March 11th, 2019 by James Goudie KC

A Professional Conduct Panel (“the PCP”) of the Teaching Regulation Agency (“the TRA”) conducted a hearing to consider events and whether they required consideration by the Secretary of State for Education (“the SoS”) of a Prohibition Order preventing a teacher from pursuing his career. The PCP recommended such prohibition.  The SoS followed that recommendation.  It was his decision to make a Prohibition Order.

In Lone v SoS (2019) EWHC 531 (Admin) the teacher appealed. One of his grounds of appeal was alleged procedural irregularity, not on the part of the PCP or of the SoS, but rather on the basis that the Chief Executive of the TRA (“the CEO”) was acting as a judge in his own cause, and was automatically disqualified, in accordance with the Pinochet case, or that his position created an appearance of bias such as to vitiate the decision.  This ground failed.The decision maker was the SoS. His statutory duty is to make a decision when a PCP makes a recommendation. He does not engage in a judicial decision which is the context in which automatic disqualification will arise. Rather, it is an administrative decision made by reference to his ministerial duty. Self-evidently he has an interest in the outcome but it is not an interest which disqualifies him from making the decision.

The real question was whether the official authorised by the SoS in this instance had an appearance of bias, whether a fair-minded and informed observer would conclude that there was a real possibility that the CEO was biased. The argument was that the TRA was the equivalent of a prosecuting authority. It had an interest in the outcome of the process. The CEO of the TRA would be perceived by the fair-minded and informed observer as being someone who realistically might be biased.

Reference was made to Kaur v ILEX (2012) 1 All ER 1435 and Wallace v SoS (2017) EWCA 109 (Admin).  Reliance was sought to be placed on the proposition that the TRA stands in the same position vis-à-vis teacher misconduct as the Crown Prosecution Service does in respect of criminal proceedings. No employee of the Crown Prosecution Service – certainly no senior employee – can sit on a jury in a criminal trial where the prosecuting authority is the Crown Prosecution Service. This is the practical effect of the decision of the House of Lords in Abdroikov [2007] 1 WLR 2679. The rationale propounded by the majority was that, in that situation, justice would not be seen to be done. However, said the Judge, the TRA is not a prosecuting authority in the same sense as the Crown Prosecution Service. It has an interest in the process. That is because it carries out part of the statutory functions required by Section 141B of the Education Act 2011. It does not thereby take on the mantle of a prosecutor in the adversarial sense. Moreover, it is not an independent entity. It is an executive agency of the Department for Education. The person with ministerial responsibility for it is the SoS. He is the very person who makes the decision as required by statute.

None of this was to say that someone in the CEO’s position could never have his decision impugned on the grounds of bias, whether apparent or actual. Those who make administrative decisions are not immune from challenge on the grounds of bias. However, in the context of the CEO’s status within the Department for Education, the nature of the TRA and the statutory scheme applicable to teacher misconduct, no such challenge was sustainable in this case. It followed that there was no procedural irregularity.

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