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||Neutral Citation Number:  EWHC 809 (Admin)
||Case No: CO/124/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Birmingham Civil Justice Centre
33 Bull Street
B e f o r e :
THE HONOURABLE MR JUSTICE SINGH
|| The Queen
(on the application of Pitt and Tyas)
||- and -
||General Pharmaceutical Council
David Hislop QC and Gemma Hobcraft (instructed by Pharmacists' Defence Association) for the Claimants
Karen Steyn QC (instructed by Capsticks) for the Defendant
Hearing date: 23 March 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Singh :
- The Claimants, who are two pharmacists and are also members and officials of the Pharmacists' Defence Association, seek permission to challenge the Standards for Pharmacy Professionals, which have been adopted by the Defendant, which is the General Pharmaceutical Council ("the Council"), and are due to come into effect on 1 May 2017.
- Permission has not yet been granted. On 2 February 2017 Lang J ordered that there should be a "rolled-up" hearing. That hearing took place before me on 23 March 2017.
- The Council was established in 2010 to regulate the pharmacy profession and related professions. Its predecessor was the Royal Pharmaceutical Society of Great Britain.
- The current version of the Standards of Conduct, Ethics and Performance issued by the Council dates from July 2012. Of particular relevance for present purposes are the following. Standard 3 is headed 'Show respect for others'. Para. 3.2 states that: "You must … [t]reat people politely and considerately". Standard 6 is headed 'Be honest and trustworthy'. It states that: "Patients and the public put their trust in pharmacy professionals. You must behave in a way that justifies this trust and maintains the reputation of your profession." There are then set out numbered sub-paragraphs from 6.1 to 6.9. By way of example, para. 6.1 states that: "You must … [a]ct with honesty and integrity to maintain public trust and confidence in your profession". Another example, para. 6.5 states that: "You must … [m]eet accepted standards of personal and professional conduct".
- Before leaving the current Standards it should be noted that, as far as I am aware, they have not been challenged as being ultra vires, void for uncertainty or for incompatibility with human rights. Yet the passages I have cited could apply in a pharmacy professional's private life and not only in their professional work or during working hours. A phrase like maintenance of "the reputation of your profession" could also be criticised for being vague and uncertain. As I will explain later in this judgment, in fact it is common to find such concepts in the framework for the regulation of various professions and they are not too vague or uncertain.
- On 13 October 2016 a meeting of the Council decided to adopt the new Standards for Pharmacy Professionals. On 3 November 2016 the Chair of the Council signed off on the final version of the new Standards, which are due to come into force on 1 May 2017.
- Before the new version of the Standards was adopted there was consultation by the Defendant: see the witness statement of Duncan Rudkin, the Chief Executive and Registrar of the Council, at paras. 6 and 20-26. As Mr Rudkin makes clear, the Council conscientiously took into account the responses to the consultation draft of the proposed new Standards and, where it thought it appropriate to do so, made amendments to the draft before the final version of the Standards was approved by the Council.
- Section 60 of the Health Act 1999 ("the 1999 Act") provides that an Order in Council may be made to modify the regulation of any of the health care professions, including pharmacy. Such modifications must be "necessary or expedient" for securing or improving regulation of that profession or the services provided (or contributed to) by that profession. Under section 62 of the 1999 Act such orders are made by way of statutory instruments.
- The relevant order for present purposes is the Pharmacy Order 2010 (SI 2010 No. 231) ("the 2010 Order").
- Article 4(1) established the Council as a body corporate. The principal functions of the Council are set out in Article 4(3). Those functions include:
"(a) to establish and maintain a register of pharmacists …
(b) to set and promote standards for the safe and effective practice of pharmacy at registered pharmacies;
(c) to set requirements by reference to which registrants must demonstrate that their fitness to practise is not impaired;
(d) to promote the safe and effective practice of pharmacy by registrants (including, for example, by reference to any code of conduct for, and ethics relating to, pharmacy); …"
- Article 5 requires the Council to carry out consultation before it sets any standards or requirements under the 2010 Order.
- Article 6 sets out the Council's general duties. Article 6 was amended with effect from 26 September 2016: see the Health and Social Care (Safety and Quality) Act 2015, Sch. 1: Objectives of Regulators of Health and Social Care Professions.
- Article 6(1) makes it clear that: "The over-arching objective of the Council in exercising its functions is the protection of the public." Article 6(1A) then provides that the pursuit of that over-arching objective involves the pursuit of the following objectives:
"(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; …"
- Part 4 of the Order deals with registrations.
- Part 6 of the Order deals with fitness to practise. See in particular Article 51 of the Order on impairment of fitness to practise. Article 51(1) makes it clear that a person's fitness to practise is to be regarded as impaired "only by reason of" the specific matters which are then listed. Those matters include "(a) misconduct". Article 51(4)(b) provides that a person's fitness to practise may be regarded as impaired by reason of matters arising "at any time."
- Article 48, which also appears in Part 6 of the 2010 Order, concerns Standards of Conduct and Performance. It provides that the Council must:
"(a) set standards relating to the conduct, ethics and performance expected of registrants; and
(b) make provision in rules regarding the criteria to which the Fitness to Practise Committee is to have regard when deciding, in the case of any registrant, whether or not the requirements as to fitness to practise are met in relation to that registrant."
- Also of relevance are the General Pharmaceutical Council (Fitness to Practise and Disqualification etc rules) Order in Council 2010 (SI 2010 No. 1615). Those rules set out the procedure for the investigation of allegations of misconduct by pharmacy professionals.
The New Standards
- In the introduction to the new Standards, para. 5 states that there are nine standards that every pharmacy professional is accountable for meeting. The Standards apply to all pharmacists and pharmacy technicians. They apply whatever their form of practice is.
- Of particular relevance in the present case is paragraph 6 of the Introduction which states:
"The standards need to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals."
- Paragraph 7 of the Introduction states that the meaning of each of the standards is explained and there are examples of the types of attitudes and behaviours that pharmacy professionals should demonstrate. It goes on to state:
"The examples may not apply in all situations."
- Also of particular relevance in the present case is Standard 6, which needs to be set out in full:
"Pharmacy professionals must behave in a professional manner
Applying the standard
People expect pharmacy professionals to behave professionally. This is essential to maintaining trust and confidence in pharmacy. Behaving professionally is not limited to the working day, or face-to-face interactions. The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions call for appropriate behaviour at all times. There are a number of ways to meet this standard and below are examples of attitudes and behaviours expected.
People receive safe and effective care when pharmacy professionals:
- Are polite and considerate
- Are trustworthy and act with honesty and integrity
- Show empathy and compassion
- Treat people with respect and safeguard their dignity
- Maintain appropriate personal and professional boundaries with the people they provide care to and with others".
The Grounds of Challenge
In this claim for judicial review the Claimants seek an order quashing:
(1) those parts of the new Standards that require that they need to be met at all times and not only during working hours;
(2) the parts of Standard 6 about communication, empathy, compassion and respect and dignity and personal boundaries insofar as they apply to non-work related matters.
The Claimants originally advanced two grounds of challenge. First they contended that the decision of the Council to agree the new Standards (and the new Standards themselves) are ultra vires/unlawful given that their content includes the requirement that the standards need to be met at all times. Secondly they contended that the decision of the Council to agree the new Standards is, for the same reason, unlawful as being contrary to Articles 8, 10 and 11 of the European Convention on Human Rights, as set out in Sch. 1 to the Human Rights Act 1998 ("the HRA").
In the grounds as formulated it appeared that the Claimants were also complaining that the Defendant had not properly taken into account their Convention Rights: see para. 47(b). However, that particular submission was not pursued in the skeleton argument filed on their behalf.
Furthermore, it was made clear at the hearing before me by Mr David Hislop QC, who has appeared with Ms Gemma Hobcraft for the Claimants, that they no longer pursue a number of arguments that were set out in their skeleton argument. These were the argument based on Article 11 of the Convention rights (mentioned in para. 18 of the skeleton argument); the argument based on inadequate consultation (para. 59); irrationality and proportionality (paras. 48-58).
However, at the hearing before me, Mr Hislop also made clear that the Claimants do pursue an argument that the revision to the Standards is unlawful for uncertainty (paras. 33-46 of the skeleton argument). Although that argument was treated in the skeleton argument as part of Ground 1, it seems to me that, on analysis, it is better regarded as a distinct issue and that is how I propose to address it.
The Defendant's Response
The Defendant, which has been represented before me by Ms Karen Steyn QC, submits that the new Standards are not ultra vires or unlawful. Ms Steyn submits that they are within the ample power conferred upon the Council by the relevant legislation. She also submits that they are not unlawful on the ground of uncertainty.
Ms Steyn also submits that the Claimants are not entitled to rely upon the Convention rights in the present proceedings, by virtue of the requirement that they must be "victims" within the meaning of section 7 of the HRA.
Further, and in any event, the Defendant submits that, pursuant to the strong obligation of interpretation in section 3 of the HRA, the Standards must, so far as possible, be read and given effect in a way which is compatible with the Convention rights. When that is done, the Defendant submits, there will be no breach of the Convention rights. Accordingly, the Defendant submits, it has not acted unlawfully, contrary to section 6 of the HRA, as alleged by the Claimants.
It therefore appears to me that the following four issues arise:
(1) Are the new Standards ultra vires?
(2) Are the Standards unlawful on the ground of uncertainty?
(3) Are the Claimants entitled to rely on the Convention rights?
(4) Is there a breach of the Claimants' Convention rights?
The First Issue: Are the Standards ultra vires?
Mr Hislop submits that the new Standards are ultra vires the 2010 Order because they go beyond what is permitted by the power of regulation conferred upon the Council. He submits that the Council has no power to set standards of politeness on pharmacy professionals in their private lives unconnected to their work as such, in other words to apply "at all times" and "not limited to the working day." He further submits that, if Parliament wishes to enable a regulatory body to set standards for a professional person's conduct in their private lives, it must spell this out clearly. He relies in that context on a suggested analogy with the power to regulate standards in local government, which was considered by Collins J in Livingstone v Adjudication Panel for England  HRLR 45, at para. 29.
Mr Hislop submits that there are two important stages at which the Standards have an impact on the life of a pharmacy professional. The first stage is the declaration stage, when a pharmacist must make a declaration that he or she has complied with the Standards. Mr Hislop submits that, if the Standards have to be complied with at all times, the Claimants could not in good faith make the appropriate declaration if, for example, they have not been polite to other people such as their neighbours in a boundary dispute or to members of their family over a board game at Christmas. Other examples are given in the witness statements of each of the Claimants.
The second stage is the stage at which any issue of impairment of a pharmacy professional's fitness to practise may arise and, in particular, the issue of "misconduct." Mr Hislop submits that the Standards impermissibly seek to extend the definition of misconduct to reach into trivial matters which could not have any bearing on the fitness of a person to practise as such. In this context he relies on the well-established meaning of misconduct in R (Remedy UK Ltd) v General Medical Council  Med LR 330, a decision of the Divisional Court which concerned doctors, in particular at para. 37 (Elias LJ). In particular Mr Hislop reminds this Court that at para. 37(1) Elias LJ said that:
"Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession."
The judgment of Elias LJ was based principally on the decision of the Privy Council in Roylance v General Medical Council (No.2)  1 AC 311, at pp.330-333 (Lord Clyde).
Mr Hislop submits generally that the new Standards are ultra vires because they go too far in intruding on private matters. He submits more specifically that the Defendant has sought in effect to go beyond what Article 51 of the 2010 Order contemplates will constitute misconduct.
I do not accept those submissions on behalf of the Claimants.
First, in my view, the Claimants' interpretation of the new Standards is simply wrong. The Standards need to be interpreted fairly and as a whole. They also need to be interpreted in a way which is rooted in real life and common sense. This is not least because they are intended to guide the conduct of pharmacy professionals in a practical way; they are not addressed primarily to lawyers. The relevant obligation in the Standards is to behave appropriately at all times. As the Standards themselves make clear, the examples given are just that. They are intended to be helpful to illustrate what may or may not be appropriate conduct. If the Claimants are not polite over a board game they will not need to lose sleep over whether they can make the relevant declaration that they have complied with the Standards.
On the other hand, there may be occasions which occur outside normal working hours and perhaps in a context which is completely unrelated to the professional work of a pharmacist which may be relevant to the safe and effective care which will be provided to patients. For example, if a pharmacy professional engages in a racist tirade on Twitter, that may well shed light on how he or she might provide professional services to a person from an ethnic minority.
It is important to recall that Article 51(4) of the 2010 Order expressly states that fitness to practise may be impaired as a result of matters arising "at any time."
In my view, the new Standards do not purport to extend the definition of "misconduct" as it has been understood by all concerned on the basis of well-established authority, nor do they have that effect.
In any event, the Council's function in setting standards is not confined to preventing misconduct. Article 48(3)(a) of the Order makes it clear that a failure to comply with the standards set by the Council "is not, of itself to be taken to constitute misconduct …"
The skeleton argument filed on behalf of the Claimants themselves accepts that there is a need for Standards that provide that some out of work behaviour can be censured by the regulator (para. 30). The Claimants themselves make this sensible point in their witness statements. Mr Pitt says at para. 3 of his statement: "I accept that being a registered healthcare professional means that I cannot separate my private from my professional life." Mr Tyas says at para. 3 of his statement: "I accept that in order to maintain public confidence in the Pharmacist profession, it is necessary for regulatory authority to include provision to enable action where a Pharmacist's competence or conduct outside of his/her hours of professional work as a Pharmacist may impact upon his/her fitness to practise …" However, the Claimants feel that the new Standards go too far.
As Ms Steyn submits, the Council has the express statutory objectives of promoting and maintaining public confidence in the pharmacy profession and of promoting and maintaining professional standards and conduct: see Article 6 of the 2010 Order. The Council is given a broad discretion by Article 48 to set the standards which are appropriate "relating to the conduct, ethics and performance expected of registrants."
In my judgement, the Council has done nothing to exceed that broad discretionary power. The new Standards are clearly not ultra vires. The suggestion to the contrary is unarguable.
The Second Issue: Are the Standards unlawful on the ground of uncertainty?
Quite properly and understandably the Claimants submit that they, and others in their profession, should know what standards they need to adhere to. This is so not least because they have to make a declaration from time to time that they comply with those standards. On their behalf Mr Hislop submits that the new Standards have introduced an unacceptable degree of uncertainty and on that ground are unlawful.
The difficulty with this submission is that, as Mr Hislop himself accepts, "[t]his is not an area in which an absolute precision can be looked for": see Roylance at p.330 (Lord Clyde).
Indeed I would suggest that any attempt to provide absolute precision would be undesirable given the context, which is regulation of a profession in the public interest. One cannot legislate for all circumstances in advance. There needs to be sufficient flexibility so as to protect the public interest as new factual situations arise.
I can understand that this may be frustrating to those who are the subject of regulation. However, it is frequently the case that there will be a standard set for a professional person or body such as that they must not bring their profession "into disrepute." As I have mentioned, there is already such a requirement in the context of pharmacy in the current version of the Standards. Such a general standard is usually thought to be necessary in order to retain the flexibility needed to protect the public reputation of a profession.
In the context of delegated legislation, it is well-established that: "A regulation or byelaw whose meaning cannot be ascertained with reasonable certainty is ultra vires and void." See Wade and Forsyth, Administrative Law (11th ed., 2014), p.741, citing McEldowney v Forde  AC 632, at p.665 (Lord Diplock).
Some assistance can also be gained from the jurisprudence of the European Court of Human Rights on the concept of legal certainty in the context of the Convention rights. There is a similar concept in the jurisprudence of the Court of Justice of the European Union and many other jurisdictions: for example in the United States there is a doctrine that a law may be void for vagueness. What is clear is that the concept of legal certainty does not require absolute precision. It requires that laws (and by analogy other instruments that set out standards to regulate human behaviour) should be sufficiently certain that a person can reasonably know, if necessary after taking advice, what they must do in regulating their affairs so as to comply with them. See Sunday Times v United Kingdom (1979-80 ) 2 EHRR 245, at para. 49:
"In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
In my judgement, it is not arguable that the new Standards are void for uncertainty.
The Third Issue: Are the Claimants entitled to rely on the Convention rights?
This issue depends on whether the Claimants are properly to be regarded as "victims" within the meaning of section 7 of the HRA. Section 7(1) provides that 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 or tribunal; or
(b) rely on the Convention rights or rights concerned in any legal proceedings,
Section 7(3) provides that, if the proceedings are brought on an application for judicial review, where the test for standing is one of sufficiency of interest, "the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of the act."
but only if he is (or would be) a victim of the unlawful act."
Section 7(7) makes it clear that, for the purposes of that section: "a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."
That provision is unusual within the scheme of the HRA in that it is expressly anchored to the meaning which would be given to that word in Article 34 of the Convention. This is in contrast to the general approach which the HRA takes to the jurisprudence of the European Court of Human Rights in section 2, which is that it must be taken into account but not that it is binding on domestic courts.
Article 34 of the Convention provides that:
"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. …"
According to the established jurisprudence of the European Court of Human Rights the requirement that a person must be a victim of an alleged violation of Convention rights requires that he or she is directly and personally affected by it. It is clear that an actio popularis is not permitted under the Convention. It is also clear that a representative action cannot be brought on behalf of others who may be victims. However, the requirement that a person must be a victim has been interpreted and applied in a flexible way to avoid the injustice that would result if an unduly rigid approach were taken. In some situations the Court has accepted that a person may be "a potential victim." See the summary of the general principle and the recognised exceptions to it which was given by the Court in Senator Lines GmbH v 15 EC Member States (2004) 39 EHRR SE3, at p.20.
So, for example, where the applicant does not know whether his or her rights in Article 8 have actually been interfered with because the very nature of the alleged violation is that there has been secret interception of telephone calls, that will suffice: see Klass v Germany (1979-80) 2 EHRR 214.
Another example is where the very existence of legislation making it a criminal offence to engage in consensual homosexual acts constitutes a daily and continuous interference with the right to respect for private life. An example of such a case was Norris v Ireland (1991) 13 EHRR 186. In that situation an applicant does not have to wait to be prosecuted, still less convicted under that legislation before being able to claim that he or she is a victim. This is because the legislation is inherently and necessarily either a breach of the Convention or it is not. The question of proportionality has to be assessed in relation to the legislation itself. It is not a question of assessing the proportionality of the particular interference with the applicant's rights on the facts of an individual case.
A third example to be found in the Strasbourg caselaw is where a person is to be deported to a third state, which is not a party to the Convention, but where there is a real risk of a violation of Article 3 or potentially other rights in the Convention such as those in Article 8, as the Court recognised in Senator Lines. For example it was held in Chahal v United Kingdom (1997) 23 EHRR 413 that the returning state will be responsible for a breach of Article 3 even though it would not itself be doing anything that constitutes torture or inhuman or degrading treatment. Such a case makes it clear that, in certain circumstances, a potential victim can bring proceedings under Article 34, even though he or she has not in fact been tortured or otherwise treated in a way which violates Article 3. But this is because otherwise the substantive protections in that provision would be rendered futile. It is the essence of the substantive complaint against the returning state that the violation would consist of deportation in circumstances where there is a real risk of a violation of Article 3. One does not have to wait for the torture or inhuman or degrading treatment actually to take place.
In my judgement, none of those situations is analogous to the present case. In Senator Lines, at pp.20-21, the Court emphasised that, where an applicant wishes to bring himself within one of the recognised exceptions to the general principle, "he must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient …" I have considered with care what each of the Claimants says about this in his witness statement. I do not regard those statements as providing the convincing evidence of the likelihood which is required for either of them to be considered a victim for the purposes of the Convention or the HRA.
Nor is this case analogous to Norris. It cannot be said that the new Standards are in themselves inherently and necessarily incompatible with the Claimants' rights in Articles 8 and 10. On their behalf it is conceded that there may in principle be circumstances in which it would be appropriate to regulate what pharmacy professionals do even in their private lives and outside the professional context, because it may be relevant to their fitness to practise their profession. The question whether that is so or not will therefore depend on a close analysis of the facts of a particular case and, in particular, an assessment of the proportionality of any interference with the rights in Articles 8 and 10 in that case. That is an exercise which cannot be done in advance and in the abstract. It requires examination of the concrete facts of a particular case.
Mr Hislop sought to rely on a number of cases in which the courts of this country have held that it may be unlawful for the executive to adopt a policy which creates "an unacceptable risk" of unfairness, for example in the context of applicants for asylum: see e.g. the decision of the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department  1 WLR 2219. However, that was a case which did not concern the Convention rights as such and there was no need for there to be any consideration of the issue of whether the applicant was a "victim." If it had been necessary to address that issue, it is doubtful to say the least that a representative action such as that could have been brought.
Furthermore, it should be noted that the Court of Appeal has explained the line of authority which began with the Refugee Legal Centre case as being "essentially concerned with procedural fairness" and cannot assist a claimant who wishes to challenge "the substance of the policy." See R (Haidar Ali Hussein) v Secretary of State for Defence  EWCA Civ 1087, at para. 69 (Lloyd Jones LJ).
In order to meet this difficulty Mr Hislop also sought to rely on a line of authority that holds that it may be unlawful to adopt a policy which creates an unacceptable risk of a breach of Article 3 or Article 8: see e.g. BK and RH v Secretary of State for Justice  EWCA Civ 1259, at paras. 54 and 73. However, that line of cases, which began with the decision of the House of Lords in R (Munjaz) v Mersey Care NHS Trust  2 AC 148, was explained in Haidar Ali Hussein at paras. 70-71. Citing the earlier judgment of Richards LJ in R (Tabbakh) v Staffordshire and West Midlands Probation Trust  1 WLR 4620, Lloyd Jones LJ explained that the test of significant risk in a case like Munjaz should not be confused with the principle in cases such as Refugee Legal Centre.
In any event, I would observe that none of the cases on which Mr Hislop relies was concerned with the issue of the meaning of a "victim" for the purposes of the Convention or the HRA and none of those cases therefore contains any discussion of the jurisprudence of the European Court of Human Rights on that issue. In the present case I do have to address that issue. My duty is clear, as set out by Parliament in section 7 of the HRA.
Accordingly I have reached the clear conclusion that the Claimants cannot be regarded as victims of the alleged violations of Articles 8 and 10 in this case. They are therefore not entitled to rely on Convention rights in these proceedings. It is appropriate to decide this issue as a threshold issue, not least because this has been fully argued at a "rolled-up" hearing. I therefore refuse permission on this ground too.
The Fourth Issue: Is there a breach of the Claimants' Convention rights?
Strictly speaking this issue does not arise in view of my conclusion on the third issue. However, I will address it briefly since it was argued before me, both in writing and at the hearing.
As I have already indicated in addressing the third issue, it is impossible to say that the new Standards are inherently and necessarily incompatible with the Convention rights which are invoked, namely the right to respect for private life in Article 8 and the right to freedom of expression in Article 10. Whether their application to any particular case will breach those rights will depend on the facts of that case. In particular, there is likely to be an intensely fact-sensitive assessment which will be required when applying the principle of proportionality.
It should also be noted that the Standards do not have the force of law, still less of primary legislation. If and in so far as their application to the facts of a particular case does breach the Convention rights, the scheme of the HRA makes it clear that the Standards cannot lawfully be applied and to that extent would have to give way to the legal rights which are set out in the HRA.
That follows from the obligation on the Defendant, as a public authority, to act in a way which is compatible with the Convention rights, in section 6 of the HRA.
There would be no defence that the Defendant would be able to invoke that it was, for example, giving effect to a provision of primary legislation that could not be interpreted in a way which is compatible with the Convention rights. There is no such primary legislation in the present context, since nothing in the 1999 Act would prevent an interpretation or application of the Standards that was compatible with the Convention rights.
Nor is there any secondary legislation that would prevent an interpretation or application of the Standards that was compatible with the Convention rights. The first port of call would be section 3 of the HRA, which requires that the 2010 Order must, so far as possible, be read and given effect in a way which is compatible with the Convention rights. It is plainly possible to give the Order such an interpretation and effect, since the general power in the Order to set standards for the pharmacy profession does not permit the Defendant to do so in a way that violates their Convention rights. Even if that were wrong, the 2010 Order is only secondary legislation, not primary. It does not fall into the limited category of secondary legislation which, under the HRA, is to be treated in the same way as primary legislation which cannot be given a compatible interpretation. In other words, the remedy would not be limited to a declaration of incompatibility under section 4. The result would be that the secondary legislation would have to be disapplied to the extent that it was incompatible with the Convention rights.
The position therefore is that the Claimants need have no concern that their Convention rights could or would be breached by the implementation of the new Standards. They cannot have that effect.
For the reasons set out above, this application for permission is refused.
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