Rights before the regulator

All of Scotland’s people have an interest, either as service users or as registrants, in the operation of the bodies which register and regulate thousands of our workforce. These regulators have as their objectives the protection of the public, the upholding of the reputation of professions, and fairness to those who are accused of being unfit and whose professional reputations and livelihoods are thereby at stake.

The Scottish Social Services Council was established by the Regulation of Care (Scotland) Act 2001 to regulate social services workers. Appeals against its committees’ decisions go to the sheriff. In Smith v Scottish Social Services Council 2015 SLT (Sh Ct) 103, Sheriff Principal R A Dunlop QC, in one of his last judgments over a distinguished judicial career, reaffirmed the nature and scope of a registrant’s article 6 rights in the context of a full appeal in professional regulatory proceedings.

It was accepted that the Council was a “public authority” in terms of s 6 of the Human Rights Act 1998 and that it was unlawful for it to act in a way which was incompatible with a Convention right, which included the registrant’s article 6 rights. Adopting the reasoning of Lord Mackay of Drumadoon in Tehrani v UKCC 2001 SC 581, and accepting the submissions for the Council, the sheriff principal held that a determination of a registrant’s article 6 civil rights only occurred at the final conclusion of proceedings or on the lapse of the days of appeal if no such proceedings were initiated.

Proceedings as a whole

The correct approach was to look at the position at the end of the proceedings viewed as a whole, and if the registrant’s article 6 rights had not been satisfied by that stage, the court could and should take such steps as were necessary to ensure that they were satisfied by the conclusion of the appeal process. These steps would vary according to the circumstances of each case, but corrective measures might include the hearing of evidence. In that way the steps taken by the court in the appeal did not so much remedy or purge a breach of article 6, rather they prevented any breach from occurring in the first place. That approach had been referred to with approval in R (on the application of Thomson) v Law Society [2004] 1 WLR 2522, R (on the application of G) v Governors of X School [2011] UKSC 30, and Sutherland-Fisher v Law Society of Scotland 2003 SC 562.

That was not to say that regulators could simply ignore article 6 in their proceedings. It was acknowledged for the Council that it sought to pursue an article 6 compliant procedure. The sheriff principal emphasised that the court was entitled to expect that regulators would have regard to a registrant’s article 6 entitlement. Regulators should not be careless. The legislation envisaged that regulators were best placed to deal with issues like misconduct, and for regulatory schemes to be effective, regulators ought to strive to adhere to the requirements of article 6 in their structures and their proceedings. By doing so they would avoid unnecessary corrective appeals.

On the Council’s motion the sheriff principal recalled the interlocutor of the sheriff which had held that article 6 was engaged throughout the procedure in issue, and remitted the matter back to the sheriff to consider whether what had happened during the Council’s domestic proceedings had been compliant with article 6 and, if it was not, what required to be done to ensure that the proceedings as a whole were compliant.

Ingrown rights

The consequences of a repeal of the Human Rights Act and its replacement with a Bill of Rights continue to be fiercely debated. In Osborn v Parole Board [2013] UKSC 61 Lord Reed stated that the protection of human rights was not a distinct area of the law, based only on the case law of the European Court of Human Rights, but permeated our legal system. There are some areas, including the jurisprudence on the nature and scope of professional regulatory proceedings, never mind the legislative competence of the Scottish Parliament, where a repeal of the Act will take some disentangling.