ECHR Articles 6, 14 and 1/1/PSED

January 20th, 2020

In R (BMA) v SoS for Health and Social Care (2020) EWHC 64 (Admin), Andrews J held, para 151, that the BMA was entitled to declaratory relief and a quashing order in respect of 2019 Pension Regulations which purported to enable the SoS to make a suspension decision in respect of pension benefits after criminal charge, but before any conviction. The BMA established to the Judge’s satisfaction that (1) the power to suspend pension benefits in the form in which it was introduced by the 2019 Regulations was a breach of ECHR Article 14, in conjunction with Article 1 of Protocol 1; (2) that this was compounded by an absence of appropriate procedural safeguards, as required both by ECHR Article 6 and by the common law principles of natural justice; (3) that although the Article 6 deficiencies might have been capable of cure had they stood alone, the Court was unable to use the wide powers, given to the Court under Section 3(1) of the Human Rights Act 1998, to interpret the legislation in a manner which would render it compatible with the ECHR; and (4) the SoS also failed to comply with the PSED, under Section 149 of the Equality Act 2010, when making the 2019 Regulations, which was an entirely independent ground upon which the decision to introduce the power was unlawful.

There were four grounds of challenge. Andrews J took together ECHR Article 14, read with A1P1, and Article 6.  She said:-

“74. Where the measure complained of is one of social or economic policy, the margin of appreciation afforded to the State is wide. In cases involving decisions about the entitlement of a person or class of persons to welfare benefits or similar, the Court will only strike down a discriminatory rule or measure which is “manifestly without reasonable foundation”: …”

“79. I agree that this is not a case which clearly falls on the state benefits side of the bright line which is said to determine whether the “manifestly without reasonable foundation” test applies. This is not the classic example of a matter of socio-economic policy in which the State must weigh up complex considerations in determining who should receive money out of public funds. This was not a conscious decision taken about the distribution of finite resources. The suspension power deprives someone of receiving a pension to which they are already entitled, and to which they have contributed by percentage deductions from their salary. A decision as to whether that person should receive a pension out of public funds has already been taken by the State. So has the decision as to the age at which they are entitled to draw down a lump sum: 50 or 55, depending on which of the schemes they have joined.

80. Yet there is also some element of social policy involved, at least as regards the ultimate decision to forfeit the pension once the individual has been convicted of a qualifying criminal offence. It is possible to characterise the forfeiture power itself as the product of a policy decision that a certain class of persons, namely, those convicted of qualifying criminal offences, should not receive a public pension (or that they should not receive more than the guaranteed minimum pension) following their conviction. However, that policy is not under challenge. Nor is the aim of the Secretary of State to enact proportionate measures to make that policy more effective. The problem lies in the fact that the suspension power is not commensurate with the existing policy but goes beyond it, and to that extent requires its own justification.

81. It is unnecessary for the resolution of this case to decide what the correct test for assessment of justification should be, because whichever of the tests is applied, and however wide the margin of appreciation afforded to the State, the result is the same. This measure is manifestly without reasonable foundation. It is not simply capable of causing hardship in individual cases; it is inherently unfair. In its present form, it offends against the presumption of innocence and that is something that cannot be put right. It infringes the basic rules of natural justice by permitting the discretion to be exercised by a person with a vested interest, in circumstances in which the decision maker cannot take all material factors into consideration when exercising it, because he will not have the necessary information to enable that to happen. It goes much further than is necessary to achieve the articulated legitimate aim, namely, to ensure the effectiveness of the power to forfeit, should it fall to be exercised, and the flaws in it are incapable of being cured under s.3(1) of the Human Rights Act or otherwise. There is no objective rational justification for it, and such justification as has been advanced by the Secretary of State is woefully inadequate.”

“105. Article 6(1) guarantees a right to an impartial tribunal. Here the decision maker is not impartial, and that lack of impartiality is not of a technical or formal nature. It is no answer to that objection to say that the decision may be challenged by way of judicial review or that the aggrieved party has a right to make a complaint to the Pensions Ombudsman (who has a power to investigate the facts). …

106. The decision to suspend payment is not a decision that involves specialist administrative expertise. It has potentially serious consequences; it involves the deprivation of a valuable property right for an indefinite and potentially lengthy period in the context of unproven allegations of serious criminality, in circumstances where an innocent person will probably not be fully compensated by the subsequent repayment of the money with interest. The decision-maker is not equipped to evaluate the strengths or weaknesses of the criminal case and cannot apply the presumption of innocence because if he does, he would have to assume that the pension could not be forfeited. All he can do is assess the likely impact of suspension on the pensioner and their dependents, which is essentially a fact-finding inquiry. The power to suspend following charge is expressed in extremely broad terms, and although that affords flexibility, which is desirable, the downside is that any decision will be difficult to challenge by way of judicial review. Any challenge to the decision to exercise it will inevitably take time, during which the member will continue to be deprived of his pension benefits, as there is no power in the 2019 Regulations to stay the suspension decision.

107. I can well understand why the right to seek judicial review of a discretion to suspend exercised after conviction might be regarded as an adequate procedural safeguard even in the absence of a right of appeal, because by then the facts and the culpability of the offender will have been determined in the criminal proceedings, which are wholly independent. That situation is very different from the one in which a discretion to suspend is exercised when a person has merely been charged with a qualifying offence. Whilst a decision to forfeit can only be taken after conviction, the practical effect of introducing a power to suspend upon the laying of charges is to bring forward the time at which the process of forfeiture commences to a time long before a criminal court has considered the evidence against the individual concerned. …

108. In such circumstances I take the view that nothing less than a full right of appeal to a court on the merits would suffice to satisfy the requirements of Article 6(1) and the principles of natural justice. … The breaches of Article 6(1) just make an inherently unfair measure even more unfair.”

“114. The primary objection to this discretionary power to suspend payment following charge, rather than conviction, is that it offends against the presumption of innocence just as much as an interim suspension of the payment of salary in those circumstances would do. …”

Ground 2 was breach of the PSED. The Judge found, paragraph 146, that the SoS had “come nowhere near” to fulfilling his duties under the PSED.  Ground 4 was irrationality and breach of the Tameside duty of inquiry, and added little or nothing to the other grounds, with which it substantially overlapped.

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