Removing the comfort blanket

Does having a ban on legal representation at disciplinary proceedings breach the European Convention on Human Rights and the common law duty of fairness? Nicholas Dobson analyses the impact on local authorities of a recent Court of Appeal ruling.

Many local authorities have procedures indicating that at disciplinary hearings employees may be represented by a colleague or trade union representative. Some authorities may purport to prevent legal representation in these circumstances. But particularly following a recent decision of the Court of Appeal, authorities will wish to make sure that any such blanket provision is compliant with Article 6 of the European Convention on Human Rights (Right to a fair trial). The case in question was R (G) v. X School & Ors [2010] EWCA Civ 1 judgment in which was given on 20 January 2010 by Laws LJ with whom Wilson and Goldring LGG agreed.

Background

The issue concerned an appeal by school governors (the Governors) against a decision of the Administrative Court to grant the application for judicial review of a teaching assistant (the employee) who had been dismissed by the school for alleged inappropriate sexual conduct with a 15 year old male work experience trainee.

On 20 February 2008 the Governors had written to the employee stating that: “We have been instructed by. . . [the Authority]. . . to advise you that its policy is 'An employee may be represented by a colleague or trade union representative' and that any other person will not be permitted to enter the hearing taking place on the 21 February, 2008.”

The judicial review challenged the Governors’ decisions not to allow the employee legal representation at the disciplinary hearing, or at a forthcoming appeal hearing which was yet to take place.

The employee contended that these decisions violated his Article 6 rights. These (amongst other things) provide (at Article 6(1)) that in “the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Article 6(3)(c) amongst other things provides that everyone charged with a criminal offence has the right “to defend himself in person or through legal assistance of his own choosing….”

Stephen Morris QC (sitting as a deputy High Court judge in the Administrative Court) had found on 18 March 2009 that whilst the proceedings and disciplinary procedure were not “proceedings in respect of a criminal charge” for the purposes of (amongst other things) Article 6(3)(c), the employee was nevertheless entitled to the procedural protection of legal representation before the disciplinary committee and the appeal committee. The Governors appealed accordingly.

Statutory context

The case concerned the complex regime surrounding the safeguarding of children. As Laws LJ pointed out, under subordinate legislation in force at the time of the dismissal – Regulation 4 of the Education (Prohibition from Teaching and Working with Children) Regulations 2003 – the school Governors were obliged to report the circumstances of the claimant’s dismissal to the Secretary of State. This was to enable him to determine whether to place the claimant on the statutory register of persons prohibited from teaching, or other work directly or indirectly involving children, pursuant to section 142 of the Education Act 2002. Under the Safeguarding Vulnerable Groups Act 2006 the Independent Safeguarding Authority (ISA) must establish and maintain the “children’s barred list”. As from the date a person’s name appears on the barred list that person is prohibited from taking part in “regulated activity” including “any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children”.

After the ISA has made a provisional evaluation it invites representations (which may be by lawyer). If the subject is nevertheless put on the list s/he may appeal to the Upper Tribunal (if it gives permission) on any point of law or material finding of fact. However (per section 4(3) of the 2006 Act) the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

Some key principles highlighted by the Court of Appeal

Since such cases are unlikely to form the mainstream of local authority disciplinary processes, a more detailed examination of the statutory background is unnecessary in this article. Nevertheless, in the course of its decision the Court of Appeal did highlight some key principles and offered some interesting observations.

Laws LJ began his examination of the issues with an obiter comment on the ‘no legal representation’ provision in the disciplinary procedure: “I am not aware that the local education authority possess the legal power to dictate to school Governors whether or not they are to allow legal representation in disciplinary proceedings before them. If they do not, the letter of 20 February looks very like an unlawful fetter on the Governors’ discretion.”

However, since no such argument had  been advanced, Laws LJ considered that “it would not be right to build any more on the point in determining this appeal”.  Nevertheless, he warned that it “may be alive in future cases”.

Article 6 status of the disciplinary proceedings

In his substantive analysis of the issues, Laws LJ firstly considered whether the disciplinary proceedings were a determinant of the employee’s right to practise his profession for the purposes of Article 6. In his view this required the Court of Appeal to find “in some sense at least” that “a close nexus. . . [existed]. . . between the disciplinary process and the barred list procedures”.

He considered that Convention and other jurisprudence indicates that: “where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a ‘civil right or obligation’ enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation.”

However, in so saying, Laws LJ did “not mean any influence or effect which is more than de minimis”. For this to operate it “must play a major part in the civil right’s determination”. However, given the “generally pragmatic and fact-sensitive” nature of Convention jurisprudence and the fact that its principles “tend not to have sharp edges” he did not intend this as a hard and fast rule.

But there was another stream of authority argued by the Governors which needed to be addressed. This was the ‘full jurisdiction’ point as illustrated in Bryan v. UK (1995) 21 EHRR 342, Alconbury Developments Ltd [2003] 2 AC 295 and Runa Begum [2003] 2 AC 430. This was summarised by Lady Hale in R (Wright & others) v. Secretary of State for Health and Another [2009] UKHL 3: “If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of ‘suitable’ housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not (Tsfayo v. United Kingdom (2009) 48 EHRR 18).”

However, Laws LJ did not consider that the ‘full jurisdiction’ principle applied in the instant situation. For that “is concerned with a pattern of public decision-making where there is first an administrative or executive decision, typically by officials of a local authority, upon a question whether the individual concerned is entitled to a particular benefit such as public housing.  Such a decision is plainly not Article 6 compliant because it is taken (in effect) by the provider of the benefit”.

However, that decision is itself “subject to judicial review which. . . is compliant; and the issue is only whether the judicial review jurisdiction is ‘full’ enough to ensure that the administrative decision, if not properly made according to law, is corrected”.  So “in every case where the Bryan/Alconbury approach is properly applied, the subjection of the first (administrative) decision to the second (judicial) decision is taken to be sufficient to ensure compliance with Article 6”. However, in his view this “is to be contrasted with the position as between the disciplinary process and the barred list procedure in the present case. The latter in no sense controls the former or corrects its errors. Indeed the [Employee’s] very case is that the former will drive the latter”.

Consequently, Laws LJ did find the necessary “close nexus between the disciplinary process and the barred list procedures”.

Did Article 6 in fact apply to the disciplinary proceedings?

However, the Court then had to consider whether Article 6 actually did apply in the instant circumstances. Laws LJ noted that if the Employee is put on the barred list then (per section 4(2) and (3) of the 2006 Act) he will (with permission) have the right of appeal to the Upper Tribunal but that would be only in relation to a mistake of law or fact and, significantly “not on the question whether it was appropriate to include him on the list”. However, he rejected the Governors’ submission that since the barred list procedures provided a sufficiently autonomous facility for an adjudication of the Employee’s civil right to practise his chosen profession, that civil right should not be taken to have been at stake in the disciplinary process, which was concerned only with the different, and narrower, right to remain in his current employment the school in question.

Laws LJ took the view “that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to the barred list”. And the “force of the disciplinary decision lies not only in the governors’ view of the primary facts, but especially in their judgment as to how those facts should be viewed. For without a ‘de novo hearing and the possibility of oral evidence before the ISA, at the very least the flavour and the emphasis of those conclusions will remain important and influential”.

Consequently, he concluded that the outcome of the disciplinary proceedings (if they remain unfavourable to the employee after the internal appeals process) “will have a substantial effect on the outcome of the barred list procedures which will then be applied to him”. For “his right to practise his profession, which will be directly at stake in the barred list procedure, may be irretrievably prejudiced by the disciplinary proceedings”.

Therefore since the disciplinary proceedings are a determinant of the claimant’s right to practise his profession, Article 6 was found to be engaged on the basis that that is the civil right in issue. And the situation cannot be remedied by the appellate jurisdiction of the Upper Tribunal. For the issue most likely to be critical (i.e. whether on the proved or admitted facts the quality of the individual’s act should be judged severe enough to put him on the barred list) appeared to the Court to lie beyond the jurisdiction of the Upper Tribunal.

Article 6 and legal representation in the disciplinary proceedings

Laws LJ had then to consider whether in the circumstances Article 6 required that the employee be offered the opportunity of legal representation in the disciplinary proceedings. He thought it clear that whilst Article 6 (in the context of the determination of ‘civil rights and obligations’) does not necessarily entail a right of representation, it may do so. He considered that ‘within the proper confines of the evidence, a professional advocate might properly make a great deal of difference to the flavour and the emphasis; and if there were any contest as to the primary facts, to that also’.  Furthermore, ‘if an advocate might have effected such a difference before the governors, then the influence of their conclusions on the ISA’s decision-making might also have been different’.

Laws LJ referred to the observation of Schiemann LJ in the Court of Appeal in Ex parte Fleurose [2002] IRLR 297 that: “What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires”.

And, as Jonathan Parker LJ pointed out in International Transport Roth GmbH & others v. Secretary of State for the Home Department [2002] EWCA Civ 158: “Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. This is consistent with the court’s approach to the standard of proof in civil proceedings: the more serious the allegation, the more cogent the evidence which will be needed to prove it to the requisite standard”.

In the circumstances, in the light of caselaw authority and his view of the potential effect of an advocate in disciplinary proceedings, Laws LJ agreed with the Court below that Article 6 did require that the employee should be given the opportunity to arrange for legal representation in the disciplinary proceedings, should he so choose.

Rights in respect of criminal charges

As to those minimum rights in Article 6(3) expressed to be specifically applicable to those charged with a criminal offence, Laws LJ considered that the question whether the employee should have entitlement to legal representation at the disciplinary hearings cannot depend upon the classification of those proceedings as civil or criminal. For: “The jurisprudence is increasingly to the effect that what matters is the gravity of the issue in the case, rather than the case’s classification as civil or criminal. That is the primary driver of the reach of the rights which Article 6 confers”.

And in Secretary of State v. MB [2008] 1 AC 440 Lord Bingham had said that: “in this country . . . judges have regarded the classification of proceedings as criminal or civil as less important than the question of what protections are required for a fair trial”.

These comments may provide some useful guidance to those tempted to take an over-textual approach to the rights in Article 6.

Comment

One of the effects of the Human Rights Act 1998 (and the consequent importation into domestic law of Convention jurisprudence) is the need for a much more context sensitive approach to matters involving Convention rights. As Laws LJ indicated Convention jurisprudence is “generally pragmatic and fact-sensitive”.

However, in terms of Article 6, fairness is a key ingredient and the public authority obligation to act fairly becomes more intense the more serious are the allegations in question. And in any event (apart from Article 6) there is a well-established common law duty on public authorities to act fairly.

So whilst it is understandable if some local authorities may seek to streamline their disciplinary processes by removing what they may see as the unnecessary complication of legal representation, a blanket ban may well in some circumstances breach both Article 6 and the common law duty of fairness. Indeed the very presence of such a blanket ban may indicate a systemically unfair process.

It is better therefore for authorities to leave the question of representation open but subject to reasonable regulation by the disciplinary body. This could, for instance (as in local authority standards hearings) limit the number of witnesses an employee may call if it considers this to be unreasonable. For if an employee perceives the process to be manifestly unfair, any ‘blanket ban’ may turn out to be rather more than a wet blanket for the authority in the event of successful legal challenge.

© Nicholas Dobson

Dr Nicholas Dobson is a lawyer specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.