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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McQuade, Re Application for Judicial Review [2003] ScotCS 252 (07 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/252.html Cite as: [2003] ScotCS 252 |
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OUTER HOUSE, COURT OF SESSION |
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P493/03
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OPINION OF LORD EMSLIE in the Petition of KATIE McQUADE Petitioner; for Judicial Review of the restriction of the petitioner's statutory employment rights in contravention of Articles 6(1) and 14 of the European Convention on Human Rights
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Petitioner: Bell, Q.C., Sutherland; Drummond Miller, W.S.
Respondent: Moynihan, Q.C., McCready; Morton Fraser
7 October 2003
Introduction
[1] Between February 1998 and October 2000 the petitioner was a student nurse in the Army. She was attached to the Queen Alexandra's Royal Army Nursing Corps, and held the rank of private. On 7 October 2000, she was discharged from service in the Army in circumstances which are not material for present purposes. On or about 15 December 2000 she lodged a complaint alleging constructive dismissal with the Employment Tribunal Service, and that complaint is now sisted to await the outcome of the present proceedings. [2] Echoing earlier legislation, section 94 of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed by his or her employer. Under section 111, a complaint of unfair dismissal may be presented to an employment tribunal. Subject to inter alia section 192, section 191 confirms the application of Part X of the Act (which includes sections 94 and 111) to persons in Crown employment. Subject to certain modifications which I need not mention here, section 192 in turn confirms the application of section 191 in the case of members of the naval, military or air forces of the Crown. Had matters ended there, the petitioner would have had all the rights necessary for the prosecution of her complaint before the employment tribunal. [3] However, paragraph 16 of Schedule 2 to the Act, which came into force at the same time as the remainder, is in the following terms:-"16 (1) If section 31 of the Trade Union Reform and Employment Rights Act 1993 has not come into force before the commencement of this Act, this Act shall have effect until the relevant commencement date as if for section 192 there were substituted -
'Armed forces. 192. Section 191 -
(a) does not apply to service as a member of the naval, military or air forces of the Crown, but
(b) does apply to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996'
(2) The reference in sub-paragraph (1) to the relevant commencement date is a reference -
(a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which section 31 of the Trade Union Reform and Employment Rights Act 1993 is to come into force, to the day so appointed, and
(b) otherwise, to such day as the Secretary of State may by order appoint".
The respondent's position
[8] Senior counsel for the respondent began by reminding me that the petitioner had not been denied access to a court or tribunal altogether. Her claim was currently before the employment tribunal, although sisted to await the outcome of the present judicial review application, and it was anticipated that in due course the employment tribunal would rule on the question whether it had jurisdiction to entertain the claim. There were two principal difficulties facing the petitioner as a member of the armed forces. First, she could not (even arguably) claim to have had a substantive right not to be unfairly dismissed. In any event, second, even if such a right had existed, it could not be characterised as a "civil right" as that phrase has been interpreted by the European Court of Human Rights. In such circumstances, Article 6(1) of the Convention was simply not engaged, and there was accordingly no sound basis for the present application for judicial review. [9] In support of the first, and primary, branch of his submissions, counsel relied on the decision of the Strasbourg Court in Z and Others v United Kingdom (2002) 34 EHRR 97, and also on the recent decisions of the House of Lords in Matthews v Ministry of Defence 2003 2 WLR 435, and Wilson v First County Trust Limited (No.2) 2003 3 WLR 568. All of these decisions, it was said, made it clear that the application of Article 6(1) of the Convention was limited to situations in which some substantive legal right existed, or arguably existed, under the domestic law of a member state, and in which there arose some impediment of a procedural nature to the due determination of such a right by a court or tribunal. Particular reliance was placed in this context on the terms of paragraph 87 of the Strasbourg Court's decision in Z and Others, on the speeches of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Millett in Matthews, at paragraphs 3 and 16, 51 and 53, and 79 respectively, and on the speech of Lord Hope in Wilson at paragraph 105. On these authorities, counsel contended that the petitioner's attempt to found on Article 6(1) was fundamentally unsound in that she was, in reality, asking the court to create for her a substantive right in the field of unfair dismissal that she did not - even arguably - enjoy under the 1996 Act. Article 6(1) could plainly not be used for such a purpose. [10] Even if the petitioner was in a position to overcome that primary hurdle, and to demonstrate the arguable existence of a relevant legal right capable of vindication under domestic law, counsel submitted that she must still fail on the ground that no such right could qualify as a "civil" right for the purposes of bringing Article 6(1) of the Convention into play. In construing the term "civil" in that context, the European Court of Human Rights had consistently excluded from its ambit rights arising from service in the public sector which, directly or indirectly, involved participation in the wielding of the sovereign power of the State. The leading case on this matter, and one of the principal cases founded on by the petitioner herself, was Pellegrin v France (2001) 31 EHRR 651. The court there held that the duties of a technical adviser employed by the French Ministry of Co-operation and Development involved considerable responsibilities in the field of the State's public finances abroad, and that this entailed participation in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State. Accordingly, Article 6(1) was held inapplicable. [11] Paragraphs 63-67 of the Court's decision in the Pellegrin case were in the following terms:-"(63) The Court accordingly considers that it is important, with a view to applying Article 6(1), to establish an autonomous interpretation of the term 'civil service' which would make it possible to afford equal treatment to public servants performing equivalent or similar duties in the States party to the Convention, irrespective of the domestic system of employment and, in particular, whatever the nature of the legal relation between the official and the administrative authority. In addition, this interpretation must take into account the disadvantages engendered by the Court's existing case law.
New criterion to be applied
(64) To that end, in order to determine the applicability of Article 6(1) to public servants, whether established or employed under contract, the Court considers that it should adopt a functional criterion based on the nature of the employee's duties and responsibilities. In so doing, it must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, of the exceptions to the safeguards afforded by Article 6(1).
(65) The Court notes that in each country's public-service sector certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State's sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this 'public administration' aspect, there is no such interest.
(66) The Court therefore rules that the only disputes excluded from the scope of Article 6(1) of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service insofar as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. In practice, the Court will ascertain, in each case, whether the applicant's post entails - in the light of the nature of the duties and responsibilities appertaining to it - direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In so doing, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its Communication of 18 March 1988 and by the Court of Justice of the European Communities.
(67) Accordingly, no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6(1) since the Court intends to establish a functional criterion. Disputes concerning pensions all come within the ambit of Article 6(1) because on retirement employees break the special bond between themselves and the authorities; they, and a fortiori those entitled through them, then find themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State's sovereign power".
Petitioner's position
[14] It is fair to say that, in opening the debate before me, senior counsel for the petitioner concentrated his argument on what turned out to be the respondent's second, or subsidiary, line of attack. In that context, he submitted that on the authority of Pellegrin, supra, and other cases it was always necessary to make a functional assessment of the duties and responsibilities of an individual claimant before determining whether the "civil service" derogation from Article 6(1) applied. Such an approach had been followed in Freydlender v France (2001) 31 EHRR 1152; Devlin v United Kingdom (30 October 2001); Tinnelly v United Kingdom (1998) 27 EHRR 249; and Fogarty v United Kingdom (2002) 34 EHRR 302. These cases demonstrated how the duties and responsibilities of inter alios technical and administrative staff employed in ministries and embassies might be held too remote from participation in the wielding of State authority to warrant the disapplication of Article 6(1) from relevant disputes. [15] Against that background, it was important to recognise that the petitioner's employment in the Army had been as a nurse and not in any combative role. The position of an Army nurse or cook was essentially no different from that of their civilian equivalents. In neither case was there any element of participation in the exercise of powers conferred by public law, and accordingly there was no reason to doubt the applicability of Article 6(1) of the Convention to the petitioner's claim. [16] In any event, counsel submitted, the petitioner's discharge from the Army had terminated any special public law relationship which might have existed, and for that reason also the applicability of Article 6(1) was clear. The present situation was, in other words, analogous to the pension claims discussed at paragraph 67 of the Court's decision in Pellegrin. [17] With reference to the respondent's primary argument, counsel invited me to reject it on two grounds. First, the "principal" section 192 of the 1996 Act had actually been brought into force at the outset, albeit in parallel with paragraph 16 of Schedule 2, and accordingly the petitioner could legitimately assert the existence, or at least the arguable existence, of the relevant statutory right. Second, even if that were not so, the petitioner's difficulty stemmed from the Secretary of State's failure to exercise the power conferred in paragraph 16(2)(b) of Schedule 2. For all practical purposes, this failure had the effect of denying the petitioner access to a tribunal for redress in respect of the termination of her contract of employment, and by reference to the leading case of Golder v United Kingdom 1975 1 EHRR 524 that was surely a situation in which Article 6(1) must apply.Discussion
[18] In my opinion the respondent's primary argument is well-founded and must be sustained. In relation to employees of the armed forces such as the petitioner, paragraph 16 of Schedule 2 to the 1996 Act disapplies, not just section 111 which provides for the presentation of complaints of unfair dismissal to an employment tribunal, but also section 94 which gives employees the fundamental substantive right not to be unfairly dismissed. The petitioner thus lacks the essential pre-requisite for the application of Article 6(1) of the Convention, and I do not consider that the shadow status of the "principal" section 192 alleviates her difficulty in any way. The simple fact is that members of the armed forces have never enjoyed substantive statutory rights vis-à-vis unfair dismissal under our domestic law. [19] This conclusion is, to my mind, well vouched by the authorities to which my attention has been drawn. In Z and Others, at paragraph 87, the European Court of Human Rights said:-"The Court recalls its constant case law to the effect that 'Article 6(1) extends only to contestations (disputes) over (civil) rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) rights and obligations in the substantive law of the Contracting States'".
In his speech in Matthews, at paragraph 51, Lord Hope of Craighead said:-
"But in order to invoke (the right of access to a court or tribunal guaranteed by Article 6(1)) one must first be able to say that the individual has a claim for the infringement of a civil right. The European Court of Human Rights has made it clear that this is a matter for the domestic law. Article 6(1) does not have anything to say about the content of the individual's civil rights, nor does it impose an obligation on the State party to confer any particular rights in substantive law on the individual ....".
At paragraph 53 his Lordship continued as follows:-
"One can at least say that there is a plain and obvious difference in principle between a procedural bar which impairs or restricts the enjoyment or enforcement of a right on the one hand and a substantive bar which prevents an alleged right from ever coming into existence at all. What article 6(1) seeks to do is to protect the individual against anything which restricts or impairs his access to the Courts for the determination of a civil right whose existence is at least arguable. But the precise scope and content of the individual's civil rights is a matter for each State party to determine. These are the broad Convention principles. They are likely to provide the best guide as to the side of the line on which any given case lies".
I therefore conclude that the petitioner's application fails at this first hurdle.
[20] That is sufficient for disposal of the issue before me, but it is right that I should go on to indicate what my view would have been had it been necessary for me to deal with the respondent's subsidiary argument based on the case of Pellegrin. Bearing in mind that, as a matter of principle, any limitation on the protection afforded by Article 6(1) must be narrowly confined, I would not have been prepared to interpret what the Court said at paragraph 66 of the Pellegrin decision in the manner contended for by the respondent. As appears from paragraph 64 and from the guidance mentioned at the end of paragraph 66, the functional test which the Court adopted as its new criterion was directed towards the duties and responsibilities of individuals in public service employment, and in my view the reference to the armed forces and the police in paragraph 66 was no more than an illustration of categories of public service employment in which individuals might typically participate, directly or indirectly, in the exercise of powers conferred by public law and in the wielding of a portion of the State's sovereign power. Within these broad categories, I am inclined to think that there may be individuals whose employment would not on examination be held to possess "public authority" characteristics. For example, it is well known that both organisations employ civilians in various fields. By contrast, as it seems to me, serving police officers and regular serving members of the armed forces may reasonably be expected to fall on the other side of the line. The employment of police officers is governed by many special Acts and Regulations, and the same applies to regular serving members of the armed forces. Members of the armed forces are, in addition, subject to military law and discipline. However, while such factors may well turn out to be sufficient to bring an employee within the "public authority" category identified in Pellegrin, I am not persuaded that this can properly be determined in a given case without examination of the particular characteristics of the individual employment concerned. [21] This is, significantly, an area in which there would appear to be unresolved factual issues between the parties. The petitioner maintains that her employment as an Army nurse was essentially indistinguishable from civilian nursing, whereas the respondent makes extensive averments regarding the special duties, responsibilities and limitations attaching to the petitioner's employment as a private in the regular Army, and as a nurse within the Queen Alexandra's Royal Army Nursing Corps. Accordingly, if it had been necessary to decide on which side of the Pellegrin line the petitioner's employment should be held to fall, I would have fixed a Second Hearing at which the relevant factual issues could be resolved. I would not, in other words, have felt able to hold, from the mere fact that the petitioner was an Army nurse, that her employment must necessarily fall on the "public authority" side of the Pellegrin line and thereby exclude the applicability of Article 6(1) of the Convention. Equally, I would not have been prepared to accept the petitioner's argument that the whole issue was rendered academic by the fact of her having been discharged from the Army in October 2000. In my view employment claims are readily distinguishable from pension disputes arising after retirement, and it is significant that the decided cases give no hint that the two may be treated as comparable.Disposal
[22] In the result, having upheld the respondent's primary argument, I shall sustain his first plea-in-law, repel the plea-in-law for the petitioner and dismiss the Petition.