Regulation and Article 6

Sheriff Principal R A Dunlop QC issued his Judgment on 12 March 2015 in a somewhat unusual Appeal, Smith v Scottish Social Services Council 2015 SCDUND23.

The Scottish Social Services Council (SSSC) is the statutory body set up as independent regulator for Social Workers in Scotland.  As with any other regulatory body, it holds a register of Social Workers and its functions include Conduct.

The SSSC was created by the Regulation of Care (Scotland) Act 2001 and any conduct (misconduct) decision can be appealed to a Sheriff under Section 51 of the Act.

It was agreed for the purposes of this particular case of Smith that an Appeal under Section 51 was a full right of appeal.

Conduct matters are heard by the Conduct Sub-Committee of the SSSC.  The relevant Rules provide that the Conduct Sub-Committee’s decision is the decision of the SSSC.

As a result of conduct proceedings before the Conduct Sub Committee, that Committee decided to remove the Pursuer’s name from the SSSC Register.  The Pursuer appealed this decision to the Sheriff on the basis there was an alleged breach of her right to a fair trial in respect of the European Convention on Human Rights, Article 6(1).

The Sheriff, after a Debate (legal argument) found “That Article 6 of the European Convention of Human Rights is engaged throughout the procedure in issue.”  In her note the Sheriff went on to narrate that 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.”  She went on to say that Article 6 was engaged in proceedings before the Sub-Committee but in any event that a “Determination” of the Pursuer’s civil rights and obligations had been made when the proceedings before the Court were concluded.

The SSSC appealed on the basis that “the determination” only occurred when the proceedings before the Sheriff concluded.  It was submitted that the Sheriff was wrong in deciding that Article 6 was “engaged” in the Sub-Committee Proceedings.

Before the Sheriff Principal there was agreement that the SSSC should be pursuing an Article 6 compliant procedure (ie, before there was ever any question of any appeal) but that if it was correct to say that Article 6 was engaged in the proceedings before the Conduct Sub-Committee, a Court could simply overturn the Conduct-Sub Committee decision without investigating what further steps could or should be taken to make the whole particular proceedings Article 6 compliant.

It was argued that such an approach was inconsistent with a Regulation scheme which had to have a balance between the protection of the public on the one hand and a legitimate expectation that proceedings of the SSSC would be “full and fair” on the other.

Accordingly, based on Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2001 SC581, the SSSC argument was that the correct approach was to look at the position at the end of the proceedings viewed as a whole.  If it transpired that Article 6 rights had not been satisfied during the Conduct-Sub Committee proceedings then the Court (ie, the Sheriff) should then take any necessary steps to make sure that Article 6 rights were satisfied by the conclusion of the Appeal proceedings.  What steps might be necessary would vary depending on the circumstances of each individual case.

The Sheriff Principal, in considering Tehrani, and other relevant cases, accepted the SSSC arguments and he adopted Lord Mackay’s analysis in Tehrani where it had been said “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 requirement 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.”

Sheriff Principal Dunlop said that there was therefore no need to consider the procedure in separate parts.  The question was whether looking at the proceedings as a whole (including any appeal) Article 6(1) had been satisfied.

He did go on to point out that the Conduct Sub-Committee couldn’t just ignore Article 6.  A Court expected that the SSSC would have regard to Article 6 in the process 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.”

This particular case emphasises the now generally understood position in regulatory matters, that conduct/misconduct proceedings will be Article 6(1) compliant as a matter of law if there is a full right of appeal to the Court.  As commented upon in this particular case however, that does not mean that the regulatory body can ignore Article 6 for the purposes of its own conduct proceedings.

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