No bias ruling for part-time judges acting as advocates

Part-time judges may appear as advocates before employment appeal and other tribunals without danger of bias even when a lay member of the tribunal is one with whom they have sat as a judge, the Court of Appeal held last week.

In Lawal v Northern Spirit, Nicholas Underhill QC appeared as counsel for the respondent before lay members with whom he had sat in his capacity as a part-time tribunal chairman.

The appellant claimed there was a danger of bias under fair trial provisions, but the Court of Appeal rejected this by majority.

The Master of the Rolls, Lord Phillips, said: '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.'

He said he knew of no authority in which a member of a tribunal has been held to be biased because of a prior relationship with a professional advocate appearing before him.

Referring to the standard test for bias, Lord Justice Mummery said: '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.'

However, Lord Justice Pill strongly dissented, saying: '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.'

But Lord Phillips said there may be more substance to the concerns if advocates sat with such frequency that lay members might view them as judges appearing part-time as advocates.

In 2000, five leading counsel who were already recorders were appointed part-time judges of the EAT and Lord Justice Mummery said it is likely that more will be appointed.

Jeremy Fleming