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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Medical Association, R (on the application of) v General Medical Council  EWHC 2602 (Admin) (03 October 2008)
Cite as:  EWHC 2602 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRITISH MEDICAL ASSOCIATION||(CLAIMANT)|
|GENERAL MEDICAL COUNCIL||(DEFENDANT)|
Merrill Legal Solutions Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr R Engleheart QC appeared on behalf of the DEFENDANT
Crown Copyright ©
The legislative scheme.
"(1). Subject to the provisions of this Act, the General Council may make regulations with respect to the charging of fees in connection with the making of entries in the register of medical practitioners, and in particular:
(a) prescribing a fee to be charged on the entry of a name or qualification in the register or on the restoration of any entry to the register;
(b) prescribing a fee to be charged in respect of the retention in the register of the name of the person;
(c) authorising the Registrar, notwithstanding anything in this Act, to refuse to make any entry in, or restore any entry to, the register until a fee prescribed by regulations under this section has been paid."
"Regulations under this section prescribing fees may provide for the charging of different fees in different cases and may provide that fees shall not be chargeable in cases prescribed by the regulations."
"Any registered person who has reached the age of 65 years shall, on application to the registrar, be exempt from payment of annual retention fees."
The Age Regulations.
"(1). For the purposes of these regulations, a person ('A') discriminates against another person ('B') if:
(a) on the grounds of B's age, A treats B less favourably than he treats or would treat other persons, or;
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but:
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons and;
(ii) which puts B at that disadvantage.
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of meeting a legitimate aim."
" ... in order to comply with a requirement of any statutory provision."
"20. Dr Farrer-Brown's letter prompted the GMC to be concerned that the scheme the ARF [I interpolate to say that that is the acronym for annual retention fee] (incorporating a purely aged-based exemption) might be unlawful. The GMC therefore sought advice from Dinah Rose QC, an acknowledged expert in discrimination law. By April 2008 the GMC had received preliminary advice from Ms Rose that the Age Exemption was likely to be unlawful and for that reason ought to be abolished.
"21. At a private GMC Council seminar, held in Edinburgh on 2 April 2008, I informed the Council of that preliminary advice and that in consequence the GMC would probably need to abolish the Age Exemption. I also discussed the preliminary advice with meetings of the Resources, Audit, Registration and Diversity and Equality Committees. In none of those meetings did the members of the Council suggest that the GMC should continue with a scheme which was unlawful. None of the members identified any legitimate aim which the Age Exemption was a proportionate means of achieving.
"22. At at least one of the Committee meetings I attended, a suggestion was mooted that a new scheme might be introduced so as to provide an exemption not explicitly on the ground of age, but on the grounds of the number of years of service provided in the UK by the doctor. In response to this suggestion, the GMC considered what would be the likely effect of such an alternative scheme. The GMC concluded that such a scheme would disproportionately favour older British males."
"23. The GMC considered, therefore, that any scheme based on the number of years of service would be likely to be not only indirectly discriminatory on grounds of age, but also risked being held indirectly discriminatory on grounds of race and sex.
"24. Ms Rose's final opinion was received in late April 2008. Ms Rose gave very clear advice that the Age Exemption amounted to unlawful discrimination on the grounds of age. Ms Rose also recommended that any transitional period phasing out the Age Exemption should be as short as possible."
"I am instructed to advise the GMC on the following issues:
"(a) Whether the provision at Regulation 8 of the GMC Registration Fees Regulations 2007, whereby a registered medical practitioner who has reached the age of 65 is exempt from the payment of annual retention fees, is contrary to the prohibition on age discrimination contained in the Employment Equality (Age) Regulations 2006;
"(b) If so, whether the GMC would be lawfully entitled to implement compatible arrangements as regards those doctors who currently benefit from Regulation 8 over a transitional period."
"(a) The current exemption under Regulation 8 for those aged 65 and over is almost certainly contrary to the Age Regulations. I am not aware that there is any justification for this age-based difference in treatment, which has the effect that younger doctors are subsidising those aged over 65, regardless of their earnings or the expense to the GMC of regulating them;
(b) It will be difficult for the GMC to justify a transitional period for moving to a lawful system. Whether there is any scope in law for such a period may depend on the outcome of an equal pay case, Cleveland and Redcar BC v Bainbridge (No 2), which was heard in January 2008 by the Court of Appeal, in which judgment is awaited."
"14. There is no doubt that the Fees Regulations treat registered medical practitioners under the age of 65 less favourably, on grounds of age, than registered medical practitioners over the age of 65. Such treatment is unlawful direct age discrimination unless it can be shown to be a proportionate means of meeting a legitimate aim.
"15. My instructions do not seek to identify any legitimate aim pursued by the age exemption, or to suggest that the exemption is proportionate to any such aim. It is difficult to see how there could be a proportionate justification for this type of discrimination. Age is a poor proxy for a doctor's means, or the costs incurred by the GMC in regulating him. There does not appear to be any good reason why a doctor aged 64 who has retired from medical practice but wishes to retain his registration should pay a fee, whereas an active doctor with a substantial income aged 65 or over should pay no fee.
"16. The Fees Regulations are made under statute, but they were not made by a Minister of the Crown, but by the GMC. The exception at Regulation 27 thus does not apply to them.
"17. Accordingly, unless some justification of which I am currently unaware (and the existence of which seems most unlikely) can be identified, the current regime is contrary to the Age Regulations, and involves unlawful discrimination against doctors under the age of 65.
"18. That being so, the GMC is under a duty to ensure that the current arrangements are changed as soon as possible, by securing the necessary amendments to the Regulations. A public authority which knowingly acts unlawfully, in the knowledge that its acts will probably cause damage to a third party, risks not only a claim for age discrimination but, potentially, a claim for misfeasance in public office."
"16. We have received leading counsel's advice that age exemption from the ARF is almost certainly unlawful, as it is contrary to the provisions of the Age Regulations.
"17. This is because age exemption from the ARF is based simply on age and, therefore, discriminates against doctors below 65 who cannot benefit from the exemption.
"18. Consequently, continuing with age exemption from the ARF would be lawful only if it met the test in Regulation 27 or Regulation 3.
"19. Regulation 27: Although the Fees Regulations are made under statute, the Regulations are made not by a Minister of the Crown but by Council; and thus the Regulation 27 exception does not apply.
"20. Regulation 3: We do not believe that age exemption from the ARF could be classed as a proportionate means of meeting an aim of the GMC. We have invited the Department of Health (England) to confirm that they do not regard the age exemption as a proportionate means of meeting a national aim, for example as a way of encouraging doctors over 65 to remain registered and, thus, facilitate contact with those who might provide assistance in the event of a flu pandemic or other national emergency. If DH(E) were to conclude that age exemption from the ARF was a proportionate means of meeting a legitimate aim, we would wish that to be reflected in an amendment to the Medical Act 1983, to place the matter beyond doubt."
"There is one further matter that I would want to raise with you. Can you confirm that you have considered any legitimate expectations that there may be for you to undertake some form of non-statutory consultation or, at least, for the change you are proposing not to be a surprise for those affected?"
"The GMC took the view that consultation about whether or not it should comply with the law was neither mandatory nor appropriate. Moreover, any consultation process would simply serve to delay compliance by the GMC with the law. Also, as set out above, by the time of Mr Clarke's e-mail I had already written to key bodies, including not only the BMA but also the Chief Medical Officers mentioned by Mr Clarke and invited them to contact me if they had any queries. I had also informed all doctors likely to be affected in the next year by the abolition of the Age Exemption that it was under review (i.e. those who were already exempt, and those who would reach the age of 65 in the next year)."
"37. But there is first a prior question - one of classification. To explain it, I must return to the texts: Lord Diplock in CCSU and Simon Brown LJ in Ex p Baker. First, Lord Diplock's category (b)(i) (CCSU at 408F-G):
"'To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:
"'(b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment ...'
"'2. Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness - the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision...'
"38. Each of these passages refers to the same category of legitimate expectation, as Simon Brown LJ recognised in Ex p Baker at 90. But neither passage offers an objective criterion by which to decide whether the class of legitimate expectation in question should be applied to the case in hand (beyond the fact that the claimant has enjoyed the relevant benefit in the past). Neither formulation involves any prior representation, promise or practice. Simon Brown LJ recognised the want of any objective test. He said (Ex p Baker at 90):
"'Thus the only touchstone of a category 2 interest emerging from Lord Diplock's speech is that the claimant has in the past been permitted to enjoy some benefit or advantage. Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court's view of what fairness demands in all the circumstances of the case. That, frankly, is as much help as one can get from the authorities.'
"39. I shall have to return to 'the court's view of what fairness demands in all the circumstances of the case' in the context of this category of legitimate expectation. But I should first state my view that it is best classified as a form of procedural legitimate expectation: it is the further class of procedural expectation to which I referred, but with no elaboration, at paragraph 32. I shall call it the secondary case of procedural legitimate expectation. It is to be noted that Lord Diplock's reference to the communication of 'some rational ground for withdrawing' [the benefit or advantage in question] gives the appearance of a procedural right: the right actually enjoyed is the right to make representations in response to such a communication. This is identical to the right afforded in the paradigm case of procedural legitimate expectation, where there has been a promise or practice by which just such an opportunity has been provided."
"What are the conditions under which a public decision-maker will be required, before effecting a change of policy, to afford potentially affected persons an opportunity to comment on the proposed change and the reasons for it where there has been no previous promise or practice of notice or consultation?" (Paragraph 40).
"But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations - the two kinds of legitimate expectation we are now considering - something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that '[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage'."
"On the history here, I consider that to reject Unilever's claims in reliance on the time-limit, without clear and general advance notice, is so unfair as to amount to an abuse of power."
"I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex p Coughlan (paragraph 66):
"'In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process.'
"Accordingly for this secondary case of procedural expectation to run, the impact of the authority's past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult."
"There is nothing in the facts of this case to bring it within the narrow and specific compass, best exemplified by Ex p Unilever, which is the proper territory of this class of legitimate expectation."