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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The British Medical Association, R (on the application of) v General Medical Council & Or [2017] EWCA Civ 2191 (21 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2191.html Cite as: [2017] EWCA Civ 2191, [2018] 4 WLR 31 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE BEATSON
and
LORD JUSTICE SINGH
____________________
The Queen on the application of the British Medical Association |
Applicant |
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- and - |
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General Medical Council Secretary of State for Health |
Respondent Interested Party |
____________________
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
____________________
Crown Copyright ©
Lord Justice Singh :
Introduction
Background
Key Provisions in the 2015 Assessors Rules
"Functions of legal assessors
2. (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
3. (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
4. (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 after the completion of the deliberations inform each of the parties (or their representatives) in attendance at the hearing of the advice tendered, together with any question which led to that advice; and
(b) subsequently record those matters in writing and give a copy to those parties or their representatives.
(4) A party to the proceedings who does not attend, and is not represented at, the hearing to which the advice referred to in paragraph (3) applies must, upon that party's application, be provided with a copy of that advice.
…
Advice of legally qualified persons
6. Where, at hearing [sic] of a Tribunal, a legal assessor has not been appointed under paragraph 7(1B) of schedule 4 to the Act, and the Chair as a legally qualified person advises the Tribunal on any question of law as to evidence or procedure, the Chair shall –
(a) so advise in the presence of every party, or person representing a party, in attendance at the hearing; or
(b) if the advice is tendered after the Tribunal has begun to deliberate on any decision during the course of the proceedings, include the advice so given in the Tribunal decision, unless the Chair considers it necessary to advise in the presence of every party, or person representing a party, in attendance at the hearing."
The Judgment of the High Court
"Whether the relevant provisions establish MPTs and IOTs as tribunals with those characteristics, or a different creature." (para. 37)
The Applicant's Grounds of Appeal
(a) the Court's interpretative obligation, pursuant to section 3 of the HRA to give a "Convention compliant" construction to the enabling legislation; and
(b) the Respondent's own statutory duty, set out in para. 1(1A) of Sch. 4 to the 1983 Act, to discharge its rule-making function so as to secure that tribunals deal with cases "fairly and justly."
The Respondent's Submissions
Discussion
"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. …"
(1) a declaration that para. 6(b) of the 2015 Assessors Rules is unlawful;
(2) a quashing order; and
(3) a mandatory order requiring the Respondent to amend the relevant paragraph in accordance with the provision at para. 4 of the same Rules.
Conclusion
Beatson LJ :
Gloster LJ :