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Cite as: [2002] EWCA Civ 327

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    Neutral Citation Number: [2002] EWCA Civ 327
    Case No: A1/2002/0149


    Royal Courts of Justice
    Strand, London, WC2A 2LL
    9th August 2002

    B e f o r e :



    - and -



    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)



    Crown Copyright ©

      Lord Justice Mummery:


    1. 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.
    2. 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.
    3. 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.
    4. The Proceedings

    5. 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.
    6. 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.
    7. 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.
    8. Part-time Judges and Lay Members of the Employment Appeal Tribunal

    9. 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.
    10. 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.
    11. 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.
    12. 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:
    13. “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.
    14. 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.
    15. The Relevant Facts about the Employment Appeal Tribunal

    16. 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.
    17. 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 impartiality of the tribunal, the fair-minded observer would react responsibly before reaching a final view on such a serious question as bias on the part of a tribunal. He would look for an explanation of the circumstances giving rise to his doubts. To that end he would make reasonable inquiries. See the discussion of this point in Scanfuture UK Limited v. Secretary of State for Trade and Industry [2001] IRLR 416 at paragraph 28.
    18. Reasonable inquiries from the Employment Appeal Tribunal itself, as well as from the Lord Chancellor’s Department and from the Department of Trade and Industry, would yield relevant information about the lay members and about the procedure and practice of the Appeal Tribunal. Relevant information of the kind summarised in the judgment of the Employment Appeal Tribunal could be obtained by any member of the public making reasonable inquiries. There is no reason to suppose that it would have been withheld from Mr Lawal if he had made appropriate inquiries.
    19. The lay members are appointed for an initial term of three years by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State. Their appointments are automatically renewed at the end of their term, unless the member has reached the retirement age of 70 or has decided to resign or unless certain grounds for non-renewal exist. The members are selected by a process of advertisement and open competition from persons who appear to the Lord Chancellor and the Secretary of State to have special knowledge and experience of industrial relations, either as representatives of employers or of workers. The job description in the advertisement refers to the qualities needed, including good analysis, comprehension and judgment, being able to operate effectively as a member of a team, being able to command trust and respect from colleagues and having employment relations experience at the senior level in the last five years. The interviewing panel who see the short listed candidates look for an ability to demonstrate impartiality and independence. The members are carefully selected for their personal qualities, including commercial and industrial experience, and for their independence.
    20. Once appointed to the Appeal Tribunal, the lay members, like professional judges, are expected to refrain from activities which would conflict with their judicial office or be seen to compromise their impartiality. They have equal voting rights with the judge on the panels of three constituted to hear appeals. They may dissent from the views of the judge and the dissent is expressed in the judgment of the tribunal delivered by the judge. Indeed, there have been occasions when the lay members have outvoted the judge on questions of law. As the Appeal Tribunal said in paragraph 33(2) of its judgment
    21. “ … it is accordingly quite unrealistic to suppose that such lay members will fail to distinguish between the obviously different roles of a partisan counsel acting as such and the same man or woman acting as a neutral part-time judge.”
    22. Inquiries would also reveal that, in the case of a part time chairman of the employment tribunals, the Lord Chancellor’s Department, “in order to ensure that there are no allegations of bias”, requires the practitioner appointed not to be a representative or to appear as an advocate before any employment tribunal in the whole of the region to which part-time chairman has been assigned.
    23. Having considered this information what would the fair-minded observer conclude about the possibility of bias existing when a part-time judge appears as an advocate before a lay member with whom he has sat? I agree with the Employment Appeal Tribunal that he would conclude that there is no real possibility of bias. On considering the information available to him after reasonable inquiries the fair-minded observer would conclude that the lay member has a mind of his own and that, like any professionally qualified judge, he is capable of distinguishing between the role of the impartial members of the tribunal, and the role of the partisan advocate. The lay member would also appreciate the importance of making decisions objectively and based on reasoned argument, untainted by subconscious influences possibly arising from previous professional contact with, or personal knowledge of, the advocate. The selection process ensures that the lay members are persons of high quality with appropriate experience and standing. The conditions of appointment and the procedures of the tribunal are all designed to maintain and promote the strong tradition of impartiality in the tribunal system on the part of both professional judges and lay members. I agree with the observations of Laws LJ in Sengupta v. Holmes [2002] EWCA Civ 1104 that the fair-minded and informed observer must be taken to possess “some knowledge of legal culture”, such as, in that case, the place of oral argument in the adversarial system and how it may produce a change of mind, and, in this case, the tradition of impartiality expected of all those who sit on tribunals, whether professional or lay.
    24. The Strasbourg Cases

    25. Regard must be had to the Strasbourg authorities cited to the court. They are all examples of the application of the test of the real possibility of bias in cases very different from the present. In the cited cases there was held to be a breach of Article 6 where the judge had a previous specific link with a party to the litigation or had a continuing link with an institution or organisation, which might appear to affect his impartiality. For example, in Sramek v. Austria (1984) 7 EHRR 351 a civil servant called the Real Property Transactions Officer was a party to an appeal before a tribunal (the Transactions Authority) which included three civil servants, one of whom (the rapporteur) was in a subordinate position to the Transactions Officer. It is worthy of note that the fact that the judge and the party were civil servants did not of itself create a real possibility of bias. Wettstein v. Switzerland (Application no. 33958/96 21 December 2000) concerned an administrative court on which two part time judges served, while continuing their practices in the area, and one of them had appeared in other overlapping proceedings against a party in the case. Piersack v. Belgium (1982) 5 EHRR 169 Article 6 was violated in a case when the Presiding Judge at the Assize Court had, before his appointment as a judge, acted in the same case as public prosecutor. But the fact that the judge had formerly been a member of the public prosecutor’s department was not of itself enough to create a possibility of bias. In Belilos v. Switzerland (1988) 10 EHRR 466 the only member of a Police Board tribunal was a civil servant, who was a lawyer from police HQ. He was liable to return to other departmental duties. That gave rise to legitimate doubts about the independence and impartiality of the Police Board and conflicting loyalty to colleagues when dealing with an information laid against the accused by the police.
    26. In this case there is no specific link between the lay member and a party to the appeal and there are no continuing institutional or organisational ties or loyalties (e.g. to a trade union or to an employers’ association) appearing to affect the lay member’s subconscious response to the arguments of the advocate. cf R. (Chief Constable of the Lancashire Constabulary) v. Crown Court at Preston [2002] 1 WLR 1332. 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.
    27. Part-time Chairmen

    28. As for the conditions applicable to part-time chairmen in the employment tribunal, I agree that they indicate an apprehension of a possibility of bias. They are a precautionary measure designed to ensure that no allegations of bias are made; but I do not regard them as determinative of the issue whether a fair-minded and informed observer would conclude that a real possibility of bias would exist if a part-time chairman appeared as an advocate before a lay member with whom he or she had sat.
    29. Result

    30. I would dismiss the appeal so far as it relates to the Recorder objection. The decision on the jurisdiction point must await the decision of the House of Lords in
    31. D’Souza and related appeals.

      Lord Justice Pill:

    32. The present issue arises because the Lord Chancellor has exercised his power to appoint five leading counsel, three men and two women, as part-time judges in the Employment Appeal Tribunal. Each of them has considerable experience in employment law. In a sentence, the concern is about those part-time judges appearing as advocates before lay members who have heard proceedings with them.
    33. Employment Appeal Tribunal

    34. The Employment Appeal Tribunal (“the Appeal Tribunal”) is a creature of statute, formerly the Employment Protection (Consolidation) Act 1978 and now the Employment Tribunals Act 1996 (“the 1996 Act”). By virtue of section 22 of the 1996 Act, the Appeal Tribunal shall consist of “such number of judges as may be nominated from time to time by the Lord Chancellor ...” and, by virtue of section 22(1)(c): “such number of other members as may be appointed from time to time by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State (‘appointed members’)”. Section 22(2) provides:
    35. “The appointed members shall be persons who appear to the Lord Chancellor and the Secretary of State to have special knowledge or experience of industrial relations either –
      (a) as representatives of employers, or
      (b) as representatives of workers (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992).”
    36. Provision is made in section 25 of the 1996 Act for the tenure of appointed members and section 28(2) provides that “proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number –
    37. (a) of persons whose knowledge or experience of industrial relations is as representatives of employers and
      (b) of persons whose knowledge or experience of industrial relations is as representatives of workers”.

      Section 28(3) provides that, with the consent of the parties, proceedings may be heard by a judge and one, or three, appointed members.

    38. Since 1999, open competition has been used for the selection for appointment of appointed members. The job description used in advertisements inviting applications for appointment states:
    39. “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”
    40. The Appeal Tribunal’s notes for guidance of appointed members states:
    41. “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 power to appoint temporary additional judges of the Appeal Tribunal is provided by section 24 of the 1996 Act and a person so appointed has all the functions of a judge nominated under section 22(1)(a). It is the Lord Chancellor’s exercise of that power which has given rise to the issue before the court. The jurisdiction of the Appeal Tribunal is defined in section 21 of the 1996 Act. Subsection (1) provides that:

      “an appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising any proceedings before, an employment tribunal under or by virtue of ...”

      The relevant statutes are then listed and the list includes the Employment Rights Act 1996 and the Race Relations Act 1976. As the Appeal Tribunal point out in the present case: “the EAT acts by a majority; the judge in the chair has but one of the three votes”.

    42. In Carmichael v National Power plc 2000 IRLR 43, Lord Hoffman, at paragraph 28, referred to the rule that the construction of documents in their natural and ordinary meaning is a question of law, a rule which has been carried over into employment law (Davies v Presbyterian Church of Wales 1986 IRLR 194). Lord Hoffman stated that “this rule may be part of the explanation for the otherwise remarkable fact that the Employment Appeal Tribunal has a majority of lay members although it has jurisdiction to hear appeals only on questions of law”.
    43. Judges who sit in the Appeal Tribunal almost invariably welcome the presence of lay members for the reason stated in the Appeal Tribunal’s notes for guidance already quoted. Their status as full members of the Tribunal and not merely advisers or assessors is fully and necessarily recognised. The lay members undoubtedly have the “special knowledge or experience of industrial relations” required by section 22 and equally are persons of high ability and integrity. Consideration of the present issue does, however, require acknowledgement of the remarkable character of a tribunal set up to decide only questions of law but with a lay majority. The complexity of the issues of law which may arise, by way of interpretation of Directions, Statutes, Regulations and otherwise, must also be acknowledged and the law reports contain ample evidence of that complexity.
    44. Employment Tribunals

    45. Employment Tribunals, whose duties are to find the facts as well as apply the law, are also composed of a legally qualified chairman and, usually, two lay members (section 4 of the 1996 Act). The terms and conditions of service and terms of appointment of part-time chairmen of employment tribunals provide (paragraph 16):
    46. “It is understood that part-time chairmen may become involved to some extent within their practices on behalf of parties who have cases in the region to which they have been assigned to sit as a chairman. However, in order to ensure that there are no allegations of bias, no part-time chairman may be a representative or appear as an advocate before any employment tribunal in the whole of that region.”

      There are other restrictions of a common sense kind, to which I need not refer for present purposes.

      The Law

    47. The common law requires that justice must not only be done; it must “manifestly and undoubtedly be seen to be done” (R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ). Article 6 of the European Convention on Human Rights provides that everyone is entitled to a fair and public hearing by an independent and impartial tribunal. In Porter v Magill [2002] 2 WLR 37, Lord Hope of Craighead stated, at paragraph 88, that “There is a close relationship between the concept of independence and that of impartiality”. Lord Hope cited the decision of the ECHR in Findlay v United Kingdom [1997] 24 EHRR 221 at paragraph 73. The Court stated:
    48. “As to the question of ‘impartiality’, there are two aspects to this requirement. First the tribunal must be subjectively free from judicial 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.”

      Lord Hope stated:

      “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.”

      Lord Hope stated at paragraph 103:

      “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.”
    49. Decisions of the ECHR and other English cases, which include citations from Australian cases, have been cited to the Court. In none of them are the facts similar to those in the present case but statements of principle emerge. In Sramek v Austria 1984 EHRR 351, a Land Government appealed to the Regional Authority in a case involving a proposed purchase of land by Mrs Sramek. The Land Government was represented by its Transactions Officer who was the hierarchical superior in the public service of the Authority’s Rapporteur. The Court stated:
    50. “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 important. 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 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 Court must inspire in a democratic society. There was accordingly a violation of Article 6(1).”

      The reference to public confidence has been a theme in the jurisprudence of the ECHR. In Veililos v Switzerland 1988 10 EHRR 466, the Court stated that a situation of the kind which existed in that case “may undermine the confidence which must be inspired by the Court in a democratic society”. More recently in Wettstein v Switzerland (2001) (Application No 33958/96) the Court stated (at para 44):

      “In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public”

      In In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Lord Phillips of Worth Matravers MR, giving the judgment of this Court, included in the principles to be derived from the cases, the principle that “an important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice” (para 83). As the Master of the Rolls observed in the course of argument in the present case, the concept of public confidence is similar to the common law concept that justice must be seen to be done.

    51. The concept of what Lord Hope described as the “fair-minded and informed observer” was considered in the High Court of Australia in Johnson (2002) 174 ALR 655, cited with approval by Laws LJ in Sengupta v Holmes & Ors; The General Medical Council and the Lord Chancellor’s Department intervening (transcript 31 July 2002), Kirby J stated, at para 53:
    52. “The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on fair understanding of all the relevant circumstances. ...”

      Kirby J also stated (para 52) that “it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence which must be won and maintained”.

    53. Laws LJ also cited the judgment of Bleby J in the Supreme Court of South Australia in Southern Equities Corporation Ltd v Bond [2000] SASC 450:
    54. “In order to determine the likely attitude of fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. ... one must be careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other.”

      In Johnson, it was stated in the judgment of Gleeson CJ, Gaudron, McHugh. Gummow, and Hayne JJ, at paragraph 12, that “the hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues.” It was the position of a professional judge, which was, as it was in Sengupta, under challenge. The Court added:

      “At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require the [judge] to discard the irrelevant, the immaterial and the prejudicial’”.

      [The citation within that passage is from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at 527.]

    55. In my judgment, the requirement of public confidence and the importance of the appearance of justice, are important factors in resolving the present issue. The need to consider the perception of a lay observer reflects those factors.
    56. Submissions

    57. Miss Moore, appointed to assist the Court, submits that lay members sitting with a judge will inevitably look to him for guidance on the legal issues to be determined. They will have special knowledge or experience of industrial relations but they are laymen and, on legal issues, the influence on them of the judge is bound to be considerable. Moreover the Appeal Tribunal has rightly developed a sense of collegiality sitting as it does, in England, almost exclusively in a single building in London. When a part-time judge subsequently appears as an advocate, he is likely to be treated by lay members with an additional degree of authority. His submissions will have greater weight because his views on the law have previously been given to them, as their presider. As an advocate, the part-time judge would have a greater degree of authority with lay members and would be perceived by litigants and by a fair-minded observer as having such authority. There would be, and would be perceived to be, a degree of collegiate loyalty between part-time judges and appointed members.
    58. For the Lord Chancellor’s Department, Mr Sales submits that the safeguard is in the native wit and intelligence of lay members and their ability to distinguish between the part-time judge’s role as such and his role as advocate. There was no hierarchical or institutional link between him and the lay members and nothing specific in the situation which objectively gives rise to concern, given the high calibre of the lay persons appointed. As was the case with junior officers as members of courts-martial, (Boyd & Ors v The Army Prosecuting Authority & Ors [2002] UKHL 31), the independence and impartiality of lay members is not compromised. Legal qualifications are not a pre-requisite of an ability to make reasoned decisions. Moreover, there is a safeguard in that the lay members hearing the part-time judge as an advocate will then have the guidance of another judge (full-time or part-time). The procedure is acceptable, submits Mr Sales, even if the part-time judge’s appearance before the lay members as advocate were to occur the day after his hearing cases with them. In relation to the requirement that part-time chairmen in the Employment Tribunal cannot appear as advocates in the whole of the region, Mr Sales submits that the practice in the Employment Tribunal is nothing to the point and may have developed out of an abundance of caution.
    59. Conclusions

    60. While the position of a professional judge is under consideration, the real issue is the effect of his dual role upon the lay members in their judicial capacity. In my judgment it is not appropriate that part-time judges at the Appeal Tribunal should also appear as advocates before a Tribunal which includes a lay member (or members) with whom they have sat. The Appeal Tribunal has jurisdiction to hear appeals only on questions of law. A tribunal hearing an appeal has a majority of lay members. That being so, the position of the legally qualified presiding judge, and his relationship with the lay members, is a special one. The lay members can be expected to look to him for guidance on the identification and resolution of legal issues. Indeed, the system can work coherently and successfully, in my view, only if they do look to him for guidance and if there exists the highest degree of confidence between the judge and the lay members sitting with him. A degree of collegiate loyalty between judges and lay members will necessarily develop, as Miss Moore submits. I accept her submission that a judge who subsequently appears as advocate is likely to be treated by lay members with an additional degree of authority.
    61. The fair-minded and informed lay observer will readily perceive, I have no doubt, the collegiate spirit in which the Appeal Tribunal operates and the degree of trust which lay members repose in the presiding judge. It is in my judgment likely to diminish public confidence in the administration of justice if a judge who enjoys that relationship with lay members, with the degree of reliance placed on his view of the law, subsequently appears before them as an advocate. The fair-minded observer might well reasonably perceive that the litigant opposed by an advocate who is a member of the Tribunal and has sat with its lay members is at a disadvantage as a result of that association. A litigant’s doubt about impartiality (Findlay) would, for the reasons given, be a legitimate doubt. In my view, the procedure does not inspire public confidence.
    62. That conclusion does not involve criticism of the abilities or integrity of lay members whose standing is not in question. Their task is a difficult and complex one. They are laymen whose task is confined to deciding legal issues. They are experienced in industrial relations and the disputes of fact which give rise to litigation yet they must accept the facts as found by the Employment Tribunal and not substitute their own. They sit on a particular case because of their experience as representatives either of employers or of workers. Given the role they have, they should not be faced with the additional complication of having their colleagues on the Appeal Tribunal appearing before them as advocates. Lay participation in the work of the Appeal Tribunal was introduced with a view of increasing public confidence in the system. That additional step, in my judgment, is likely to have the effect of reducing it.
    63. The informed observer would also be aware that Employment Tribunal Chairmen are not by their conditions of service permitted to appear as advocates throughout the region in which they sit. He would have difficulty in distinguishing between the two situations and the absence of a protection in the Appeal Tribunal considered necessary in the Employment Tribunal tends to undermine confidence in the administration of justice.
    64. Miss Moore suggests the possibility of a system whereby an interval is required between sitting as a judge in the Appeal Tribunal and appearing there as an advocate before the same lay members. Apart from the administrative problems which would accompany such a system, it does not overcome the basic objections to which I have referred. Moreover, detailed safeguards of the kind the House of Lords held to be decisive in Boyd, when considering the position of the junior members of courts-martial, cannot be implemented in the present situation, as is common ground.
    65. For the reasons I have given, I would allow the appeal on this issue.
    66. Lord Phillips MR:

    67. Objection was taken by Mr Lawal to a lay member of the Employment Appeal Tribunal that was about to hear an appeal by him in which he was appearing in person. The basis of the objection was bias. The ground for the objection was the previous relationship between the lay member and Mr Nicholas Underhill QC. Mr Underhill has special experience in the field of employment law. For that reason, he is one of the five Recorders who have been appointed by the Lord Chancellor to be part time judges eligible to sit as Judges at the Employment Appeal Tribunal. Mr Underhill had presided at the Tribunal on an occasion when the lay member to whom Mr Lawal objected was sitting in that capacity.
    68. Mr Lawal’s case is that any fair-minded observer with knowledge of these facts, and of all relevant background facts, would reasonably apprehend that the lay member of the Tribunal would be predisposed to give more weight to the submissions made by Mr Underhill than he would accord to those of an advocate who had not previously acted as a judicial colleague.
    69. The test of bias is clear – see Magill v Porter [2002] 2 WLR 37 at p. 83. Would the fair minded and informed observer, having considered the facts, conclude that there was a real possibility that the Tribunal was biased? The relevant background facts are set out in the judgments of Lindsay J. and Mummery LJ, each of whom has served as President of the Employment Appeal Tribunal and the judgment of Pill LJ, who was for several years a judicial member of the Tribunal.
    70. Mr Lawal’s case is, in effect, that, on the facts of this case, it was reasonable to apprehend that the lay member would, subconsciously, have come under the undue influence of Mr Underhill. Having sat on a Tribunal over which Mr Underhill had presided, he would be unable to avoid considering that Mr Underhill’s submissions carried, to some degree, the authority of a judge.
    71. In this rapidly growing area, we have been referred to no authority which lends support to a case of bias on facts such as these. Indeed, we know of no authority in which a member of a Tribunal has been held to be biased because of a prior relationship with a professional and independent advocate appearing before him.
    72. There are many situations in which the standing of one advocate may appear to be more imposing than that of his opponent. Queen’s counsel wear a different gown and sit in a different row from junior counsel. In many cases one party is represented by counsel while the other appears in person. Judges, whether professional or lay, are expected, and rightly expected, to evaluate arguments advanced before them having regard to the merits of the arguments, not to those of their presenters. Does the fact that a lay member of an Employment Appeal Tribunal has sat with counsel as his President mean that he cannot thereafter be relied upon to make an objective and dispassionate evaluation of that counsel’s advocacy on a subsequent occasion? That is the critical issue that arises on this appeal.
    73. I agree with Lindsay J., giving the decision of the Employment Appeal Tribunal, and with Mummery LJ that there are no grounds for doubting the capacity of a lay member of an Employment Appeal Tribunal to reach a decision uninfluenced by a 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.
    74. I reach these conclusions as a judge with special knowledge of the judicial system, but in doing so I put myself into the shoes of the informed lay observer. The facts and considerations that have weighed with me I would expect to weigh equally with the fair-minded layman.
    75. I would add only this. 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, appearing part time as advocates, rather than the reverse.
    76. For these reasons I concur in the order proposed by Mummery LJ.

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