Article 6(1) ECHR provides that
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
ECHR jurisprudence
An ordinary employment dispute comes within the definition of “civil rights” in article 6 irrespective of whether the employer is a private (Buchholz v the Federal Republic of Germany [1981] ECHR 2) or public body (Philis v Greece [1997] ECHR 34).
Article 6 protects the right to a “fair and public hearing”. This comprises rights to access to court, equality of arms, and a reasoned judgment.
The right of access to court must not only exist, it must also be effective. Where a prisoner was refused permission to contact his solicitor with a view to bringing a civil action for libel against a prison officer the refusal was a violation of Article 6 (Golder v the United Kingdom (1979-80) 1 EHRR 524, para 35). Where two protesters were denied access to legal aid to defend a complex libel case, this refusal violated their Article 6 rights (Steel and Morris v the United Kingdom [2005] ECHR 103)
In most cases, the right to a fair and public hearing includes the right to an actual hearing (Fischer v Austria [1995] ECHR 11 para 44), although not where the parties have agreed to proceed “on the papers”.
Decisions which determine civil rights may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction” (Bryan v United Kingdom (1995) 21 EHRR 342). What amounts to “full jurisdiction” varies according to the nature of the decision being made., the subject matter of the decision and the quality of the initial decision.
The right to a fair hearing comprises a right of appeal (Delcourt v Belgium [1970] ECHR 1, para 25)
Article 6 protects the principle of equality of arms, a fair balance must be struck between the parties (De Haes and Gijsels v Belgium [1997] ECHR 7).
Article 6 comprises a right to a reasoned judgment. If a submission is fundamental to the outcome of the case the court must then specifically deal with it in its judgment (Van de Hurk v the Netherlands [1994] ECHR 14, para 61).
Article 6 protects the right to a hearing “within a reasonable time”. Whether that right has been unjustifiably impaired will depend on the complexity of the case, the conduct of the applicant, the conduct of the judicial and administrative authorities of the State, and what is at stake for the applicant (Buchholz).
Article 6 protects the right to a hearing by an “independent and impartial tribunal”. Where the judge who presided over a planning appeal had also participated in the parliamentary debate on the adopting of the development scheme, article 6 was violated (McGonnell v the United Kingdom [2000] ECHR 62).
Domestic article 6 cases
The majority of recent domestic employment cases on article 6 have concerned whether an employee is entitled to a fair and impartial hearing in circumstances where a dismissal threatens their long-term ability to practice their profession. After some to-ing and fro-ing, the final position appears to be that where an employee is threatened simply with dismissal, the employer is not determining the employee’s civil rights and article 6 fair hearing rights are not engaged (Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641)
Other domestic cases on article disclose the following principles: a hearing where the tribunal had decided the case properly based on the evidence and correct application of the law will ordinarily be enough to satisfy the requirements of article 6 (Jackson v Walsall Metropolitan Borough Council EAT [2012] UKEAT 1247/10]).
The more serious an allegation or charge, the more astute the courts should be to ensure that the trial process is a fair one (Bonhoeffer v General Medical Council [2011] EWHC 1585).
A 7-month delay by an EAT in reaching its decision is not enough to deprive a litigant the substance of their right to a fair trial (British Gypsum Ltd v Thompson [2011] UKEAT 0115/11)
In national security proceedings, even the “gist” of closed material need not necessarily be disclosed in order to ensure a fair trial (Home Office v Tariq [2011] ICR 938, SC)
In Subner v United Kingdom the UK government recently conceded (i.e. the case was settled) that a Judicial Review (i.e. a judicial determination limited to a review function, with no capacity to determine the facts) is not a “full jurisdiction” hearing, i.e. is not adequate to hear complaints about the substance of professional regulatory panels. In future, appeals from these bodies to the High Court will be re-hearings.
Finally, a very recent decision of Elias LJ (albeit obiter) determined that an unfair dismissal hearing is in principle article 6-complaint, even where the Tribunal is required to follow the range of reasonable responses test:
“[Such a hearing] is not, therefore, a full re-hearing although it is more intrusive than classic judicial review. Given the existence of fair and detailed procedural safeguards at the initial level, coupled with a right to appeal, I consider that where available (and it may not be in all cases) a claim for unfair dismissal would suffice to constitute full jurisdiction complying with Article 6, notwithstanding that it does not allow findings of primary fact to be reviewed (Mattu, supra, at para 121).”
