Class conflict

The decision handed down last month by the Supreme Court in R (on the application of G) v the Governors of X School [2011] UKSC 30, looks set to have far-reaching implications for those who find themselves subject to professional disciplinary proceedings. In a 4-1 split (Lord Kerr dissenting), Lords Hope, Dyson, Walker and Brown held that a teacher who kissed a 15-year-old pupil was not entitled to legal representation at his disciplinary hearing before the school governors.

The incident was alleged to have taken place on 20 September 2007 during a work experience placement. The pupil's parents reported it to the school on 4 October 2007, and the teacher (G), was suspended pending an investigation.

Three parallel legal proceedings were then set in train: criminal, disciplinary and regulatory. The police were contacted to determine whether there was any criminal liability, but the CPS decided to take no further action. Disciplinary proceedings were started immediately by the school to determine whether or not to start the regulatory proceedings by way of a referral to the secretary of state under section 142 of the Education Act 2002. Such a referral would entail a hearing by the Independent Safeguarding Authority (ISA) to determine whether or not G should be prevented from working with children.

On 19 May 2008, G issued a judicial review challenge to the decision of the governor's disciplinary committee not to allow him legal representation at his disciplinary hearing. G sought declaratory relief that the denial breached his right to fair trial under article 6. The claim was successful in front of Stephen Morris QC at first instance ([2009] EWHC 504 (Admin)), and the subsequent appeal by the school to the Court of Appeal was dismissed ([2010] EWCA Civ 1), where Lord Justice Laws gave the court's decision. The school then appealed to the Supreme Court.

The issue considered by the Supreme Court concerned whether the nexus between the regulatory and the disciplinary proceedings was so strong as to engage article 6 in both sets of proceedings. Article 6(1) of the European Convention on Human Rights states: '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.'

G's contention was that his 'civil right' under article 6 was the right to practise his profession as a teacher and work with children. As such, it was engaged by the regulatory proceedings, but not by the disciplinary hearing. However, G argued that article 6 still applied to both sets of proceedings because:

(1) the disciplinary and regulatory proceedings were effectively bound up in one another, such that the former would be a powerful influence on the latter in terms of its findings of fact; and

(2) the severe consequences of an unfavourable outcome in the regulatory proceedings meant that G was entitled to be represented at both proceedings.

The Supreme Court rejected this reasoning, arguing that the regulatory hearing carried out by the ISA was free to arrive at its own conclusions, and that it was inappropriate to seek to turn disciplinary investigations into 'quasi-litigation', with the attendant burden that this places on employers. Lord Hope noted further that under section 10 of the Employment Relations Act 1999 (ERA) the employee has a right to be accompanied by an official of a trade union, not by a lawyer.

Wide impact

This decision raises issues about the proper role of professional disciplinary hearings. Should they be conducted in a manner akin to civil litigation, with full legal representation, or is it sufficient protection of an individual's rights for them to have to effectively conduct the case themselves?

This question was further illustrated in the recent case of R (on the application of Bonhoeffer) v the GMC [2011] EWHC 1585 (Admin), in which Mr Justice Stadlen held that there was no right under article 6 or common law for a person to cross-examine witnesses on whose evidence the allegations against him are based. Although the decision to admit hearsay was considered to be unreasonable on the facts of Bonhoeffer, the general approach was that disciplinary tribunals should not be required to adhere to the same evidential standards as courts.

Carolyn Osbourne, a solicitor at Streetwise Community Law Centre, a Kent firm that specialises in education law, has serious concerns about the effect of G v X. 'The right to legal representation is a crucial means of ensuring that important decisions such as these are taken with the proper regard for any relevant legal issues. Legal representatives can be vital, both to the individual who is subject to the proceedings and to the tribunal. They are able to help, firstly by reducing the anxiety of the individual who is subject to the proceedings, and secondly by assisting the tribunal by presenting the case in a clear manner that avoids becoming too emotive or personal.'

There appears to be a contradiction in Lord Hope's argument that allowing legal representation would add a 'chilling effect' to the proceedings, but at the same time allowing that section 10 of the ERA provides for a trade union official to be present. The purpose behind allowing union representation is surely to give an additional layer of protection for the employee by virtue of the assistance that the official can give in presenting their case. Arriving at the conclusion that parliament intended to restrict the category of persons who were allowed to attend disciplinary hearings to only trade union officials is surely to miss the point behind the purpose for which section 10 was enacted. The risk is that not allowing legal representation will exacerbate the imbalance which is inherent in an inquisitorial system.

Osbourne is also worried about how the decision could impact on the wider administration of justice. 'Watering down the right to legal representation could well have the unintended consequence of an increase in the number of judicial review claims against decisions made by panels which have not had the benefit of hearing properly formulated legal submissions at an early stage.'

The potential for this decision to increase the number of challenges brought by way of judicial review will no doubt be a worry to the government, which is under clear financial constraints. A recent report by the House of Commons justice committee recommended that savings could be made by 'reduc[ing] the number of cases which reach tribunals where the appellant seeks to overturn a decision made by a public authority'.

The committee's favoured proposal is that put forward by the Law Society, which suggested that 'public authorities whose administrative decisions are overturned by courts and tribunals should be required to pay the costs of the claimant to the legal aid fund, together with a surcharge'. Although this proposal found no favour with the minister responsible for legal aid, Jonathan Djanogly, there is a clear tension between the decision in G v X and the government's overall policy aim of ensuring that fewer cases reach judicial review.

Article 6 and school exclusion

G v X is not the first case to raise issues of the applicability of article 6 to education proceedings. In R (on the application of LG) v The Independent Panel for Tom Hood School [2010] EWCA Civ 142, the court held that a decision to exclude a pupil was not determinative of a civil right, such that it engaged article 6. However, just one month after the decision in Tom Hood, the Grand Chamber of the European Court of Human Rights held in Orsus v Croatia [2010] ECHR 337 that article 6 did apply to education law disputes.

The tension between Tom Hood and Orsus has been demonstrated by the government's difficulties over reforms to the process by which pupils are permanently excluded from school. It has long been asserted by the Conservative party that the independent appeals panels (IAPs), which consider school exclusion decisions, should be scrapped on reasons of both cost and their perceived detrimental effect on the authority of head teachers. Under the last four Conservative party leaders, policy has been that the decision of the head teacher should be final, subject only to an internal appeal to the school's governing body.

However, realising that Orsus created a potential conflict between the proposals and article 6, the policy was altered for its inclusion in the Education Bill 2011, so that IAPs would still exist, but would no longer have the power to order that a student be reinstated against the wishes of the head teacher.

This alteration did not prove sufficient to persuade the joint committee on human rights, which raised its concerns in its pre-legislative scrutiny of the bill, arguing that 'the provisions in the bill for review panels without full appellate jurisdiction on factual matters and without the power to order reinstatement, are incompatible with the requirements of... article [6]'. These concerns have also been echoed by the Equality and Human Rights Commission.

The existence of such widely differing opinions as to the application of article 6 points the way to further litigation, both within the sphere of education law and in the wider field of professional discipline.