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Cite as: [2002] EWCA Civ 754

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Neutral Citation Number: [2002] EWCA Civ 754
No A1/2002/0543


Royal Courts of Justice
London WC2

Friday, 26th April 2002

B e f o r e :



- v -


(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)


MR R de MELLO (Instructed by Serinther Atkar of Birmingham) appeared on behalf of the Applicant
The Respondent was not represented and did not attend



Crown Copyright ©

  1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a ruling of the Employment Appeal Tribunal delivered on 14th January 2002, permission to appeal from that ruling having been refused on paper by Lord Justice Keene. The tribunal was hearing an appeal from a determination by an Employment Tribunal in February 2000 that it had no jurisdiction to hear the complaints made by the applicant, Mr Melbourne.
  2. I do not intend in this judgment to set out the detailed factual background to this case, nor to recite the somewhat detailed statutory provisions out of which the appeal arises. That is all done with great clarity in the judgment of the Employment Appeal Tribunal, which in that respect has not been criticised before us, nor could it have been. Anyone who seeks further elucidation of this judgment can therefore refer to the Employment Appeal Tribunal judgment for further detail.
  3. It is necessary by way of factual background to say only this shortly, and that mainly out of fairness to Mr Melbourne himself. Mr Melbourne joined the Army in, I think, September 1997 (typographically wrongly stated to be September 1996 in the judgment of the Employment Appeal Tribunal). He is a person of mixed race, and he suffered racial abuse which is acknowledged now on all sides to have been serious and wholly deplorable. He made a number of complaints which were investigated. In July 1999 he received a letter from the Adjutant General accepting that he had suffered racially offensive language and behaviour at the hands of senior non-commissioned officers, offering the apologies of the Army for that fact, and stating that such conduct was not acceptable. Mr Melbourne received that letter when he was in military detention. He had been charged with two offences of absence without leave. Those related to periods between February and June 1997 and September 1997 and August 1998. He pleaded guilty to both charges. The court accepted that the first period of absence had been caused by racial abuse, but found that the second had not, but had been caused by personal and family problems. As a result, of the two periods of detention, the first was regarded by the court as mitigated; the second was not so regarded. Mr Melbourne was sentenced to 112 days' detention and dismissed from HM Service.
  4. His applications in the tribunal were, first, that he had been unfairly dismissed; and, second, that he had been discriminated against on racial grounds. The tribunal, supported by the Employment Appeal Tribunal, found it had no jurisdiction to hear either complaint.
  5. Numerous points have been taken in the course of these proceedings, both in front of the Employment Appeal Tribunal and in written submissions to us. This morning Mr de Mello, who moves this motion on behalf of Mr Melbourne, has with commendable brevity summarised the main points upon which he relies.
  6. We start with the question of unfair dismissal. It was held by the Employment Appeal Tribunal to be beyond dispute, and it has not been disputed before us, that on what I would call domestic law grounds the tribunal had no jurisdiction to hear an unfair dismissal claim. That is broadly because the statutory requirements or the statutory procedures exclude members of HM Forces from such proceedings. The applicant seeks to escape from that conclusion by relying upon the Human Rights Act 1998 and by saying, first, that he has justifiable grounds of complaint under Articles 3, 6 and 8 of the European Convention on Human Rights; and, secondly, that he is able to assert those rights - and, more particularly, the right under Article 6 - in domestic proceedings by virtue of the Human Rights Act 1998.
  7. The difficulty for Mr Melbourne is that the conduct of which he complains occurred before the coming into force of the Act. He seeks to escape from that difficulty by referring first to Section 22 (4) which reads:
  8. "Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
  9. Turning to Section 7 (1) (b), that reads as follows:
  10. "7 (1) 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) may -
    (a) bring proceedings against the authority under this Act in the appropriate court of tribunal, or
    (b) rely on the Convention right or rights concerned in any legal proceedings,
    but only if he is (or would be) a victim of an unlawful act."
  11. Mr de Mello says that these proceedings are proceedings brought by or at the instigation of a public authority, and therefore MrMelbourne can rely upon his Convention rights even though he complains of something that occurred before the coming into force of the 1998 Act.
  12. I cannot agree with that analysis. It is clear that the word "proceedings" refers to a legal process. That is very apparent not only from the normal meaning of the word but also from the way in which it is used in Section 7 (1) (a) -
  13. "bring proceedings against the authority under this Act in the appropriate court or tribunal ..... "
  14. Here the proceedings were and are the complaint to the Employment Tribunal. Those plainly were not "brought by" a public authority. They were brought by Mr Melbourne. Nor can it be said that because the proceedings were the fault of - and brought because of - the racist behaviour of the Army they were brought "at the instigation of" a public authority. "Instigate" in its normal meaning means promote, encourage or try to cause an outcome. The last thing the Army wanted to promote or try to cause was the bringing of proceedings by Mr Melbourne.
  15. Further, it is not right to say, if it is sought to be so said in paragraph 9 of the skeleton argument before us, that the relevant proceedings were the proceedings in front of the court martial. Mr Melbourne is not seeking, as Section 7 (1) (b) requires, to rely upon the Convention unlawful act in those proceedings, as the statute requires, but rather to complain about those proceedings in the Employment Tribunal proceedings.
  16. Two other points are taken. First, it is suggested that this case is on all fours with or similar to Preiss v General Dental Council [2001] 1 WLR 1926. But, as the Employment Tribunal said in paragraph 6 of its judgment, this case is different because in Preiss the General Dental Council was itself bringing the disciplinary proceedings, where in this case the Army Council is not bringing the proceedings against Mr Melbourne.
  17. It was also sought to be argued that Section 3 of the Human Rights Act might be brought into play, and that that interpretive power of the court applied in relation to acts occurring at any time provided that the proceedings in which they were complained of took place after 2nd October 1998. That was an argument not, I think, put before the Employment Appeal Tribunal. It was based upon some observations in this court in Pye (Oxford) Ltd v Graham [2001] 2 WLR 1293. It is the case, and Mr de Mello rightly accepted this when the court informed him of it, that the observations in Pye should no longer be regarded as authoritative. The authority for that is Wainwright v Home Office [2001] EWCA Civ 2081. In that case Lord Woolf CJ rejected the argument based on Section 3 that I have indicated in his judgment at paragraphs 36 to 38; and Lord Justice Mummery, who had made the observations relied on from Pye said at paragraph 61 of his judgment in Wainwright that on further reflection, first of all, he needed to stress that the observations in Pye were obiter; and, secondly, he was now persuaded that they were incorrect.
  18. Nor can it be right to say that Section 22 needs to be interpreted in line with the United Kingdom's Convention obligations. The United Kingdom had no obligation under the Convention to pass the Human Rights Act or any other legislation in any particular form that facilitated the domestic assertion of European Convention rights.
  19. That suffices to dispose of the unfair dismissal application. I should however say something with regard to the substance of the claim under the European Convention because it has some marginal significance at a later point in this judgment. Although claims were made under Article 3 and Article 8 of the Convention, I agree with the Employment Appeal Tribunal that both those suggestions - only faintly made and not repeated today by Mr de Mello - have no substance. The conduct complained of in this case, deplorable though it was, came nowhere near the threshold for Article 3. Although Mr Melbourne was undoubtedly damaged in his personality by what happened, I am not persuaded that offensive behaviour of that sort infringes the particular right asserted by Article 8, which is of course a right to privacy. When a person has voluntarily placed himself in a situation where he is obliged to interact with other people, the way in which they treat him - as the senior NCOs treated Mr Melbourne - may be criticised on a variety of grounds, but it is very difficult to see how it is to be criticised as an invasion of the particular right of privacy.
  20. It is also complained that the effect of the legislation is to prevent Mr Melbourne's right of access to the courts and thereby constitutes an infringement of Article 6. At first sight that seems structually to be a more promising argument. But like the Employment Appeal Tribunal in paragraph 8 of its judgment, I see no escape from the analysis of the European Court of Human Rights in Pellegrin v France, 8th December 1999, and, in particular, what it said in paragraph 66 of its determination with regard to the exclusion of Article 6 rights of persons such as the Armed Forces and Police. A lengthy argument was addressed to us in the skeleton argument seeking to avoid that conclusion, but I fear it did not start to persuade. The ratio of Pellegrin, in my judgement, is to exclude from the prohibition of legal proceedings persons who although employed in the public service are doing jobs that in their nature and kind are the same as those that might be performed outside the public service, for instance, clerking or office work. Persons who are active soldiers such as Mr Melbourne, or for that matter persons who are police officers under orders and obliged under order to go anywhere, do anything and do things quite different from those that a civilian does, do not fall into that particular category: as the European Court clearly said.
  21. We turn to the Race Relations proceedings. There were two acts of which complaint was made. The first was the original discrimination. The second was, if I can put it broadly, the handling of the matter by the Defence Council in that, as Mr de Mello put it to us today, it had failed to take into account relevant factors and thereby had discriminated against Mr Melbourne. It was argued before the courts below that there had been one continuous act of discrimination, and therefore that continued until after the relevant statutory provisions - in this case Amendments to the Armed Forces Act - could be brought into operation in October 1997. The tribunal found that that was not the case. That is a question of fact. The Employment Appeal Tribunal said that it could not interfere with that in paragraph 11 of its judgment, nor can this court.
  22. On the basis that there were two acts of discrimination, or allegedly so, in the way I have indicated, the problem for Mr Melbourne is that the first act of discrimination, that is to say the directly racist behaviour, occurred before the relevant date. The second act is said to be the failure to act on the part of the incorrect decision made by the Army Council. But the tribunal held in respect of that that Mr Melbourne had no redress because he had not gone through the redress procedure under Section 75 (9). Mr de Mello argued before the Employment Appeal Tribunal and before us that that was a strange requirement in view of the fact that Mr Melbourne would be required to make another complaint to the body in respect of which he was complaining. The Employment Appeal Tribunal acknowledged that that state of affairs was unsatisfactory and said that it hoped the law could be amended. It also considered as a matter of construction that Section 75 (9) (a) applied to all complaints without exception. I also think that is the case and I do not think that that decision is likely to be undermined if the matter were pursued.
  23. Finally, it was complained that failure to implement Section 192 of the Act - and thus producing the situation we have indicated - was a failure for which the Secretary of State was liable in law. That is not so in respect of human rights jurisprudence, as Section 6 of the Human Rights Act made plain; and the point falls, as the Employment Appeal Tribunal pointed out, in domestic law in the face of the Fire Brigade Union case. Further, so far as any recourse under the Human Rights Act is concerned, it would in any event have to be demonstrated that Mr Melbourne does have a ground of complaint under the Convention: which, as I have indicated, and particularly in respect of Article 6, he does not.
  24. That disposes of the questions before the court below and originally before us and the single judge.
  25. Very late in the day, that is to say yesterday, Mr de Mello produced a further detailed skeleton argument in which, as I understand it, he says there are grounds to challenge the decision of either Mr Melbourne's commanding officer or the defence council or both of them as a matter of judicial review on purely domestic grounds; and suggests that it is open to this court either to grant permission for such review, thereby causing it to take place in the Administrative Court; or itself, as I understand it, to consider a judicial review application de novo. He was good enough to indicate that if we were not minded to pursue that course he would not wish to address us on the merits of such an application, wishing to save his fire for another day and another place.
  26. We indicated we were not minded to pursue that course. I will say why very shortly. Although this court does have a somewhat elusive judicial review jurisdiction - which springs from the vires of this court as constituted by the Judicature Act 1872 and from the power that the Court of Exchequer Chamber, which we succeeded, had in respect of ex parte applications - it is not exercised as an original jurisdiction. In some exceptional cases this court may hear a judicial review application as a court of first instance, having itself granted permission. But that is a very exceptional state of affairs and will not be entered upon unless we have had the benefit of the opinion of the court below, which we have not had in this case. I am not aware of any case where we have started from scratch, as it were, in a case where an original application could be made, subject of course to time limits. This is certainly not the case in which such a new jurisdiction should be asserted. In accordance with Mr de Mello's request, I say no more on that subject than that.
  27. We are well aware of why Mr Melbourne feels aggrieved by what has happened to him, and his grievance is very understandable. But, for one reason or another, he cannot assert that grievance by the methods he has chosen. I hope he will be able to accept that whether his case is open to suit by way of complaint through the Employment Tribunal has now been considered by an Employment Tribunal consisting of three people; bythe Employment Appeal Tribunal headed by a High Court judge; on paper by a Lord Justice of this Court; and now by my Lord and myself. None of us have been able to see any way in which, on the legislation as it stands, these proceedings can be pursued.
  28. I would not give permission.
  29. MR JUSTICE JACKSON: I agree.
  30. Order: Application refused

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