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Sec of State overturns NCTL decision | Regulatory Lawyer

Sec of State overturns NCTL decision | Regulatory Lawyer

The High Court has recently confirmed that the rules that govern professional regulation of the teaching profession confer a final decsion making discretion on the Secretary of State who declined to follow the recommendation of the professional conduct panel that heard the case. 

The rules that govern the regulation of the teaching profession have recently come under scrutiny by the High Court in the case of R. (on the application of Lonnie) v National College for Teaching and Leadership [2014] EWHC 4351 (Admin).

The National College for Teaching and Leadership is the body which has devolved responsibility for the regulation of the teaching profession.The rules are loosely based on the more sophisticated regimes operated by the Medical, Nursing, and Legal professions and are set out in rules and recent guidance dated November 2014.  

There is provision for interim orders, a review by the determination panel and then a full hearing before a professional conduct panel consisting of a teacher and two lay pannelists. The final decision however rests with the Secretary of State.

This case concerned a decision where the panel decided that the Appellant's conduct amounted to unacceptable professional misconduct and conduct that might bring the profession into disrepute. They decided however that even though this was violence by a teacher on a pupil that resulted in a caution, a probhibion order was not necessary. 

The Secretary of State however disagreed. She imposed a prohibition order with a period of review at two years. That is the least period that could have been imposed; in other words, the most lenient form of prohibition order available. The Secretary of State said in making this decision that violence was specifically referred to in the advice to panels as behaviour where a panel should consider recommending prohibition and not just prohibition per se, but prohibition without review.

The Secretary of State went on to say that in her view, the panel had not sufficiently balanced the mitigation that undoubtedly existed with the level of violence that had been used. She concluded that a prohibition order was:"... an appropriate and proportionate sanction in the public interest and in line with the advice, however, taking account of the considerable mitigation offered, the appellant should have the provision to apply to have the order set aside after a period of two years have elapsed."

The appeal was brought on the basis that if one looks at the guidance given to the panel by a guidance document dated January 2014, in particular at pages 9 to 10 of that document, it is apparent that the decision-making process in fact is, vested in the panel". Reliance is placed on this passage:"In deciding whether or not the recommendation of a prohibition order is appropriate, the professional conduct panel should apply the principles of proportionality, weighing the public interest considerations against those of the teacher. This will conclude consideration of any mitigation in relation to the seriousness of the behaviour in question."

It was therefore argued that the Secretary of State was bound to follow the decision of the panel. 

Although it is quite clear from the Judgement that Mr Justice William Davis had great sympathy with this approach and made it clear that if he had decided the case, he would have followed the decision of the panel, he concluded that the rules make it clear that the decision maker is the Secretary of State saying

'19. I must make entirely plain that I am not remaking the decision of the Secretary of State. If it were left purely up to me, I can see some force in the argument that where a man behaved in a particular way in 2009 and is only proceeded against in 2014, and where there is at least some evidence that he had been unable to pursue his profession as a teacher in the interim, then to impose a prohibition on him is perhaps less than appropriate. But that is my impressionistic view and no more. It is not a view which I could or should impose on the Secretary of State. I have to be satisfied that her view was wrong.'

This implied criticism of the rules is not altogether unexpected. The rules around the imposition and review of interim orders do not provide for hearings before independent decision makers and can cause unfairness in certain circumstances. It is recognised that rule changes by professional regulators is often a lengthy and difficult process, but this decision demonstrates that there is still much work to be done before the rules for this particular jurisdiction can be said to adopt the main 'generally accepted principles' that have been carved out by the other major regulatory bodies.

Jeremy Barnett was a board member of the Accountants and Actuarial Disiplinary Board, and represents Solicitors, Doctors, Accountants and IFAs before their respective bodies. He is currently representing a teacher in a case being brought by the NCTL and also acts as a legal assessor at the NMC.

For any advice and assistance for issues like these please do call Jeremy on 0844 2722322 or submit a comment below. Jeremy will come back to you at the earliest convenience.

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