Mr Lawal and Miss Moore, there is no guarantee or safeguard against that tendency.
20. Both argue that the appearance of bias can be made good even without a wholly compelling factual basis appearing, as the Employment Appeal Tribunal itself recognised in Scanfuture supra at para 26 where, commenting on the case in the European Human Rights Court McGonnell -v- United Kingdom [2000] 8 EHRC 56 (to which we shall return) the Employment Appeal Tribunal concluded:-

"The case represents a striking example of just how little may properly be taken to give rise to a want of appearance of independence or to a legitimate fear of bias or partiality."

21. At this point in the argument the parties took us to a number of European authorities to provide us with examples from which we are to conclude whether or not a real possibility that the Tribunal was biased is shewn.
22. In Sramek -v- Austria (1984) 7 EHRR 351 Mrs Sramek, a foreigner to Austria, was given official approval to buy a parcel of land in the Tyrol but the Real Property Transaction Officer, a Civil Servant described as the Director of Group III of the Government Office of the Tyrol, appealed against that approval to the Regional Real Property Transactions Authority. Group III was itself divided into seven subdivisions. The Transactions Authority consisted in Mrs Sramek's case of seven individuals, namely the elected Mayor of the area as Chairman; a Judge of the Innsbruck Court of Appeal; a Civil Servant from Group III as rapporteur; another Civil Servant, the Head of one subdivision of Group III; yet another Civil Servant, the Head of a further subdivision of Group III; a farmer; and a lawyer. The Court said:-

"14. According to the minutes of the hearing, the rapporteur presented the facts and read out the experts' opinions and observations received during the course of the investigation; that latter concerned, inter alia, the percentage of the parcels of land in Hopfgarten which was in foreign hands. The Transactions Officer then requested the Authority to uphold his appeal on the ground that as there was already a risk of foreign domination in Hopfgarten, the acquisition of the land in question would be contrary to social and political interests."

The Transactions Officer's appeal was successful. Mrs Sramek appealed within Austria but without success and so took her case to the ECHR whose observations on the issues are illuminating.

23. Of the position of the lawyer on the Transactions Authority the Court said:-

".... The Applicant argued that he might on occasion have received instructions from the Land Government if he had been engaged to represent them in legal proceedings. However even if he had - an eventuality that can in fact be discounted since it does not appear to have materialised in the present case - his impartiality could not be called in question on that score alone."

Of the three Civil Servants the Court said:-

"41. There remain the three Civil Servants from the office of the Land Government who, ..... were and had to be included amongst the members of the Regional Authority. In considering their position it has to be recalled that it was held in the above-mentioned Ringeisen judgment that the presence of Civil Servants on the Upper Austrian Regional Commission was compatible with the Convention. Furthermore, in proceedings of the kind at issue the Government of the Tyrol are prevented by law from giving their Civil Servants instructions on carrying out their judicial functions. However, the present case is distinguishable from the Ringeisen case in that the Land Government, represented by the Transactions Officer, acquired the status of a party when they appealed to the Regional Authority against the first instance decision in Mrs Sramek's favour, and in that one of the three Civil Servants in question had the Transactions Officer as his hierarchical superior. That Civil Servant occupied a key position within the Authority: as rapporteur he had had to set out and comment on the results of the investigation and then to present conclusions; the secretariat was provided by his department, namely Division III B.3. As was pointed out by the Government, the Transactions Officer could not take advantage of his hierarchical position to give to the rapporteur instructions to be followed in the handling of cases and there is nothing to indicate he did so on the present occasion.

42. Nonetheless the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis-à-vis the Transactions Officer might have had as a matter of fact. In order to determine whether a Tribunal can be considered to be independent as required by Article 6, appearances may also be of importance. Where, as in the present case, a Tribunal's members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain legitimate doubt about that person's independence. Such a situation seriously affects the confidence which the Courts must inspire in a democratic society. There was accordingly a violation of Article 6 (1)."

24. Miss Moore points to the conclusion that the existence of link between the Transactions Officer (who was, in effect, both a party and Counsel for that party) and a member of the Tribunal sufficed to represent a breach of Article 6 (1). However, one cannot ignore the particular nature of the link that there existed. The rapporteur member was not only, like the Transactions Officer, a Civil Servant and thus within the same employ as a party and Counsel to that party but was the hierarchical inferior of the Transactions Officer within that same employ. Nothing remotely similar exists in the case where a Recorder as Counsel addresses a lay member with whom he has previously sat. Mr Sales also emphasises that the respective positions of the lawyer and the other two Civil Servants seemed to have excited no doubt as to bias in the Court's mind.
25. In Wettstein -v- Switzerland ECHR 21st March 2001 the Court considered the position of lawyers who sat as part-time administrative judges of the Administrative Court of the Canton of Zurich. That Court was composed of 5 Judges including R & L who, as part-time Judges, were lawyers with continuing practices in the area. R & L as such shared offices with lawyer W. Mr Wettstein's case, heard by an Administrative Court including R & L, was rejected. Their associate W had, as a practising lawyer, recently appeared against Mr Wettstein in other proceedings, as had R. The Court was untroubled about practising lawyers being part-time Judges but continued:-

"47. Nevertheless the Court notes that, when on 15th February 1995 the Applicant instituted the present proceedings before the Administrative Court with R as a Judge on the Bench, the parallel proceedings in which R acted as legal representative for the Kussnacht Municipality against the Applicant were pending before the Federal Court gave its decision 8 months later on the 24th October 1995 .... Less than 2 months after these proceedings had been terminated the Administrative Court gave its judgment on the 15th December 1995. There was, therefore, an overlapping in time with the two proceedings with R in the two functions of Judge, on the one hand, and of legal representative of the opposing party, on the other. As a result, in the proceedings before the Administrative Court, the Applicant could have had reason for concern that Judge R would continue to see in him the opposing party. In the Court's opinion this situation could have raised legitimate fears in the Applicant that Judge R was not approaching his case with the requisite impartiality.

48. The fact that W, an office colleague of Judges R & L, had in other proceedings represented the party opposing the Applicant, while only of minor relevance, could be seen as further confirming the Applicant's fear that Judge R was opposed to his case.

49. In the court's view, these circumstances serve objectively to justify the Applicant's apprehension that Judge R of the Administrative Court of the Canton of Zurich lacked the necessary impartiality.

50. Consequently in the present case there has been a violation of Article 6 (1) as regards the requirement of an impartial Tribunal."

26. However, the risk of a Judge continuing to see a litigant as the party he had, as a lawyer, opposed in a different case, is not a risk that arises in Mr Lawal's case and even in Wettstein it arose to trouble the Court, it would seem, only because of the overlapping in time of the two sets of proceedings, another feature that has no equivalent before us.
27. In R (On the application of the Chief Constable of Lancashire) -v- Preston Crown Court Ex Parte Gosling [2001] EWHC Admin 928 the Administrative Court dealt with the extraordinary arrangements made for appeals against decisions of Licensing Justices. The Crown Court hearing such appeals consisted of a Judge with 4 lay Justices, all 4 of whom were to be members of Licensing Committees but two of whom were to members of the very same Licensing Committee as that from which the appeal was made. Members of Licensing Committees for a given Petty Sessional Area were elected annually by a ballot of all the lay Justices of that area. The Justices who had refused the licence had the right, exercised in one of the cases before the Administrative Court, to appear by Counsel on the appeal. In that respect the Justices from whom the appeal was made were as if parties on the appeal. At paragraph 32 Laws L.J. says:-

"Members of the Licensing Committee sitting in the Crown Court are expected to pass objective judgment on their colleagues who are members of the same committee which made the first instance decision. They may be asked to order costs against them. The electorate is the whole Petty Sessional Bench, therefore including all the candidates: past and potential colleagues on the Licensing Committee.

To my mind there is a danger which cannot be gainsaid that Members of the Committee sitting in the Crown Court on appeal from a first instance decision of Licensing Justices may incline, unconsciously no doubt, to conform with their colleagues."

There was before the Administrative Court "anecdotal" remarks regarded as in point by Laws L.J. and within the experience of Crane J. with whom he sat that:-

".... It is the common experience amongst Circuit Judges hearing such appeals that the two Magistrates from the local Bench, perhaps out of an unconscious sense of loyalty to their colleagues, take upon themselves a responsibility for defending and justifying the original decision; indeed, sometimes - again no doubt unconsciously - they even assume the rôle of representative of the local Bench arguing their corner. It is for these reasons when appeals are allowed, it is often on a split decision, with the Judge and the out of town Magistrates for allowing the appeal and the home Justices dismissing it. It is understandable that appellants and their advisers have for very many years approached licensing appeals fearing that they are or may be "two down" before they start."

It was held that the arrangements made were in principle not consistent with Article 6. In Mr Lawal's case there are no equivalent remarks, anecdotal or otherwise, still less said to reflect a position subsisting for very many years. The case before the Administrative Court was one of a relatively close association between the two members of the local Bench on the Crown Court hearing the appeal and their fellow Magistrates from the same Petty Sessional area. There is no equivalent in Mr Lawal's case of one or more of the three Judges to hear his case arguing the corner as if representatives of either the appellant or respondent party.

28. Beyond those cases referred to by Miss Moore and Mr Lawal, Mr Sales took us to a number of other cases where Article 6 (1) has fallen to be considered in circumstances which, however loosely, could be argued not to be altogether too remote.
29. In Piersack -v- Belgium (1982) 5 EHR 169 it was made clear that there was nothing offensive in principle in a member of a prosecuting authority becoming a Judge even in cases initiated by that authority. The mere fact that the Judge was once a member of a public prosecutor's department was not a reason for concluding that he lacked impartiality. The vice in Piersack which caused Article 6 to be violated was that the Presiding Judge at the Assize Court, Mr Van de Walle, had, before his appointment as such, acted in the very same matter as public prosecutor.
30. McGonnell -v- United Kingdom at the ECHR on 8th February 2000 is a case which the EAT commented on at some length in Scanfuture supra para 26 where, as Miss Moore emphasises and as we have already cited, the EAT said:-

"The case represents a striking example of just how little may properly be taken to give rise to a want of appearance of independence or to a legitimate fair of bias or partiality."

McGonnell is, though, difficult to analyse. The case was one of the possible influence of a man's earlier participation in a legislative event upon his later consideration of that event as a Judge. As Deputy Bailiff in Guernsey Mr Dorey had presided over its legislature, the States of Deliberation, when that legislature had debated and adopted a planning development plan, DDP6, in June 1990. Five years later Mr Dorey, by then Sir Graham Dorey and by then the Bailiff, heard an appeal in the Royal Court in a case where planning permission had been refused below by reference to DDP6. In the Royal Court Sir Graham was the Judge and he sat with 7 lay members whose rôle was the determination of issues of fact. There was no suggestion of subjective or "actual" bias on Sir Graham's part. In the Royal Court Sir Graham was the sole Judge of the law in the case. It was he who summed up in the case. The ECHR said:-

"57. The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint.

58. It follows that there has been a breach of Article 6 (1)."

Why the case is difficult to analyse is that it cannot be seen from the report why it was that the Court did not accept the case put by the Government that when the Bailiff had presided in 1990 over the States of Deliberations his involvement was not that of an active member but rather merely an independent umpire who ensured that proceedings ran smoothly, without taking part or expressing approval or disapproval of the matters under discussion. It does not appear from the report what, if anything, Mr Dorey had done as Deputy Bailiff in relation to DDP6 in the States of Deliberation in 1990. The Court held that even a purely ceremonial constitutional rôle must be classified as a "function". If the rôle of Deputy Bailiff in presiding over the States of Deliberation in 1990 was truly nothing more than that of an impartial Chairman acting rather as might a Speaker of the Westminster Parliament, it would seem a little extreme that that "mere fact" should cast doubt on his impartiality five years later when he was sitting in a manifestly judicial rôle. However, even taking McGonnell at face value, the case before us does not in any way concern possible confusion on a Judge's part between his rôle as a Judge and some earlier rôle he had had in some other capacity; the lay member or members who, in Mr Lawal's and Miss Moore's argument, have their impartiality put in doubt have never had any other relevant capacity.

31. Belilos -v- Switzerland (1988) is reported at 10 EHRR 466. Mrs Belilos had taken part in a street demonstration in Lausanne. The police had laid information against her because the demonstration was unlicensed. The municipal Police Board, consisting of a single municipal Civil Servant, a lawyer from Police Headquarters, found against Mrs Belilos in her absence. It fined her although later the fine was reduced by the same Police Board individual. That individual alone was entitled to make findings of fact in the matter. Mrs Belilos's further appeals were unsuccessful and she therefore took the matter to the ECHR. Again, subjective or "actual" bias was not in issue. The ECHR said:-

"Nonetheless a number of considerations relating to the functions exercised and to internal organisation are relevant too; even appearances may be important. In Lausanne the member of the Police Board is a senior Civil Servant who is liable to return to other departmental duties. The ordinary citizen will tend to see him as a member of the Police force subordinate to his superiors and loyal to his colleagues. A situation of this kind may undermine the confidence which must be inspired by the Courts in a democratic society.

In short, the applicant could legitimately have doubts as to the independence and organisational impartiality of the Police Board, which accordingly did not satisfy the requirements of Article 6 (1) in this respect."

Mr Sales fairly argues that the institutional link that was apparent in that case was between a party, the Police as prosecutor, and the Judge, and was of a quite different character to that between a Recorder and a lay member with whom he had previously sat. The Recorder has come from the Bar, the lay member from one or other side of industry or commerce. There is in Mr Lawal's case no equivalent to the continuing body, there the Police in Belilos, from which the lay member comes and to which he may hope to return, to which he may feel subordinate or to which he might owe some misplaced loyalty.

32. Last of the authorities to which we need to refer is Regina -v- Spear and Another [2001] 2 W.L.R. 1692, a case heard in the Courts Martial Appeals Court. In the course of considering whether particular aspects of the Courts Martial system were or were not in breach of Article 6 (1) the Court looked at the position of junior serving officers sitting at a Court Martial with a more senior Permanent President of Courts Martial ("a PPCM"). Laws L.J. giving the judgment of the Court said at p. 1704:-

"We consider it perfectly reasonable to suppose that junior officers would regard it as their duty to speak with their own voice, and that the modern culture of the Service would promote that very point of view. We do not think it would be reasonable for the accused soldier to entertain any different perception. This point is a bad one."

A little later on the same page, dealing with whether the PPCM as a medium ranking officer would be immune to "general army influence" Laws L.J. said:-

"And in our view it is simply patronising to suggest that an officer in the rank of Lieutenant Colonel, or his equivalent in the Royal Air Force, will have his judgment on the concrete facts of a particular case affected by anything so amorphous as "general army influence"."

33. In relation to something as insidious and diverse as bias it would be totally unreasonable to demand an authority on all fours before finding Article 6 to be breached but these cases, whilst by no means exhaustive, do help in delineating where the boundaries might currently be between breach and compliance. Using them as such guides we have not found any of the authorities put before us such as to compel us to find a breach of Article 6 (1) in Mr Lawal's case or even to persuade us to move in that direction. Nothing even loosely parallel with the position that arises in the Recorder objection has been shown to us and the authorities we have cited above do little to tell us whether a fair-minded and informed observer, having considered the particular facts of this case, would conclude that there was a real possibility of bias. As to that we are, whilst guided by authority, largely left to our own devices. A number of features particularly impress us. Thus -

(1) Lay members of the EAT are carefully selected by reference to personal characteristics including commercial or industrial experience and independence. The office is keenly sought by many, a factor which itself conduces to a high standard being maintained.

(2) It is accordingly quite unrealistic in our view to suppose that such lay members will fail to distinguish between the obviously different rôles of a partisan Counsel acting as such and the same man or woman acting as a neutral part-time Judge. Indeed, in our view few things are more likely to be obvious to even the most casual observer of any proceedings amongst members of the public than that the Judge should be impartial and that advocates can be expected to be partisan.

(3) Whilst it is reasonable to expect lay members to look to the Judge with whom they are sitting for guidance on the law in each particular case, lay members have only one vote each towards a decision, which can be a majority one. As we have noted, there are several cases where one lay member has procured the recording of the minority view and there are some, albeit very rare cases, where the Judge has found himself in the minority. The fact that any lay member may differ even on a point of law is likely to deter the formation in any lay member of a sense of his or her being subordinate to the Judge.

(4) The terms as to the appointment and removal of lay members are calculated to secure and preserve their independence.

(5) Given that at present there are some 20 plus judicial members of the EAT who may sit here from time to time of whom only 5 are Recorders, given that Recorders only bind themselves to sit some 20 working days per annum (of which one day in five will be a reading day) and given that there are some 52 or so lay members who sit in England and Wales with roughly equal frequency each with the others, it will not be likely that any lay member will sit very often or for any significant duration with any one Recorder. As Mr Underhill argues, other factors apart, the numbers themselves do not conduce to the formation of a habit of reliance by any lay member upon any Recorder.

(6) Even if one were to assume (against our view) that lay members were such that they could be marshalled and led off to a decision by the Judge sitting with them as if sheep by a sheepdog, there would be no reason to suppose that they would not, in the later case, when addressed by a Recorder in his different rôle as Counsel, be led off, as it were, by their new sheepdog, the Judge sitting with them in the later case. That extreme assumption aside, the fact that in every case in which the facts of the Recorder objection arise the lay members will be sitting with a Judge is itself a guarantee or safeguard against the Recorder-Counsel having some insidious influence on the lay member or lay members with whom he or she had previously sat.

(7) Each of Sramek, Piersack and Spear supra illustrates that there are degrees of association or possible association between Judge on the one hand and party or Counsel on the other which are to be tolerated; it is far from the case that it suffices to prove breach to shew any form of association.

(8) We put to Mr Sales that the rule or practice of the Employment Tribunal is that no part-time Chairman should continue to practice as an employment lawyer (or at any rate as an advocate at Employment Tribunals) within the territory covered by his or her Tribunal. Did that not, we asked, suggest an official awareness of a possibility of bias not wholly unlike that said to arise under the Recorder objection? However, and leaving aside that the rule or practice might have grown out of an excess of caution, Mr Sales points out that the majority of part-time Employment Tribunal Chairmen are solicitors with continuing practices in partnership with others who or whose associates might well be advocates coming before them. Without the Employment Tribunal rule or practice there would thus be frequent cases where the Chairman might have a direct financial interest in the success or failure of an advocate before him. Whilst such a direct interest would not arise where the Chairman was a barrister, it could well have been thought invidious to have different rules for the two branches of the profession. In the event we do not see the Employment Tribunal's rule or practice as assisting Mr Lawal.

(9) It is all too easy for a Court too readily to find "objective" bias. Judicial officers should discharge their duty to sit and not, by acceding too readily to suggestions of the appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge they will have their case tried by someone thought to be more likely to decide in their favour - see Locabail (UK) Ltd. -v- Bayfield Properties Ltd. [2000] QB 451 at 479, para 22, where Lord Bingham of Cornhill C.J., Lord Woolf M.R. and Sir Richard Scott V-C adopted as having great persuasive force three passages to such effect from high Australian authority. In Spear supra at para 34 Laws L.J. warns against "neurotic distrust".

(10) It is wrong to regard bias of some such kind as is suggested in the Recorder objection as a matter available to be complained of only since the coming into effect of the Human Rights Act on the 2nd October 2000. Whilst Article 6 (1) as such could, of course, only be wholly effectively deployed after that date, Magill supra shows that the requirements of Article 6 hardly differ from those long required by the common law - see also In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 C.A. at p. 726H-727C. For that reason, whilst Mr Lawal's objections are both under Article 6 and under Common Law, it has sufficed for us to refer expressly only to Article 6. Given, therefore, that there has long been an ability to complain of bias and given that far closer associations than arise under the Recorder objection have not been seen in the past to give rise to a real possibility of bias, there is no compelling warrant for us to find it here. Without objection Counsel often address Judges who were once contemporaries in the same Chambers or, in the case of part-time Judges, who still are members of the same Chambers. Judges receive arguments from their erstwhile pupils or articled clerks; they even hear arguments from sons or daughters. It may even be that one spouse has so addressed another. We would not want to make too much of this as it could be that some such practices will fall prey to increasing sensitivity but these practices do suggest a wide and long established recognition that the rôles of advocate and Judge are readily separable and separated in the public mind. The point perhaps underlines our earlier one that it is unrealistic to suppose that any lay member will fail to distinguish between such very different rôles.

34. In a sense, after the Recorder objection had been raised before Judge Wakefield it became academic; none of us has ever sat with Mr Underhill. However, the Recorder objection has been fully argued before us and, as we have explained, both the Lord Chancellor's Department and an amicus have been able to address us in order that the matter should be fully argued. It would, in our view, be little short of absurd for us not to deal with the Recorder objection on the ground that it had become academic. Instead all parties continued to argue the matter as if one of important principle.

Doing the best we can, in the light of the matters we have explored above, to put ourselves in the position of a fair-minded and informed observer who had considered the facts, we conclude, through his eyes, that 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. Mr Lawal's Recorder objection thus fails.

The substantive Appeal

35. With that behind us we turn to the substantive appeal. On this subject we have heard only Mr Lawal and Mr Underhill. In the course of the argument on this part of the case we indicated that we regarded ourselves as bound by the trio of cases in the Court of Appeal, Adekeye -v- The Post Office (No. 2) [1997] IRLR 105 C.A., Rhys-Harper -v- Relaxion Group plc [2001] IRLR 460 C.A. and D'Souza -v- London Borough of Lambeth [2001] EWCA Civ 794 C.A.. Moreover the President and Mr Dawson have both been party to a very recent EAT decision - Jones -v- 3M Healthcare Ltd - in which the EAT's judgment was given on 11th December 2001. In that case, too, the EAT regarded itself as bound by the trio of cases we have mentioned.
36. Mr Lawal's first application in his substantive appeal was that we should adjourn the case until at least February 2002 when it is expected that the House of Lords will determine whether or not finally to give leave to Mr D'Souza to appeal against the Court of Appeal's decision in his case. The application for adjournment was strongly resisted by Mr Underhill who argued that, by reason of Mr Lawal having raised the Recorder objection, Northern Spirit had already had to incur far greater costs and delays than could ordinarily have been expected and that it would be unfair for the case to be left hanging over them longer than was necessary. In any event he pointed out that were Mr Lawal to lose his substantive appeal and were he then to ask the Court of Appeal for leave to appeal to it (were we to refuse leave) it would not be improbable that the Court of Appeal would itself defer further consideration until the attitude of the House of Lords in the D'Souza case had become clearer. We rejected Mr Lawal's application for an adjournment. That having been indicated to him, Mr Lawal accepted that we could not distinguish, but were bound by, the trilogy of cases to which we have referred and that they compel us to dismiss his appeal. Accordingly we dismiss Mr Lawal's appeal.
37. In the event we have not needed to consider either of two subsidiary arguments touched on by Mr Sales and Mr Underhill. First of those was that the Strasbourg jurisprudence shews that, in general, a violation of a Convention right is only established upon concrete facts which include that the complainant has indeed suffered some actual disadvantage - see the Preston Crown Court case supra at para 15 per Laws L.J.. The argument would have been that Mr Lawal could point to no disadvantage. The second was that (unlike the position of the Employment Tribunal considered in Scanfuture supra) there is from the EAT an appeal to the Court of Appeal which can be as full as the appeal to the EAT; both are appeals only on law. The argument here would have been that the (assumed) failure of the EAT to comply with Article 6 (1) could be cured by an appeal to an invulnerable Court of Appeal - see Bryan -v- United Kingdom [1995] 21 EHRR 342 para 40. In dismissing Mr Lawal's appeal and in rejecting the Recorder objection we have not taken either of those subsidiary arguments into account.