The British Medical Association, R (on the application of) v General Medical Council & Or

Where a legally qualified person is a member of a multi-member tribunal, advice given during private deliberations is part of the tribunal’s decision-making and need not ordinarily be repeated publicly. The position differs for a legal assessor who is not a tribunal member. Procedural fairness nevertheless requires the parties to be heard if a new point of law arises on which they had no reasonable opportunity to comment. Read with the Human Rights Act 1998, rule 6(b) therefore imposed a duty to give advice in the parties’ presence where necessary. The rule was not unlawful or irrational on its face. The challenge failed because it concerned the rule generally rather than an unfair application in an individual case.

The British Medical Association sought permission to appeal against Hickinbottom J’s decision dated 4 May 2016, reported at [2016] EWHC 1015 (Admin). The judge granted permission to bring judicial review proceedings but dismissed the substantive claim.

The challenge concerned rule 6(b) of the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015. That provision allowed a legally qualified tribunal chair to advise other tribunal members during deliberations and to include the advice in the written decision without necessarily notifying the parties. The BMA relied on Article 6, common-law fairness, irrationality and statutory interpretation. The central issue was whether a legally qualified chair was materially different from a legal assessor who was not a member of the tribunal.

1. The Court of Appeal, in a unanimous judgment, refused permission to appeal. Singh LJ gave the principal reasons, with which Beatson LJ and Gloster LJ agreed.

2. The material distinction was between members of a court or tribunal who possess the legal power to decide the case and a legal adviser or assessor who is not a member and must not participate in decision-making. Where a legally qualified person is a full tribunal member, advice given to colleagues during private deliberations need not ordinarily be repeated in public or opened to further submissions. The court followed the analysis in In re Chien Sing-Shou [1967] 1 WLR 1155.

3. That principle did not remove the requirements of procedural fairness. If a new point of law arose during deliberations and the parties had no reasonable opportunity to address it, the chair had to advise in their presence and give them an opportunity to make submissions. Rule 6(b) was not an unfettered discretion: the chair’s assessment triggered a duty where advice in the parties’ presence was necessary.

4. Section 3 of the Human Rights Act 1998 required rule 6(b) to be read compatibly with Convention rights. Failure in an individual case to give the required opportunity would breach section 6 and could justify appellate or judicial review relief. This did not make the rule invalid on its face, nor did the difference between assessors and legally qualified chairs make it irrational.

5. The common-law challenge also failed. It attacked the existence of secondary legislation rather than an unfair application in a particular case. The common law protects against unfairness in individual proceedings, but the consultation history and the applicant’s grievance provided no basis to strike down rule 6(b). No proposed ground had a real prospect of success and there was no other compelling reason for an appeal.

1. Court of Appeal (Civil Division): On 21 December 2017 the court refused the renewed application for permission to appeal following a rolled-up hearing. The court concluded that no ground had a real prospect of success and that there was no other compelling reason for an appeal: [2017] EWCA Civ 2191.
2. High Court (Administrative Court): Hickinbottom J granted permission to bring judicial review proceedings but refused the substantive claim on 4 May 2016: [2016] EWHC 1015 (Admin).
3. Court of Appeal (Civil Division): Davis LJ refused permission on the papers on 19 October 2016. King LJ later directed a rolled-up hearing, with the appeal to follow if permission were granted.