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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Leighton, R (On the Application Of) v The Lord Chancellor [2020] EWHC 336 (Admin) (19 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/336.html Cite as: [2020] EWHC 336 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (ON THE APPLICATION OF ESTHER LOUISE LEIGHTON) |
Claimant |
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- and - |
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THE LORD CHANCELLOR |
Defendant |
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-and- |
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INCLUSION LONDON |
Intervener |
____________________
Jonathan Auburn and Rupert Paines (instructed by Government Legal Department) for the Defendant
Catherine Casserley (instructed by Fry Law) for the Intervener (written submissions only)
Hearing date: 28 January 2020
____________________
Crown Copyright ©
Mr Justice Cavanagh :
Introduction
(1) The Defendant failed to comply with the Public Sector Equality Duty;
(2) The Defendant (a) acted irrationally, (b) failed to take account of relevant considerations, and (c) failed in his duty of inquiry;
(3) The Defendant is in breach of Article 6 of the European Convention on Human Rights ("ECHR"), introduced into UK law by Schedule 1 to the Human Rights Act 1998;
(4) The Defendant is in breach of Article 14 of the ECHR, read with Article 6; and/or
(5) The Defendant is in breach of the common law right of access to a court.
The structure of this judgment
The factual and legal background
The Jackson Review
The relevant changes introduced by LASPO
"(6) A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement."
"(1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy..."
The introduction of QOCS
"Qualified one-way costs shifting: scope and interpretation
44.13
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.....
Effect of qualified one-way costs shifting
44.14
(1) ....orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.
(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.
(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record."
Exception to qualified one-way costs shifting where permission is not required
44.15
Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that -
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court's process;
(c)the conduct of -
The claimant; or
A person acting on the claimant's behalf and with the claimant's knowledge of such conduct
Is likely to affect the judge's disposal of the proceedings."
Exceptions to qualified one-way costs shifting where permission is required
44.16
(1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest;
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court and to the extent that it considers just, where.....
(b) a claim is made for the benefit of the claimant other than a claim to whom this Section applies."
Other changes, and other differences between personal injury claims and discrimination claims
The Claimant's experience, and the problems that the current costs regime gives rise to for discrimination cases
Has the Defendant taken a decision that QOCS should not be extended to discrimination claims in the County Court?
The evidence
"..... this lack of data is a significant factor limiting our ability to make careful, informed and appropriate decisions on possible changes to the comprehensive statutory reforms enacted by Parliament."
"20. The second area of concern is that QOCS (or some other form of costs protection) should be extended beyond PI. There are clear attractions for claimants and their lawyers in being able to litigate at no or reduced costs risk. However, there is also a clear risk that by extending costs protection that some of the benefits of the Part 2 reforms would be undermined: the shifting of costs back to defendants, an overall increase in costs and the potential for prolonging rather than settling litigation. The Government would wish to be satisfied that these risks have been addressed before considering the case for extending costs protection further.
21. Other suggestions for change were proposed to the rules and regulations, as set out in this report. The Government will keep them under review, as it will all aspects of the reforms more generally. While it is not proposing to make immediate changes, it may be that some of these issues are revisited at a later stage."
"107. It has been argued that QOCS should be extended to discrimination claims under the Equality Act 2010 due to concerns about access to justice and ensuring discrimination and human rights could be enforced. Claimant lawyers provided case studies to highlight the difficulties in bringing such claims post-LASPO. They stated that the ATE insurance premium could often exceed the level of damages awarded in these cases, which would act as deterrent in claimants' willingness to bring claims. They also stated that claimants' compensation was not a driving factor in bringing discrimination claims, rather it was primarily about asserting and enforcing their rights."
(1) Reducing the costs of civil litigation;
(2) Rebalancing the costs liabilities between claimants and defendants;
(3) Promoting access to justice at proportionate cost;
(4) Encouraging early settlement; and
(5) Reducing unmeritorious claims.
"160. In relation to costs protection, stakeholders generally stated that QOCS was currently working well. Some highlighted issues with the use of 'fundamental dishonesty' allegations or insinuations by defendants, and others highlighted issues with the late withdrawal of claims by claimants. In terms of any potential extension of costs protection there are clear attractions for claimants and their lawyers in being able to litigate at no or reduced costs risk. However, there is also a clear risk that by extending costs protection some of the benefits of the Part 2 reforms would be undermined: the shifting of costs back to defendants, an overall increase in costs and the potential for prolonging rather than settling litigation. The Government would wish to be satisfied that these risks have been addressed before considering the case for extending costs protection further.
"161.As has been stated, the control of civil litigation costs (and funding) is an ongoing process so the issues raised in this process have been noted and will be kept under review."
"The current position is that the government is considering costs protection for discrimination claims and has not made a decision as to whether to extend costs protection to some or all discrimination claims, with QOCS or any other model of costs protection, or indeed any other alternative. Our thorough consideration of the matter of costs protection for discrimination claims is an important part of our discharging of the PSED."
In light of the evidence, was a decision taken in the Part 2 PIR not to extend QOCS to discrimination claims and/or was there a failure to extend QOCS to discrimination claims?
The Grounds
The pleading point
"The Defendant does not address each of the five separate grounds of challenge, as the answer is the same to all of them, namely that the Defendant has not acted unlawfully in the manner claimed as it is still in the process of making its decision in the matter."
"67. I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.
68. In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of "evolving" during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.
69. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation."
(1) This is a case of general public importance;
(2) The outcome of this case, if the Claimant succeeds, will not just (and, indeed, will not primarily) adversely affect the Defendant. The effect of a rebalancing of the costs regime applying to claimants and defendants in discrimination cases in the County Court will potentially have an impact upon defendants to such cases. Litigation will be more costly for them. It would be wrong, in my view, in those circumstances, to shut out potential defences because of a pleading objection. The issues need to be ventilated as fully as possible. As Singh LJ said in Talpada, "There is clearly an important public interest [in judicial review cases] which must not be overlooked or undermined.";
(3) No injustice will be caused by permitting the Defendant to advance the full range of its arguments in defence of the Claimant's claim, because:
(a) As I have already said, I have accepted the factual premise upon which the Detailed Grounds are based. The Defendant's skeleton argument builds upon that factual premise and is not inconsistent with it. In my judgment it is fair to say that the Defendant's more detailed arguments grow organically out of the case as summarised in the Detailed Grounds. They are not entirely new points;
(b) The witness statement of Mr Wright, which was filed at the same time as the Detailed Grounds, sets out the factual background upon which the Defendant's more wide-ranging arguments is based, and sets out reasons why the Defendant says that the current costs regime is justified and proportionate. The Claimants were provided with this witness statement on or about 17 November 2019, more than three months before the hearing in this case; and
(c) The Claimant was not taken by surprise by the Defendant's wider arguments and she was able to deal with them. The Claimant filed a second witness statement of Ms Whitfield, dated 22 November 2019, to address sections of Mr Wright's statement which went to the issue of justification. Ms Monaghan QC's skeleton argument anticipated and dealt with the justification arguments that were put forward by the Defendant, and she was able to deal with these issues fully in her oral submissions (without resiling from the position that the Defendant was de-barred from relying on them). Very properly, she did not suggest that she was unable to deal with the points. The Defendant served its skeleton argument on the Claimant 14 days before the hearing date.
Ground 1: Has the Defendant failed to comply with the Public Sector Equality Duty ("PSED")?
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
….
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—disability……."
"In my judgment, it is important to emphasise that [the PSED] is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals"
"… what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court …. the PSED, despite its importance, is concerned with process not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse."
"public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required."
Ground 2: Did the Defendant act irrationally in deciding not to extend QOCS to discrimination claims in the County Court, or in failing to do so?
(1) Issues of costs protection are complicated by the fact that they involve a balancing of the interests and aspirations of claimants and defendants, respectively. Something that works to the benefit of claimants may work to the disadvantage of defendants;
(2) Three stated aims of the 2013 reforms were (1) to reduce the costs of civil litigation, (2) to rebalance the costs liabilities between claimants and defendants, (3) whilst ensuring that parties with a valid case can still bring or defend a claim. The extension of QOCS to discrimination cases would help to achieve the third of those objectives but it is not a "given" that they would achieve the first two. It is for the Defendant to achieve a balance between these three potentially conflicting objectives;
(3) At present at least, the possibility cannot be entirely excluded that the extension of QOCS to discrimination claims might increase unmeritorious claims, unduly increase the costs to defendants, or reduce early settlement of cases. This would run counter to other stated aims of the 2013 reforms. In particular, a claimant could conduct the litigation in such a way that s/he could be sure that the costs of the defendant would mount up, without being subject to any significant risk that the claimant would end up paying those costs;
(4) Not all defendants to discrimination claims, by any means, have deep pockets. For example, the Claimant referred in her evidence to bringing a disability discrimination claim against a local café;
(5) The issue arises as to whether the interests of claimants in discrimination claims in the County Court are adequately protected by the combination of the no-costs jurisdiction in the small-claims track, the availability of CFAs, which permit success fees of up to 100%, and the availability of legal aid for those whose incomes are low;
(6) Even if QOCS was extended to discrimination claims, this would not solve, at a stroke, all of the problems facing potential claimants. As explained above, the extension of QOCS to discrimination cases would be unlikely to solve the problem that such cases are unremunerative for solicitors and so that it is difficult to find solicitors willing to take such cases; and
(7) The Defendant is not faced with the stark, binary, choice, between extending QOCS to discrimination claims or leaving things exactly as they are. There may be other forms of additional costs protection which may be regarded as preferable to QOCS. If QOCS is extended to discrimination claims, the question will arise as to whether this should be accompanied by a reduction in the cap on success fees, and, if so, what the new cap should be.
Grounds (3) and (5): Is the Defendant in breach of Article 6 and/or of the common law right of access to a court, by reason of the decision not to extend QOCS to discrimination claims and/or in failing to extend QOCS to discrimination claims?
Article 6 of the ECHR and the right of access to a court
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"56. The applicant did have access to the High Court and then to the Court of Appeal, only to be told that his actions were barred by operation of law (see paragraphs 17 and 18 above). To this extent, he thus had access to the remedies that existed within the domestic system.
57. This of itself does not necessarily exhaust the requirements of Article 6(1). It must be still be established that the degree of access afforded under the national legislation was sufficient to secure the individual's 'right to a court' , having regard to the rule of law in a democratic society.
Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals' . [taken from Golder, at paragraph 38] In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention's requirements rests with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field.
Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigants or the prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek, through the use of public funds, to ensure total equality of arms between the parties to the proceedings, as long as each side is afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage vis-à-vis the adversary (see Steel and Morris v. the United Kingdom, … §§ 59-62, with further references)."
The Claimant's argument based on Article 6
Lawrence v Fen Tigers and others (No 3)
"That concept [margin of appreciation] does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court."
"it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
"In Swift v Secretary of State for Justice [2014] QB 373, para 35 Lord Dyson MR said:
"the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim referred to at para 23 above. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more."
"58…..In such cases, they are bound to have to draw a line somewhere in order to mark where a particular interest prevails and another one yields. Making a reasonable assessment of where to draw the line, especially if that assessment involves balancing conflicting interests falls within the state's wide discretionary area of judgment. As Lord Bingham said in Brown v Stott [2003] 1 AC 681, 703:
"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies …"
"59. The choices made by Parliament in enacting the 1999 Act followed a wide consultation to enable it to evaluate the various interests at stake. Similarly, in formulating the CPR and the CPD, the relevant rule-makers were (following consultation) in the best position to determine how to effect the reforms and how to strike the appropriate balance between the different types of litigant."
Discussion on the Article 6 argument
(1) Reducing the costs of civil litigation;
(2) Rebalancing the costs liabilities between claimants and defendants;
(3) Promoting access to justice at proportionate cost;
(4) Encouraging early settlement; and
(5) Reducing unmeritorious claims.
(1) The question whether the means is proportionate is to be decided by the court. In the domestic court, in contrast to the Strasbourg court, there is no margin of appreciation;
(2) However, the principle of proportionality does not entitle the courts simply to substitute their own assessment for that of the decision maker. The extent to which the domestic court will respect the judgment of the primary decision maker will depend on the context;
(3) it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter;
(4) The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more. Something may be proportionate even if it is not fair for everyone. Put bluntly (and to use words that do not appear in Lawrence) there is no requirement, in order for something to be proportionate, that everything is for the best in the best of all possible worlds;
(5) The court, while being vigilant to protect fundamental rights, must give considerable weight to informed legislative choices, at least where state authorities are seeking to reconcile the competing interests of different groups of society. This observation has particular resonance in the present case, as the issue is how to reconcile the competing interests of claimants and defendants;
(6) Where the balancing of costs in litigation is concerned, Parliament and the relevant rule-makers of the CPR were (following consultation) in the best position to determine how to effect the reforms and how to strike the appropriate balance between the different types of litigant;
(7) A legislative or regulatory scheme may in some circumstances be compatible with the Convention even it operates harshly in individual cases; and
(8) There is no perfect solution to the problem of how best to enhance access to justice following the withdrawal of legal aid for most civil cases. Indeed, it is impossible to come up with a solution which would meet with universal approval.
The common law right of access to the courts
"That is consistent with the principle of domestic law that such rights may be curtailed only to the extent reasonably necessary to meet the ends which justify the curtailment."
Is it a complete answer to this part of the Claimant's case to say that the common law right of access to the courts does not give rise to a free-standing ground of review?
"53. In making a decision whether to support or oppose the designation of an individual by the sanctions committee, the Foreign Secretary is not exercising a power derived from an Act of Parliament. He is acting on behalf of the Government in its capacity as a member of an international body, the Security Council.
54. Consequently, we are not in an area where the "principle of legality" explained in such cases as R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 , 573–575 (per Lord Browne-Wilkinson) and 587–590 (per Lord Steyn) and R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 , 131, per Lord Hoffmann, is apposite. That principle applies in cases where a court is asked to construe legislation in a way which may be contrary to human rights embedded in the common law. Lord Hoffmann stated the principle in this way, at p 131:
"the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words are intended to be subject to the basic rights of the individual."
55. As the common law has developed, certain rights have come to be regarded as embedded in our largely unwritten constitution, so as to attract the application of that principle. The process of development of the common law is never complete, because it develops as society changes. But there is sometimes a tendency on the part of lawyers (as there has been in this case) to seek to use the "principle of legality" as a developmental tool providing an additional ground of challenge in a case purely involving questions of common law, ie not a case where the defendant is seeking to justify his action by reference to a statutory power. That is to misunderstand it. The "principle of legality" is a principle of statutory interpretation, derived from the common law."
If there is a free-standing ground of review based on the common law right of access to a court, has the failure to extend QOCS to discrimination cases infringed that right?
Ground (5) Does the current costs regime infringe Article 14?
"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."
"(i) do the facts fall within the ambit of one of the Convention rights; (ii) has the claimant been treated less favourably than others in an analogous situation; (iii) is the reason for that less favourable treatment one of the listed grounds or some "other status"; and (iv) is that difference without reasonable justification—put the other way round, is it a proportionate means of achieving a legitimate aim?"
(a) Treats those pursuing discrimination claims less favourably than those bringing personal injury/Fatal Accidents Act claims (I will call this group "class (a)"); and/or
(b) Disadvantages those with particular protected characteristics, including disability, who are self evidently more likely to bring discrimination claims ("class (b)").
"(i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?"
Discussion on Article 14
Status
"In the majority of cases, it is probably now safe to say that the need to establish status as a separate requirement has diminished almost to vanishing point."
Discrimination: has the Claimant been treated less favourably than others in an analogous situation?
Justification: is the difference in treatment a proportionate means of achieving a legitimate aim?
The standard of scrutiny
"34….while it is well-established that the courts will not hold a difference in treatment in the field of socio-economic policy unjustifiable unless it is "manifestly without reasonable foundation", the cases in which that test - or something like it - has been applied are all cases relating to the welfare benefits system…. This case is not in that category, but rather in the category of social or employment policy, where the courts have not always adopted that test: see, for example, In re G (A Child) (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173."
"35. The courts will always, of course, recognise that sometimes difficult choices have to be made between the rights of the individual and the needs of society and that they may have to defer to the considered opinion of the elected decision maker: see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 , 381."
"29. It follows that a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the Government or Parliament, (at least not in the sense that the expression has been used by ECtHR). The court may, of course, decide that a measure of latitude should be permitted in appropriate cases. Before Andrews J the respondent had relied on the well known statement of Lord Hope of Craighead in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 , 381A–B, where he said:
"difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.""
Applying that standard of scrutiny to the Article 14 issue in the present case
The Intervener's submissions
The Intervener's argument based on UNCRPD
(1) Article 5 of UNCRPD provides that States Parties shall guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds;
(2) The Committee on the Rights of Persons with Disabilities has produced General Comment 6 in respect of Article 5. The Committee's role includes to interpret the Treaty Articles and to issue authoritative statements ("General Comments") to clarify specific provisions within the UNCRPD. Paragraph 22 of General Comment 6 says that appropriate and effective legal remedies and sanctions should be made available by States Parties;
(3) Article 13.1 of UNCRPD provides that States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages;
(4) A report of the Office of the UN High Commissioner for Human Rights which gave guidance for the implementation of Article 13, said (at paragraph 42), "The right to an effective remedy is a central component of the right of access to justice….To have effective remedies, persons with disabilities require: (a) equal and effective access to justice (ie available and accessible complaint mechanisms, investigation bodies and institutions, including independent judicial bodies capable of determining the right to reparation and awarding redress) …..";
(5) Article 31 of UNCRPD states that States Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention…"
Discussion
"…. care is needed to ensure that such a treaty is not seen as a source of substantive domestic legal rights. The point is important because the executive government, which enters into treaties in the name of the Crown, is not generally a source of law save where it exercises powers delegated by Parliament."
Conclusion