England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
MR JUSTICE STANLEY BURNTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 March 2005

Lord Woolf CJ :

This is a judgment of the Court to which all members have contributed.

1. This is an appeal by Joseph Taylor, a tenant, against an order for possession made in respect of an agricultural holding, Pollards Farm, near Preston in Lancashire. The order was made by Stanley Burnton J on 7 April 2004.
2. The Claimant in the proceedings is the Lancashire County Council, the landlord and owner of Pollards Farm, a parcel of land consisting of a house and buildings situated in seventy-two acres.
3. The claim for possession started by the issue and service on 21 January 2000 of Particulars of Claim following a notice to quit dated 16 January 1996. In his defence and counterclaim Mr Taylor raised issues as to the compatibility of the Agricultural Holdings Act 1986 ("the 1986 Act") and subordinate legislation under it with the European Convention on Human Rights (the "Convention") and the Human Rights Act 1998 ("HRA"). For this reason the Secretary of State for Environment Food and Rural Affairs intervened in the proceedings. We shall refer to the parties throughout as the County Council, Mr Taylor and the Secretary of State.
4. The factual background is as follows. Mr Taylor and his wife live in the house at Pollards Farm and have occupied the holding since 1962 pursuant to a written tenancy agreement dated 19 October 1962. The agreement granted Mr Taylor a tenancy from year to year. The area of land has altered from time to time, the alterations being the subject of two further written agreements.
5. By clauses 4(13), 4(20) and 4(21) of the agreement Mr Taylor agreed to use the holding primarily as a dairy and mixed holding and not to engage in any trade or business other than agriculture, and not to use the holding otherwise than for agriculture.
6. Mr Taylor's tenancy was (or on his case is) an agricultural holding within the meaning provided by the agricultural holdings legislation. Since 1986 agricultural holdings have been governed by the 1986 Act. In February 1990 the County Council discovered that Mr Taylor was carrying on the business of processing, cartoning/bottling and the distribution of milk and fruit juices that had not been produced on the holding. On 4 May 1990 the County Council served on Mr Taylor the first of a number of notices to remedy alleged breaches of the tenancy based on that use of the land. Subsequently, notices to quit were served pursuant to Case D of Part I of Schedule 3 of the 1986 Act. In May 1990 Mr Taylor was advised by solicitors instructed by a land agent acting for him that the activities carried on by him were not breaches of the tenancy agreement. The solicitors further advised Mr Taylor to apply to the court for a declaration that he was not in breach of the tenancy agreement. In the event, at that stage, Mr Taylor took no action.
7. In 1994 three further notices to remedy breaches of the tenancy agreement were served on Mr Taylor by the County Council. Based on each of those notices, the County Council served three notices to quit, the last of which was dated 16 January 1996 to take effect on 2 February 1997. Mr Taylor, as was his right, applied for statutory arbitration under the 1986 Act in relation to each of the notices to quit. An arbitrator was appointed who, by his award dated 10 March 1998, determined that the last notice to quit was valid and effective.
8. The award was challenged by Mr Taylor in the county court. His claims were dismissed by His Honour Judge Gee on 10 September 1999. So far all the events occurred prior to the HRA coming into force on 2 October 2000. Mr Taylor appealed but his appeal was dismissed by the Court of Appeal on 9 February 2001. On 25 July 2001 the House of Lords dismissed Mr Taylor's petition for leave to appeal the decision of the Court of Appeal.
9. In the meantime the County Council issued the proceedings which are the subject of this appeal seeking an order for possession. It is common ground that if the human rights issues are resolved against Mr Taylor there is no defence to the County Council's claim for possession and the order of the judge must stand.

The Agricultural Holdings Legislation

10. The human rights issues in this appeal are founded on what are said, on behalf of Mr Taylor, to be discriminatory provisions contained in the 1986 Act. The judge, in his judgment, dealt with the relevant statutory provisions of the 1986 Act. His summary of the legislation and its effect are not in dispute. Therefore, it is unnecessary for us to deal with it in as much detail as the judge.
11. The Agricultural Holdings legislation applies, in general, only to tenancies beginning before 1 September 1995. Tenancies beginning on or after 1 September 1995 are subject to a completely different statutory regime created by the Agricultural Tenancies Act 1995.
12. The 1986 Act was a consolidating Act. It provided that termination of a tenancy by the landlord may take place only by the service of a notice to quit. It further provided a distinction between two different kinds of notice to quit. The first kind is a notice to quit served pursuant to section 26(1). Such a notice permits a tenant (within a certain time limit) to serve a counter-notice that the notice to quit shall not have effect unless, on an application by the landlord, the Agricultural Land Tribunal ("the Tribunal") consents to its operation. The Tribunal may only consent to the operation of the notice to quit if it is satisfied that one or more of the justifications for terminating the tenancies specified in section 27(3) is made out. Even where the Tribunal is satisfied as to one or more of the justifications it is required to withhold its consent if it appears to it that a "fair and reasonable landlord would not insist on possession'' (section 27(2)).
13. Section 26(2) excludes from the above statutory provisions notices to quit based on "Cases" set out in Part I of Schedule 3. Case D in Part I of Schedule 3 is the Case relied on by the County Council in respect of the notice to quit served on Mr Taylor.
14. A tenant given a notice to quit based on any of the eight Cases in Schedule 3 may challenge the notice by applying for the issue of its validity to be determined by arbitration. Arbitration under the 1986 Act is dealt with by sections 83, 84 and subordinate legislation made under section 29. The relevant regulations made under section 29 are the Agricultural Holdings (Arbitration on Notices) Order 1987 ("the Arbitration Order").
15. On its face Case D deals with notices to quit served on the basis of a failure by a tenant to comply with a notice to pay rent (paragraph (a)); and failure to comply with a notice to remedy a breach of a term of the tenancy (paragraph (b)). Section 28 makes a further distinction in respect of notices to quit served under paragraph (b) of Case D "by reason of the tenant's failure to do work" (section 28 (1)(b)). A notice to do work is defined as a notice "requiring the doing of any work of repair, maintenance or possession" (section 28 (6)).
16. The Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987 provide for prescribed forms in respect of notices to do work and notices to remedy a breach of any other kind. The former must be in Form 2; the latter in Form 3. Form 1 deals with non-payment of rent.
17. The regime in respect of notices to quit based on Form 2 is different from the regime for notices to quit based on Form 3. A tenant served with a Form 3 notice to quit may apply to have the issue of the validity of the notice to quit determined by arbitration in accordance with the Arbitration Order. If he does so within the time limit the notice to quit is suspended until the termination of the arbitration. Under the Articles of the Arbitration Order, the arbitrator has limited power, if he finds the notice to quit valid, to extend the time period for remedying the breach; and to postpone the termination of the tenancy. Once time has expired for remedying the breach the notice to quit will be effective to terminate the tenancy in due course.
18. A tenant served with a Form 2 notice to do work may apply for arbitration before the notice to quit has been served (Article 3 of the Arbitration Order). Thus, a tenant served with a Form 2 notice may have his liability to do work of repair, maintenance or replacement determined before he is given a notice to quit. Article 6 extends the time for doing the work, the subject of the arbitration, until the termination of the arbitration and gives the arbitrator power to further extend the time to do any work which he finds the tenant liable to do.
19. In addition to the differences between the arbitration procedures and the powers of the arbitrator for Form 2 tenants and those for Form 3 tenants, a tenant served with a notice to quit based on a failure to comply with a Form 2 notice is entitled to serve a counter-notice under section 28(2). The service of a counter-notice will cause the notice to be ineffective "unless, on an application by the landlord, the Tribunal consent to its operation".
20. At the same time the tenant's right to arbitration to determine the validity of the notice to quit is preserved (section 28(4)) and he may still serve a counter-notice under section 28(2) up to one month from the delivery on him of the arbitrator's award.
21. Section 28(5) provides:

"The tribunal shall consent under subsection (2) above to the operation of the notice to quit unless it appears to them, having regard-

a) to the extent to which the tenant has failed to comply with the notice to do work,

b) to the consequences of his failure to comply with it in any respect, and

c) to the circumstances surrounding any such failure,

that a fair and reasonable landlord would not insist on possession"

22. It follows that by section 28 a Form 2 tenant is brought back into a regime similar to the one for tenants served with a notice to quit under section 26(1).
23. The effect of these differences was described by Stanley Burnton J, in a passage in his judgment accepted by all parties to be accurate, in the following terms:

"40. It can be seen that the position of a tenant who is served with a notice to remedy requiring him to do work is very different, and far stronger, than that of a tenant who is served with a non-work notice to remedy. The latter cannot refer any dispute to statutory arbitration until he has been served with a notice to quit. He cannot before he is served with a notice to quit determine by arbitration whether the landlord's contentions are well founded. If he takes the view that they are not, and the arbitrator appointed after service of a notice to quit finds against him, the notice to quit takes effect and the landlord may recover possession. On the other hand, the tenant farmer who receives a notice in Form 2 may have the extent of his obligation to do work determined by arbitration as soon as a notice to remedy is served, and the time for doing work is extended until the termination of the arbitration. The arbitrator has power to modify the notice to remedy and to extend time for compliance, so that if the tenant has failed in the arbitration, he may have a further opportunity to comply with the notice to remedy. Lastly, the tenant may object to the landlord obtaining possession before the Tribunal, on the ground that a fair and reasonable landlord would not insist on retaking possession.

41.Thus, a tenant who is served with a notice in Form 3 which he considers unfounded and with which he does not comply is said on behalf of Mr Taylor to have to "gamble" with his tenancy, taking a chance that an arbitrator appointed after service of a notice to quit will uphold his case

42. A tenant who is served with a Form 2 "notice to do work" may avoid that gamble by referring his notice to remedy to arbitration before carrying out any of the work required by the landlord. If, after the arbitrator's award a notice to quit is served, the tenant may again go to arbitration. Moreover, as set out above, recipients of a notice to quit by reason of non-compliance with a Form 2 "notice to do work" have the right to require the landlord to seek the consent of the Tribunal to the operation of the notice to quit in any event."

24. To this summary we add a further fact. The distinction between notices to do work of repairs and to remedy other breaches has been part of the legislation since the Agriculture (Miscellaneous Provisions) Act 1963. It is consistent with other and earlier Landlord and Tenant legislation giving greater protection to tenants alleged to be in breach of covenants to repair.

The issues

25. It is now accepted by Mr Mercer, counsel for Mr Taylor that he cannot demonstrate a breach of any substantive Convention right. His case is that Mr Taylor suffered discriminatory treatment in breach of art. 14 by reason of the statutory scheme, and that we ought therefore to declare the material statutory provision incompatible with the Convention, pursuant to section 4(2) of the HRA.
26. This raises two associated issues of some importance.
27. One is whether a litigant can obtain a declaration of incompatibility on a ground from which he cannot benefit. This question has arisen because Mr Mercer has founded his case on the contrast between an agricultural tenant facing eviction for failure to maintain the holding and one facing eviction for failure to improve it, in each case in breach of covenant. Mr Taylor is in neither class: he faces eviction for breach of a user covenant. But his case, as developed by Mr Mercer, is that since failure to carry out improvements is excluded along with prohibited user from the right to prior arbitration, unjustified discrimination in relation to the former makes the entire scheme incompatible with the Convention. If so, a declaration of incompatibility will protect Mr Taylor too, and he is accordingly entitled to apply for it.
28. Mr Sales, for the Secretary of State, submits that this is impermissible. If the issue had arisen otherwise than under primary legislation, Mr Taylor would not rank as a victim under section 7(1) HRA and could not therefore advance any such claim under the Convention. The same, he says, must be true under section 4 HRA. A claim for a declaration of incompatibility is not an actio popularis: it can only be made in aid of an otherwise tenable claim or defence – here, a defence to an action for possession.
29. The first question for this court is thus whether, in relation to primary legislation, a declaration of incompatibility can be sought or, if sought, obtained by a party who could not benefit (save possibly through an over-large legislative response) by rectification of the incompatibility. Since it is capable of being dispositive of this appeal, this question is examined below.
30. The second ancillary issue is whether, if this court were to declare the legislation incompatible with the Convention, the County Council as a public authority would be acting unlawfully if it went ahead with the eviction of Mr Taylor. Although the relief he seeks is confined to a declaration of incompatibility, Mr Mercer submits that the very making of the declaration will mean that the whole process so far has been contrary to the Convention, so that to take any further step in it will put the County Council in breach of section 6(1) HRA, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
31. To this at first sight compelling submission, Mr Morgan QC for the County Council responds by pointing to section 6(2)(b), which disapplies section 6(1) where a public authority has acted "so as to give effect to or enforce" provisions which have turned out to be incompatible with the Convention. We do not need to decide whether this is a complete answer unless we decide to make a declaration of incompatibility.
32. A further potential issue, which has not in the event been canvassed, is retrospectivity. As has been seen, by the time the HRA came into force on 2 October 2000, the notice to quit had been served and these possession proceedings had been initiated. Section 22(4) HRA extends the entitlement given by section 7(1)(b) HRA, for a victim to rely on his Convention rights in any legal proceedings, to proceedings brought by a public authority "whenever the act in question took place". As we will explain we do not accept that Mr Taylor is in any event a victim of the assumed breach, we propose to express no view on the question of retrospectivity.
33. In addition to the availability of a declaration of incompatibility, the live issues which have been debated before us are (a) whether the treatment of Mr Taylor comes within the ambit of one or more of arts. 6, 8 and 1 of the First Protocol (art 1P1), and (b) if it does, whether the legislation unjustifiably discriminates against him on a ground proscribed by art. 14.
34. In relation to the second of these questions, the court has been invited to read a substantial body of material annexed to a witness statement made by a senior executive officer in the Department for Environment Food and Rural Affairs which, on behalf of the Crown, resist the making of a declaration of incompatibility. Although no formal objection has been taken to its admission, we consider that the tendering of it raises a question of both practical and constitutional significance, and we propose, having invited submissions on the issue, to say something about it at the end of this judgment.
35. For the rest, it seems to us that it is not necessary to embark upon the difficult question posed under head (a) above as to what acts, though not in breach of a Convention right, come sufficiently within its ambit to attract the operation of art. 14. We propose to assume for the purposes of this judgment that the procedure deployed against Mr Taylor comes within the ambit either of art. 6 (fair trial) or of art. 8 (respect for private life) or of art. 1P1 (protection of property). We note, in fact, that the County Council's reply admitted that the case fell within the ambit of art. 6.
36. The questions then arising under head (b) are, first, whether the differential treatment of Mr Taylor – or of others equally excluded from arbitration in which alone a "fair and reasonable" test is applied – is based upon property or status; and secondly whether, if it is so based, it is objectively and rationally justifiable.

Can a declaration of incompatibility be made on grounds which do not apply to the party seeking it?

37. The primary objective of the ECHR is to secure for individuals the rights and freedoms set out in the Convention. Sometimes, the rights are expressed in positive terms. Arts. 6 and 8 are examples. Other rights are created that prohibit particular conduct. Here, examples are provided by Art.3, which prohibits torture and Art.14, which prohibits discrimination. The HRA and the Convention also play an educative role by promoting the observance of human rights and thus the Convention. One way in which this objective is achieved is by requiring a Minister to make a statement of compatibility in regard to any new legislation in accordance with s.19 of the HRA.
38. It is not, however, the intention of the HRA or the Convention that members of the public should use these provisions if they are not adversely affected by them to change legislation because they consider that the legislation is incompatible with the Convention. This is made clear by the language of section 7(1) of the HRA. Section 7(1) is in the following terms:

"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 right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act."

39. Section 7(7) is also relevant because it makes clear that a person is not a victim if he would not be a victim for the purposes of Art. 34 of the ECHR. In Human Rights Law and Practice, Lester and Pannick (2^nd Edition 2004) paragraph 2.7.2, there are nine principles set out which it is stated indicate the jurisprudence of the European Court as to who is a victim. Among those principles are the following:

a) … the procedural provisions are part of a Convention designed 'to protect the individual', and so they must 'be applied in a manner which serves to make the system of individual applications efficacious'.

c) To establish that they are 'victims', individual complainants do not need to show that their rights have been violated by 'an individual measure of implementation'. It suffices that they 'run the risk of being directly affected by' the measure of which complaint is made."

None of the authorities relied upon suggest that in the circumstances here Mr Taylor could be regarded as a victim.

40. Although Mr Taylor did not initiate the proceedings, he is counter-claiming and relying in his counter-claim upon the alleged incompatibility of the 1986 Act. If he had been a tenant who had covenanted to make an improvement to his holding and possession had been sought on the ground that he had failed to make the improvement, then arguably he could reasonably have contended that he was a victim for the purposes of section 7. However, the breach of covenant he is alleged to have committed has nothing to do with the alleged discrimination on which he relies.
41. Furthermore, even if he could suggest that the 1986 Act discriminates against him, there is no realistic possibility that if, in consequence, a declaration of incompatibility was granted, any remedial action which could be taken would benefit him in any way. The express power to take remedial action contained in the HRA is confined to taking such action as the "Minister of the Crown… considers necessary to remove the incompatibility" (section 10(2) and in the case of the subordinate legislation, section 10(4)).
42. In addition, the grant of a declaration of incompatibility, which is the remedy which Mr Taylor seeks, is discretionary (see section 4(3)). As Lord Slynn in R v A [2002] 1 AC 45 stated (at p.68) "a declaration of incompatibility is a measure of last resort which must be avoided unless it is plainly impossible to do so". It is doubtful in the extreme that a court would exercise its discretion in favour of Mr Taylor if he could not be affected by the breach of the Convention on which he was attempting to rely.
43. Mr Philip Sales submitted correctly in argument, that section 7 of the HRA is a provision which primarily goes to standing. While in the field of human rights, as in public law generally, the courts are not attracted to arguments based upon a lack of standing if there is merit in the argument which is being advanced, here, it is hard to see how Mr Taylor's argument can be categorised as being other than purely hypothetical. As Lord Hutton, Lord Roger of Earlsferry and Lord Walker of Gestingthorpe pointed out in R (Rusbridger) v The Attorney General [2004] 1 AC 357 "it is not the function of the courts to keep the statute book up to date. That important responsibility lies with Parliament and the Executive." (Paragraphs 36, 58 and 61)
44. We are conscious that in the very different circumstances that were being considered in Rusbridger, Lord Steyn stated :

"The starting point must be that the relief claimed may, as a matter of jurisdiction be granted. "The Guardian" do not have to demonstrate that they are "victims" under s.7 of the Human Rights Act 1998. That much is conceded and, in any event, obvious on (a) proper view of the place of s.3 in the scheme of the Human Rights Act 1998. It is, however, worth noting the broad approach which the European Court of Human Rights adopts to the concept of victim".

This desirably flexible approach to the grant of declarations, cannot appropriately be applied in the circumstances that exist here where Mr Taylor has not been and could not be personally adversely affected by the repealed legislation on which he seeks to rely. To allow him to do so would be to ignore section 7 of the HRA. On this ground alone, we could dispose of his appeal. However, in view of the other issues that have been fully argued before us we do not consider that it would be right to confine our decision to this point alone.

Does the Act discriminate on grounds of property or status?

45. The 1986 Act, as has been seen, affords a more generous regime to tenant farmers who are alleged to be in breach of covenants to repair, maintain or replace than to those alleged to be in breach of other covenants. Neither can be evicted at will, but farmers in the former class are able to go to arbitration before they receive a notice to quit and to fend off possession if a fair and reasonable lessor would not be seeking it. Those in the latter class can go to arbitration on their liability to eviction once they have received notice to quit, but without any fallback upon fairness or reasonableness once an entitlement to possession has been established. The latter class includes not only farmers like Mr Taylor who are said to be making unauthorised use of the holding but farmers who are said to be in breach of a covenant to improve it.
46. In our judgment neither class of farmer is so treated by the 1986 Act on the ground of his property or of his status. The differential treatment depends solely on the content of the covenant which is alleged to have been breached, or upon the nature of the breach of covenant alleged – it does not matter which way it is put.
47. Article 14 provides :

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds 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.

48. The object of art. 14 is to ensure that the benefit of the Convention is accorded to everyone – men and women, black and white, rich and poor: hence the specification of sex, colour and property among the proscribed grounds of discrimination. The only sense in which it has been possible for Mr Mercer to suggest that property is engaged in the present case is a consequential sense: eviction affects property. But this is to put art. 14 into reverse. It is art 1P1 which seeks, in limited circumstances, to protect property and so looks to consequences. Art. 14, by contrast, looks to the source of a difference in enforcement of or access to this and other rights. In a case like the present it is impossible to say that the material distinction, whether it is one of process or of substance, in any sense derives from or is based upon Mr Taylor's property rights or interests. The amenability of all agricultural tenancies to arbitral or legal process is of course property-based; but that involves no discrimination. By contrast, the legislative distinction between the routes open to some agricultural tenants and not to others does not depend in any sense on what property they possess: it depends solely on what covenant they are said not to have observed.
49. Is there then discrimination against tenants like Mr Taylor on the ground of their status? Status here means a distinguishing personal characteristic: R (S) and R (Marper) v Chief Constable of South Yorkshire [2004] UKHL 39, paras. 48-9, per Lord Steyn, citing Kjeldsen v Denmark (1976) 1 EHRR 711, para. 56. Put another way, it "has to do with who people are, not with what their problem is": C v Home Secretary [2004] EWCA Civ 234, para. 36. So approached, there is nothing in Mr Taylor's identity which singles him out for differential treatment. The differential treatment arises, as we have said, out of the character of the material covenant and the breach of it.
50. This would be enough to sustain the decision of Stanley Burnton J that there was no defence to the possession action, even assuming that incompatibility, if established, could prevent eviction under the extant domestic legislation. But since justification has not only been argued but has thrown up a further problem, we propose to deal with it.

If the Act discriminates on a proscribed ground, is the distinction objectively justified?

51. In our view there is sufficient on the face of the legislation to demonstrate a rational objective justification for the discrete routes available to agricultural tenants facing allegations of breach of covenant, depending on the breach alleged. We include in the legislation the antecedents of the consolidating Act of 1986 because this is not an exercise in statutory construction constrained by the limits set out in Farrell v Alexander [1977] AC 59. As was made clear in Wilson v First County Trust Ltd (No. 2) [2003] UKHL 40, an inquiry into the justification for a discriminatory rule of law is a different exercise. We also include the cases decided on the earlier versions of the Agricultural Holdings Act, which are usefully summarised in the judgment of May LJ in Parrish v Kinsey (1983) 268 EG 1113 and which show a clear balance of hardship on tenants who may have expended large sums of money on the upkeep of their holdings and yet have found themselves faced with a notice to quit on account of failure to do further and quite possibly excessive work. While there was more than one feasible solution to the problem, it is entirely intelligible that Parliament chose to draw a line, on one side of which were to be farmers who were at risk of inflated notices to repair, maintain or replace and for whom an early arbitration to sift the proper from the improper was desirable, and on the other side of which there remained tenant farmers facing other alleged breaches of covenant. (Of course, a good many farmers find themselves in both situations.)
52. What in Mr Mercer's contention is not intelligible, and therefore not justifiable, is leaving out of the early arbitration group farmers who are alleged to be in breach of a covenant to improve the holding. Leaving aside for the moment the fact that this was not Mr Taylor's situation, we do not think this is either arbitrary or unfair. All holdings decay with time and need repair and maintenance, and the eventual burden on the tenant is rarely predictable and frequently heavy. It is not hard to see how the covenant to maintain can become an engine of oppression. By contrast, a tenant who undertakes an affirmative covenant to improve the holding will be able to quantify the obligation in advance in terms of prospective cost and discounted rental. The obligation is more nearly akin to the obligation to pay rent or to use the holding in one way and not in another; or at least is not on all fours with the covenant to maintain. Breaches of such obligations are capable of being identified, specified, contested if non-existent and remedied if remediable. Although there will inevitably be exceptions, the process does not carry the same risk of oppression as the covenant to maintain. Parliament might without doubt have chosen to draw the line elsewhere, but that does not make this allocation of protection unjustified or unreasonable.

The use of Parliamentary materials in relation to justification

53. What then of the evidence submitted on behalf of the Secretary of State? The material which, as the judge noted, was adduced without objection and was therefore cited by him at large, consisted of a witness statement summarising the history of legislative reform and exhibiting substantial extracts from the reports of the Parliamentary debates on what became the predecessor Acts of 1963 and 1976; a cutting from the Farmers' Weekly of 7 November 1975; extracts from the drafter's Notes on Clauses on the 1976 Bill; correspondence dating from 1951 between the National Farmers' Union and the Ministry of Agriculture and Fisheries; and some extracts from the 1947 Act. The witness statement itself goes on to comment on and provides a gloss on the Hansard extracts. It includes an account of current government policy which has no apparent bearing at all on the issue before the court. It puts the case for the distinction which is under attack.
54. Insofar as the foregoing represents argument, its proper source is counsel, not a witness. Insofar as it recounts history which cannot be extracted from the successive Acts, it is relevant and helpful. Such history may properly include issues which had come to the attention of the Department of State sponsoring the material legislation, for example through correspondence with a representative body. (It is not immediately obvious, even so, that a news clipping from the trade press comes into this class.)
55. The use of the drafter's Notes on Clauses is problematic in this context. Although they are now commonly made public, those exhibited in the present case will not reach the Public Record Office until next year. Like Hansard (see Pepper v Hart [1993] AC 593) they may well help to elucidate the intended meaning of an ambiguous provision; and one can also see that they may, by setting out the reasons for a draft provision, help to show whether or not it was justified. The difficulty, and the reason why caution is needed, is that these notes on clauses will not have been available to members of either House. To the extent that ministers used them in debate, they will feature in Hansard. It is therefore to Hansard that one needs principally to turn.
56. In Evans v Amicus Health Care [2004] EWCA Civ 727, Thorpe and Sedley LJJ in a joint judgment drew attention at paras. 42-56 to the problem presented to the court by similarly expansive departmental evidence, in that instance about the Human Fertilisation and Embryology Act 1990. The principal concern was the use of these materials to show what the departmental policy was at the time the Act was framed. It was pointed out (para. 56) that the use of departmental policy as an aid to the construction of a statute had implications for the separation of powers.
57. A similar concern arises if departmental – that is, ministerial or governmental – policy is relied upon to explain and justify a discriminatory legislative provision. As Lord Nicholls pointed out in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, para. 61, the underlying social purpose of legislation will frequently, albeit not always, be self-evident. In the minority of cases where it is not, their Lordships accepted that additional background information might be relevant and therefore admissible. But in a passage which was less material in Evans (where it was not cited) than it is here, Lord Nicholls went on to say:

"66. I expect that occasions when resort to Hansard is necessary as part of the statutory 'compatibility' exercise will seldom arise. The present case is not such an occasion. Should such an occasion arise the courts must be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister's reasoning or his conclusions.

"67. Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which 'counts against' the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute."

58. It seems to us, in the light of this passage and of passages to similar effect in the speeches of other members of the Appellate Committee, that where Departments of State exercise the Crown's entitlement under section 5 of the HRA to be joined in proceedings where a declaration of incompatibility is sought, care must be taken not simply to produce anything from the files which helps to show why the impugned legislation took the form it did, but to approach the matter rather more rigorously. The first question is whether the policy justification for the distinction which is in issue is apparent from the legislation, whether read by itself or with its antecedents and the cases decided on the provisions. Only if the policy is not apparent from these materials should it become necessary to look wider. In that event, great care needs to be exercised to avoid the adduction of passages from parliamentary debates which, by being open to more than one construction, invite the court to transgress Article IX of the Bill of Rights. What has to be kept in mind throughout is that, as with the process of statutory construction, the inquiry is into Parliament's intention, and that in relation to both the primary source is the text which Parliament has adopted.
59. For these reasons, had we found it necessary to go beyond the text and the legislative and judicial history of the 1986 Act itself, we would have admitted little if any of the parliamentary material set out over several pages by Stanley Burnton J. We would not have admitted the contributions of members to the debates; nor would we have admitted ministerial statements which say no more than can be readily seen from the legislation itself. What might have been of relevance, because it went to the distinction of which complaint is made in these proceedings, is the statement of the Parliamentary Secretary to the Ministry, Mr Strang, to the Commons Standing Committee on 10 February 1976, explaining why it was proposed to treat non-work notices differently from notices to do work. The explanation is in fact less complete than the one we have derived earlier in this judgment from the legislation alone: it describes notices to do work as "of a different order" from notices to remedy breaches such as non-payment of rent or failure to live in the farmhouse, but does not touch on notices to make improvements. So even this in the end seems to us not to add materially to the sum of the court's knowledge.
60. Departments of State need also to bear in mind that they have an advantage in this field. They have access to materials to which other parties have no access or which it would be difficult and expensive for them to search out. But axiomatically an exercise of this kind, if it is to be carried out at all, must disclose the unwelcome along with the helpful. If, for example, there had been internal documents acknowledging an inconsistency in the protection to be given to tenant farmers and advancing no good reason for it, they would have been added to the exhibits. The fact that there were evidently no such documents in the present case does not dilute the cautionary reminder that if research of this kind is to be placed before the court, it cannot be selective in what it tends to show.

Conclusion

61. We conclude that:

i) The violation of which Mr Taylor complains does not entitle him to seek a declaration of incompatibility on the ground of a different violation.

In any event:

ii) The differential protection given by the Act does not come within art. 14 of the Convention.

iii) If the distinction made by the Act did come within art. 14, the legislation shows that it would be objectively justified.

iv) The Act is therefore compatible with the Convention.

62. The appeal is therefore dismissed.