Deprivation of Liberty Safeguards descend into costly chaos

Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ([2014] UKSC 19 ), was intended to deal with a very real problem: that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.

Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”

Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.
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Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

It is very probable that the Conservative Government intends to largely remove the notion of damages from human rights. They want to restrict cases to criminal law, the right to property and an individual’s freedom and have other – trivial – cases struck out. If the breach can be put right, OK (by the release of an unlawfully held prisoner for example); but whether or not it can be put right, a stop will be put to human rights payouts – and the right to a fair hearing before a court or tribunal, relied upon in some of these cases. This is certainly the tenor of MP Charlie Elphicke’s UK Bill of Rights, the probable basis for the official Conservative version. And it is certainly the implication of the notion that “trivial” human rights issues should not be actionable. There will be whole areas in which breaches of human rights can occur without any comeback, be they “trivial”, too late to put right or breaches against people who don’t “deserve” human rights – whoever or whatever can be excluded.

Also missing from our law with abolition of the Human Rights Act will be the Statement of Compatibility. Section 19(1) says “A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.”

Here’s the first case:

Crook v Chief Constable of Essex police  [2015] All ER (D) 65 (Apr) 
An allegation of rape had been made against the claimant who was in Dubai and could not be traced for questioning. In August 2010, the police included the claimant’s details in a press release of “The Ten Most Wanted Suspects” with a photograph and personal details including his last known address. The information was published in the press and on the internet. His brother saw it and informed Crook who contacted the police. After arrest and questioning when he returned home the rape case was dropped. He took a case under  breach of confidence (regarding use of the photo), breaches of the Data Protection Act 1998 and breach of Article 8 of the European Convention on Human Rights (privacy and family life). The issue was whether release of the information had been reasonably necessary and proportionate in all the circumstances of the case. The judges in the High Court said no. “The decision to include all of the information in the press release had not been dictated by a pressing need, or proper careful consideration of the relevant principles.” The claimant was awarded nearly £70,000 in damages (including for lost earnings) and a declaration that his rights had been infringed under the Human Rights Act.

Comment: This will be a difficult case for those on the Right who would abolish the HRA. On the one hand they don’t like the idea of the compensation culture and police paying over money when they are just doing their job; on the other they may favour anonymity for rape-accused. They would agree, presumably, that this was an egregious example of such exposure against an innocent man. Should he have had no access to the courts to remedy it? Should he be denied a remedy against the state, as guaranteed by the ECHR and the Human Rights Act? 

Re DE (a Child) [2014] All ER (D) 72 (Jun)
This is a family case involving a small child with a mother diagnosed on the borderline of a mild learning disability and a father with a more significant cognitive impairment and an IQ of around 50. The parents were looking after the child with the help of the local authority, which had included a successful 16-week residential foster placement for the parents and child. They had moved to a new home with a package of support from the local authority and other agencies and under a care order. After 18 months a social worker had become concerned about aspects of the boy’s care. The local authority sought to remove the child and the parents took legal action to prevent it by injunction using Section 8(1) of the Human Rights Act:

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.” 

They also cited Article 8 of the ECHR on family life. At first instance their case (in effect a procedural matter regarding injunction) was rejected but the Family Court allowed the appeal, granting the injunction pending a full hearing.

Comment: Again an awkward one for the anti-HRA Right – but interfering social workers tend to come high in their demonology. Do they want to repeal an act that addresses their bug bear, that allows a court to grant “relief or remedy” when social workers get it wrong? This was not just a case of potential breach of Art 8 family rights but of the right to be heard in a legal forum. Apparently to be abolished. 

Benkharbouche v Embassy of the Republic of Sudan [2015] All ER (D) 51 (Feb)
This is a case that gained a little press coverage. Two domestic staff in the Libyan and Sudanese embassies in London brought claims for unfair dismissal and breach of the EU Working Time Directive. Their claim had been challenged under the State Immunity Act Section 1(1): “A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act”. However, the court was asked to read that provision in the light of Section 3(1) of The Human Rights Act, which says:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”  

The two women said their treatment breached Article 6 of the ECHR: “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Section 4 of the State Immunity Act says immunity does not apply to contracts of employment for work within the UK – unless the workers are foreign, which the claimants were. This was seen as a breach of Art 6 and also Art 14 of the ECHR which says:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” 

The Court of Appeal decided there was no reason in international law for the SIA’s s.4(2)(b) and s.16(1)(a) (immunity regarding employment claims) to apply. The two sections “cannot be read down and given effect in a way which is compatible with ECHR pursuant to the interpretative obligation imposed by section 3(1) HRA”  – in other words the SIA sections could not be interpretively “tweaked” to allow the women their rights. They were simply in breach of the ECHR, and the judges made a a declaration of incompatibility accordingly – which section 4(2) of the HRA allows them to do. Since the women did have rights under EU law to pursue their claims, the court could disapply the SIA sections “to the extent necessary to enable employment claims (other than for recruitment, renewal or reinstatement) which fell within the scope of EU law by members of the service staff, whose work did not relate to the sovereign functions of the mission staff, to proceed”.

Comment: This is the sort of case that is anathema to the anti-HRA campaign. It brings in international law and EU law as well as the possibility of using the HRA s.3(1) to reinterpret provisions in legislation passed by Parliament. It allows declarations of incompatibility of UK law with the ECHR – and, apparently, the ability of judges to disapply the law. This is not quite striking down legislation duly passed by a sovereign Parliament elected in a democratic contest – but to those with an unsophisticated conception of parliamentary sovereignty it looks very like it. On the plus side two very ordinary women – a cook at the Sudanese embassy and a nanny at the Libyan embassy – are able to take on the might of Libya and Sudan in the British courts in a case including allegations of unlawfully low pay, unlawfully long hours, discrimination and harassment. Others with a good case can now follow suit. Rights have been asserted where Parliament has feared to tread. Abolition of the Human Rights Act would curtail such possibilities. 

The Bailii.org version of the case is here   

Interflora Inc v Marks and Spencer plc [2015] All ER (D) 247 (Feb)
The two companies mired in legal action over copyright issues needed to establish whether M&S should be banned before a trial of the issues from using a flower selling advert with internet link on Google allegedly infringing Interflora’s “national and Community registered trade marks for the word ‘interflora'”. The case “involved a careful consideration and balancing of various Convention rights, including Interflora’s right to property [Art 1 Protocol 1 ECHR] and the right to freedom of expression [for M&S’s advertisement] under Art 10 of the Convention”. Thus the judges had to consider HRA s.12 which “applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression [ECHR Art 10]”. “Relief” here means an interim injunction requiring M&S to take down the advert with its link.

The High Court found that “What M&S wished to do was publish an advertisement and, to that extent, the injunction could engage its freedom of speech rights.” Since the substantive case was a finely balanced one (ie it was difficult to know who would win) it would be wrong to favour Interflora by banning the M&S advertisement.

Comment: This case shows that the Human Rights Act is not just for little people in their battles against state authority. It’s for corporate giants battling against one another too. It also points to the fact that the HRA is not simply a recital of ECHR right plus a requirement for courts to apply them in their judgments. There is a swath of other material, procedural matters for instance, regarding how rights are to be extended to claimants. Relevant in this case for example was s.12(4) which says “No such [injunctive etc] relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” How far is the Government willing to waste parliamentary time wiping out this legal background and rebuilding a new human rights regime just for the sake of asserting parliamentary sovereignty – that no rights should exist except those granted by Parliament?

The latest iteration of this continuing legal action is on Bailii here

Re H (A Child: Breach of Convention Rights: Damages) [2014] EWHC 3563 (Fam)
Finally a case about damages in the light of the Conservatives’ intention to reserve human rights law only for serious breaches. What is serious? What trivial? Leicester Council sought a care order in the case of H, a baby. Ultimately a supervision order was agreed. The parents used Section 7(1) of the Human Rights Act allowing “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [see above]” to “bring proceedings against the authority under this Act in the appropriate court or tribunal”, relying on a Convention article. They sought Section 8 damages regarding the way the local authority dealt with this case before proceedings were issued. The council accepted a breach of their rights under Article 6 (fair hearing) and Article 8 (family life). The issue then was compensation – which the council did not accept the parents should have.

There was an argument that the Family Court had no power to order compensation (unlike the County Court where family matters were dealt with before April 2014) and that the parents should have brought a separate civil claim (with consequent time and expense involved). Judge Bellamy rejected both contentions and declared that “the requirement that Convention issues raised within ongoing care proceedings should be dealt with within those proceedings includes the right to seek relief (including damages) within those proceedings”. Furthermore: “it is in my judgment … that where the court in care proceedings finds that there has been a breach of a Convention right it has the power to make an award of damages under s.8 of the Human Rights Act 1998”.

Rule 29.5 of the Family Procedure Rules 2010 on Section 8 claims did not “prescribe any particular formality save that the party making the claim must inform the court”. So the judge was able to cut to the chase and award damages of £6,000 to each parent with a declaration that their human rights had been breached.

Comment: This is exactly the sort of case that those against the HRA would do away with. It is “trivial” in that the sum of damages is small (ECHR damages are never large) and the wrong done to the parents cannot be undone. Nor would proponents of abolition see any practical value in a declaration of breach. 

But if there is no human rights claim, what is left when a wrong has been done, as here? If there is no right to claim, no jurisdiction, why would authorities need to accept responsibility for their failings? Removal of the Human Rights Act potentially gives carte blanche for state authorities to ride roughshod over the rights and dignities of individuals and to refuse to acknowledge their responsibilities towards people.

The concept of damages for human rights breaches, as shown in Re H (A child) is quite different from the usual Common Law tort damages. The case quotes Lord Chief Justice, Lord Woolf who said in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406: “the award must be necessary to achieve ‘just satisfaction’; language that is distinct from the approach at common law where a claimant is invariably entitled, so far as money can achieve this, to be restored in the position he would have been in if he had not suffered the injury of which complaint is made.”  In other words human rights damages are a less formal sort of damages, a recognition that a wrong has been done rather than strictly putting it right. They may also be available where tort damages are not.

The HRA also, as in Benkharbouche, acts as a doorway to more formal rights in damages – here the two women were denied the right to sue in law because they were not British nationals. Without the HRA they could not have pursued substantive rights to seek compensation.

The Bailii publication of Re H (A child) is here

Conclusion
So to what extent are are human rights trivial? Here’s a quotation from Eleanor Roosevelt that makes the point: 

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt, “In Our Hands” (1958 speech delivered on the tenth anniversary of the Universal Declaration of Human Rights) 

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Note: Since publication of this post the case of a rape victim who used the Human Rights Act to gain compensation for failure by the police to investigate properly has been publishd. This would not happen under any other legislation or English Common law, as explained by Rosalind English here

Of further interest
A draft Conservative Bill of Rights: State v the people
For Tory thinking on HRA abolition: Suddenly they’re all relativists now
A parliamentary briefing on human rights and a British Bill of Rights is available here

Supplementary

Could the same judgments outlined above have been arrived at without the Human Rights Act and the European Convention?
Crook: Possibly on the use of the photograph under Common Law breach of confidence (which has now been developed by ECHR considerations as explained here) and data protection but not on the wider privacy issue. In particular the ECHR concept of “proportionality” is wider than the English Common Law doctrine of “reasonableness”. The latter can allow breaches of rights where “proportionality” would not.
Re DE (a Child) Probably not. Consideration in the past in such cases would have been limited to “best interests” of the child usually as defined by the authority involved. This too would have been judged on the basis of “reasonableness”, in effect allowing a greater deference to authority.
Benkharbouche v Embassy of the Republic of Sudan Pretty certainly not. The law would have been read literally and excluded the women with no consideration of the inherent discrimination involved in the legislation.
Interflora Inc v Marks and Spencer Possibly, yes. The main issue was to do with principles of injunction as set out in American Cyanamid v Ethicon Ltd, considerations regarding whether, if M&S continued with the advert, any losses to Interflora could be compensated if it won the substantive case. Freedom of speech issues might have tipped the balance.
Re H (A Child) Clearly not, as explained above

How the cases were chosen
The choice was relatively arbitrary based on a legal website search for “Human Rights Act 2015 2014”. Only winning cases were chosen, criminal cases and immigration cases excluded plus any that have received publicity elsewhere particularly in this blog or Al’s Law including:
BB & Others v Secretary of State for the Home Department
AA v London Borough of Southwark
Breyer Group plc & Others v DECC
Weller v Associated Newspapers    

Conservative proposals
“The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.” Conservatives: Protecting human rights

 

 

 

 

 

 

 

 

 

 

 

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Gifted deposit indemnity insurance: a costly and unnecessary burden on homebuyers

House conveyancers are adding one more bit of indemnity insurance to some house purchasers’ bills  – and it looks as if “gifted deposit indemnity insurance” is of no use except to the insurers who sell it.

Add it to the list of various types of indemnity insurance for chancel repairs; for failure of a previous owner to gain planning permission; for a previous owner breaching restrictive covenants; indemnity for various other legal costs.  Some of these products are of dubious value – but a new study suggests gifted deposit indemnity insurance – used (at the homebuyer’s expense) to protect banks if someone giving a gift towards a home purchase goes bankrupt – has no real function at all.

The issue is increasingly significant as more and more parents are giving financial help for their children’s home purchases.  The insurance is paid for by the home buyer, intended to protect the mortgage provider, but in reality would only kick in if the conveyancers weren’t doing their job properly or the bank itself was acting in bad faith. Arguably that means it actually has no real purpose at all.

The principle behind the insurance is that it protects the mortgagee’s (ie bank lending the money) title in the property if the donor of a gift or informal family loan goes bankrupt and creditors make a claim to the money as part of the donor’s assets. Buyers are said to feel pressured into buying the insurance, costing up to £300, even though they don’t understand it.  

But is it strictly necessary? There is strong evidence that conveyancers are the ones who don’t understand the law and that the insurance is for the most part unnecessary – even when “bank of mum and dad” does go belly-up.

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Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to strike down primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.   Continue reading

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‘Work for your benefits’ scheme and retrospective legislation

The UK Court of Appeal judges are to consider a claim that legislation passed in 2013 after a legal challenge to unemployment benefit rules is unlawful. Two judges have ruled that the retrospective nature of the legislation regarding the Work Programme’s “Work for your benefits” scheme falls foul of standard judicial interpretation under English law and of the European Convention on Human Rights.

There are thousands of claimants who had challenged the rules before the retrospective change. The judges in the Administrative Appeals Chamber of the Upper Tribunal have allowed the Department of Work and Pensions to appeal against their judgment as a test case.

The Timeline
The litigation arises from the case of Caitlin Reilly and Jamieson Wilson, sanctioned by removal of jobseeker’s allowance for failing to take part in the Work Programme assigned to them. Miss Reilly, a University of Birmingham geology graduate, had argued that making her work unpaid at a Poundland store for two weeks or risk losing her benefits was a breach of human rights. She had to give up arguably more relevant voluntary work at a museum to do the Poundland job. She attended her work programme job but challenged the legality of the requirement on her.

While the Court of Appeal in February 2013 (EWCA 2013 Civ 66) rejected a claim by Ms Reilly that the workfare-style programme was illegal forced labour under Article 4 of the ECHR, it found that the Secretary of State, Iain Duncan Smith, acted beyond his powers by failing to provide important detail about the Back to Work Schemes such as a description of the scheme. The judgment meant those people who had been similarly sanctioned for non-compliance with the scheme could have been entitled to claim back their benefit for those periods. However, legislation was rushed through Parliament to deny them the money.

 

The 2009 changes that brought in the workfare scheme in section 1 of the Welfare Reform Act 2009 (as a new Section 17A of the Jobseeker’s Act 1995) allowed the Secretary of State to make regulations requiring claimants to do work “designed to assist them to obtain employment”. Subsection 2 says: 

“Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.”

Regulations were then passed in a 2011 statutory instrument (2011 No. 917) that could require jobseekers to “to participate in support provided by the Employment, Skills and Enterprise Scheme”. It is these regulations that in February 2013 the Court of Appeal in Reilly quashed, finding them to be ultra vires – beyond the powers of the provision in the parent Act (Section 17A of the amended Jobseeker’s Act). The Court said Ms Reilly and Mr Wilson had not been provided with “adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”.

The failings were fixed prospectively by a further statutory instrument on the day the judgment was issued (2013 No. 276 – made at 2.19pm, laid before Parliament at 6.15pm and in force from 6.45pm). The Government then sought to stymie earlier claims by rushing through the retrospective provisions of the March 2013 Jobseekers (Back to Work Schemes) Act. When the Reilly case came to the Supreme Court  in July 2013, Lords Neuberger and Toulson said the 2013 Act was “plainly intended to ‘undo’ the decision of the Court of Appeal, in that … it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those Regulations in relation to the schemes”.

Since, by this time, the retrospectivity of the 2013 Act was under challenge in the Administrative Court (a claim was issued in June), the Supreme Court gave its judgment (October 2013 – in part against the Secretary of State including on the ultra vires point: failure to provide a “prescribed description” of any scheme) even though the issue had been “fixed” by the Act.

– but the court nevertheless found against the Secretary of State, leaving open the possibility of many further cases from before the February 2013 amendments.

The Administrative Court hearing
The Upper Tribunal in DB v Secretary of State for Work and Pensions (plus SSWP v TJ and SSWP v TG) in February 2013 heard a different set of cases – appeals from November and December 2012 judgments by the First Tier Tribunal. The judges approach the 2013 Act firstly as a matter of judicial construction ie “the ascertainment of Parliament’s intention in passing the Act, having regard to its language, its context (including the mischief which the Act was seeking to address) and such background materials as are admissible”.

There is already legislation to ensure claimants who have not appealed against a benefits decision do not benefit when the law is interpreted in court in a way that would favour them (S.27 of the Social Security Act 1998). The implication is that those who had appealed before a favourable judgment (in what would amount to a test case) should be able to successfully pursue their action. The Upper Tribunal judges had to decide whether there was anything about the words in the 2013 Act that showed Parliament’s intention was to “affect the rights of those claimants who had already appealed”. Although the words “for all purposes” appear in the 2013 Act, the majority of the judges (2-1) decided this was not enough to show an intention to exclude people who had already challenged their sanctioning before 2013 on the successful grounds in Reilly. The judges cited the explanatory notes to the Act which considered whether it was compliant with Article 6 on non-retrospectivity. They said: 

“45. If no legal claim has been brought on the grounds that the [2011] Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical.” 

This implies that if a legal claim has been instituted before the favourable judgments it should proceed.  The judges said: “We do not see how that section of the Explanatory Notes could properly have been written as it was had the Government intended that those who had already appealed against sanctions should be caught by the Bill.” In other words “we are quite satisfied that there was no positive intention to include them”. The judges conclude: “Given the disposition not to read legislation to be more retrospective than clearly intended, we are satisfied that, notwithstanding the literal meaning of the words “for all purposes” in section 1(1), the 2013 Act should be read so as not to affect those who had already appealed against sanctions.” 

Article 6 of the European Convention on Human Rights
Article 6 requires “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. (The Article 6 “unfairness” complained of may be interpreted as that the Government intervened in a legal process by passing the 2013 legislation – purporting to deny Reilly and others a “win” that the Supreme Court was preparing to give them.)

The Human Rights Act 1998 Section 3 requires judges to interpret legislation in compatibility with the ECHR. This, the judges asserted, means not merely where there is ambiguity but on the basis that the Secretary of State intended compatibility (as he is required to declare). Putative wording may therefore be added by judges to ensure conformity.  

The judges argued: “The effect [compatibility with the ECHR] can be achieved, for example, by reading in the words at the start of section 1(1) of the 2013 Act “Save where an appeal had already been made or had already been decided under section 12 of the Social Security Act 1998 before this Act came into force.” The Government argued this would actually run counter to the purpose of the Act but the judges said: “the mischief to which the Act was addressed was persons who had not already appealed adverse decisions and who would otherwise benefit from Reilly and Wilson because of section 27 of the SSA 1998 having no application’. The Act, on the construction set out above, was not directed against those who had already appealed against sanctions.

Materials

• Supreme Court judgment October 2013 R (Reilly and another) v Secretary of State for Work and Pensions UKSC 2013
• See also Reilly No 2 and Hewstone v Secretary of State for Work and Pensions on the Article 6 point and incompatibility with Article 1 Protocol 1 of the ECHR – right to respect for property. The claimants argued that “it is contrary to the rule of law, protected by Art. 6, for a State to legislate in the course of ongoing legal proceedings to decide the issues before the court, when it does so to its own advantage, as a party to the dispute. Such an interference with Art. 6 rights can only be justified by ‘compelling grounds in the public interest’. They submit that no such compelling grounds exist in this case.”
Zielinski v France ECHR: “The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute”.
• Government Statement on SI 2011/917)
• There is an interesting piece by Carol Harlow on the UK Constitutional law blog on the 2013 Act retrospectivity issue here.

 

 

The claims and outcome at the Supreme Court in Reilly
They argued that:
(i) the 2011 Regulations are unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in “prescribing” the programmes, the circumstances by which individuals are selected, or the period of participation (“lawfulness”)
(ii) the Respondents did not receive the information required by Regulation 4 of the 2011 Regulations (“notification”)
(iii) the Government was required to have a published policy setting out the details of the relevant schemes (“publication”)
(iv) that the scheme constituted forced or compulsory labour contrary to Article 4 ECHR (“forced labour”).

Outcomes:
i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe

i) a description of the SBWA scheme or the PAC [Accepted];
(ii) the circumstances in which a person can be required to participate in those schemes [Rejected: the “prescribed circumstances” were sufficiently set out given the need for some flexibility];
(iii) the period during which participants are required to undertake work on those schemes [Rejected: An open-ended period was legitimate].

ii) That the requirement that Miss Reilly and Mr Wilson participate in a scheme was unlawful, because the notice provisions contained in regulation 4 were not complied with [Accepted re Reilly; rejected re Wilson].

iii) That it is unlawful for the Government to enforce the 2011 Regulations in the absence of a published policy as to the nature of the relevant scheme and the circumstances in which individuals could be required to undertake unpaid work [Accepted but no declaratory relief ordered: “The Secretary of State owed a duty as a matter of fairness to see that Miss Reilly and Mr Wilson were respectively provided with sufficient information about the SBWA [sector-based work academy] scheme and the CAP [Community Action Programme], in order for them to be able to make informed and meaningful representations to the decision-maker before a notice requiring their participation was served on them. However, it would be wrong to be prescriptive as to how that information should be given”].

iv) That Miss Reilly had been subjected to forced or compulsory labour contrary to article 4 of the European Convention on Human Rights (“the Convention”) and/or that the Regulations were contrary to article 4 [Rejected].

 

 

 

 

 

 

 

 

 

 

 

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Gender Recognition Act and an issue of privacy

A transgender woman has failed in her claim that the Gender Recognition Act 2004 breaches the privacy of those who have had surgery or other medical procedures towards gender reassignment. Section 3(3) of the Act requires that individuals reveal details of such medical procedures to a Gender Recognition Panel to back up an application for a Gender Recognition Certificate. Yet the Panel is empowered to issue the certificates to people who have had no such procedures as long as they can provide evidence of gender dysphoria and show they intend to live according to their chosen gender for the rest of their life.

A UK High Court judge rejected the claim by Helen Carpenter, who has transitioned from male to female, that the extra burden on those who had had or were contemplating medical procedures was a breach of Article 8 of the European Convention on Human Rights on privacy.

Section 3(3) of the GRA 2014 says that if the applicant for a certificate “has undergone or is undergoing treatment for the purpose of modifying sexual characteristics” or plans such treatment or has had it prescribed then it is required that a doctor’s report on her position “provides details of it”. Mrs Justice Thirlwall said: “Given that this information is necessary to the decision to be taken, that its dissemination beyond the Panel is prohibited, I am satisfied that the provision of the information required in paragraph 3(3) is necessary and proportionate to the legitimate aim. There is no incompatibility with Article 8.”

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PLT Anti-Marketing cold-call blocking: not a ‘scam’ after all?

An attempt to close down a company accused by the UK Government of a cold-call blocking “scam” has hit something of a stalemate in the Court of Appeal. PLT Anti-Marketing Ltd charges £40 a year for a cold-calling and junk mail blocking service already available free from official providers. The court has quashed a judge’s finding that PLT breached regulations and Lord Justice Briggs has produced strong arguments in favour of the company despite an attempt by the Department of Business (BIS) to close it down.

Nevertheless PLT remains barred from pursuing its business as it wishes until a full trial – when judgment could turn against it. The litigation has so far been going on for more than a year and a half – during which time PLT has been able to continue charging current customers but not to take on new ones without telling them about the free service. The whole affair raises the issue of whether current legislation is adequate for dealing with alleged consumer scams of this sort.

The free cold-calling and direct mail blocking services are available from Telephone Preference Service (TPS – provided by Ofcom; see: Regulation 26 of the Electronic Communications (EC Directive) Regulations 2003) and the Mail Preference Service (MPS – offered by the Direct Marketing Association in co-operation with the Post Office). PLT takes the names of its paying customers and adds them to the free lists. It maintains a service for its customers to complain about any continued unwanted calls and mail, but that also links into the free official services. Customers continue to pay on a monthly or annual basis. 

The Department of Business (BIS) started investigating PLT in 2012. In April 2013 it issued a “public interest winding up petition” under Companies Act 1985 S.124A – and the matter has been bogged down in court hearings ever since.

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