How can the Supreme Court get it so wrong?

The Supreme Court has decided, in R (on the application of G) v The Governess of School X [2011] UKSC, handed down yesterday, that a teacher facing a gross misconduct dismissal which will end his teaching career has no right to legal representation.

This overturns the unanimous decision of the High Court (Stephen Morris QC) and the Court of Appeal (Laws, Wilson, Goldring, LJJ).

The Claimant, G, argued that the school’s decision to deny him legal representation breached his rights under Article 6(1) of the European Convention of Human Rights – the right to a fair trial. There was no dispute that (a) the civil right to practice a profession engages Article 6 rights; and (b) that where one set of proceedings (the school’s) influence another set of proceedings (the Independent Safeguarding Authority’s, which decide whether to put a teacher on the ‘barred list’), the test set out by Laws LJ in the Court of Appeal was correct: whether the decision in the earlier proceedings ‘has a substantial influence or effect on the later vindication or denial of the claimant’s Convention right’.

The Supreme Court decided, by a majority of 4 to 1, that the school’s dismissal of the claimant for gross misconduct did not have ‘a substantial influence or effect’ on the Independent Safeguarding Authority’s (ISA’s) barring decision. Lord Hope even went as far as to say: ‘I think we can be confident that the governors’ view of the facts will have receded far into the background when the time comes for a decision as to whether the person should be included in the children’s barred list’.

Lord Kerr, in the minority, is surely right to describe this view as ‘to border on the perverse’. He criticises the majority for forming ‘a different view on the facts to the Court of Appeal’, in an exercise not involving the application of principle. Not only is are the school’s proceedings likely to have a substantial influence on the barring decision, they are ‘the only remotely adversarial stage of the entire process…..It is precisely because the disciplinary proceedings provide the only occasion when the competing cases can be presented in direct opposition to one another that legal advice at that point is so crucial’. The ISA’s proceedings are purely on paper.

So a person charged, as here, with a criminal activity, has no right to legal representation at the hearing which will effectively decide both his guilt and his right to practice his profession.

This is consistent with the recent High Court judgement in The Queen (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970, where it was held that a hospital consultant had no right to legal representation in the hospital’s proceedings which dismissed him for misconduct. His subsequent efforts to find medical work throughout the world had been fruitless.

Given the spats between the executive and the judiciary, have the judges now been intimidated into anaesthetising the Human Rights Act? What are your views?

This entry was posted in Employment Law, Just Employment Solicitors, Unfair Dismissal and tagged , , . Bookmark the permalink.

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