R (on the application of the British Medical Association) v General Medical Council  EWCA Civ 2191
A renewed application for permission to appeal from a decision of Hickinbottom J in May 2016 was refused by the Court of Appeal in December 2017.
The Applicant's predominant ground that there being no requirement in the Respondent's Rules for a legally qualified chair of proceedings to share with parties any legal advice given to the other panel members once deliberations had begun, was contrary to procedural fairness at common law and under Article 6, was rejected.
The Respondent's Schedule to the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 (SI 2015 No.1958), referred to as "the 2015 Assessor Rules", contained a number of changes including the GMC being allowed to dispense with the requirement to appoint a legal assessor to assist the Tribunal if its chair to the MPTS was legally qualified. Whilst that in itself was not unusual a further change confirmed that such a chair was not required to notify parties what legal advice had been provided to the other members of the tribunal in camera albeit that any such advice was required to be recorded within the decision.
Paragraph 6(b) of the 2015 Assessor Rules states:
"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."
Such a position was in contrast to a situation where a legal assessor has provided advice to the tribunal and parties would be allowed to make representations on such advice at the earliest opportunity.
Before Hickinbottom J, the Applicant did not put forward that there was a general requirement under Article 6 that legal advice from a legally qualified panel member must be shared with the parties. Indeed, analogies were drawn between the Employment Tribunal, First Tier Tribunal and the Crown Court hearing an appeal where exactly that position was in place. The Applicant's case was instead put on the basis that there was a distinction between the Chair providing legal advice and then reverting back to their role as one of the decision makers making a decision based on that advice.
Hickinbottom J rejected the Applicant's position citing In re Chien Sing-Shou  1 WLR 1155, in which the Privy Council drew no distinction between the duties imposed on panel members with legal or non-legal expertise. Further "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)
Whilst the application for permission relied on 4 grounds, the court determined that the main issue to be determined was whether Hickinbottom J was right to decide that there was no material distinction between the present context and other areas, such as in the analogous situations above, in which there is no legal duty of the kind the Applicant submitted arose in this matter.
During the course of the application hearing, the Applicant further narrowed their position by confirming there was no concern on a legally qualified Chair offering advice during deliberations as long as this advice was not regarding a new point of law. The concern remained however that the duty by the Chair to provide the advice given to the parties for their comment was discretionary and only when the "Chair considered it necessary".
The Court of Appeal's decision was that there was no discretionary element to when the Chair should make his advice available to the parties, specifically when advice has been given on a new point of law. The phrase "…the Chair shall…" provided a clear duty on the Chair as to what was required and should the Chair fail to comply with this duty, there are legal remedies available to the prejudiced party. Further, paragraph 6(b) must be read with consideration to Article 6, meaning that should the tribunal not allow parties an opportunity to comment on a new point, then this would amount to a breach.
Going further, the Court confirmed that it was the fundamental requirements of procedural fairness that needed to be considered. Were the Court of Appeal, consisting entirely of legally qualified judges, to determine a case on a new point of law with the parties not being allowed an opportunity to comment, that would be unfair. Therefore, the Applicant's position that the Chair was performing the same analogous functions of the legal assessor was not accepted and procedural fairness was reiterated as paramount.
With the Applicant having had the opportunity to comment on the proposed changes to the 2015 Assessor Rules but the final changes not being to their liking, the Court said "…It may well have a sense of grievance in consequence but it is not a grievance which sounds in law."
Given the above, permission to appeal was unsurprisingly refused.
As with all legal matters, there has to be an inherent fairness running through the proceedings. This case reiterates that fundamental requirement of our law, one upon which countless appeals and reviews have been brought. Perhaps because of this, it is surprising that the Applicant felt it appropriate for this application to be made.