The British Medical Association, R (on the application of) v General Medical Council & Or

This is a renewed application for permission to appeal from the decision of Hickinbottom J (as he then was) dated 4 May 2016, in which he granted permission to bring a claim for judicial review but refused the substantive claim. Davis LJ refused permission to appeal on the papers on 19 October 2016. The Applicant’s renewed application initially came before King LJ on 20 July 2017. She directed that there should be a “rolled up” hearing before the full court, with the appeal to follow if permission were granted.

At the hearing we heard from Mark Sutton QC, who appeared with Betsan Criddle for the Applicant, and are grateful to them for their written submissions as well as Mr Sutton’s submissions at the hearing. We did not need to call on Ivan Hare QC at the hearing but had the advantage of reading his skeleton argument, for which we are grateful. The Secretary of State, who has been served as an Interested Party, has not taken any active part in these proceedings.

Since there is a great deal of common ground between the parties and the issues in this case are relatively narrow I can take much of the factual and legal background as read by reference to the judgment below: [2016] EWHC 1015 (Admin), at paras 5-30.

In brief, the Applicant is the trade union for doctors in the United Kingdom, with approximately 170,000 members. The Respondent (“the GMC”) is the regulator of the medical profession. Its functions include the investigation of and adjudication upon complaints against doctors which concern their fitness to practise. What used to be called the Fitness to Practise Panel has recently become the Medical Practitioners Tribunal and the Interim Orders Panel has become the Interim Orders Tribunal.

The Respondent has promulgated new rules to govern the Tribunal’s procedure with effect from 31 December 2015, which are set out in the Schedule to the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 (SI 2015 No. 1958). The rules were made under para. 1 of Sch. 1 to the Medical Act 1983 (“the 1983 Act”), as amended. I will refer to these rules, as the Judge did, as the “2015 Assessors Rules.” The changes included allowing the GMC to dispense with the requirement to appoint a legal assessor to assist the Tribunal if its chair is legally qualified. Importantly, when providing advice to the other members of the Tribunal after the conclusion of the hearing, the legally qualified chair is not required to notify the parties that advice has been provided, although the Tribunal is required to record any advice given in the decision. By contrast, all advice provided by legal assessors must be given to the parties as soon as possible, which allows them to make representations concerning it before a decision is taken.

The Applicant submits that this difference is incompatible with Article 6 of the Convention rights, as set out in Sch. 1 to the Human Rights Act 1998 (“HRA”), and therefore unlawful under section 6 of that Act; that it is unfair and therefore unlawful at common law; and that it is irrational.

The key provisions are as follows (with the provision under challenge in these proceedings in bold):

“Functions of legal assessors

The Applicant conceded before Hickinbottom J that the natural justice ground and the irrationality ground were subsumed within the Article 6 ground. Therefore, the key issue was whether para. 6(b) was in breach of Article 6 (para. 31 of the judgment).

The Applicant did not argue that there was a general requirement under Article 6 that, if legally qualified tribunal members give advice to non-legally qualified tribunal members, it must be shared with the parties. The judge cited examples such as the Employment Tribunal, chambers of the First-tier Tribunal and the Crown Court when it hears an appeal from the Magistrates’ Court and is made up of a Circuit Judge (or Recorder) and lay magistrates (para. 36).

On that basis, the judge considered that the key issue was:

“Whether the relevant provisions establish MPTs and IOTs as tribunals with those characteristics, or a different creature.” (para. 37)

The Rules afford the legally qualified chair the power to share the advice with the parties if he or she deems it necessary to do so, for example, where it would be required by procedural fairness. The chair is bound to exercise this power when necessary for fairness by section 6 of the HRA and strictly speaking the express provision for it in the Rules was therefore unnecessary (para. 40).

The Applicant’s case was based on drawing a distinction between the role of the chair in providing legal advice and then acting as one of the panel members making a decision pursuant to that advice (para. 41). The Applicant submitted that the jurisprudence on legal assessors should apply to chairs when acting in their purported role as adviser.

The judge rejected that distinction and cited In re Chien Sing-Shou [1967] 1 WLR 1155, in which the Privy Council drew no distinction between the duties imposed on panel members with legal or non-legal expertise (in that case the non-legal experts were architects) (para. 44).

Moreover, the Judge considered that the text of the Rules makes clear that there was no intention that the chair should have the dual role suggested by the Applicant. The changes to the Rules were intended to bring them closer to the practice of other tribunals (para. 47).

The Judge observed that the Rules had been made after a consultation exercise. The documents related to the consultation demonstrated a mix of opinions on this issue and indicated that the GMC took a considered view that it was not necessary for legal assessors and chairs to operate under the same procedure (para. 48).

Before Hickinbottom J, as at the hearing before this Court, the Applicant placed particular reliance on the decisions of the Privy Council in Nwabueze v General Medical Council [2000] 1 WLR 1760 and Clark v Kelly [2003] UKPC D1; [2004] 1 AC 681, which were regarded by the Judge as distinguishable on the basis that they relate to legal advice from assessors rather than panel members (para. 49).

The judge decided that he did not need to take a view on the Respondent’s “prematurity” objection, which was that a challenge to the procedure under para. 6(b) would have to be based on whether the chair had exercised his or her discretion in breach of Article 6. Any challenge would necessarily be fact-specific on this account (para. 55).

The Applicant wishes to advance four grounds of appeal. Ground 1 is that the Court erred (at para. 51 of the Judgment) in concluding that a professional disciplinary procedure, whereby legally qualified chairs are not required to inform the parties of the legal advice given by them to their lay colleagues in camera in advance of a decision being made, thereby affording the parties the opportunity to make submissions upon that advice, satisfied the standards of procedural fairness applicable at common law and under Article 6.

Ground 2 is that the Court erred in failing to find that the differing standards of procedural fairness provided for in the Respondent’s rules, whereby the right of a party to be informed of and given the opportunity to comment upon legal advice given in camera was dependent solely upon the fortuitous circumstance of whether a legal assessor or a legally qualified chair was tasked with giving such advice, was unlawful on grounds of irrationality.

Ground 3 is that, further and alternatively, the Court erred (at paras. 43-46 and 49) in holding that the legally qualified chair does not have a statutory advice-giving function and, citing the decision of the Privy Council in Sing-Shou, that a legal adviser to a panel who also acts as a member of the decision making panel need not provide his/her advice in the presence of the parties.

Ground 4 is that, yet further and alternatively, the Court erred in concluding (at para. 39) that the provisions of para. 1(4E)(b) of Sch. 4 to the 1983 Act and the 2015 Assessors Rules permitted the inclusion of advice given by a legally qualified chair in the written determination only. In so concluding, it is argued, the Court erred in failing to give effect to

Mr Sutton submits that these grounds have a real prospect of success. Alternatively he submits that this Court should grant permission to appeal on the basis that there is some other compelling reason for there to be an appeal. He relies in particular on the history of the medical profession and the fact that the 2015 reform represents a departure from nearly 50 years of experience by Fitness to Practise Panels of the GMC, an experience which had been endorsed by the Privy Council in case law. He submits that the case raises a matter of great public importance. He also relies upon the significance of the issues where a doctor’s professional calling and livelihood may be at stake.

In his skeleton argument for the Respondent Mr Hare submits that the legally qualified chair is in a different position to a legal assessor and it is lawful to treat his or her advice differently as a result. This is the established practice of many judicial decision-making bodies (para. 8). This factual distinction also explains why the Applicant cannot rely on Nwabueze and Clark v Kelly (para. 10).

There is sufficient procedural protection for the doctor’s position because the chair can still exercise his or her judgment on whether or not to invite submissions upon the legal advice given. This will give rise to a ground of statutory appeal or judicial review if exercised incompatibly with Article 6 (para. 11).

Para. 6(b) mirrors the terms of Paragraph 1(4E) of Sch. 4 to the 1983 Act (para. 12).

Mr Hare submits that, if the Respondent succeeds on Article 6, then the other grounds of challenge fall away (para. 14).

As I have mentioned, Mr Sutton concedes that when a tribunal such as the Employment Tribunal, which may comprise a legally qualified chair sitting with two lay members, retires to deliberate after a hearing, there is no duty on the chair to inform the parties of the advice which has been given to the lay members or to come back into open court and invite submissions by the parties on such advice.

Although the grounds of appeal are formulated in different ways, at the heart of the present case is the following crucial issue: was the Judge right to decide that there is no material distinction between the present context and other areas in which (as Mr Sutton fairly concedes) there is no legal duty of the kind he submits arises here?

In my view, there is no material distinction between the two situations. I do not accept Mr Sutton’s submission that there is a crucial distinction between the giving of advice and the normal course of deliberations by a court or tribunal which consists of more than one member, some of whom may not be legally qualified. It seems to me that the crucial distinction for relevant purposes is between (i) the members of a court or tribunal who are vested with the power in law to make a decision; and (ii) a legal adviser or assessor, who is not a member of the court or tribunal and so does not, and must not, take part in the decision-making process itself.

The point can be illustrated by the well-established principle, which Mr Sutton acknowledged at the hearing before us, that the legal adviser in a magistrates’ court (formerly known as the clerk to the justices) must not take part in the deliberations of the justices on matters of fact or sentence. However, because they are lay justices, they may require legal advice to be given to them even after they have retired and in the course of their deliberations. That is something the law does permit: see R v East Kerrier Justices, ex p. Mundy [1952] 2 QB 719, as explained in R v Welshpool Justices, ex p. Holley [1953] 2 QB 403. That advice should at that stage be provisional only. What must then happen is that the parties must be told in open court what that provisional advice is and they must have the opportunity to make representations about that advice and it should be confirmed in open court whether the advice remains the same. The procedure that should be adopted in the magistrates’ court in the light of the coming into force of the HRA was set out by Lord Woolf CJ in Practice Direction (Justices: Clerk to Court) [2000] 1 WLR 1886, at para. 8: see Clark v Kelly, at para. 68 (Lord Hope of Craighead).

That situation can be contrasted with that where a legally qualified person is a member of the decision-making tribunal itself. In Chien Sing-Shou the Privy Council held that in that situation there is no obligation on the tribunal to come back into open court and invite representations on the views proffered by the legal member. At p.1163 Lord Morris of Borth-y-Gest, giving the judgment of the Board, said:

“The legal adviser is constituted a full member of the board. … If … one or more of the architects, when the board was deliberating in private, gave his view on some matter of architectural knowledge it could hardly be contended that there was an obligation to repeat that view in the presence of the parties. The members of the board are chosen to exercise a judicial function. They must act fairly in ascertaining and considering the facts. They must give every opportunity to the parties to deal with all relevant matters. But the members of the board are not under obligation to repeat in public anything or everything said in the privacy of their deliberations. It is said, however, that there could be the possibility that the legal adviser during the deliberation of the board would give legal advice to other members of the board on matters relating to the proceedings. … If in the course of deliberation some new point emerged with which the parties or their representatives had not had opportunity to deal such opportunity would doubtless be given them. At all times however the legal adviser occupies the position of being a full member of a body charged with the duty of acting judicially in making due inquiry. There was no obligation on him to make a summing up of the case to his colleagues on the board in the presence of the parties. His position is different from that which is occupied by the legal adviser to the Medical Council of Hong Kong. The legal adviser to the Medical Council is not a member of that body. …”

I respectfully agree with that analysis and do not accept Mr Sutton’s submission that that case has been superseded by legal developments since 1967, such as the introduction of the HRA.

Returning to the present case it seems to me that the scope of the challenge brought by the Applicant to para. 6(b) has become significantly narrower during the course of these proceedings.

In the original claim for judicial review, the remedies sought by the Applicant were set out, as is required, in section 7 of the claim form. The Applicant sought:

At the hearing before us Mr Sutton clarified and, in my view, narrowed the scope of the challenge in fact being made. He submitted that there was no difficulty in principle with the legally qualified chair tendering advice to the other members of the Tribunal even after the Tribunal has begun to deliberate, provided that the chair does not raise any new point of law.

This makes obvious sense; the alternative would be absurd. It would be to require the Tribunal to come back into court and invite the parties to make further representations on a point which is not a new one and upon which they have already had the opportunity to make submissions at the hearing.

However, Mr Sutton’s fair and realistic concession is revealing. What it demonstrates is that the Applicant can have no complaint as to the text of para. 6(b) as such. What the Applicant would need to seek is a more narrowly drafted declaration or order.

That then led Mr Sutton to submit that the real vice in the drafting of para. 6(b) is that there is no duty in every case where a new point arises during the course of deliberations for the chair to give the advice in the presence of every party, or person representing a party, in attendance at the hearing. Mr Sutton complains that it is only where the chair “considers it necessary” to advise in those circumstances that the duty arises. Like the Judge I do not regard that function of the chair in the Rules as being the exercise of a discretion. Rather it requires the making of a judgment which will trigger a duty (“the chair shall …”).

In my view, that submission by Mr Sutton comes up against several difficulties.

The first is that, if there is indeed a new point of law which arises during the Tribunal’s deliberations and on which the parties have not had a reasonable opportunity to comment, the chair should consider it necessary to advise in their presence. The express words which end para. 6(b) are intended to cater for that eventuality. If, wrongly, the chair does not consider it necessary to do so, it will be possible for the aggrieved party to complain about the fact that a new point of law was taken and no opportunity was given to them to make submissions about it. Mr Sutton complained at the hearing before us that that was of little comfort to a doctor who would not have been told in advance of what the advice is and would not have had the opportunity to make representations on the point. However, that is often the way our system of law works. If it is possible to appeal (or perhaps bring a claim for judicial review where no appellate mechanism exists) on the ground that there has been a breach of procedural fairness, and that ground has merit, the court can set aside the decision under challenge and things will have to be considered again in a fair way.

The second difficulty faced by Mr Sutton in this regard is that para. 6(b), like all legislation, must be read and given effect (so far as possible) in a way which is compatible with the Convention rights, including Article 6. That is the effect of the strong interpretative obligation in section 3 of the HRA. In an individual case where it is in fact necessary to raise a new point in the presence of the parties and to give them an opportunity to make submissions about it, there will be a breach of section 6 of the HRA if the chair does not give the parties that opportunity.

The third difficulty is that this duty does not turn in any way on the distinction which Mr Sutton has sought to draw between the sort of situation with which this case is concerned and an ordinary court or tribunal. If, for example, the Court of Appeal (which consists entirely of legally qualified judges) were to decide a case on a new point of law which has arisen after the hearing has finished and on which the parties have had no reasonable opportunity to make submissions, that would be a breach of elementary fairness. That has nothing to do with whether the legally qualified chair in the present context is performing a function which is analogous to that of a legal assessor, as Mr Sutton submits. It has everything to do with the fundamental requirements of procedural fairness.

During the course of the hearing Mr Sutton confirmed that his submissions were based not only on the statutory provisions of the HRA but also on the common law. However, it seems to me that, if he cannot succeed under the HRA, he faces even greater difficulties at common law. This is because he challenges not the exercise of a power in an individual case but the existence of para. 6(b) in its entirety. As I have mentioned, the original claim form sought both a quashing order and a mandatory order as well as a declaration that para. 6(b) is unlawful. Yet this Court needs to bear in mind that it is legislation which is under challenge, albeit not primary legislation but secondary legislation. Furthermore, this legislation was the product of an extensive formal consultation process, in which the Applicant had the opportunity to participate. As the Judge noted at para. 20 of his judgment, the Applicant did in fact make representations in that consultation process but clearly it was not satisfied with the outcome of that process. It may well have a sense of grievance in consequence but it is not a grievance which sounds in law.

I can see no basis at common law for this Court to be able to strike down the provisions of para. 6(b). As I have already stressed, that does not mean that, in an individual case, the requirements of procedural fairness would have nothing to say; far from it. The common law is there to prevent unfairness in an individual case.

Accordingly I would reject all of the grounds of appeal in this case. Ground 1 fails because there is no breach of Article 6 or the common law. Ground 2 fails because there is no irrationality. Ground 3 fails because the Judge correctly drew an analogy between the present context and that considered by the Privy Council in Chien Sing-Shou. Ground 4 fails because the interpretative obligation in section 3 of the HRA does not arise since there is no incompatibility with the Convention rights in any event.

For the reasons I have given I would refuse permission to appeal in this case. I can see no ground of appeal which has a real prospect of success. Nor do I consider that there is any other compelling reason why this Court should consider this appeal. This is especially so as the case has now been considered at a “rolled up” hearing by three members of this Court and, as I understand it, none considers that this case is arguable.

I agree with my Lord, Singh LJ, that this application should be refused for the reasons he has given. Even in the narrower form of the challenge that emerged during the hearing (see para. 35 above) this remained a challenge to the legality and fairness of para. 6(b) of the 2015 Assessors Rules itself rather than to the fairness of the way that provision has been applied in an individual case. It is, in my judgment, likely that in practice it will be more difficult for such a challenge to succeed than one alleging unfairness in an individual case.

I agree with both judgments.