R (on the application of G) v The Governors of X School

Article 6(1) may apply to preliminary proceedings which do not themselves determine a civil right if their outcome is likely to have a substantial influence or effect on the later determination of that right. The assessment is pragmatic and context-sensitive. It includes the closeness and objects of the proceedings, the risk of dispositive or irreversible effects, and relevant policy considerations.

An employer’s disciplinary decision does not satisfy that test where the statutory barring authority must independently determine the facts, their seriousness and whether barring is appropriate. The gravity of an allegation may determine the procedural protection required once article 6 applies, but it does not establish the necessary connection between the proceedings.

The respondent was dismissed by a school after governors found that he had formed an inappropriate relationship with a child. The school was required to refer the circumstances for consideration under the statutory arrangements governing work with children. Under the applicable Safeguarding Vulnerable Groups Act 2006 regime, the Independent Safeguarding Authority would decide whether to include him in the children’s barred list.

The respondent sought judicial review because the governors had refused to permit legal representation at the disciplinary hearing. The High Court ordered a fresh disciplinary hearing at which representation would be allowed. The Court of Appeal dismissed the school’s appeal: [2010] EWCA Civ 1; [2010] 1 WLR 2218.

The central issue was whether the disciplinary proceedings had a sufficiently close and substantial influence on the later barring proceedings to engage article 6(1), which directly applied to the determination of the respondent’s right to work with children.

1. Appeal allowed by a majority of four to one. Lord Dyson, with whom Lord Walker agreed, delivered the leading judgment. Lord Hope agreed fully with Lord Dyson and also with Lord Brown’s additional reasons. Article 6(1) did not apply to the school’s disciplinary proceedings. The respondent therefore had no Convention right to legal representation at that hearing.

2. Article 6(1) plainly applies to preliminary proceedings whose outcome is dispositive of a civil right to be determined later. Dispositive effect is sufficient but has not been shown to be invariably necessary. The Court of Appeal’s formulation—whether the earlier outcome would have a substantial influence or effect and play a major part in the later determination—was a useful statement of the governing, context-sensitive approach. Relevant considerations include the closeness and objects of the two proceedings, the capacity of the first to determine the second or cause irreversible prejudice, and countervailing policy considerations.

3. The test was not satisfied. The disciplinary and barring proceedings addressed different questions. The governors decided whether misconduct justified dismissal. The Independent Safeguarding Authority had to determine independently whether the respondent had engaged in relevant conduct and whether barring was appropriate under the Safeguarding Vulnerable Groups Act 2006.

   The statutory provisions and detailed guidance required the Authority to assess all available evidence, make its own findings and reach its own judgment about seriousness and future risk. Findings by an employer were not findings by a competent body and were not binding. The absence of an oral hearing did not generally prevent an independent assessment. There was no evidential basis for assuming that the governors’ findings would profoundly influence the Authority.

4. Lord Dyson accepted, obiter, that if article 6 had applied, the gravity of the allegations and consequences would have required the enhanced protection of legal representation. He left open whether a defect at the disciplinary stage could have been cured by the Authority’s procedures and an appeal to the Upper Tribunal. Lord Hope was inclined to regard the statutory process as a whole as compliant and considered that any necessary correction should occur within the barring process, rather than by converting employers’ disciplinary hearings into litigation.

5. Lord Kerr dissented. He considered the disciplinary hearing likely to exert substantial influence because it was the only oral and remotely adversarial stage. In his view, later independent decision-making could not cure the absence of legal representation when crucial evidence was first presented and tested.

• United Kingdom Supreme Court: By a majority of four to one, allowed the school’s appeal and set aside the conclusion that article 6 required legal representation at the disciplinary hearing: [2011] UKSC 30.
• Court of Appeal: Dismissed the school’s appeal and held that the disciplinary decision was likely to have a substantial influence on the later barring decision: [2010] EWCA Civ 1; [2010] 1 WLR 2218.
• High Court: Stephen Morris QC, sitting as a deputy High Court judge, held that the refusal of legal representation breached article 6 and ordered a fresh hearing before a differently constituted disciplinary committee.