Act: R.Carr, Solicitor Advocate, Edinburgh

Alt:  Party personally

DUNDEE, 12 March  2015.  The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff’s interlocutor of 17 November 2014 insofar as it finds “that article 6 of the European Convention of Human Rights is engaged throughout the procedure in issue”; finds no expenses due to or by either party in the appeal; remits to the sheriff to proceed as accords.

NOTE:

[1] This is an appeal against the sheriff’s interlocutor in a summary application under section 51 of the Regulation of Care (Scotland) Act 2001. The 2001 Act established the Scottish Social Services Council (hereinafter referred to as “the Council”) as the independent regulator for social workers in Scotland.  The Council controls entry to and removal from the register of social workers, approves courses of study for social workers and determine the principles, values and standards that underpin good social work practice. A social worker may be removed from the register on the ground of misconduct and the Council’s decision in that regard may be appealed to the sheriff by virtue of section 51 of the Act. On appeal the sheriff may confirm the decision or direct that it shall have no effect and it is not in dispute in the present case that this constitutes a full right of appeal.

[2] According to the Conduct Rules 2011 made by the Council in pursuance of its powers under the 2001 Act, there is a procedure for the investigation of complaints of misconduct and, speaking generally, for a full hearing on the complaint at which the social worker complained against is entitled to be heard and/or represented and at which evidence may be led. Such a hearing is conducted by a sub-committee of the Council (known as the Conduct Sub-Committee) and it is that sub-committee which makes any finding of misconduct and imposes any sanction. The Rules provide that the sub-committee’s decision in that regard shall be treated as that of the Council.

[3] The current proceedings arise out of the sub-committee’s decision to remove the pursuer’s name from the register. In her summary application the pursuer craves the court to “dismiss” that decision and to re-instate her to the register of social workers. The principal ground on which she bases her application is an alleged breach of her human right to a fair trial in accordance with article 6(1) of the European Convention on Human Rights (hereinafter referred to as “the Convention”).

[4] During the course of the proceedings before the sheriff a question arose whether article 6 of the Convention was engaged by the procedure in issue, that is to say the proceedings before the Conduct Sub-Committee. The sheriff directed that this question should be addressed at a hearing for that purpose and following a debate the sheriff issued an interlocutor dated 17 November 2014 in which she found “that article 6 of the European Convention of Human Rights is engaged throughout the procedure in issue.” This finding is elaborated in paragraph 21 of the sheriff’s note which is in these terms:

“In my view, the entire proceedings, both before the sub-committee and before the court, engage article 6 and provide the pursuer with the protection that article allows her. The sub-committee conduct rules make it clear that the council have taken efforts to make the proceedings “fair”. It was submitted that the proceedings are article 6 compliant. I am satisfied that article 6 is engaged in proceedings before the sub-committee, but even had I not been so satisfied, the fact that they are subject to judicial control, engages article 6. The “determination” of the pursuer’s civil rights and obligations is made when the proceedings before this court are concluded.”

[5] The Council has now appealed this interlocutor, its primary contention being that the sub-committee cannot breach a registrant’s article 6 rights because there is a right of appeal to the court which has full jurisdiction with the result that the proceedings as a whole are compliant with article 6. It was submitted that the “determination” of the registrant’s civil rights only occurs at the final conclusion of proceedings before the sheriff or on the lapse of the days of appeal if no such proceedings are initiated. It was contended therefore that the sheriff was in error in finding that article 6 was “engaged” in the proceedings before the sub-committee as that word is properly to be understood.

[6] In the course of discussion the solicitor advocate for the Council accepted that the Council was a “public authority” in terms of section 6 of the Human Rights Act 1998 and that by virtue of section 6(1) it was unlawful for a public authority to act in a way which is incompatible with a “Convention Right”, which includes the article 6 right that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It was also accepted that removal of the pursuer from the register in terms of the 2001 Act was a determination of her civil rights.

[7] Against that background it was acknowledged that the Council ought to be seeking to pursue an article 6 compliant procedure (and it was said that it did) but it was submitted that the real issue was what were the consequences if it failed to do so. The Council’s concern was that, if the court held that article 6 “was engaged” (meaning “applied”) at the stage of the proceedings before the Conduct Sub-Committee, there was a risk that, in the event of a breach of article 6 at that stage, the court would simply reverse the decision without asking what further steps the court could take to make the whole proceedings article 6 compliant. This would be inconsistent with a scheme of regulation which required a balance to be maintained between on the one hand the protection of the public from the risk of practice by social service workers who for any reason are incompetent or not fit to practice and on the other the legitimate expectation of the public and social workers that proceedings of the Council will be full and fair.

[8] It was submitted that the correct approach was to look at the position at the end of the proceedings viewed as a whole and, if the pursuer’s article 6 rights have not been satisfied at the stage of the proceedings before the Conduct Sub-Committee, the sheriff can and ought to take such steps as are necessary to ensure that they are satisfied by the conclusion of the appeal proceedings. These steps will vary according to the circumstances of each case but the corrective measures may include the hearing of evidence. Thus any unfairness in the Council’s proceedings can be corrected when subject to review by the sheriff in the appeal. In that way the steps taken by the sheriff in the appeal do not so much remedy a breach of article 6 as prevent any breach of article 6 from occurring in the first place.

[9] These submissions were advanced primarily under reference to Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2001 SC 581. In that case the Lord Ordinary (Mackay of Drumadoon) emphasised that section 6(1) of the 1998 Act did not accord the petitioner the right to have each stage of the disciplinary proceedings conducted before a tribunal which meets all of the requirements of article 6. The proceedings required to be looked at in their entirety and in particular, in considering whether the respondents had acted in a manner incompatible with the petitioner’s Convention rights, it was necessary to take into account the existence and scope of the right of appeal available to the petitioner, which the Lord Ordinary construed in that case as being a full right of appeal. At paragraph 55 of his opinion, addressing the jurisprudence of the European Court of Human Rights on this matter, he states:

“In my opinion, cases such as Le Compte, Van Leuven and De Meyere, Albert and Le Compte and Bryan v UK establish that, as far as such tribunals are concerned, no breach of the Convention arises if the tribunal is subject to control by a court that has full jurisdiction and itself complies with the requirements of article 6(1). In other words, when dealing with a disciplinary tribunal … a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach occurring in the first place.”

[10] It was submitted that this approach had been referred to with approval in R (on the application of Thomson) v Law Society (2004) 1WLR 2522, R (on the application of G) v The Governors of X School 2011 UKSC 30 and Sutherland-Fisher v Law Society of Scotland 2003 SC 562 and I was invited to adopt the same approach.

[11] In addressing the sheriff’s note the solicitor advocate for the Council submitted that it was unclear what the sheriff was saying at paragraph 21 because she seemed to accept that the “determination” of the pursuer’s civil rights and obligations was only made at the conclusion of the court proceedings.  It was submitted that the first sentence of that paragraph was an imprecise articulation of the conclusion to be drawn from what had been said before and furthermore apparently depended on a case (Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA 789) in which the disciplinary proceedings before the tribunal were determinative of the employee’s civil rights and obligations and there was no right of full appeal.

[12] In conclusion I was invited to recall the sheriff’s interlocutor insofar as it found “that article 6 of the European Convention of Human Rights is engaged throughout the procedure in issue” and simply to remit to the sheriff to proceed as accords on the basis of the legal principles which had been discussed.

[13] In responding to these submissions the pursuer tendered a written submission, the terms of which I need not rehearse because she stated at an early stage of her reply that she did not disagree with what was proposed by her opponent. Her concern was that the court should consider whether what the Conduct Sub-Committee had done was practically speaking compliant with article 6(1) and she recognised that, if it was not, the sheriff could ensure that the whole proceedings were compliant by the measures that he chose to take to achieve that end, which might include a full or partial re-hearing.

[14] In my opinion the submissions for the Council are well founded and I respectfully adopt the analysis of Lord Mackay of Drumadoon in the case of Tehrani. In the present case it is not in dispute that the right of appeal to the sheriff is a right of full appeal but in any event I consider that, as in Tehrani, I would be bound to construe the right of appeal under section 51 in a way which is compatible with Convention rights and thus as unrestricted. In that circumstance I consider that the question whether the pursuer’s entitlement to a fair trial in terms of article 6 has been satisfied must be judged at the end of the appeal proceedings. This is entirely consistent with what in my opinion was the sheriff’s well founded view that the “determination” of the pursuer’s civil rights and obligations within the meaning of article 6(1) is only made when the proceedings before the court are concluded.  The weight of authority clearly supports the view that there can be no violation of the Convention in proceedings before a tribunal if the tribunal’s decision is subject to subsequent control by a court that has full jurisdiction and does provide the guarantees required by article 6(1). It follows that there is no need “for the procedure to be viewed in separable and discrete parts” (to adopt the words of the Lord Ordinary at paragraph 60 of Tehrani) and indeed it is unhelpful to do so since it might give rise to the risk to which the solicitor advocate for the Council drew attention and to which I have referred in paragraph 7 above. The proper question therefore is whether, looking at the proceedings as a whole, including any appeal proceedings, the pursuer’s entitlement to an article 6(1) process has been satisfied.

[15] That is not to say that the Conduct Sub-Committee can simply ignore article 6 in the proceedings before it.  The court is entitled to expect that the Council will have regard to the pursuer’s entitlement to an article 6 compliant process and, while that process includes the right of appeal, in my view it cannot be right that the Council should be careless as to whether its own proceedings are article 6 compliant or not. Although the sheriff on appeal has full jurisdiction in the case, the scheme of the legislation clearly envisages that the sub-committee is best placed to deal with issues of misconduct and if that scheme is to be effective the Council ought to strive to adhere to the requirements of article 6 in the structure of its sub-committee and in the proceedings before the sub-committee and by doing so it can avoid any unnecessary corrective section 51 appeals. However it is one thing to say that the Council ought to have regard to article 6 in its proceedings and it is another to say that article 6 applies to those proceedings so that a breach of article 6 can be determined by looking exclusively at those proceedings. In my view the latter approach is erroneous.

[16] When looking at the question whether article 6 is “engaged” it may be thought that practically speaking this distinction is a fine one. Nevertheless I think the distinction is material and if the use of the word “engaged” is apt to confuse in the particular circumstances of this case then in my view the safer course is not to use it. Accordingly I am satisfied that the proper course is to allow the appeal and recall the sheriff’s interlocutor insofar as it finds that article 6 is engaged throughout the procedure in issue.

[17] In conclusion therefore it seems to me that, in approaching the pursuer’s claims with regard to article 6, the proper course now is for the sheriff to hear parties on the summary application, to consider whether what happened before the Conduct Sub-Committee was compliant with article 6 and, if it was not, to consider what requires to be done to ensure that the proceedings as a whole are compliant and that the pursuer’s article 6 entitlement is met.

[18] Parties were agreed that there should be no expenses due to or by either party in respect of the appeal.