The Chairman of the CAC has issued a statement about his policy on the appointment of CAC Deputy Chairmen and Members to cases.
The
need for this arose from a recent case in which an allegation was made that
there was a conflict of interest between Counsel for one of the parties and a
Member of the Panel considering the case. The
Chairman’s statement clarifies the CAC position on this issue.
The statement is for the information of all parties to CAC proceedings but will be of particular interest to those who have engaged, or are considering whether to engage, legal representation.
Chairman's statement on the appointment of CAC Panels
The Chairman of the Central Arbitration Committee (the CAC)
Sir Michael Burton, after consultation with the Deputy Chairmen, the Members of
the CAC and the Secretary and Case Managers of the CAC, has decided to make this
statement in the light of events in a recent case.
From time to time the CAC may require legal advice or
representation from Counsel specialising in employment law. This is particularly
necessary where the CAC is made a party to judicial review proceedings, but it
may very occasionally arise where an amicus curiae (friend of the court) is
instructed to appear before a CAC panel to address a legal point which neither
side has raised or wishes to raise, and which is thought to be of significance,
or where neither party is legally represented nor wishes to be so and a legal
point requires to be considered. In the 3½ years in which the CAC has been
operating the present statutory trade union recognition scheme, the former
situation has occurred on four occasions and the latter on one. The CAC has, and
wishes to have, no standing Counsel, but would normally make use of the Treasury
Solicitor’s list of nominated Counsel approved by the Attorney General or
otherwise instruct Counsel who have expertise in employment law and in
particular have knowledge and understanding of the practices and procedures of
the CAC. This last point is important, both to the integrity of the CAC and in
the interest of all its users, namely that those who it may instruct to
represent it are not without knowledge of the subject matter upon which they are
asked to advise. In those circumstances it is inevitable that the most suitable
Counsel to instruct it will be those who have appeared for one party or another
before the CAC, and will be likely to continue to be instructed, no doubt by
varying firms of solicitors, and for differing parties, and to be so for the
future. It would be neither in the interest of the CAC to be inhibited in its
instruction of Counsel, nor for Counsel who are approached to be so instructed
to know that, if they accept a brief on behalf of the CAC, that continued
practice before the CAC is at any risk.
The CAC wishes to make it quite clear that, whereas any
question of conflict relating to any particular facts will still be required to
be considered on a case by case basis, the Chairman pursuant to his statutory
duty to select panels, will neither disqualify nor change any panel member, nor
decline to hear any Counsel instructed for a party, on the grounds that that
Counsel has previously been instructed by or advised the CAC, whether in respect
of an earlier decision of any CAC panel of which a member of members of the
instant panel had been a member, or otherwise; save of course in the obviously
unacceptable situation that such advice or representation has been in relation
to the same case, or an earlier case between the same parties. Although the CAC
Chairman has considered the case of Lawal v Northern Spirit Ltd [2003]
IRLR 538, where it was concluded that it was inappropriate for Counsel to appear
before panel members with whom that Counsel had previously sat as a judge, it is
not an apt comparison.
It is considered important that this position should be
publicised now, without reference to any particular case presently before the
CAC, so that parties should know for the future the practice of the CAC, and be
in no doubt about the resolute determination of the CAC not to allow its
composition of panels, or choice of Counsel, to be affected in the way
discussed. If it is decided in any particular case by a party that it wishes to
challenge such a practice, of which it thus has advance notice, then it is
expected that proceedings would be issued in the Administrative Court
expeditiously. In the industrial relations field, delay is never advisable, and
the statutory procedures of the CAC are dedicated towards speedy determination
of disputes.
Sir Michael Burton
January 2004