Right to Legal Representation in UK Law

The case thus raises this important point; is a party who is charged before a domestic tribunal, entitled as of right to be legally represented? When the rules say nothing, then the party has no absolute right to be legally represented. Justice can often be done in them better by a good layman than by a bad lawyer. The tribunal must not fetter its discretion by rigid bonds.

It is common ground that the civil right with which we are concerned is the claimant's right to practise his profession as a teaching assistant and to work with children generally. There is no doubt that this right would be directly determined by a decision of the ISA to include him in the children's barred list. He does not, however, contend that the proceedings before the ISA would violate his article 6(1) rights.

I accept at once the gravity of the consequences for the claimant of being placed on the children's barred list. For that reason, I would agree with the courts below that, if article 6 did apply in the disciplinary proceedings, then the claimant was entitled to the enhanced procedural protection (normally associated with criminal proceedings) of the right to have legal representation at the disciplinary hearing.

But there is a serious risk that, if that course were to be adopted, disciplinary proceedings in the public sector would be turned into a process of litigation, with all the consequences as to expense and delay that that would involve. The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences, is not hard to imagine.

The confiscation proceedings were, as we have indicated, conducted under Part 6 of the 1988 Act. There is nothing in those proceedings which precludes confiscation proceedings taking place in the absence of a defendant who decides to abscond.

Now, little if any light is thrown on the case by the bare assertion that Article 6 "civil" is engaged in the disciplinary process. It is necessary to be clear as to the precise nature of the claimant's civil right said to engage it. That this is a civil right for the purposes of Article 6 is uncontroversial (it was established by Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1), but it is clearly distinct from the claimant's entitlement to remain in his current employment.

The next question is whether, in the context of civil proceedings, Article 6 implies a right to legal representation. In my view, in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.