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Acting as Legal Adviser to a decision maker

06/05/2009

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United Kingdom

This practice note explains the role of the legal adviser to a decision making body: qualifications required; functions of the legal adviser; the scope of the legal adviser’s role.

Practice Note

This practice note explains the role of the legal adviser to a decision making body: qualifications required; functions of the legal adviser; the scope of the legal adviser’s role. 

Acting as Legal Adviser to a decision maker

Given the current proliferation of tribunals with powers to make decisions affecting all areas of individuals’ lives, there are many opportunities for lawyers to act as legal advisers to such bodies.  Some tribunals have a legal chairman who also has a decision-making role. Others appoint an independent legal adviser who plays no part in decision-making. It is crucial that legal advisers understand the distinction and do not stray beyond the appropriate role.

This note explains the scope of the role and its limits and explains the functions of a legal adviser to a decision making body.

Contents

 

The role of the legal adviser in context

The current proliferation of tribunals with powers to make decisions which affect all areas of individuals’ lives provides many opportunities for lawyers to act as legal advisers to such bodies. Such an adviser not only acts as a visible guarantee of the independence and fairness of the process, but also provides comfort for decision makers that their decisions are legally robust and defensible in the event of challenge in the courts.

Whilst many statutory tribunals will have a legally qualified, government-appointed chairman, others, including many regulatory and disciplinary committees, will appoint an independent legal adviser to advise the tribunal. The latter area has generated a body of case law which is instructive in defining the nature and scope of the role of a legal adviser to a decision maker. This Practice Note identifies the scope of the role and provides practical guidance, specifically in the context of a hearing process.

Functions of the legal adviser

The lawyer appointed to advise a decision making body is usually known as the “legal assessor” or legal adviser to the tribunal. The legal adviser will usually sit with the tribunal throughout the hearing process, both when the tribunal sits in public session and during their private deliberations. It is important that the legal adviser is an independent lawyer, that is, is seen as independent of the parties: he/she is the legal adviser to the tribunal itself. In a public hearing before a disciplinary tribunal such as the General Medical Council, or any of the other numerous professional regulatory bodies which have powers to affect the rights of the individuals appearing before them, the presence of a visibly independent lawyer can provide reassurance as to the fairness of the process.  

Critically, such a legal adviser must play no part in the decision making: the legal adviser’s role is as adviser, not decision maker. It is important for a legal adviser to keep this distinction at the forefront of his/her mind, particularly when advising a tribunal during its deliberations in private session, when the temptation to enter the discussion, offer guidance and express views can be at its greatest.

The legislation governing regulatory and disciplinary bodies will often provide for their tribunals to be advised by an independent legal adviser, for example Section 27 of the Osteopaths Act 1993, Section 27 of the Chiropractors Act 1994, and Article 34 of the Nursing and Midwifery Order 2001, which provide for the appointment of a legal assessor to their various fitness to practise/statutory committees. The legal assessor has the general function of advising on questions of law which arise in relation to matter the committee is considering.  There may be a power to make separate rules setting out in more detail  the functions of the legal adviser, as in the examples of the Royal College of Veterinary Surgeons, the General Medical Council and the General Chiropractic Council, each of which have separate “Legal Assessors’ Rules” in a statutory instrument.

Subject to bearing in mind the differences between the two roles, a useful comparison can be drawn between the role of a legal adviser to a tribunal and that of the justices clerk in the magistrates courts: see Practice Note [2000] 4 All ER 895; Practice Direction (Justices: Clerk to the Court) (2000) 164 JP 726. The following is an extract:

"3 It shall be the responsibility of the legal adviser to provide the justices with any advice they required to properly perform their functions, whether or not the justices had requested that advice, on:

(i) questions of law, including European Court of Human Rights jurisprudence and those matters set out in section 2(1) of the Human Rights Act 1998

(ii) questions of mixed law and fact

(iii) matters of practice and procedure

(iv) the range of penalties available

(v) any relevant decisions of the superior courts or other guidelines;

(vi) other issues relevant to the matter before the court

(vii) the appropriate decision-making structure to be applied in any given case. In addition to advising the justices it shall be the legal adviser’s responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons

4 A justices’ clerk or legal adviser must not play any part in making findings of fact but may assist the bench by reminding them of the evidence, using any notes of the proceedings for that purpose.

5 A justices’ clerk or legal adviser may ask questions of witnesses and the parties in order to clarify the evidence and any issues in the case.

6 A legal adviser has a duty to ensure that every case was conducted fairly.

7 When advising the justices the justices’ clerk or legal adviser, whether or not previously in court, should:

(i) ensure that s/he is aware of the relevant facts

(ii) provide the parties with the information necessary to enable the parties to make any representations they wish as to the advice before it is given

8 At any time, justices are entitled to receive advice to assist them in discharging their responsibilities.  If they are in any doubt as to the evidence which had been given, they should seek the aid of their legal adviser, referring to his/her notes as appropriate.  This should ordinarily be one in open court.  Where the justices request their adviser to join them in the retiring room, that request should be made in the presence of the parties in court.  Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wished on that provisional advice.  The legal adviser should then state in open court whether the provisional advice was confirmed or, if it was varied, the nature of the variation.

9 The legal adviser is under a duty to assist unrepresented parties to present their case, but must do so without appearing to become an advocate for the party concerned.

10 ...A legal adviser may also advise the justices in the normal way as to the options open to them in dealing with the case.  It would be inappropriate for the legal adviser to set out to establish wilful refusal or neglect or any other type of culpable behaviour, to offer an opinion on the facts, or to urge a particular course of action upon the justices.  The duty of impartiality was the paramount consideration for the legal adviser at all times, and that took precedence over any (other) roles s/he might have …"

Distinction between the roles of legal adviser/ assessor and legal chairman

Under the procedures of some tribunals, the function of giving legal advice does not sit with a legal adviser who is independent of the panel, but rather in a legally qualified chairman. Examples include accountancy disciplinary tribunals of ICAEW and ACCA and those of the Bar and solicitors professions. A number of tribunals have a government appointed legal chair, for example, the Mental Health Review Tribunal. Under such arrangements, the legal chairman is one of the panel of tribunal members and participates in the decision making, often with a casting vote. Whilst in tribunals which sit with an independent legal adviser, the process for giving legal advice to the panel in public, in the presence of the parties, at specific points in the tribunal’s procedure, has become quite formalised, (see below), this tends not to be the case where there is a legal chairman.

Dame Janet Smith’s recommendations in the 5th Shipman Inquiry Report (at paragraph 27.207) proposed the replacement of legal assessors on the disciplinary tribunals of the General Medical Council, and by implication those of other healthcare regulators, by a full time, legally qualified chairman. The recommendation has not been taken up by the General Medical Council, or any of the principal healthcare regulators, to date.

Standard qualifications for appointment as legal adviser

A typical requirement for qualification for appointment as a legal assessor is that specified in the Chiropractors Act 1994, namely a 10 year general qualification (within the meaning of Section 71 of the Court and Legal Services Act 1990), or the Scottish or N. Ireland equivalents. 

Usually a substantial degree of experience is appropriate for the role, although the practice of appointing only Queens Counsel as legal assessors no longer pertains. Now it is usual to see both barristers and solicitors with suitable experience in the role.

Functions of the legal adviser at a hearing

The tribunal’s procedural rules, or the rules specific to the legal adviser, may prescribe the extent of the legal adviser’s role.  Generally, this will be to advise the tribunal on questions of law, of mixed law and facts and the procedure and powers of the tribunal. Older authorities stress the advisory nature of the role: see Sivarajah v General Medical Council [1964] 1WLR 112 PC: “The legal assessor is in no sense in the position of a judge summing up to a jury, nor is the Committee’s function analogous to that of a jury”. 

In Fox v General Medical Council [1960] 3 All ER 225, PC, it was noted that it is not the role of the legal assessor to direct the Committee on questions of law, nor is he required to give a summing up on the facts.  The role is advisory in nature and it is the Chairman of the Panel who is in charge of the proceedings, not the legal assessor.

In addition to his advisory role, the procedural rules often give the legal assessor a specific responsibility to raise, on his own initiative, any concern that a mistake of law is being made and to inform the tribunal should he become aware of any irregularity in the conduct of proceedings - see for example the General Medical Council (Legal Assessors) Rules 2004 and the Veterinary Surgeons (Disciplinary Proceedings) Legal Assessor Rules 1967. The latter provide, at paragraph 2(c), for example, that legal assessors shall have the function of:

“informing the Council of the assessor’s own motion if it appears to them from information which has come to their knowledge (whether by their presence at a meeting of the Council or otherwise) that there has been an irregularity in the conduct of any such proceedings before the Council, and of advising the Council about the steps which may be taken (if any) to remedy the irregularity.”

The responsibilities of the legal adviser at a hearing fall into three distinct areas: advising the Committee when it sits in public session, advising during in camera deliberations and (although there is some debate on the third point) liaising with the parties and their representatives outside of the public session. 

In modern regulatory procedures, the legal adviser is often given the express function of assisting a tribunal in the drafting of its written reasons (see below).

As a practical point, the legal adviser should ensure that he/she has fully prepared, both as to the procedural rules of the tribunal and all the documents which have been provided in advance. Where the tribunal receives papers in advance, the extent of members’ preparation is unknown and the legal adviser may receive documents which are not, or not yet, in the possession of the tribunal members.  The legal adviser should have an overview of the process and, in the event of any procedural impropriety, is likely to be the subject of criticism.

Advising the decision maker in public session

In the public parts of the hearing, the legal adviser usually sits next to the tribunal chairman so as to be able to guide or advise him as the hearing proceeds. The extent to which an interventionist approach by the legal adviser is appropriate is a matter of individual judgment, but the legal adviser must be wary of undermining the authority of the chairman, particularly in the public parts of the hearing process.  Some legal advisers take the view they should only advise when specifically called upon by the chairman, or that they should seek the permission of the chairman before intervening or addressing the parties on their own motion.

The legal adviser should keep a watching brief on the overall process to ensure the correct procedure is followed at all stages and to step in as and when the chairman requires advice or assistance in the general management of the hearing.

The legal adviser will be called upon to advise on any issues of procedure or law which may arise during the hearing.  Some which issues can be expected to arise on occasions are: challenges to the constitution of the tribunal on the grounds of bias/conflict of interest; questions of admissibility of evidence; abuse of process applications; the standard and burden of proof applied by the tribunal in question.  A legal adviser would also be expected to give advice to the tribunal before they retire at each decision making stage on the relevant legal issues and how they should approach their decision making task.

Should the legal adviser question witnesses?

This is permissible, but the better view is that such occasions would be limited.  An example might be if the legal adviser is aware of an issue which the Committee will need to have an answer upon in order to decide the allegation in question and which has not been brought out by the advocates in their examination of the witness, nor in committee questioning. Generally, it is appropriate for the legal adviser to seek the permission of the chairman before addressing a question to a witness. 

Legal advice may be sought by members of the committee as to the appropriateness or relevance of questions they wish to ask. Having an overview of all the documents and issues in the case, the legal adviser should be well placed to foresee the direction of questioning and its appropriateness. On occasions, it may be necessary to intervene to prevent a question being asked by a committee member which is inappropriate or irrelevant.

In Daly v General Medical Council [1952] 2 All ER 666, it was held not to be improper for the legal assessor to put questions to the respondent with the permission of the chairman.

How far does the duty to assist an unrepresented litigant extend?

It is not unusual for a regulatory tribunal to be faced with a respondent who has no legal representation. It will then often fall to the legal adviser, at the request of the chairman, to assist the unrepresented party who is likely to be unfamiliar with the tribunal’s procedures and powers. This may be necessary before the hearing formally commences in public session, or during the hearing process itself.  Such guidance should be limited to advice on procedure and should not venture into advising the unrepresented party as to how to present his case or the merits of it, or indeed acting as his advocate.  Any discussions with the unrepresented party outside of the public session should take place in the presence of the other party.

That said, if it is clear to the legal adviser during the hearing that the unrepresented party is failing to deal with a critical issue which the legal advisers knows will be of significance in the case, then it is appropriate to bring it to the party’s attention and suggest that he may wish to deal with that issue directly.

Advice to the decision maker to be given in public with opportunities for the parties to comment

The legal adviser should give any advice to the tribunal in public, in the presence of the parties. This enables submissions to be made by the parties on the advice before the tribunal acts upon it and the legal adviser may amend the advice in the light of the parties’ comment. This approach was approved in Nwabueze v General Medical Council [2000] 1 WLR 1760, where the Judicial Committee of the Privy Council stated:

“The principle which lies behind the requirement that the parties should be informed of the assessor’s advice to the Committee is that of fairness, and fairness requires that the parties should be afforded an opportunity to comment on this advice, and that the Committee should have an opportunity to consider their comments before announcing their determination”.

How far should the legal adviser go in expressing a substantive view when giving advice?

In principle, the legal adviser should not express a view and should remain conscious of his/her role as adviser, rather than decision maker. A legal assessor to the General Medical Council fell foul of this approach in the case of Walker v General Medical Council [2002] UKPC 57. The legal assessor expressed a view during the Committee’s deliberations in private that erasure from the medical register was the appropriate sanction for the surgeon in question. He also advised the Committee that a condition that the surgeon could not practise surgery was tantamount to erasure and that such a condition would be unwise because it would be likely to provoke an appeal. The Privy Council stated that the expression of a view as to the appropriate sanction was improper and unwise.  On the second aspect, it was stated that the comment could suggest that the imposition of a condition on practice was not open to the Committee as a matter of law, which was erroneous. 

In R (on the application of Mahfouz) v General Medical Council [2004] EWCA 233, an issue had arisen at a GMC Professional Conduct Committee hearing requiring the legal assessor to advise on issues of bias.  The Committee had had sight of prejudicial press coverage concerning the respondent during the course of the hearing and were consequently requested by the defence to recuse themselves. The decision suggests that there are occasions when the legal assessor should go further than purely advising the committee, although it is not exactly clear how far this extends and in what circumstances it applies. It was stated by Carnwath L J in the Court of Appeal that:

“With respect to the experienced assessor in this case, I think it was a mistake to present the advice simply in terms of questions to be answered by the Committee…as I have said, a possible breach of the rules of natural justice is a matter of law, as well as being a potential “irregularity”…  Furthermore the legal assessor is much better placed than the Committee to express the objective view of the “fair minded observer”; indeed that is precisely what he is or should be.  Accordingly where an issue such as this arises in the course of proceedings before the PCC, I would regard it as the duty of the legal assessor not simply to pose questions, but to provide answers – or at least “advice” as to the answers (since under the Rules the ultimate decision is that of the Committee).  In doing so, there is no reason why he should not look at the matter in the same way as would a judge directing a jury, while taking account of the special characteristics of the Committee which he is advising.”

Should the legal adviser remain with the decision maker when in private session?

The procedural rules governing the role of the legal adviser may deal specifically with this issue. In most regulatory tribunals, the legal adviser does retire with the tribunal and remain with them during their decision making process. As long as the legal adviser keeps within the appropriate boundaries of advising and not becoming involved in the discussions and decision making, this can be helpful. This is especially the case where the legal adviser is later required to assist in the drafting of the reasoned judgment, as he/she will have had the benefit of hearing of the thought processes of the tribunal and how and why they have ultimately arrived at their decision.

Advising during private deliberations

The legal adviser will have given the advice upon the relevant stage whilst the tribunal was in public session, in the presence of the parties. Should a new question upon which legal advice is required arise during the private deliberations, then the proper practice would be to resume in public session, to give the advice in public and afford the parties the opportunity to make submissions upon it before the tribunal accepts the advice and resumes its decision making.

It is not usual for a transcript to be kept of the tribunal’s private deliberations. In the case of Walker, above, there were difficulties in establishing the exact nature of the discussion of the Committee and the Legal Assessor for the purposes of determining the appeal issues. The Privy Council consequently suggested that a note of in camera sessions should be kept, but this has not been taken up.

In Roylance v General Medical Council (No. 2) [2000] 1 AC 311, the Privy Council considered that the rule which required the legal assessor to inform the Committee of any irregularity in proceedings, and to advise them where there was a possibility of a mistake of law being made, was wide enough to cover advising the Committee of improprieties in the process of their discussions.

Where the tribunal refuses to accept the advice of the legal adviser

It is not necessarily the case that, having been given the legal adviser’s advice, the tribunal will accept it.  Should they reject it, the proper course is for the parties to be informed of the question which led to the advice, the advice given and the tribunal’s reasons for rejecting it. 

Such a process is now enshrined within the rules of several regulatory bodies including the General Medical Council, in the Legal Assessor Rules 2004, and in the Veterinary Surgeons (Disciplinary Functions) Legal Assessor Rules 1967.

Role of the legal adviser in drafting the written decision and reasons

Given the limits of the legal adviser’s role, there has been a question mark over the extent to which it is appropriate for a legal adviser to assist in formulating and drafting the written reasons for the tribunal’s decision. This stems from the important requirement that the reasons be those of the tribunal itself, not those of the legal adviser.

Tribunal hearings are increasing in length and complexity nowadays. The now well established requirement for adequate and appropriate reasons for the key stages of the decision making process, for the drafting of the decision and reasons in a suitable form for public consumption, and one which will withstand legal scrutiny on appeal, can present a real challenge to tribunals composed largely of lay and non-lawyer members. 

There is now an acceptance of the practical need for a legal adviser to take a role in this process and a number of modern regulatory procedural rules now provide expressly for the legal adviser to have the function of assisting the tribunal with the drafting of their reasoned decision.

In R v Wandsworth LBC ex parte Dodias (1998) 30 HLR 562, it was stated that where rules are silent on the issue, the common law indicates that, provided the important distinction is maintained between the two roles [of advising and decision making], there is no objection to the decision maker receiving advice on the drafting of the decision from the legal adviser.

In Needham v Nursing and Midwifery Council [2003] EWHC 1141, it was clarified that the legal adviser may advise on the structure and presentation of the reasons, but not on the reasons themselves.

Issues that may arise before the hearing date

Not infrequently issues arise which the parties wish to raise with the tribunal before the substantive hearing commences.  Commonly this might be an application for an adjournment, or another preliminary issue, perhaps relating to admissibility of evidence or an abuse of process application.

The first question is whether the specific panel which will hear the case has actually been convened and the legal assessor appointed: in some cases, this does not happen until relatively close to the hearing date.  Secondly, do the tribunal’s procedural rules provide a mechanism for interlocutory issues to be dealt with in advance of the hearing?

If the rules do not provide such a mechanism then the administrative side of the organisation is likely to take the view that such matters cannot be dealt with until the substantive hearing commences. In respect of applications for adjournment, the position in practice tends to be that if they are made far in advance of the hearing date, the decision to postpone may well be taken administratively. However, if the application is last minute, when everyone is geared up for the hearing to commence on a particular date, the party in question will find that he or she is required to make that application on the first day of the substantive hearing. The legal adviser would then be on hand to advise the tribunal in the usual way.

Increasingly in the regulatory field, however, procedural rules do provide for preliminary hearings for the purpose of case management and dealing with preliminary issues. For example, the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 enable the Chair of the NMC’s Conduct and Competence Committee to give directions at a preliminary meeting.  Such a meeting is held with a legal assessor in attendance to advise.  The meeting is held in private.  The parties and their representatives may attend. The Rules allow the Chair of the meeting to give directions on matters such as service and disclosure of evidence, time estimates and hearing dates, and the identification of issues which are not in dispute between the parties.  The Rules expressly provide that at the preliminary meeting, the legal assessor may give a preliminary opinion on issues of law or admissibility of evidence.

The General Teaching Council for England’s Disciplinary Procedure Rules 2008 provide for the Registrar to decide on an application for adjournment when it is made before the first day of substantive hearing. The 2008 Rules also introduce provisions for pre-hearing case management hearings. These hearings are to be considered by a single committee member who, if possible, shall be a member of the committee which is to hear the substantive case. The member is to be advised by a legal adviser. However, the Rules provide that it is not a requirement this shall be the legal adviser who advises the Committee hearing the substantive case.

On the specific issue of late applications for adjournments, legal advisers need to ensure they give thorough and careful advice. There have been a number of appeals founded upon tribunals’ refusals of such applications. Clearly in practice, when a last minute, and apparently not very credible, application for an adjournment is received, there are competing interests to consider. On the side of the body bringing the case, there may be pressure not to “waste” a long arranged listing. The public interest in cases progressing to hearings in a reasonable time is also a valid and important consideration. Nevertheless, the legal adviser should remain vigilant in reminding the tribunal that their discretion to proceed is not unfettered and must be exercised with utmost caution. The factor of primary importance is fairness to the accused person. The advice commonly given in such situations is based on the guidance given by the House of Lords in the criminal case of R v Jones (Anthony) [2002] 2 W.L.R 524 HL, in which a “checklist” of factors to consider was set out. The legal adviser should ensure that the tribunal has thoroughly explored the true basis of the request for an adjournment and its merits before deciding to proceed with the hearing in the face an application to adjourn. Further cases illustrating this topic are Vaidya v General Medical Council [2007] EWHC 1497 (Admin), Mahmood v General Medical Council [2007] EWHC 474 (Admin) and Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery & Health Visiting (2001) HRLR  6.

Practical matters

Finally, the following brings together some basic practicalities for lawyers acting as legal advisers to decision makers:

  • ensure you are fully acquainted with your tribunal’s procedural rules and its powers in advance of the hearing: the tribunal members may not be lawyers, or may not sit on the tribunal very frequently, and they may need substantial guidance on the procedure
  • ensure you read any papers provided in advance thoroughly to ensure the tribunal does not miss any critical evidential points in the case
  • assess the approach of the chairman of the tribunal and be cautious of undermining their authority in public session, which in turn can undermine confidence and authority in the tribunal itself
  • keep in mind your independence of both the parties and the tribunal
  • always be careful not to enter the fray of the tribunal’s substantive discussions about the evidence, the witnesses and the issues, and avoid influencing the tribunal unintentionally by comment or even body language/facial expression

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