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The High Court has given an important decision on governmental powers to supplement statutory procedures with non-statutory guidance and directions.

The Appellant was a teacher who appealed against the Secretary of State’s decision to make a prohibition order preventing him from teaching. The order was made on the recommendation of a professional conduct panel (PCP) which had held a hearing on allegations that the Appellant had failed to maintain appropriate boundaries with three pupils. The PCP upheld the allegations and concluded that they amounted to unacceptable professional conduct and/or conduct that may bring the teaching profession into disrepute.

The Appellant challenged the lawfulness of various procedural decisions by the PCP. Of broader significance, the Appellant also argued that it was unlawful for the PCP to have regard to guidance published by the Teaching Regulation Agency (TRA) on behalf of the Secretary of State, and that this failure vitiated the PCP’s findings of fact and recommendation. If correct, this would potentially have meant that any decision by a PCP which has had regard to the TRA guidance in making procedural decisions would be unlawful and liable to be set aside on appeal.

Cavanagh J rejected this argument. He held that having been granted the power by Regulations to set up PCPs, the Secretary of State has the ancillary power to give guidance and directions to the PCPs about the procedures that they should follow, and then to publish them. Even absent an express statutory authorisation, the Secretary of State has a common law or “third source” power to do so. Further, this power has not been abrogated by the Secretary of State’s statutory duty to make provision about the procedure to be followed in teacher misconduct cases. Statute has not “occupied the field” in this context. In any event, the PCP did not disadvantage the Appellant by having regard to the TRA guidance, and there is no basis for thinking that the PCP would have undertaken its decision-making process any differently if it had not had regard to it.

Cavanagh J also dismissed the Appellant’s arguments which challenged the PCP’s procedural decisions in his case. Of particular interest, he held that Article 6 ECHR does not grant litigants an inviolable right to give evidence, regardless of the stage in the proceedings at which the request is made. The PCP was entitled to refuse to hear evidence from the Appellant by Skype in circumstances in which (a) the hearing was almost over when the Appellant’s application was made; (b) the Appellant, who was legally represented, had not made any such application in advance of the hearing; (c) the Appellant had been notified that if he had any more evidence to put forward he should do so at an earlier stage; and (d) the other witnesses in the case had already given their evidence and departed, so there would be no opportunity to put any fresh points to them.

The judgment is available here.

Iain Steele acted for the Secretary of State.

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