The British Medical Association, R (on the application of) v General Medical Council & Or, Court of Appeal - Civil Division, December 21, 2017, [2017] EWCA Civ 2191

Issuing Organization:Civil Division
Actores:The British Medical Association, R (on the application of) v General Medical Council & Or
Resolution Date:December 21, 2017
 
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Case No: C1/2016/2233

Neutral Citation Number: [2017] EWCA Civ 2191

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

MR JUSTICE HICKINBOTTOM

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

LADY JUSTICE GLOSTER,

VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

LORD JUSTICE BEATSON

and

LORD JUSTICE SINGH

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Between :

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Mark Sutton QC and Betsan Criddle (instructed by Capital Law LLP) for the Appellant

Ivan Hare QC (instructed by Principal Legal Adviser, GMC Legal) for the Respondent

The Secretary of State was not represented

Hearing date: 14 December 2017

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JudgmentThe Court certifies that this judgment may be cited in other cases, notwithstanding that it is a decision on an application for permission to appeal, under para. 6.1 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001

Lord Justice Singh :

Introduction

  1. 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.

  2. 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.

    Background

  3. 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.

  4. 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.

  5. 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.

  6. 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.

    Key Provisions in the 2015 Assessors Rules

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

    ``Functions of legal assessors

  8. (1) The functions of a legal assessor are to advise -

    (a) ... a Tribunal on questions of law as to evidence or procedure arising in proceedings before them: in particular a legal assessor shall, in such proceedings -

    (i) advise... the Tribunal on any question of law as to evidence or procedure that is referred to the assessor by... the Tribunal, and

    (ii) intervene to advise... the Tribunal on an issue of law as to evidence or procedure where it appears to the assessor that, without the assessor's intervention, there is the possibility of a mistake of law being made, and

    (iii) intervene to advise... the Tribunal of any irregularity in the conduct of the proceedings which comes to the assessor's knowledge; and

    (b) on the drafting of decisions of ... a Tribunal (notwithstanding that legal assessors will not themselves be parties to those decisions).

    Attendance of legal assessors

  9. (1) In any proceedings where a legal assessor is appointed ... the... Panel or Tribunal conducting those proceedings must not hold any meeting or hearing in respect of them unless the appointed legal assessor is present.

    (2) ...

    Advice of legal assessors tendered at hearings

  10. (1) Any advice given at a hearing by a legal assessor on a question of law as to evidence or procedure must be given in the presence of every party, or person representing a party, in attendance at the hearing.

    This is subject to paragraph (2).

    (2) The advice may be tendered in the absence of the parties or their representatives where... a Tribunal -

    (a) has begun to deliberate on its decision; and

    (b) it considers that it would be prejudicial to the discharge of its functions for that advice to be tendered in the presence of the parties or their representatives.

    (3) Where advice is tendered in the absence of the parties or their representatives in accordance with paragraph (2), the legal assessor who tendered that advice must -

    (a) as soon as practicable...

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