The right to a fair hearing: for ombudsman schemes

You have the right to a fair trial or hearing if a public authority is making a decision about your civil rights (‘determination of civil rights’), or if you are cautioned or charged with a criminal offence.

Ombudsman schemes have jurisdiction over many public bodies that must meet the requirements of this right, including in the way they handle complaints – even if they are not holding a hearing or trial, as such. In a human rights based approach, compliance demands processes that not only follow the law but uphold its underlying values.

The ECHR and HRA use the term ‘determination of civil rights’, while the ICCPR refers more broadly to ‘rights’. What constitutes a ‘civil right’ under the ECHR is evolving, but rulings in the European Court of Human Rights have established that legal relations between private persons are considered as ‘civil’, including:

• personal injury claims
• defamation
• breach of contract claims
• financial disputes after divorce

There are restrictions on this right in certain situations – for example, if you miss the time limit to bring a case or keep bringing cases without merit.

The press and public can be excluded from hearings in the interests of justice, or for example if the hearing is about children or young people.

The following list is not exhaustive and the scope of the right is subject to change:

• employment tribunals
• children (First-tier Tribunal for special educational needs and disability; special educational needs tribunals; or education, health and care (EHC) plan decisions)
• Anti-Social Behaviour Orders
• education (suspensions and expulsions procedures)
• planning (decisions of the appeal body are subject to judicial review Alconbury [2001] UKHL 23)
• HM Courts and Tribunals Service
• Legal Aid Agency
• property law
• family law, including custody and care of children Olsson v Sweden 1992
• social security, welfare, pensions and benefits disputes Salesi v Italy 1993
• compensation claims following unlawful detention or torture
• the right to practise a profession
• withdrawal of an authority to run a medical clinic
• revoking a licence to operate a taxi

States can guarantee the right to a fair trail through a number of mechanisms, including a mix of general and specialist courts and tribunals, as in the UK.

Taken together, these mechanisms must ensure three broad principles:

• access to a court
• procedural fairness
• proportionate financial barriers

Access to a court

Individuals must have access to courts and tribunals that have the power to examine all the facts and law relevant to a case, and make a binding decision. A body that can only make recommendations would not count as a court or tribunal, as in Benthem v The Netherlands 1985.

Courts and tribunals must:

• be established by law

Having non-judicial functions does not stop a body from being considered a tribunal.

• be able to make binding decisions

There must be legal certainty in its decisions. Once a judgment is made, it should be final and binding, without risk of being overturned by a non-judicial authority (Van de Hurk v The Netherlands 1994).

• be independent

Courts and tribunals must be independent and appear to be independent. This includes transparency in how members are appointed, terms of office, and how outside pressures and conflicts of interest are dealt with.

• be impartial

Judges and adjudicators must be impartial and not allow personal convictions to influence their judgement. As impartiality is hard to prove objectively, it is presumed unless there is evidence to the contrary.

Such evidence could be previous involvement in a case, as in Hauschildt v Denmark 1989. But in Albert and Le Compte v Belgium 1983, the participation of doctors hearing a case which concerned their professional body was not considered an infringement of impartiality. Each case must be taken on its merits.

Procedural fairness

Procedural fairness requires:

• the opportunity to present the case

This is sometimes referred to as ‘adversarial proceedings’. Essentially, both parties must have the opportunity to know and comment on each other’s observations and evidence adduced with a view to influencing the court’s or tribunal’s decision. (Ruiz-Mateos v Spain 1993).

• equality of arms

This refers to procedural equality between the two sides. They must be able to make their cases under conditions that do not put either at a disadvantage, with equal treatment of witness and access to all relevant information. Preventing access or denying the existence of documents was ruled a breach of this principle in McGinley and Egan v UK 1998, but it does not extend to guaranteeing legal aid or other financial assistance.

When the balance of power is very uneven a court or tribunal may take steps to make it fairer for the party with less power. For example, by taking time to check the unrepresented party understands the process at every stage, or directing that the represented side prepares all the bundles and court papers for the hearing including for the unrepresented side, or giving more time to comply with court orders. This could happen for example, when an unrepresented individual is opposing a government agency with full legal representation.

• a public hearing – not always required

This includes the right to be present and effectively participate in proceedings, to demand access for the public and media, and for the court to make its judgment public.

As a general rule hearings are in public, however some types of cases are heard in private, for example cases involving children or young people, mental health tribunals, hearings in the court of protection. The court can exclude the press and pubic if they think it will be in the interests of justice, or the case is very sensitive. In addition, some cases are decided ‘on the papers’ if that is proportionate to what is being determined.

Proportionate financial barriers

Legal aid

States are not required to make legal aid available for all cases, only some types of proceedings. This depends on the importance of what is at stake, the complexity of the law, and the capacity of applicants to represent themselves. Legal aid alone may not be enough; the relevant authority must ensure the financial assistance secures a lawyer (Bertuzzi v France 2003).

The Legal Aid Agency is responsible for providing legal aid in England and Wales, according to its codes and the law. Recent changes to legal aid have reduced its availability and people may use ombudsman schemes as an alternative to costly court action.

Court fees

States can require applicants to pay fees to access civil courts, but they should not place a disproportionate burden on the applicant and impair their essential access to a court, as in Unison v Lord Chancellor 2017.

The three broad principles – access to a court, procedural fairness and proportionate financial barriers – should inform you when you deal with complaints and consider how an organisation has shown regard for the right.

If you are minded to recommend that a complainant pursues a legal claim rather than proceeding through your ombudsman scheme, check the availability of legal aid and the likelihood of the complainant having or accessing sufficient funds to make such a claim.

What to do if this right is relevant to your case

You should aim to establish:

• whether the decision-making process was fair and impartial
• what the complainant’s perception of bias is, if any, and why he or she came to have that perception
• whether both sides had a fair chance of success before proceedings
• whether a complainant representing himself or herself was granted special allowances or dispensation against a represented party, such as help compiling documents for an appeal against a school exclusion