Accusations of barrister bias thrown out by EAT

Nicholas Underhill QC vindicated by tribunal after dual role of barrister and judge brought into question

The Employment Appeals Tribunal (EAT) has rejected serious claims of bias against five well-known employment silks, including Nicholas Underhill QC of Fountain Court. The names of the other four silks went undisclosed.
The case included and intervention by a representative of the Lord Chancellor, who established the system accused of bias.
The matter has raised serious potential conflicts of interest arising out of barristers who also sit as part-time judges. It has also highlighted the relationship between barristers who advocate before judges who are former members of their chambers.
The case originated after a recorder of the EAT raised objections to the fact that employment silk Nicholas Underhill QC of Fountain Court had not only sat alongside lay members of the court in his capacity as a parttime judge, but had also represented clients in his barrister capacity before the same lay members.
The recorder said this breached the right to a fair trial under the Human Rights Act and common law.
There was also concern over four other leading counsel, because of their positions as part-time EAT judges as well as counsel who act before the tribunal.
Last week, the president of the EAT Mr Justice Lindsay dismissed the claims, but did accept that “we wouldn't want to make too much of this, as it could be that some such practices will fall prey to increasing sensitivity”.

“We wouldn&#39t want to make too much of this, as it could be that some such practices will fall prey to increasing sensitivity”
Mr Justice Lindsay

Initial objections were raised when Underhill appeared as counsel at the tribunal for Northern Spirit before two lay members whom he had previously sat alongside as a part-time judge.
As the appellant was not represented, the amicus curiae of the case, Sarah Moore of 11 King's Bench Walk, argued the appellant's points of claim to the tribunal. He alleged “racially motivated post-employment references” against Northern Spirit.
It was alleged that the lay members would be influenced on legal matters by Underhill, who they had recently presided with over cases.
However, the allegations were thrown out by Judge Lindsay, who said: “Given that there has long been an ability to complain of bias, and given that far closer associations that arise under the recorder objection have not been seen to give rise to a real possibility of bias, there is no compelling warrant for us to find it here.”
He added that counsel, articled clerks and pupils often address judges who are former members of their chambers.