Jersey Unreported Judgments

Appeal against decisions of the Minister for Social Security.

[2016]JRC204

Royal Court

(Samedi)

8 November 2016

Before     :		W. J. Bailhache, Esq., Bailiff, sitting alone.
Between	Jeremy Patrick Michael Gosselin		Representor
And	Minister for Social Security		First Respondent
And	Her Majesty's Attorney General		Second Respondent

The Representor appeared on his own behalf.

Advocate G. G. P. White for the Respondents.

judgment

the bailiff:

1.        This judgment is delivered in connection with the appeal by the Representor against decisions of the Minister for Social Security, the First Respondent.  The Representor has asserted that in one form or another the States acted ultra vires by adopting the Income Support (Jersey) Regulations 2007 ("the 2007 Regulations"), which he also asserted breached his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention on Human Rights" or sometimes "the Convention") as well as his right to property under Article 1 of Protocol 1 to that convention.  As a result of these claims the Second Respondent was joined to the Representation. 

Preliminary

2.        At paragraph 302 of his Representation, the Representor set out his first prayer for relief:

"That the present Bailiff, Mr William James Bailhache QC and the present Deputy Bailiff Mr Timothy John Le Cocq QC recuse themselves from hearing any part of this representation because of a potential conflict of interest, namely that whilst they both separately held the position of Attorney General, the Law Officers' Department, of which they were Head, is believed to have provided confidential legal advice to the Social Security Minister on various aspects of the income support legislation, including on its compatibility with Convention rights.  Furthermore, that the present Bailiff, whilst holding the position of HM Attorney General and also an ex-officio member of the States Assembly, provided verbal advice to States members on legal aspects of the draft Income Support (Jersey) Law (P102/206) when it was adopted by the States Assembly during a sitting held on 10th October 2006 and similarly provided verbal advice to the States on legal aspects of the draft Income Support (Jersey) Regulations 200- (P90/207) when it was adopted by the States Assembly during a sitting held on 10th October 2007."

3.        At the opening of this appeal, I asked Mr Gosselin whether he maintained that prayer in the Representation in the circumstances that when he and Advocate White had attended on the Bailiff's Judicial Secretary to fix a date for the hearing of the appeal, she had indicated that the date set would be available if I presided, and no objection had been taken at that time.  However Mr Gosselin made it plain that he did wish to pursue the recusal application and accordingly he made some submissions to which I will come shortly.  Because Advocate White was not expecting the recusal application to be made, he had not prepared either submissions or authority for me to consider.  Having heard from the parties, I announced that I did not regard myself as under a conflict which prevented me from hearing the case and that the judgment would contain my reasons for that conclusion.  I later prepared a list of potential authorities of relevance and procured that the list was sent to the parties in order that they would have the opportunity of making written submissions on any of the cases in question if they wished.  Neither party took me up on that invitation, although Advocate White contacted the Judicial Secretary to inform her that he considered the list of authorities was comprehensive and that in his view I was right to conclude there was no conflict. 

4.        When he appeared before me, Mr Gosselin accepted that I was not directly concerned with the Income Support (Miscellaneous Provisions) (Jersey) Regulations 2013 ("the 2013 Regulations") but that I did give the States members some advice in the Assembly when the Income Support (Jersey) Law 2007 ("the 2007 Law") was debated.  He accepted that the advice I gave members in the States Assembly was completely irrelevant to the issues which arose in this appeal.  He made the more general point that I personally have had a long history with the Law Officers' Department and his contention was that the Law Officers had given the wrong advice and that he had been treated unlawfully.  He went on to mention that the tradition appeared to be that there was a succession to the office of Bailiff, and that in particular whoever was the Attorney General would normally succeed first the Deputy Bailiff and then the Bailiff.  In effect his submission was that I was a former Attorney General, and a decision in his favour during the current hearing could be very embarrassing for the current Attorney General and his immediate predecessor, now the Deputy Bailiff, and possibly by implication even embarrassing for me because I had been Attorney General.  He said that amounted to a potential conflict and he added that in as much as it was the States Assembly which have passed the unlawful regulations, the Bailiff is currently the President of the States, and my sitting in Court would amount to my taking a decision to damn my own association, of which I am the President. 

5.        It is a matter of record that I was appointed Attorney General in February 2000, and I held office in that capacity until November 2009 when I was appointed Deputy Bailiff.  I was appointed Bailiff in January 2015.  It is also a matter of record that the Bailiff is, ex-officio, President of the States.  In that capacity he presides over meetings of the States and when he is not able to do so either the Deputy Bailiff, or a person whom the Bailiff selects from amongst the members of the States, the Greffier and Deputy Greffier of the States presides.  In presiding over the Assembly, the limit of the Bailiff's role is to ensure that the debate moves ahead appropriately in accordance with Standing Orders.  Although the Bailiff has an unfettered right to speak, he does not express political views, and certainly does not express any views on the matters which are being debated.  The Bailiff's function is to ensure that the debate continues in accordance with Standing Orders.  He has no vote, the legislative provision enabling him to cast a vote in the event of an equal number of votes for and against the proposition having been removed when the States of Jersey Law 2005 was adopted; neither has he the power of dissent which existed until the same Law was passed. 

6.        Outside the States Assembly, the Bailiff has no executive role other than, in theory, in the grant of entertainments licences.  I say "in theory" because in practice the grant of such licences is delegated to others in the Bailiff's department who deal with the matter on his behalf, and the Bailiff never sees the applications unless there is something very unusual on which his advice is sought.  In practice the decisions are taken, on delegated authority, by the Bailiff's Chief Officer in consultation with a number of civil servants and public officials ensuring thereby that public safety and other considerations are met.  Linked to his functions as President of the States Assembly, the Bailiff is also the civic head of the Island, and had a number of public functions in that respect.  Once again, in all of these he acts entirely apolitically. 

7.        The question of the dual roles of the Bailiff in acting as President of the States and also as chief justice is one which is raised periodically and indeed there is currently before the States Assembly a proposition brought by a member with a view to removing the Bailiff from the States by 2018.  In order to achieve that result, an amendment to the States of Jersey Law 2005 would be required.  It is entirely a matter for the States Assembly to decide whether such an amendment should or should not be brought and as I have made clear previously in a public comment made extra-judicially, the office of the Bailiff has no comment to make on that proposition.  It is a political matter which is for members of the States.  Neither I nor the Deputy Bailiff will preside over that debate, barring some contingency that cannot currently be foreseen.  

8.        Nonetheless, because the objection has now been taken as a point of law, based inter alia upon the fact that the Bailiff is also President of the States, it is a matter with which I must deal in this Court. 

9.        The issue was considered by the Royal Commission which reported in March 1947 (see the report of the Committee of the Privy Council on proposed reforms in the Channel Islands CMD.7074).  At page 7 the Committee indicated as follows:

"We thought it desirable to enquire into the nature of the Bailiff's functions as President of the States.  The Bailiff is entitled to speak on any matter, and has a casting vote if the members are equally divided.  He has a power of Dissent in matters concerning His Majesty's Interest or Prerogative and on occasions when, by established practice, certain changes affecting the constitution and laws of the Island must be tendered in the first instance as propositions for His Majesty's Assent before any alteration is effected.  Certain of the Bailiff's functions, as they were explained to us, resemble those of the Speaker of the House of Commons; but there are some important differences.  The Bailiff is the normal channel of communication between the Lieutenant Governor on the one hand and on the other the various administrative departments of the States.  The conduct of business between His Majesty's Government, through the Lieutenant Governor and the Island authorities, not infrequently results in deliberations in the States, whether or not legislation is involved.  The Bailiff, in view of his previous knowledge and experience, would normally be expected to comment and make suggestions on such questions while reserving the ultimate decision for the States.  Similarly, the various administrative functions of the States might look to the Bailiff for assistance in important matters affecting the Island, whether constitutional questions were involved or not.  In these circumstances it would not be unusual for the Bailiff to be associated to some extent with matters brought before the States, and it is arguable that he might therefore be less likely to be an impartial President in the States than if, like the speaker in the House of Commons, he had no connection with the administration. 

In the course of evidence it was suggested that in order to ensure a proper separation between the judiciary and the legislature, the Bailiff's functions should be confined to the Court and that the President of the States should be appointed by the States from among their members.  But support for this view was limited and the weight of evidence was against any change in the present arrangements. 

We consider that the objection to the combination of the dual functions in the Bailiff would be justified only if it could be established that in the States the Bailiff exercised undue influence in the course of the deliberations, or in the Court allowed his political position to influence his decisions.  No evidence was tendered to us in support of such contentions.  We also consider that the Bailiff as President of the States exercises important functions in advising the assembly on constitutional procedure which, from the nature of the constitution, requires an intimate knowledge of the privileges, rights and customs of the Island, the exercise of the Dissent being a pertinent example.  It is an advantage in a small community and in a legislative body very limited in numbers that this Dissent should be expressed (or an intimation given that it may have to be expressed) directly to the States. 

We recommend that there should be no alteration to the present functions of the Bailiff."

10.      Since 1947 when the Committee reported, there have been changes in the Bailiff's role.  As I have indicated, he has no casting vote, and no power of dissent.  Although he remains the official channel of communication between Her Majesty's Government and the Island Authorities, in practice today most communications appear to be sent demi-officially or directly from the Ministers of the different departments in Jersey to the counter-part Ministers in Westminster (or elsewhere) and vice-versa.  The importance of official communications in that sense has been very much reduced by the practical changes which the introduction of Ministerial government brought with them in 2005.  It is certainly not the case that the Bailiff would be expected to comment and make suggestions on such communications by the Lieutenant Governor as there are, while reserving the ultimate decision for the States.  That simply does not happen.  As to whether the Bailiff has allowed his political position to influence judicial decisions, it seems to me there are two points to make.  The first is that the Bailiff does not have a political position.  He is in politics to the extent that he is Speaker and President of the Assembly on the basis I have set out above, but he is otherwise outside politics.  Secondly, while I am personally confident there is no actual bias, in order to test such suggestion, I have carried out a review of the judicial decisions given by the Bailiff and/or Deputy Bailiff in cases involving Ministers in 2013 and 2014.  Most of these decisions involve planning appeals and public law children applications made by the Minister for Health and Social Services, but there were a few other cases.  It is noteworthy that the Minister or the States as the case may be were successful in some 11 out of 17 cases in 2014 and 6 out of 10 cases in 2013.  Given the nature of the cases concerned, it is perhaps surprising that the Minister was not successful more frequently.  At all events, those statistics do not give any credibility to the suggestion that in Court the Bailiff allowed his political position, assuming he had one, to influence his decisions. 

11.      Arguments around the separation of powers seem to me to be essentially matters for politicians to consider in the sense that it is for those having responsibility for the legislative structure to determine the degree of weight which they wish to give to the academic or philosophical writings which have occurred on this subject, and indeed to determine whether the fact that we in Jersey are a very small jurisdiction raises any different concerns which might be relevant to that assessment.  In a court of law one is really only concerned with the question formulated in Porter v McGill [2002] 2 AC 357 at para 103 as to whether "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".  This is very similar to the requirement under Article 6 of the European Convention that a court or tribunal must be "objectively impartial".  Such authority as there is on this subject seems to rest in the following cases.  

12.      In Bordeaux Vineries Limited v The States of Guernsey - Plaits de Meubles 13.11.92, reported in 1993 Guernsey Law Journal 33, the plaintiff appealed against the Bailiff's refusal to uphold the Plaintiff's objection to his sitting in the proceedings which it had instituted.  Having discussed the exact nature of the role of the Bailiff of Guernsey in the States, Le Quesne JA, a judge familiar with both the position in Jersey and in Guernsey and a judge of both Courts of Appeal for many years, gave the judgment of the Guernsey Court of Appeal in these terms:

"In my judgment the true view of the position is that the Bailiff is invested by law with duties in the Royal Court and in the States.  The consequence of this dual function is that he has on occasion to take part in the exercise by the Court of jurisdiction over the States.  I do not think that on these occasions his responsibility in the States disqualifies him from discharging his responsibility in the Court.  He can properly discharge both responsibilities because although he is a member of the States his special position there means he is not responsible for the decisions of the States or acts of its agencies nor has he any pecuniary interest, or indeed other interest in those decisions or those acts.  His connection with the States, therefore, is not such as to disqualify him from sitting in Court on cases affecting the States. 

Special cases may arise in which the Bailiff's position may be different.  I have no doubt that in such a special case, the Bailiff of his own accord would arrange for someone else to take his place..."

13.      In Mayo Associates SA and Others v Cantrade Private Bank Switzerland (CI) Limited and Another [1998] JLR 173, the Court of Appeal was considering an appeal brought by the appellants against a refusal of the Bailiff to recuse himself in the proceedings.  The grounds upon which the Bailiff had been invited to recuse himself included the allegation that as civic head of the Island and as President of the States, he was ultimately responsible for the actions of the Financial Services Department, the Finance and Economics Committee and the Attorney General and was therefore apparently interested in the outcome of the proceedings.  It was said that the Bailiff was ultimately responsible for the financial regulation in the Island, and as civic head had or was perceived to have had an interest in avoiding bad publicity for the reputation of Jersey's financial services industry, the regulation of which would be shown to have failed if the plaintiffs won their action.  Secondly it was said that the Bailiff as civic head of the Island had an interest in preserving "the wellbeing and welfare of the Island as a whole".  The plaintiffs contended that as the economic wellbeing and welfare of Jersey would or might be imperilled if they were to win the action, the Bailiff had or might be perceived to have a duty to defend Jersey against bad publicity and an interest in avoiding it, and therefore an interest in an outcome which was favourable to Cantrade. 

14.      Smith JA, giving the judgment of the court said this:

"In our judgment, the plaintiffs' first argument comprises some fundamental misconceptions.  The Bailiff has no function in relation to prosecutions.  The Attorney General is completely independent of the Bailiff and, for that matter, the States and is answerable only to the Crown.  Although the Bailiff has duties in the States, these do not extend to responsibility for the regulation of financial institutions or for the performance by committees or agencies of the States of their functions."

15.      The Court then went on to say that the remarks of Le Quesne JA in Bordeaux Vineries Limited, set out above, were "apt to describe the position of the Bailiff of Jersey and we respectfully adopt them as applicable to this Island". 

16.      In Eves v Le Main [1999] JLR 44, the Court of Appeal was considering an application for leave to appeal by the owner of a hotel business who alleged that the respondent, a member of the Tourism Committee, had conspired to prevent him from carrying on his business by persuading the Committee not to register his hotel.  In the course of his application for leave to appeal, the appellant contended that the Deputy Bailiff, who had heard the case in the Royal Court, had been biased because as Deputy President of the States he had an interest in the States and its committees, including the Tourism Committee, and was therefore a judge in his own cause and not capable of providing a "fair and impartial tribunal" as required by Article 6 of the European Convention.  The Court of Appeal held that it could not be said that the Bailiff or Deputy Bailiff were necessarily biased in any case involving the conduct of a member of a States committee, merely by virtue of their role both as judges and as President and Deputy President of the States, since their duties in the States did not extend to responsibility for the performance of any States agency.  They were clearly capable of providing an "independent and impartial tribunal" within the meaning of Article 6 of the European Convention.  At page 54, line 14, Collins JA said this:

"In my judgment, this ground of appeal has no substance.  The Bailiff and in his place the Deputy Bailiff sit both as President and Deputy President of the States and the head of the judiciary, but this ground alone is insufficient to argue that the Deputy Bailiff should not have presided at the hearing.  Although the Deputy Bailiff has duties in the States, those duties do not extend to responsibility for the performance by committees or agencies of the States or of their functions. 

The Deputy Bailiff has had nothing to do so with the reaching of the decisions of the Committee, of course, and his position as Deputy President of the States is, in my judgment, no more of a part to his hearing this matter than was the position of the Bailiff as determined in Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Limited.  That case concerned a decision of the Bailiff refusing an application that he recused himself on account of his position.  We adopt the judgment of Smith JA as a correct statement of the principles to be followed when such an argument is raised."

17.      I note that three different and well-respected judges of our Court of Appeal, all from outside the Island, reached the same conclusion on this issue over a seven year period between 1992 and 1999. 

18.      There are two cases in the European Court of Human Rights which I should now consider.  The first is the case of McGonnell v United Kingdom (2000) 30 EHRR 289, where it was held that the fact that the Bailiff of Guernsey had presided in the States when a detailed development plan was adopted meant that he did not have the required objective impartiality when sitting in the Royal Court on a planning appeal relating to that development plan.  It is interesting to note that the decision of the European Commission in McGonnell that the Royal Court of Guernsey could not be regarded as objectively impartial in a case involving the States of Guernsey had been based upon much broader grounds, namely the fact that the Bailiff was President of the States, and in addition a senior member of the executive, and in those circumstances he could not have the requisite appearance of independence and impartiality as a judge.  The Commission's approach was not supported by the Court, which based its decision on much narrower grounds. 

19.      It is clear from the facts provided to the Court in McGonnell that, notwithstanding the comments of Sir Godfrey Le Quesne JA in the Bordeaux Vineries case, the then role of the Bailiff of Guernsey was rather more extensive in legislative and executive matters than is the case with the Bailiff of Jersey.  At paragraph 17 of the Court's judgment, there is a reference to the Bailiff's role in the States as follows:-

"The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her Majesty's pleasure subject to a retiring age of 70 years.  He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the administration.  The Bailiff, as President of the States of Deliberation, is entitled to speak on any matter and has no original vote but he has a casting vote if the members are equally divided.  In general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt. He places measures before the States at the request of the States' Committees but he can also on his own initiative place any matter before the Assembly.

He is, with the Lieutenant Governor, a channel of communication between the Privy Council and the Secretary of State for the Home Department on the one hand and on the other, the Island authorities; and in a number of questions, as the head of the administration of the Island, would be expected to guide the Island authorities.

He has been relieved of some of his administrative responsibilities by the appointment of the States Advisory and Finance Committee which is in the nature of a co-ordinating committee with advisory powers but the Bailiff may, in his own discretion, lay before the States any matter which he has previously referred to the Committee providing that he gives the Committee [the opportunity] to acquaint the States with its views ...

18. ... In his non-judicial capacity the Bailiff is President of the States of Election, of the States of Deliberation, four States committees (The Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee) and he plays a role in communications between the Island authorities and the government of the United Kingdom and the Privy Council. Where the Bailiff presides in his non-judicial capacity, he has a casting, but not an original vote.

19. The States of Election elects people to fill the vacancies which occur amongst the twelve Jurats. Jurats sit as lay members of the Royal Court. It is their function to determine the issues of fact referred to them, and to decide whether or not to allow an appeal. They also sit on certain committees of the States, either because a committee mandate requires the election of a Jurat or by reason or abilities or interests personal to them.  Jurats are not, however, eligible to sit on the States committee for Home Affairs, the Gambling Control Committee or any States committee which administers legislation the provisions of which include a right of appeal to the Royal Court against a decision of that Committee.

...

24. The Appointments Board, one of the States committees, appoints officials to fill certain offices in the States service when those offices become vacant. With limited exceptions, it appoints at the level of senior officer grade 8 or above. The offices include the States Supervisor and other senior civil servants such as senior medical personnel, the Prison Governor and the Chief of Police.  It has never appointed a Chief Executive of the IDC.

...

26. The Legislation Committee, which meets about once a month, reviews and revises Projets de Loi, reviews and drafts Ordinances and, in certain cases, orders that an Ordinance shall come into force pending consideration by the States of Deliberation. The latter function has been used on 16 occasions in the last ten years.

27. The Rules of Procedure Committee considers the Rules of Procedure in relation to Assemblies of the States of Deliberation, receives representations from the States and makes representations to the States for amendments to the Rules. It has met 25 times in the last 15 years.

28. The Bailiff's role in communications between the Island authorities and the government of the United Kingdom and Privy Council arises from his historical function of representing the views of Islanders to the Crown. ... Representations are generally on behalf of the smaller committees. Examples of this function are the Bailiff's involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the government to ensure that Heathrow Airport should have slots for aircraft from regional airports such as Guernsey."

20.      It can be seen immediately that the role of the Bailiff of Guernsey considered in McGonnell was very much more extensive in the executive and legislative sphere than is the case with the Bailiff of Jersey today in 2016.  It is so different that in my judgment there is no reasonable correlation between the two.  The Bailiff of Jersey has no executive role to play other than the theoretical role set out in relation to public entertainment described above.  It is to be noted that even in respect of that limited executive role, Sir Michael Birt, then Bailiff, suggested to the Carswell Review that this power ought to be removed, but the States have not taken any legislative steps in that respect.  The Bailiff in Jersey does not preside over any committees of the States; does not have any formal function to play in the review of draft legislation or other propositions, other than approving them for debate in the Assembly, a function carried out only to ensure that the propositions are in accordance with the law and Standing Orders. 

21.      The Court in McGonnell expressed its views in its judgment at paragraphs 46 and those following.  At paragraph 48 it recalled its judgment in the case of Findlay v United Kingdom [1997] 24 EHRR 221 at paragraph 73 when it was held that:-

"In order to establish whether a tribunal can be considered as 'independent', regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence ....

As to the question of 'impartiality' there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect ....

The concepts of independence and objective impartiality are closely linked ..."

22.      The Court noted that the concepts of independence and objective impartiality were closely linked in that case, and, given the different roles of the Bailiff of Guernsey as set out in the judgment, it is perhaps unsurprising that the Court reached that view.  The rationale of the Court's decision in holding that there had been a violation of Article 6 of the convention in that case appears to me to be founded on these propositions:-

(i)        Neither Article 6 nor any other provision of the European Convention on Human Rights requires member states to comply with any theoretical constitutional concepts as such.  The question is always whether, in a given case, the requirements of the Convention are met (paragraph 51). 

(ii)       The Bailiff had a personal involvement with the planning matters at the heart of the applicant's case, firstly in presiding over the States of Deliberation when the detailed development plan had been adopted in 1990, and secondly when presiding over the Royal Court in June 1995 in the determination of the applicant's planning appeal (paragraph 53).  

(iii)      As was the case in Procola v Luxemburg (1996) 22 EHRR 193, a member of the tribunal had been actively and formally involved in the preparatory stages of the regulation at issue.  The Bailiff had had a direct involvement in the passage of legislation which was likely to be sufficient to cast doubt on his judicial impartiality when called upon to determine a dispute over whether reasons existed to permit a variation from the wording of the legislation or the rules at issue.  In addition to his chairing role, the Bailiff had a casting vote in the event of even voting, which he could use as he saw fit (paragraph 55). 

23.      Accordingly it was against this factual background and not on any constitutional or theoretical academic principle that the European Court of Human Rights found that Article 6 was infringed.  It is to be noted that Sir John Laws, the judge ad hoc appointed to that case added, in agreement with the majority that:-

"If it were thought arguable that a violation might be shown on any wider basis, having regard to the Bailiff's multiple roles, I would express my firm dissent from any such view. Where there is no question of actual bias, our task under Article 6(1) must be to determine whether the reasonable by-stander - a fully informed layman who has no axe to grind - would on objective grounds fear that the Royal Court lacks independence and impartiality. I am clear that but for the coincidence of the Bailiff's presidency over the States in 1990, and over the Royal Court in 1995, there are no such objective grounds whatever."

24.      I now turn to the case of Pabla Ky v Finland [2006] 42 EHRR 35.  In that case, an MP of the Finnish Parliament had acted as an expert member of a panel of the Finnish Court of Appeal which rejected Pabla Ky's appeal concerning a rent contract.  Pabla Ky contended that the dual constitutional function of the MP (that is as part of the legislature and the Court of Appeal) violated Article 6 of the European Convention on Human Rights protecting the right to a fair trial before an independent and impartial court.  The Chamber of the European Court held by a majority that there had been no violation of Article 6 as the MP in the case had not previously participated in the passing of the legislation which was at issue, as he had not been part of Parliament at the relevant time.  The Court held that:-

"The Court is not persuaded that the mere fact that the MP was a member of the legislature at the time when he sat on the applicant's appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relies on the theory of separation of powers, this principle is not decisive in the abstract."

25.      This decision therefore supports the conclusions in the McGonnell case that for there to be a successful objection on the grounds of Article 6, the objecting party needs to establish more than merely the fact that the judge was a member of the legislature.  The issue is not the structural arrangement by itself but whether the judge had any active participation in the adoption of the legislation which is under investigation in the case.  It might be thought that Pabla Ky represents a stark example of that approach. 

26.      I turn next to the case of Davidson v Scottish Ministers [2004] UK HL 34.  In this case, the appellant, a prisoner at HM Prison Barlinnie, sought leave to appeal to the House of Lords against a decision of the Extra Division of the Court of Session, but by a majority, that Court refused leave.  One member of the Court had held the office of Lord Advocate in Her Majesty's Government and in the course of piloting and promoting the Scotland Bill in the House of Lords had given advice to the House on the effect of the very section in the Crown Proceedings Act 1947 which was at issue in the case where the appellant sought leave to appeal.  When subsequently the appellant became aware of that, he challenged the decision refusing him leave on the grounds of apparent bias.  This was considered in the House of Lords where the leading judgment was given by Lord Bingham of Cornhill, who reviewed a number of judgments of the European Court of Human Rights, of the High Court of Australia and the Privy Council.  In the course of doing so, Lord Bingham considered McGonnell (supra) where he noted that the Commission held by 25 votes to 5 that Article 6 had been violated ruling that the principal judicial officer who sat on Mr McGonnell's case, the Bailiff, was not only a senior member of the judiciary of the Island but also a senior member of the legislature as President of the States of Deliberation and in addition a senior member of the executive, as titular head of the administration presiding over a number of important committees.  Lord Bingham referred to the Commission finding that, taking into account the Bailiff's roles in the administration of Guernsey, the fact that he has executive legislative functions means that his independence and impartiality were capable of appearing open to doubt, and concluded that the European Court of Human Rights was of the same opinion (paragraph 12). 

27.      With the greatest respect to Lord Bingham, that in my judgment was not a correct statement, as Pabla Ky and subsequent reviews of the case in other courts have shown.  Indeed Lord Bingham himself at paragraph 13 of this judgment said this:-

"It was at once recognised that the decision in McGonnell threw doubt on the Lord Chancellor's historic dual role as both legislator and judge. Giving his written answer to a parliamentary question on 23rd February 2000 (HL Hansard, Vol 610, WAS 33), Lord Irvine of Lairg LC declined to step down as head of the judiciary and distinguished his role from that of the Bailiff of Guernsey, but added:-

'The Lord Chancellor would never sit in any case concerning legislation in the passage of which he had been directly involved nor in any case where the interests of the executive were directly engaged.'

This response was consistent with the response made by the Lords of Appeal in Ordinary to an invitation to publish a statement of the principles they intended to observe when participating in debates and votes in the House of Lords and when considering their eligibility to sit on related cases. On 22nd June 2000, in the course of the Law Lords collective reply, they stated (HL Hansard, Vol 614, Col 419);

'As full members of the House of Lords the Lords of Appeal in Ordinary have a right to participate in the business of the House. However, mindful of their judicial role they consider themselves bound by two general principles when deciding whether to participate in a particular matter, or to vote; ...

Secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House.'"

28.      It seems to me that this recognition by Lord Bingham of the response of the Law Lords to the McGonnell case shows that the view at that time was taken that the European Court in McGonnell did not formulate its position in the same way as the Commission had, because their Lordships' response would not have met that criticism.  Instead, they must have considered that the European Court had approached the case on the facts by referring expressly to the direct involvement which the Deputy Bailiff had had in the States of Deliberation in 1990 in the passage of the legislation which came to be considered in the later case in court in 1995.  That indeed was the position taken by Sir John Laws in his separate opinion in McGonnell as already referred to.  I note that the distinction which I have drawn between the views of the Commission and the views of the European Court in McGonnell is the distinction also drawn by Pill LJ in R (on the application of Barclay and others) v the Secretary of State for Justice and others [2008] EWCA Civ 1319 at paragraphs 59 and 60.  Having referred to paragraph 61 of the Commission's judgment which puts the objection to the Bailiff's role in a general way, Pill LJ continued at paragraph 60:-

"Subsequently the Court found unanimously that there had been a violation of Article 6 of the Convention. It did so, however, on narrower grounds, further information about the Bailiff's role in the particular case having emerged (paragraph 57). The Court held that the mere fact that the Deputy Bailiff had presided over the States when the development plan was adopted was capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal."

29.      Lord Bingham summarised the principles in Davidson in a number of different paragraphs in his judgment:-

"6. The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such a tribunal should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge would be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of the party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias. But the expression is not a happy one, since 'bias' suggests malignity or over-partiality, which is rarely present.  What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge's judgment."

30.      Having noted that the test to be applied was agreed to be that of Porter v McGill, namely whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, and having noted that the advice given by the Lord Advocate to the House of Lords when the legislation in question had been adopted was orthodox advice, Lord Bingham then went on:-

"9.      The question is not, however, whether Lord Hardie's statements were reasonable and proper but whether the fair-minded and informed observer, having considered them and the circumstances in which they were made, would conclude that there was a real possibility that he was biased in the sense that, having made these statements, he would be unable to bring an objective and undistorted judgment to bear on the issue raised by Mr Davidson in his reclaiming motion.

10.      Rarely, if ever, in the absence of injudicious or intemperate behaviour, can a judge's previous activity as such give rise to an appearance of bias. Over time, of course, judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular judge is likely to react to a given problem. Since judges are not automata this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindness; and there are few experienced judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice, as the cases show, problems of apparent bias do not arise where a judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system, but problems are liable to arise where the exercise of judicial functions is preceded by the exercise of legislative functions."

31.      Lord Bingham then referred to Procola, McGonnell and Pabla Ky (supra) and to Panton and Panton v Minister of Finance and the Attorney General [2001] UK PC 33 where the appellants challenged the constitutionality of a Jamaican statute and in the course of doing so had objected to Rattray P having presided in the Court of Appeal on the basis that, when Attorney General, he had certified that in his opinion the statute which the appellant sought to challenge was not contrary to the constitution.  It was a pro forma certificate given before the statute was presented to the Governor General for the Royal Assent and the Privy Council determined that on the facts there was no appearance of bias, the Board observing at paragraph 9:-

"It is not obvious that the Attorney General would himself have applied his mind to every aspect of the Act and examined its constitutionality in every detail. Doubtless members of his office would advise him on the matter and from all that appears he may well have relied on his departmental advisers in putting his signature to the certificate. It is a statement of his opinion. But it is not evident that it took any account of the particular issue which has now been raised by the appellants."

32.      Lord Bingham noted that the Board had found no appearance of bias on these facts, nor indeed on the fact that that President of the Court of Appeal had, when the statute was passed been a member of Parliament and Minister of Justice as well as Attorney General.  The Board said at paragraphs 13 and 14:-

"But there is nothing to show that he was actively engaged in the promotion of the Bill, indeed there is nothing to show that he took any part in the process of its passing at all. He may well have voted for it as a member of the Government whose Bill it was, but there is nothing on which the appellants found as demonstrating any particular participation in the legislative process. Had he introduced the Bill, or campaigned for it, been responsible for securing its passage through Parliament, or adopted it as a particular cause which he was determined to promote, there might have been some material on which the appellants could have found it an argument. But apart from the matter of the certificate, they look only to the fact of his membership of the Government and the Parliament when the Act was passed. That cannot be sufficient to constitute a disqualification from his sitting as a judge on the issue of constitutionality which has now arisen. His past political history is, as was pointed out in the passage in Locabail [2000] QB 451 at page 480 paragraph 25 ... not ordinarily a ground for disqualification."

33.      Lord Bingham also referred to Kartinyeri v Commonwealth of Australia [1998] 156 ALR 300 where the judge concluded that he should not disqualify himself simply because when counsel he had given an opinion on the point in question in the case.  The judge held at paragraph 24 of his judgment that he did not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, would ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test.  He noted that he had not been directly involved in the preparation of the legislation which had to be construed by the Court, and that his position was different from that of a principal law officer of the Commonwealth of Australia who had taken active steps to ensure the passage of a bill and to propound to the Governor General the Senate's failure to pass it as a basis for a double dissolution.  Those were circumstances which led Murphy J to stand aside in Victoria v Commonwealth and Connor [1975] 134 CLR 81. 

34.      Lord Bingham summarised the position at paragraph 17 of his judgment:-

"The judgment of the Board in Panton makes clear that it is difficult, if not impossible, to lay down hard-edged rules to distinguish a case where apparent bias may be found from one where it may not. Much will turn on the facts of the particular case. But the judgment also holds, consistently with authority cited above, that a risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process. Since in the present case there is no issue as to the facts, no issue as to the legal test to be applied and (in my opinion) no significant misdirection by any member of the Second Division, I should for my part be very reluctant to disturb its unanimous decision. I am however of the clear opinion that its conclusion was justified by the nature and extent of Lord Hardie's involvement in the passage of the Scotland Act. The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament."

35.      I turn now in more detail to the decisions of the Court of Appeal and the Supreme Court in the Barclay Brothers litigation against the Secretary of State for Justice. 

The Barclays' decisions

36.      The superior courts of England and Wales have been troubled with two cases arising out of the challenge of Sir David and Sir Frederick Barclay to certain reform laws in the Island of Sark.  The relevant cases are R (on the application of Barclay and others) v Secretary of State for Justice and others [2008] EWCA Civ 1319, the Supreme Court decision on appeal from that judgment to be found at [2009] UKSC 9, and more recently in R (on the application of Sir David Barclay and another) v Secretary of State for Justice and the Lord Chancellor and others [2014] UKSC 54 (Re Barclay No.2).  As Baroness Hale set out in Re Barclay (No. 2):-

"23. In Barclay (No 1) the 2008 Reform Law was challenged on three grounds: that the continued membership of the Chief Pleas of the Seigneur and Seneschal was incompatible with article 3 of the First Protocol to the European Convention; that while alien residents of Sark could vote in the elections for conseilleurs, they could not stand for election, which was also said to be incompatible with article 3 of the First Protocol; and that the dual role of the Seneschal as President of the Chief Pleas and chief judge was incompatible with article 6 of the Convention. All three challenges failed before Wyn Williams J: [2008] EWHC 1354 (Admin); the first two failed both on appeal to the Court of Appeal and to the Supreme Court: ... the third challenge succeeded in the Court of Appeal and there was no cross appeal against that to the Supreme Court. The Court of Appeal declined to quash the Law, but made a declaration that the Seneschal's dual role breached article 6 of the Convention.

24. As a result, the Chief Pleas enacted the 2010 Reform Law which is in issue in these proceedings. Under this, the Seneschal is no longer to serve as President or member of the Chief Pleas and a new office of President is created; and new provisions are made for the appointment, removal, renewal and remuneration of the Seneschal. The claimants challenged the latter provisions as being incompatible with the impartiality and independence of the judiciary which is required by article 6 of the Convention.

25. The Administrative Court rejected the challenges to the provisions for the appointment, removal and renewal of the Seneschal. But it held that the provision for the remuneration of the Seneschal, out of public funds to be determined by the Chief Pleas on the recommendation of its General Purposes and Advisory Committee in consultation with its Finance and Commerce Committee, was incompatible with article 6. This was because the court held that there was nothing to prevent the Chief Pleas making an arbitrary reduction in the remuneration of the Seneschal. In such a small community, an objective outsider would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas not to make decisions which would be unpopular with them. The court therefore granted the claimants a declaration that the decision of the Committee for Jersey and Guernsey to recommend approval of the provisions of the 2010 Reform Law amending the 2008 Reform Law was an unlawful decision, as in respect of the remuneration of the office of the Seneschal, the law was incompatible with article 6 of the Convention. ..."

37.      Barclay (No.2) was argued in the Supreme Court mostly in the context of the jurisdiction of the English courts to concern themselves with the actions of the Crown in relation to legislation adopted by the legislatures of the Channel Islands.  The conclusion, at paragraph 58 of the judgment of Baroness Hale was in these terms:-

"As a general proposition, to which there may well be exceptions, I would hold that the courts of the United Kingdom do have jurisdiction judicially to review an Order in Council which is made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. Hence the Administrative Court did have jurisdiction to entertain this claim. Nevertheless, there are circumstances in which that jurisdiction should not be exercised. This is clearly one such case. The appeal should be allowed and the declaration made by the Administrative Court set aside."

38.      This argument as to whether the English Courts did have jurisdiction, and if so, whether it should be exercised, had not been run in Barclay (No.1); but one assumes that if it had been run, the decision in Barclay (No.1) would have been to similar effect, namely that the decision of the Court of Appeal in that case should be set aside upon the basis that although it had jurisdiction to entertain the claim for judicial review, it ought not to have exercised it.  The point has not been argued before me but I hope it would not be inappropriate or too presumptuous for me to add that although there are other parts of the judgment in Barclay (No.2) which might be thought to be surprising, particularly any conclusion, even if obiter, which suggests that notwithstanding the absence of any democratic mandate Parliament has the legal right to legislate for the Channel Islands without their consent, (a matter on which as I understand it the Supreme Court heard no argument), the approach of the Supreme Court to the exercise of jurisdiction is entirely appropriate.  It is of course a matter for the Supreme Court to determine what the jurisdiction of the English court might be and the circumstances in which it might be exercised, but from our perspective in the Islands, it would seem odd that an English Court should be requested by a party to strike down the grant of Royal Assent to a piece of Island legislation on human rights grounds when it would not necessarily have before it either the relevant parties or all the circumstances - the complete Island fabric of legislation, safeguards and traditions, as well as its soft law (the rules of established practice, accepted social norms etcetera) - to enable it to reach a considered view.  In particular it is difficult for such a view to be reached when one bears in mind that there is a margin of appreciation, taking into account historical and political factors, which are bound to be relevant in the assessment of the proportionality of interference with Convention rights, where that is in issue.  

39.      The fact is that the decision of the Court of Appeal in Barclay No.1 on the point most relevant for our consideration today was not the subject of appeal to the Supreme Court.  One is left with a decision at the English Court of Appeal level on the compatibility of a piece of Sark legislation with the European Convention on Human Rights when those responsible for that legislation, the Chief Pleas, and those affected by the legislation - namely the Chief Pleas, Seigneur and Seneschal and indeed the Bailiwick of Guernsey itself - were not parties to argue the case before the Court and thereby to ensure that all relevant facts might be put before the Court for consideration.  In my judgment that is unfortunate and impacts upon one's assessment of the merits of the decision.  The significance of this point is perhaps emphasised by the fact that all of Jersey's legally qualified Crown Officers in 2008 considered that the Secretary of State for Justice and Lord Chancellor should be strongly encouraged to seek leave to appeal the Court of Appeal's judgment but, for whatever reason, he chose not to do so. 

Carswell Review

40.      I should not close on this aspect without referring to the Review of the Roles of the Crown Officers by a committee, over which Lord Carswell presided, appointed by the States of Jersey which reported in December 2010.  The Review extends to a number of political considerations which are irrelevant for the purposes of this judgment.  I am concerned only with the application of the law.  At page 34 of the Review however, Lord Carswell turns to the European Convention on Human Rights and there is a discussion at paragraph 5.12 et seq. of the possibility that decisions of the Bailiff and Deputy Bailiff might be held invalid as being in breach of Article 6(1) of the European Convention on Human Rights.  Lord Carswell's Review continues at paragraph 5.13 as follows:-

"The concept of a perceived risk is of importance in determining this issue. Even though a judge may not have been in fact influenced by any personal bias - commonly termed subjective bias - it may be perceived by reasonable people that he may have been influenced by extraneous factors. The test is that summarised by Lord Hope of Craighead in Porter v Magill [2001] 2 AC 357, 494, para 103:

'The question is whether the fair-minded and informed observer, having considered the facts, will conclude that there was a real possibility that the tribunal was biased.'

This is termed objective bias. The test in European human rights jurisprudence is phrased slightly differently, that the arrangements must provide sufficient guarantees 'to exclude any legitimate doubt' as to the tribunal's impartiality. It is now well established both in UK domestic law and in the jurisprudence of the European Court of Human Rights ('ECtHR') that objective bias will invalidate a judicial decision. The same will follow in the law of Jersey, as the Royal Court is bound by Article 3 of the Human Rights (Jersey) Law 2000 to take account of decisions of the ECtHR. We of course presume that the Bailiff will be free of subjective bias in reaching his decisions, but the issue on which we must focus is whether it might reasonably be thought that objective bias is established by reason of his membership and Presidency of the States. If that were so, it could be held that his decisions in some cases were in breach of Article 6 of the Convention.

...

5.15 After considering these decisions [McGonnell, Pabla Ky, Davidson, Styles v Ruxton 2000 JC 208 and Barclay (No.1) in the Court of Appeal], we felt that it was uncertain what decision might be reached if a challenge were brought in the ECtHR to a decision of the Bailiff on the ground that he had presided in the States. We therefore took the opinion of leading counsel in London, Mr Rabinder Singh QC, who has considerable experience of human rights law and its application in the ECtHR. ... Mr Singh summarises his conclusions in the following terms (para 2 of his opinion):

"(1) On the current state of the authorities, in principle there would be no breach of Article 6 of the European Convention on Human Rights if the status quo were to be maintained.

(2) However, the international trend suggests that the law will change in due course. Within the next 10 years, my view is that the present arrangements will come to be regarded as incompatible with the concept of judicial independence as embodied in Article 6, in particular because the Bailiff and his deputy are both judges and presiding members of the legislature."

41.      I note that Lord Carswell's committee accepted the view expressed by Rabinder Singh QC (as he was then) that as of 2012 there was no breach of Article 6 of this Convention with the structural status quo and I am not aware of any decision of the European Court since then which would suggest that position has changed. 

Discussion

42.      Although there have been challenges to particular judges sitting in court in this jurisdiction previously, I think this is the first occasion on which a structural challenge has been brought upon the basis that the Bailiff is not only the Chief Justice but also the President of the States.  I will shortly come on to summarise what I believe to be the law in this respect and its application to the facts in this particular case but because the issue may either on this occasion or on a subsequent occasion attract the attention of a higher court, it may be helpful to add a few words on what my approach would be, were there not authority which I will shortly come on to apply.  The expression "separation of powers" is attributed to Charles-Louis de Secondat, Baron de la Brède et de Montesquieu, the 18th century French social and political philosopher.  In modern times, it is an expression which is frequently used in constitutional discussions as if it were a Holy Grail in itself.  However, my own view of the writings of Montesquieu in this respect is that he should be considered as setting out som e important political principles but not an absolutist blueprint as to how they should be achieved. He recognised that, taking a step back from the exercise of power in a democratic society, there were three distinct branches of government - legislature, executive and judiciary.  His core principle was that they should operate independently of each other, because in that way, each of them operates as a check and balance against the arbitrary exercise of power by the other or others.  I do not take him to be suggesting that the three branches of government should never talk to each other.  Nor do I take him to be suggesting that it is impossible for the three branches of government sometimes to act together.  It is not inconsistent with the principle that the legislature, which acts as a check on the executive, should adopt legislation which the executive proposes.  Similarly, if there is a threat to general public order, contrary to some existing legislation, it is not inconsistent with the idea of the separation of powers that the judiciary should make administrative arrangements to deal quickly, at the request of the executive, with alleged prosecutions under that legislation.  In those two examples, what is important is that the legislature scrutinises the legislative proposals which the executive puts forward, and that the judiciary applies the law (as well as its usual procedural rules) independently to the allegations put before it in relation to particular prosecutions.  

43.      There are systems of course where the separation of powers is applied in an absolutist way.  For my part I think that is undesirable in Jersey, although it may work in very large jurisdictions.  In a small jurisdiction I think it is particularly undesirable because the size of the jurisdiction makes it more difficult to be sure that non-governmental organisations, the media, professional bodies or other pressure groups will successfully apply the constraint of public opinion to a wrongful trespassing by any one of the relevant powers on the territory of another.  It is essential that the judge should have in mind when reviewing the activities of the executive that he does not hold  executive authority himself and he must allow that authority to exercise its judgment in areas reserved to it, as long as it is lawful and proper, even if it were not the same judgment the judge himself would have made, and that he apply the law carefully to reviewing the adoption of legislation by the legislature; and equally, it is essential that neither the legislature nor the executive trespass on the territory of the judiciary.  This is not necessarily achieved by working in silos.  Any review of the decisions of the courts of Jersey in the last 50 years will make it plain that the judiciary does operate independently of the legislature and the executive, and that is what is critical to the Montesquieu principles. 

44.      It is no answer to this point to say that there may be elements of society which have the perception that there is bias.  In any community, there are likely to be some people who form a particular view adverse to those in authority, whether legislature, executive or judiciary.  The fact that a minority of people may have such perceptions simply does not justify interfering with a structure which otherwise works well.  Of course the legislature can take such steps as it considers appropriate to achieve a desired constitutional structure.  That is the privilege of the legislature.  In my judgment however the court should not venture upon that territory, provided it is satisfied that litigants before it obtain a fair hearing. 

45.      Essentially Mr Gosselin raised before me three different objections:-

(i)        There was a structural objection to the Bailiff sitting in judgment on an appeal under the 2007 Law because the Bailiff was President of the States and accordingly the Royal Court when also presided over by him was structurally not an independent and impartial tribunal for the purposes of Article 6 of the Convention.  

(ii)       When I was Attorney General, I spoke in the States in connection with the adoption of the 2007 Law and the 2007 Regulations and therefore I was precluded from sitting in court subsequently to consider an appeal under that legislation. 

(iii)      The 2013 Regulations which were particularly considered by Mr Gosselin not to be Human Rights compliant, for reasons which I will tackle at a later stage in this judgment were the subject of advice to the States by the then Attorney General Mr Timothy Le Cocq QC, now Deputy Bailiff, and the cursus senorum is such that objectively I would be regarded as having the biased position of wanting to support the advice which my successor as Attorney General, and the current Deputy Bailiff gave to the Minister or the States as the case may be at that time. 

46.      I deal with these three different objections against the background of the authorities and reviews which I have mentioned. 

The structural question

47.      In my judgment the authorities are clear as to what the current position is in law:-

(i)        Neither Article 6 of the European Convention on Human Rights nor our domestic law provide that there cannot be an independent and impartial tribunal without a complete separation of powers. 

(ii)       The issue for the Courts whenever a challenge is made on the grounds of a lack of independence or impartiality in the Court is whether the fair-minded and informed observer, having considered the facts, will conclude that there was a real possibility that the tribunal was biased (Porter v McGill).  I consider that the test in European Human Rights jurisprudence, phrased slightly differently, amounts to much the same thing.  Determination of the question therefore requires an examination of the facts which are pertinent to the particular piece of legislation and the activities of the judge in question in relation to it, or in relation to the executive whose decision is being impugned.  

(iii)      The terms of appointment of the judge must show a sufficient distance from both the executive and the legislature so as to ensure his independence and impartiality. 

(iv)      There is a margin of appreciation which is given to member states under the Convention as to how they arrange the constitutional structures - legislative, executive and judicial - subject to the principles set out above. 

48.      I was not Bailiff at the time the 2007 Law was adopted and I did not preside over the debates in the States for either that law or the secondary legislation adopted thereunder.  I also did not preside over the debates on the secondary legislation in 2013.  The first objection to my presiding could only be successful if one reached the conclusion that merely because the Bailiff was President of the States and a judge in the Royal Court, he could not constitute an independent and impartial tribunal notwithstanding that he had had no role whatsoever in the adoption of the legislation relevant to the case which appeared before him in court.  That has not been the law so far, and in my judgment it would not be appropriate to adopt such a position today.  That question is currently a political and not a legal question.  To answer it affirmatively would suggest that there has historically been an inability in the Royal Court on structural grounds to deliver a fair trial or hearing, whenever the States or Ministers have been involved.  There is no evidence that that is so.  Furthermore, I consider that the European Court of Human Rights has rightly reached the view that the approach to questions arising under Article 6 of the Convention has to be fact specific rather than based on any absolute doctrinal principles or theories.  That being so, and as I did not preside over any of the relevant debates, I reject this ground of objection. 

My advice to the States as Attorney General

49.      I recognise completely the force of the decision of the House of Lords in Davidson v Scottish Ministers and accordingly I have asked whether the fair-minded and informed observer would conclude that there was a real possibility that I was biased in the light of the advice given to the States in 2006.  Before I look at that advice, I remind myself of the judgment of Lord Hope of Craighead in Helow v Home Secretary [2008] 1 WLR 2416 at page 2418 where he said this:-

"(2) The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious ... Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

(3)  Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

50.      I note that this passage was cited with approval by Commissioner Sumption in Syvret v Chief Minister and others [2011] JRC 116.  Respectfully, I too agree with it.  To reach a conclusion on the perceptions of bias by having regard to the uninformed, the prejudiced or those who merely repeat what others might say without enquiry or analysis would be to base it on very insecure foundations.  I conclude that the informed observer would therefore take the trouble to review the Hansard record of the debate in the States and the advice given by me as Attorney General at that time in order to determine whether I was either promoting the legislation in any active sense, or advising specifically in relation to a point which arises in the context of this case now before me as a judge. 

51.      I note that the Draft Income Support (Jersey) Law (P102/2006) was debated by the States Assembly on 10^th October, 2006.  The legislation was promoted by the then Minister for Social Security, Senator P F Routier who addressed the background to the legislation when proposing the principles.  Save as below, he made no reference to any contribution I had made as Attorney General. I note also that in the debate upon the principles, which were adopted by 43 votes in favour and 1 vote against, I did not speak, and of course it is also the position that the Attorney General had at that time (and has) no vote in the Assembly. 

52.      The debate then turned to the detail of the legislation. The Hansard record shows that the Minister put parts 1 and 2 to the States first, namely Articles 1 - 7.  Only two members spoke, Deputies Baudains and Southern.  The latter was concerned with whether income support would be available to a parent with a number of children of school age, or whether the Social Security Department would be insisting on the mother seeking full-time work notwithstanding that she was a single parent.  When the Minister replied, he indicated that the determining officer would make a judgment call about the suitability of requiring a mother to return to work, and when pressed by Deputy Southern as to the statutory power under which such a judgment call might be made, the Minister asked for my assistance, which I provided by advising members that it would probably be necessary for the States by Regulation to bring back an amendment providing what is or what not to be treated as remunerative work.  The Articles were then adopted by 41 votes to 1.  I note that I did not speak on the bill again.  The only other possible reference comes from the Minister's closing remark after the bill had been adopted in third reading where he thanked a number of those who had been working on bringing the law forward - in particular departmental officers - but he then added that he did not wish to forget the Law Draftsperson "and the Law Officers".  

53.      The practice today is for any proposition of draft legislation put before the States to contain a report from the Attorney General confirming that in his view the legislation is compliant with the European Convention on Human Rights.  That was not the practice during my time as Attorney General but it was the practice for the Law Officers' Department to confirm to the Minister proposing the bill that in its view the legislation was compliant.  I am sure that the 2007 Law was referred to my department with that in mind.  I may have been consulted about the Human Rights advice given, but if I was, I do not recall it.  If there had been anything contentious in that respect, I suspect I would have recalled it.  I do recall, for example, that in relation to the 2007 Law, I identified a fundamental flaw in the technical drafting of one particular Article, which led to a delay of some three or four days before the report and proposition were lodged.  I know that that advice was not Human Rights related, nor was it related to any issue that arises in the present case. 

54.      I turn next to the question of the 2007 Regulations (P90/200) adopted by the States Assembly during a sitting held on 10^th October, 2007.  The Hansard record shows that I was present in the States on that day and that I did answer some questions on amendments to the Regulations proposed by the Health and Social Security and Housing Scrutiny Panel.  The content of the amendment was as follows - the Minister's proposal had been to include a rent component for those people who were aged over 25, and the amendment sought to reduce that to the age of 21. 

55.      Thus, under the Minister's scheme, the claimant for benefit could only receive a housing component if over the age of 25. Under the amendment that was reduced to 21.  Hansard shows that I made two contributions to the debate:-

"Deputy R.G. Le Hérissier: I wonder before we launch into a discussion, if the Attorney General might wish to make a few comments on the whole issue of human rights compliance.

The Greffier of the States (in the Chair): Do you wish to have notice to of that question, Mr. Attorney?

Mr. W.J. Bailhache Q.C., H.M. Attorney General: I am very grateful for the invitation, Sir, but not particularly. If there is a particular question that the Member would want to put to me, I will certainly try and address it.

Deputy R.G. Le Hérissier:  Is it human rights compliant, Sir, to put this into effect at 25 as opposed to 21?

The Attorney General: I think it is capable of being justified and these human rights arguments can be tested in a court if they need to be. As far as I am concerned, I am not going to advise the Assembly that it is not human rights compliant.

Deputy P.V.F. Le Claire: Could I ask a question of the Attorney General, please, Sir? If somebody is currently of in receipt of this benefit and the law comes into place and their age, where they can currently get it now, suddenly finds that they are below that level, will that be taken off them and then once having received it, is that compliant?

The Attorney General: I think it is unlikely that that would give rise to a legitimate challenge on human rights grounds but, in any event, these sorts of cases, I imagine, will be tackled by the Minister using his discretion under Article 8(2) of the legislation. If there looks like being a problem on the facts of a particular case, no doubt the Minister will want to take advice from the Law Officers at that time.

Deputy G.P. Southern: May I change the question while I have the AG (Attorney General) on his feet? Thank you, Minister. Could I ask whether it is open to challenge for a 22 year-old to challenge a ruling in the courts on human rights grounds if we proceed with the 25 rule?

The Attorney General: Under the Human Rights Law, it is open to any person, including a 22 year-old, to bring an action in the court to challenge a regulation which he considers, or she considers, may be in breach of the Human Rights Law. The court has the power, under the Human Rights Law, to make a declaration. It goes further than a declaration in this case because this is secondary legislation. The court would have the power to strike down this aspect of the regulation if the court thinks that that is so."

56.      The second contribution was made in relation to a statement made by the then Minister for Health and Social Services who said that he would be supporting the amendment because, by the time someone reached the age of 24, he could have been paying into the system for a considerable number of years, with a nice flat, nice trade, steady girlfriend and even be married yet, if he fell on hard times, the rug was pulled from under him and he lost his job through no fault of his own and would not be entitled to Income Support.  The Minister for Social Security challenged that suggestion and said that if a person had made his own way in life and started out in supporting himself quite legitimately, then he would be supported under the age of 25.  He clarified that that would be with or without children, and if the person had made his own way for at least 12 months, and had established his own accommodation and then fell on hard times, he would be supported by Income Support.  The contribution which I made as Attorney General was then as follows:-

"I wonder if I might just assist the Assembly on that. The Regulation Schedule one, paragraph 3(2) says that if the member of the household is aged 25 or over or (b) none of the members of the household can reasonably be expected to live with his or her parents or any other person occupying the position of the parent in relation to the claimant. It does seem to me that if a person under the age of 25 has set up his own flat and the circumstances that the Health Minister has just described, that it would be open to him to say that he cannot reasonably be expected to give up that flat and go back to live with his parents."

57.      In relation to the 2007 Law and the 2007 Regulations it is correct therefore that as Attorney General I appeared in the States and gave advice to the States.  However, that advice did not touch upon the matters which are in dispute on the present appeal and I was neither asked to nor did express any opinion on them.  I had no vote.  I did not promote the passage of either piece of legislation.  In my judgment, the informed observer would not consider that I had participated in any way such as to conclude that there was a real possibility that in dealing with the appellant's contentions in this case, I would be biased against him. 

58.      To the extent that the Representor criticises the 2013 Regulations, of course I was no longer Attorney General, and therefore no such argument can apply.  Furthermore I note that although I was by that stage Deputy Bailiff, I did not in fact preside over the States Assembly which considered the 2013 Regulations. 

The cursus honorum

59.      In my judgment no fair-minded and informed observer could reasonably contend that I had adopted a position to the 2007 Law or the 2007 Regulations which I was under any sort of pressure to defend when it comes to considering the Representor's arguments in this case. 

60.      I therefore turn to the last objection which the Representor has raised which is that, by the nature of the cursus honorum, the fair-minded and informed observer would consider that there was a real possibility that I would be biased on the grounds that I would feel the need to support the advice which may or may not have been given by my successor as Attorney General, now the Deputy Bailiff.  It is in some ways difficult to deal with this kind of argument where no doubt the proponent of it is absolutely convinced of his position - as convinced indeed as I am that such considerations would never form part of my judicial assessments or decision taking.  It is not only the judge's oath which one has taken, although that is of course important.  It is not only that the structure of our judicial system involves judges reviewing in court the decisions taken by other judges, in many cases people they know quite well, and having to form a view as to whether those decisions should or should not be upheld.  It is not just that judges frequently find themselves departing from other judges at first instance and taking a different approach to the law.  All these things are true, but one needs to make this further point. It is that the whole mind-set of lawyers engaged in litigation in the courts over the decades of practice before they become judges, coupled with the functions which one has as a judge and which I have just described shows that the nature of counsel and of judges is to be independent, to reach one's own view and to have confidence in that view even if others disagree with it.  The practice of law in the courts, whether as counsel or a judge brings with it the forensic experience that ideas are tested and then tested again until one reaches one's own conclusion.  The fair-minded and informed observer would recognise this from any study of the way that litigation in the courts proceeds.  I reject therefore the view advanced by Mr Gosselin that in some way I will be inhibited from finding in his favour simply because my successor as Attorney General, now the Deputy Bailiff, may or may not have given advice in relation to the 2013 Regulations.  I use that expression "may or may not have given advice" because I have not looked at the Hansard report of the debates in the States to identify whether he did or did not give that advice.  It is simply not relevant to the issues I now have to decide. 

61.      For these reasons I do not consider that there is any conflict in my dealing with this appeal and I now go on to deal with the merits. 

Process

62.      On 6^th November, 2015, Mr Gosselin presented a representation dated 4^th November, 2015, to the Royal Court which ordered that a copy of the representation be served upon Her Majesty's Attorney General and the Minister for Social Security, convening them before the Court on 20^th November.  Subsequently argument took place before the Master on 21^st January, and on 4^th February the Master gave his detailed written reasons as to whether the representation should be determined by way of an application for leave to appeal or as an application for judicial review.  He resolved that the representation should stand as a notice of appeal on a question of law against a decision of the Social Security Tribunal dated 28^th May, 2014, (written reasons being given on 3^rd July, 2014), dismissing the Representor's appeal dated 23^rd February, 2014, ("the First Appeal") and against the decision of the Tribunal dated 29th September 2014 (written reasons being given on 3^rd November, 2014), dismissing the Representor's appeal dated 2^nd April, 2014, ("the Second Appeal").  He also directed that the representation should operate as an application for leave to appeal on a question of law against the decision of the tribunal dated 13^th May, 2015, (written reasons being given on 9^th June, 2014), dismissing the Representor's appeal dated 13^th April, 2014, ("the Third Appeal") and the Tribunal's decision dated 7^th August, 2015, (following a hearing on 3^rd July, 2015), dismissing the Representor's appeal dated 6^th December, 2014, ("the Fourth Appeal").  The Master went on to direct that the Representor should file any affidavit evidence on which he wishes to rely, as should the Respondents, and he fixed a timetable for the delivery of such affidavits and skeleton arguments.  Although there was an unless order made by the Master on 25^th February, 2016, the procedural requirements have been complied with, and no objection has been taken to his order of 21^st January.  Accordingly the position I am in today is that I am dealing with two applications for leave to appeal (Third and Fourth Appeals) and two appeals (the First and Second Appeals).  However, the Representor has not identified separate arguments in relation to the different appeals - rather, he has analysed and criticised the process during 2014 as a whole.  In the circumstances, it is convenient if I approach these appeals in the same way. 

The facts

63.      Mr Gosselin asserts that he was resident in Jersey and in receipt of weekly means tested income support benefit from the Social Security Department ("the Department") pursuant to the 2007 Law on 28^th January, 2014.  The following day a warning notice was issued to him by the Department. In a letter of that date to him, his determining officer wrote as follows:-

"Your household is currently receiving income support.  One of the conditions for this benefit is that you are required to be actively seeking work.  On Tuesday 28th January 2014 you failed to comply because you did not attend an appointment with me, which breaches the Income Support (Jersey) Regulations 2007 in particular Article 4(1)(e): subparagraph (e) attends every interview arranged by the Minister, unless the person has a reasonable excuse for not attending.

This letter is a formal warning that you have failed to actively seek work and have broken your job seeker's agreement. If you fail to comply again your benefit will be immediately reduced.

In the circumstances you leave me no alternative but to issue you with a formal warning. This warning will remain in force on your claim for 365 days.  Any breach of this warning will result in the following penalties being imposed:

Breach 1 - Your adult component will be removed for 14 days.

Breach 2 - Your adult component will be removed for 28 days.

Breach 3 (and any Subsequent Breach) - All income support payments to your household will cease to be made.

The 365 days of the formal warning will also be extended from the date of each Breach.

To avoid a financial penalty being imposed you must attend an appointment with me at Eagle House on Friday 7 February 2014 at 12.00pm to discuss what actions you need to take to comply with your job-seekers agreement.

If you are dissatisfied with this decision, you can ask for it to be reconsidered. You must make this request within 7 days of receiving this letter - in writing, by phone, or in person. If you are still dissatisfied with the second decision you can appeal to an independent tribunal.

However, if you don't ask for a reconsideration of the first decision within 7 days, you will lose your right to later appeal to a tribunal.

All adult members of your income support household have the same right to ask for a reconsideration and appeal against this decision. Where required, the Department will send a separate letter to each adult member of your household to inform them of this right.

Yours sincerely."

64.      Mr Gosselin did not respond to that letter and did not attend for interview on 7th February.  On 10th February the determining officer wrote to him again to give him notice that he was in breach of the formal warning and to indicate that his income support claim would be removed for 14 days and the formal warning period extended for a further 365 days from 10th February.  The letter continued:-

"During these 14 days you are required to:

Be willing and able to take up, as soon as reasonably practicable, any remunerative work that is suitable work;

Take all reasonable steps to attain remunerative work that is suitable work;

Do not unreasonably turn down any offer of remunerative work that is suitable work;

Attend every interview arranged by the Minister, unless you have a reasonable excuse for not attending.

Attend any training that may assist you in attaining remunerative work that is suitable work, unless you have a reasonable excuse for not doing so and when attending the training, participating in it to the best of your ability;

Attend any work experience placement that may assist you in obtaining remunerative work that is suitable work, unless you have a reasonable excuse for not so doing and, when attending the work experience placement, undertaking it to the best of your ability.

Failure to do so will result in Breach 2 being imposed.

Breach 2 - the adult component on your claim income support will be removed for 28 days and your warning will be extended for a further 365 days from this date.

To avoid a further financial penalty you must attend an appointment with me on Monday 17th February 2014 at 10.00am to discuss what actions you need to take to comply with your job-seekers agreement. For your information I would advise that continued non-compliance will result in Breach 3 being imposed.

Breach 3 - the entire income support claim which you are part of will close and NO benefit will be paid. For the avoidance of doubt, this will result in all components of your claim being stopped in respect of every member of your household. Furthermore your warning will be extended for a further 365 days from this date.

If you are dissatisfied with this decision you can ask for it to be reconsidered. You must make this request within 7 days of receiving this letter - in writing, by phone or in person. If you are still dissatisfied with the second decision you can appeal to an independent tribunal.

However, if you don't ask for a reconsideration of the first decision within 7 days, you will lose your right to later appeal to a tribunal.

All adult members of your income support household have the same right to ask for a reconsideration and appeal against this decision. Where required, the Department will send a separate letter to each adult member of your household to inform them of this right.

I would remind you that officers of the Department are here to assist you with your individual job search. A considerable amount of money has been invested in creating training and development programmes which will provide you with the necessary skills for you to secure employment. Furthermore, CV support, use of the Job Club and programmes which have an element of work experience are available. I would urge you to fully utilise these services.

Yours sincerely."

65.      Once again, Mr Gosselin neither contacted the Department nor attended for the meeting he was required to attend on Monday 17th February.  As a result, the Department wrote to him again on 19th February to indicate that he had breached the formal warning on a second occasion, and his income support claim would be removed for a further 28 days and that the warning period for further non-compliance would run for a further 365 days from 19th February 2014.  He was informed that he was required to attend all scheduled appointments with his determining officer and the next appointment was scheduled for 11.00am on Monday 24th February 2014.  He was warned that if he failed to attend, Breach 3 would be imposed, namely the entire income support claim of which he was a part would close and no benefit would be paid.  He was given information about the rights of appeal as previously. 

66.      Once again Mr Gosselin neither contacted the Department nor attended for interview.  The Department then wrote to him on 14th March 2014 to inform him he had breached the formal warning on a third occasion and that the entire income support claim would close, and no further benefit would be paid.  He was informed that if he was receiving the accommodation component of income support, it was his responsibility to advise his landlord that rental payments have ceased.  He was also warned that the warning period for further non-compliance would run for a further 365 days from 14th March and that to have his claim re-instated he would have to contact immediately his personal adviser, mentor or job coach to discuss what actions he needed to take for this to happen.  It was said that as a minimum he would be required fully to engage with the Department for 6 consecutive weeks.  Mr Gosselin was given the same information about appeal provisions and reminded that officers of the Department were there to assist him with his individual job search and that there were training and development programmes which would provide him with the necessary skills to enable him to secure employment.  

67.      Mr Gosselin confirmed to me that it was not disputed that he was not actively seeking work in the 6 week period, although during some of this period he says he was recovering from a medical operation.  In his representation he asserts that he then lived off some savings for some time and he informed me that his mother had also supported him and lost her entire life savings of some £15,000, which was why he was pursing the appeals so vigorously. 

68.      I now turn to the decisions of the different Social Security Tribunals, against which Mr Gosselin is appealing, because they set out the views of those Tribunals on the facts relevant to the present appeal.  

69.      The First Appeal decision was delivered on 3rd July 2014, the Chairman indicating as follows:-

"Jeremy Gosselin (the appellant) appeals under Article 17(1) of the Income Support (General Provisions) (Jersey) Order 2008 against the decision of the second determining officer on 7th February 2014 to uphold the warning issued to him by the first determining officer on 29th January 2014."

The decision of the Tribunal

70.      The warning was set out in a letter to him of that date and was stated to be given because he had on 28th January failed to attend a meeting with the Employment Scheme's manager, Susan Wright.  Mrs Wright was also the determining officer who issued the warning.  In the letter confirming the issue of the warning, Mrs Wright said that the failure to attend the meeting was a breach of Article 4(1)(e) of the Income Support (Jersey) Regulations 2007.  Under that Article a person in receipt of income support must as one of the conditions of receiving the benefit "attend every interview arranged by the Minister, unless the person has a reasonable excuse for not attending".  The warning remains in force for 365 days and while it does not impose a financial sanction on the recipient if there is any further breach of the requirements of Article 4(1)(e) there are financial penalties.  The letter advised the appellant of his right to have a redetermination of the decision and on 4th February he wrote to request such redetermination.  The redetermination was carried out by Ben Jones who on 7th February confirmed the First Determining officer's decision to issue the warning. 

71.      The Representor gave notice of appeal on 23rd February.  He set out his grounds of appeal in a letter annexed to his notice of appeal in which he asserted that he had a reasonable excuse for not attending the interview on 28th January.  In fact he set out two grounds on which he claimed a reasonable excuse, the first being that he was physically unfit to attend the interview and the second being that he was being subjected to an unfair process, in that he was being required to attend weekly hour long interviews at the Department of Social Security with a second officer in attendance.  He had spoken to other job seekers who had been registered as actively seeking work for more than a year, and found that none of those he had spoken to were being required to attend interviews so frequently, so he concluded that he was being discriminated against. 

72.      The Tribunal then went into some detail about the arguments that were put to it and the shortcomings which Mr Gosselin alleged.  It is apparent that the Tribunal considered that there might have been something in the assertions of Mr Gosselin in relation to those procedural short comings but ultimately it concluded as follows:-

"The Tribunal is able to decide for itself if there was reasonable excuse for Mr Gosselin's non-attendance at the interview. By the end of the hearing, it was established to the Tribunal that the appellant had decided in December that he would not attend private interviews at the Department and that was the prime reason for his non-attendance at the interview. The Tribunal were satisfied that was not a reasonable stance for him to take, and so could not be a reasonable excuse for not attending the interview. The appellant also maintained that he was unwell on 28th January and that was a further reason why he had a reasonable excuse for not attending the interview. The problem with this is that the appellant made no mention of this until he lodged his appeal several weeks later by which time it was not possible to establish with any precision what his state of health was on the day of the interview. The information which he supplied showed that he had been under medical care for some time for impairment of his hearing and breathing problems, but there was nothing on which a tribunal could rely as establishing unfitness to attend an interview on that day. Had there been evidence which could have supported a finding of unfitness, it might have properly been for a medical appeal tribunal to take that part of the appeal but in the absence of such evidence there is nothing to refer to such a tribunal.

The lack of any reference to his alleged unfitness to attend the interview in any communication with the Department prior to his appeal leads the Tribunal to the conclusion that is was not a genuine reason, the real reason (although not mentioned by him when requesting the re-consideration) being that he refused to attend private interviews there. The appeal is therefore dismissed ..."

73.      Mr Gosselin also appealed against the second breach notice, which was heard on 29th September 2014.  His grounds of appeal were that he had a reasonable excuse for not attending the interview on 17th February 2014 because he was physically unfit to attend and secondly, should the grounds of appeal against the issue of the warning notice be accepted and the warning notice revoked, then the breach 2 notice would be invalid.  He wanted to raise the same grounds again in relation to the breach 2 notice.  At the hearing itself the appellant sought to raise a further ground in that the Department imposed financial penalties in accordance with the provisions of the 2007 Law before the appeal against the warning notice had been heard, and as a result he had suffered financial hardship.  The Tribunal considered therefore that the issue was a simple one, namely whether the breach 2 notice was appropriately and properly issued.

74.      The Tribunal gave a useful chronology which I now repeat:-

"1. Mr Gosselin is in receipt of income support. In 2009, he was assessed as required to seek actively for work in accordance with the provisions of the Income Support (Jersey) Regulations 2007.

2. On 13th September 2009 he signed a job-seekers agreement which was provided to us at the hearing.  It sets out clearly what his responsibilities, as a job-seeker are.

3. Among the declarations are

(a) "I understand that entitlement to benefit for my income support will cease if I ... do not attend appointments on the day and time requested."

(b) "Your responsibilities ... You need to work with the adviser/job coach to give you the best chance of finding and maintaining work and you need to demonstrate a good standard to time-keeping and attendance."

(c) "Attendance ... You will be asked to attend appointments to confirm that you are available for and actively seeking work."

4. The appellant was, we are told, provided with a job-seekers guide which clearly sets out at page 15:-

'The agreement is a contract which will demonstrate your commitment to finding work and Back to Work's commitment to helping you.'

5. It would appear that all went reasonably well until December 2014. At that time there was a meeting between the appellant and the Department which did not go well. As a result, Mr Gosselin was classed as a potentially violent person (PPP). The appellant did not agree with this and in a letter dated 17th December 2013 (incorrectly dated 17th October 2013) he indicated that '.... I will not attend any private interview with any member of the Social Security Department until such time as the issues I have raised in relation to this matter have been fully dealt with to my complete satisfaction.'

In an undated letter from Mr Rose, responding, the appellant was informed that Mrs Wright would be contacting him concerning his on-going job-seeking requirements.

6. The appellant failed to turn up at a scheduled meeting on 16th January 2014.  Mrs Wright e-mailed him on 20th January 2014 pointing out 'to clarify, your classification of PPP status does not release you of your responsibility to comply with actively seeking work requirements while you are in receipt of income support'

7. He failed to attend a re-scheduled meeting on 28th January 2014, without contacting the Department, as a result of which on the 29th January he was issued with a warning notice in accordance with the provisions of rule 5A of the Regulations ... The appellant filed a request for re-consideration which occurred on 7th February 2014; he filed a notice of appeal against that re-consideration on the 23rd February 2014. The appeal was finally dealt with on 28th May 2014 and the lengthy decision was handed down on 3rd July 2014 dismissing the appeal. Although under the provisions of Article 17 Income Support (General Provisions) (Jersey) Order 2008, an appeal could have been brought to the Royal Court by the appellant on a point of law, no appeal was made. 

8. The appellant failed to attend a meeting on 7th February 2014 in accordance with the provisions of Rule 5A and a breach 1 notice was issued on 10th February 2014. On the 17th February 2014 the appellant delivered to the Department a request for re-consideration which was made on 21st February 2014 confirming the issue of the breach 1 notice. The appellant then filed an appeal notice against the confirmation of the breach 1 notice; this was filed out of time being outside the 28 day discretionary period for the issue of discretion and therefore could not be pursued.

9. The breach 1 notice also informed the appellant of his need to attend a meeting on 17th February 2014. It set out the penalty for the breach 1 and the penalty should he fail to comply with the requirements and the resulting issue of a breach 2 notice.

10. The appellant failed to attend the meeting on 17th February 2014. The Department records show that Mrs Wright tried to call the appellant twice on that day and then e-mailed him. There was no response and the appellant did not contact the Department.

11. It is noted that on the very same day the appellant attended at the Department to deliver the request for a review of the breach 1 notice referred to above in paragraph 8.

12. On the 19th February 2014, the Department served a breach 2 notice in the absence of any contact by the appellant; it is this notice that is the subject of this appeal.

13. On the 26th February 2014 the appellant wrote seeking a re-determination of the breach 2 notice; he expressed 'dissatisfaction' with the notice but gave no reason for his failure to attend the meeting.

14. The re-determination was heard on 6th March 2014 and a letter was sent to the appellant setting out reasons for the confirmation of the notice in the absence of any excuse submitted.

15. On 6th (13th) March 2014, the appellant filed his appeal notice against the re-determination of the breach 2 notice setting out the grounds of that outlined above. Although the appeal was outside the 14 day period it was within the discretionary period of 28 days and he was allowed to proceed.

16. On 20th May 2014 the file was reviewed by the Department in accordance with the procedure, following the lodging of an appeal and in the light of the documents lodged by the appellant with the appeal notice, but the decision concerning the breach notice was confirmed. The appeal therefore proceeded."

75.      The issues for the Tribunal in relation to the Second appeal were as follows:-

(i)        What was the appropriate time within which a claimant should provide an excuse for non-attendance at a meeting?

(ii)       Did the Representor provide an excuse within that time frame?

(iii)      Was the excuse when eventually provided a reasonable one?

(iv)      Was the Representor entitled to rely on the fact that at the time of the issue of the breach 2 notice, the issue of the validity of the warning notice had not been decided upon?

(v)       Was the Representor able to raise the same issues of law in relation to a breach 2 notice as he did in relation to the appeal in relation to the warning notice.

76.      The Tribunal decided that it could not revisit points of law raised in relation to the issue of the warning notice which had already been dealt with at a previous Tribunal hearing.  The Representor had chosen not to appeal to the Royal Court and that was a matter for him.  The Tribunal was bound by the findings of the Tribunal in its written reasons handed down on 3rd July 2014 as to the validity of the warning notice.  As that warning notice was found to be valid, the second Tribunal was of the opinion that these grounds did not fall to be reconsidered in the context of the breach 2 notice.  The Tribunal did not consider there were any issues of law which required to be referred to the Royal Court. 

77.      The Tribunal then went on to consider the appeal against the background that the warning notice was valid.  It concluded that the Representor was fully aware of the need to comply with the requirements of the actively seeking work programme in order to maintain his income support.  He had been adequately warned of the financial implications should he fail to comply with the requirement to attend the meetings with Mrs Wright.  The Department had made sufficient attempts to contact him and the responsibility lay with him to inform the Department of his inability to attend a meeting.  He had the means to do that as he had access both to the telephone and to e-mail, and indeed someone else could have been asked to contact the Department on his behalf.  In addition, he was well enough to attend at the Department the same day to deliver the request for re-determination of the breach 1 notice and he could have spoken to Mrs Wright then.  As he had not submitted a reason for non-attendance, there was none to be considered as reasonable and the absence was therefore without reasonable excuse.  The breach 2 notice was therefore validly issued. 

78.      The Tribunal considered that the Department had acted reasonably and that there was no reasonable excuse.  The Representor had been given appropriate notice of the steps that were being taken and the deductions that had been made had therefore been appropriately made.  This decision was given on 3rd November 2014. 

The Third appeal

79.      The Representor also appealed to the Social Security Tribunal from the decision of the second determining officer dated 28th March 2014 upholding the decision of the first determining officer of 14th March 2014 that the Representor was in breach of Article 4(1)(e) of the 2007 Regulations.  The notice of appeal was filed on 13th April 2014 and the Representor gave two grounds of appeal, the first being that he was physically unfit to attend for interview and the second, which was the same as that already set out in his appeal against the warning issued in January, dealt with above.  A hearing took place on 13th May 2015 when the Representor sought to supplement his notice of appeal in various respects.  He objected to the composition of the Tribunal because two of its members had been on the Tribunal which dismissed his appeal against the warning notice; he objected to the presence in the room of members of the Department with whom he had personal issues, and whom he thought had no legitimate reason to be present; and he indicated that he would be completing a representation to the Royal Court raising a number of human rights issues in connection with the determinations, the appeals and other legal issues.  The Tribunal retired to consider these objections and subsequently rejected them.  The Representor then addressed the Tribunal on his various contentions.  The Department was given an opportunity to apply for an adjournment if it wished to answer these objections and legal issues, but did not avail itself of that opportunity.  The Tribunal ultimately concluded that the appeal should be dismissed and a judgment to this effect was issued on 9th June 2015. 

The Fourth appeal

80.      Finally Mr Gosselin appealed against a subsequent breach 3 notice served on him by the Department on 5th November 2014.  He asserted in his grounds of appeal that he had to make an emergency payment of euros to a relative abroad before close of banking hours on the afternoon of 31st October and that he was unable to inform the Department beforehand as he had insufficient credit on him mobile phone.  He also asserted that after making the emergency payment, he then realised he had to pay his St Helier rates bill before 4.30pm and so he visited the Town Hall.  He had provided information to the Department about this but it had been ignored.  

81.      The Representor objected to the composition of the Tribunal as members of it had dealt with his previous appeals.  The Tribunal considered the objections made to its composition but concluded that it would not recuse itself.  The substance of the appeal was the question of whether the Representor had a reasonable excuse for not attending the interview on 31st October.  It was submitted for the Department that he had had four weeks' notice of the requirement to pay rates by 31st October if he was to avoid a surcharge, which in any event would have been in a small amount.  He could have called in at the Social Security Department on his way to the Public Library to explain the problem about attending the interview or he could have e-mailed from the Public Library.  It was contended his conduct had not been reasonable. 

82.      The Tribunal accepted those submissions.  It considered that it should have been possible for the Representor to arrange to make a payment and attend the interview or at least to have called in to the Department and forewarned then of the potential problem with attending the interview.  The Tribunal was not satisfied that there was a reasonable excuse for non-attendance and the decision was to dismiss the appeal, as is set out in the Tribunal's judgment of 7th August 2015. 

83.      Thus it is that the Representor appeared before me. 

84.      I now turn to the statutory framework. 

Statutory framework

85.      The 2007 Law is the principal law. Articles 2 and 3 provide for eligibility for income support.  In particular, Article 3 provides for exemptions from a requirement to be engaged in full-time remunerative work for particular classes of person.  For the purposes of this case, the relevant class comprises those persons "available for, and actively seeking, full-time remunerative work" (Article 3(1)(g).   

86.      Article 3(2)(A) provides that persons must be engaged in or available for and actively seeking remunerative work for such hours (if any) as the determining officer considers appropriate to their particular circumstances, but this paragraph was added by the Income Support (Amendment) (Jersey) Law 2015 ("the 2015 Amendment"), which came into force on 23rd October 2015 and therefore does not apply for the purposes of this appeal.  

87.      Article 3(3) is relevant, in part and provides as follows:-

"The States may by Regulations -

...

(b)     provide for the purposes of this Article -

(i)      what is or is not to be treated as remunerative work and what amount of work is to be considered as full time, generally or in any particular circumstances, and

(ii)      the circumstances in which a person is or is not to be treated as being available for, and actively seeking, remunerative work."

88.      Article 4(1) provides that a person who is eligible for income support may make a claim to the Minister and such claim is treated as made on behalf of the household of which he is a member.  Article 4(3) contains a general order making power enabling the Minister to prescribe the manner in which a claim for income support may be made, and other relevant provisions.  It is to be noted that Article 4(3)(E)(a) which provides for an order making power to prescribe the circumstances in which payments may be suspended or withheld was introduced by the 2015 Amendment, and this provision therefore was not in force at the relevant time for the purposes of the present case. 

89.      Article 5 of the 2007 Law sets out the basic components for payment of income support and enables the States by Regulations to amend those basic components and to set out the criteria to be used when determining to which components an eligible household may be entitled. 

90.      Article 6 of the Law provides as follows:

"(1)     If the calculated income of a household is less than the total of the rates for each component of income support to which the household is entitled, the household is entitled to an award of income support from the Minister.

(2)       The amount of income support that an eligible household is entitled to receive is the total of the rates for each such component minus the calculated income of the household.

(3)       However, no income support shall be payable if the amount that would otherwise be payable is less than £1 a week or such greater amount as may be prescribed."

91.       Articles 9 and 18 of the 2007 Law contain further order making powers for the Minister enabling reviews on medical grounds to be conducted by the Medical Appeal Tribunal, and appeals on non-medical grounds to be made to the Social Security Tribunal constituted under Schedule 4 to the Social Security (Jersey) Law 1974, with appeals from any such tribunal on questions of law to be made to the Royal Court.  It is to be noted that the States' power to make regulations and the Minister's power to make orders arise in these terms:-

"18 (1) The States may make Regulations and the Minister may make Orders specifying or prescribing anything that is to be or may be specified or prescribed under this Law and generally for carrying this Law into effect.

(2) Without prejudice to any specific provision of this Law, any Regulations or Order under this Law may contain such incidental, supplemental or transitional provisions as appear to the States or the Minister, as the case may be, to be expedient for the purposes of the Regulations or Order."

The 2007 Regulations

92.      Regulation 3 of the 2007 Regulations provides as follows:-

"(1)     A person is engaged in remunerative work for the purposes of Article 2(1)(c) of the Law and these Regulations if -

(a)     in the case of an employee, the person is remunerated at a rate that is at least equal to the minimum wage; or

(b)     in the case of a self-employed person, the person's average weekly rate of remuneration (net only of any expenses necessarily incurred) is at least equal to the minimum wage, calculated on the basis of -

(i)      the average hours worked during a week, or

(ii)   if the average hours worked exceed 35 a week, a 35-hour week." [emphasis added]

93.      The underlined section represents the amendment introduced by ("the 2013 Regulations"). 

94.      Regulation 4 of the 2007 Regulations as it now stands was introduced in its entirety by the 2013 Regulations and is as follows:-

"4        Person treated as available for and actively seeking work

(1)     For the purposes of Article 3 of the Law, a person is to be treated as available for, and actively seeking, remunerative work if he or she -

(a)     is -

(i)      in Jersey, or

(ii)      temporarily absent from Jersey and has a reasonable excuse for the absence;

(b)     is willing and able to take up, as soon as reasonably practicable, any remunerative work that is suitable work;

(c)     is taking all reasonable steps to obtain remunerative work that is suitable work;

(d)     does not unreasonably turn down any offer of remunerative work that is suitable work; and

(e)     attends every interview arranged by the Minister, unless the person has a reasonable excuse for not attending.

(2)     For the purposes of paragraph (1)(c), the steps include -

(a)     attending any training that may assist the person in obtaining remunerative work that is suitable work, unless the person has a reasonable excuse for not so doing and, when attending the training, participating in it to the best of the person's ability; and

(b)     attending any work experience placement that may assist the person in obtaining remunerative work that is suitable work, unless the person has a reasonable excuse for not so doing and, when attending the work experience placement, undertaking it to the best of the person's ability.

(3)     For the purposes of Article 3(1)(g) of the Law, the remunerative work referred to in paragraph (1) must be full time.

(4)     For the purposes of Article 3(2)(b) of the Law, the remunerative work referred to in paragraph (1) must be for such number of hours as a determining officer considers appropriate in the person's particular circumstances."

95.      The 2013 Regulations also introduced Regulation 5A, 5B, 5C, 5D, 5E and 5F to the 2007 Regulations. These are set out now in their entirety. 

"5A     Warning

(1)     A person required to seek work may be warned if -

(a)     he or she does not comply with the requirements of Regulation 4; and

(b)     there is not a warning currently in force in respect of him or her.

(2)     Subject to paragraph (3) and Regulation 5C, a warning remains in force for the period of 365 days beginning with the day the person is given notice of it.

(3)     If, whilst a warning is in force in respect of a person, he or she commits a first, second, third or subsequent breach of the warning, the warning shall remain in force until the expiry of the period of 365 days following the date he or she was given notice of the breach or, if he or she has committed more than one breach, the date he or she was given notice of the most recent breach.

5B     Breach of warning

(1)     A person in relation to whom a warning is in force is in breach of the warning if he or she -

(a)     is a person required to seek work; and

(b)     does not comply with the requirements of Regulation 4.

(2)     A person who is in breach of a warning for a first time shall be treated as being in breach for 14 days.

(3)     A person who is in breach of a warning for a second time shall be treated as being in breach for 28 days.

(4)     A person who is in breach of a warning for a third or subsequent time shall be treated as being in breach until whichever is the earlier of -

(a)     the person proving, to the satisfaction of a determining officer, that he or she has satisfied the requirements of Regulation 4 for a continuous period of 42 days commencing on or after the day the person is given notice of the breach; and

(b)     the expiry of the warning.

(5)     A period of time in paragraph (2), (3) or (4) -

(a)     begins with the day the person is given notice of the breach; and

(b)     is subject to Regulation 5C.

(6)     A person cannot be given notice of a breach less than 7 days after he or she has been given notice of a warning or of a previous breach whilst the warning is in force.

(7)     Paragraph (6) does not prevent any act or omission of the person during the 7 days referred to in that paragraph being taken into account in determining whether the person has complied with the requirements of Regulation 4.

5C     Extension or termination of periods under Regulations 5, 5A and 5B

(1)     A sanction period applicable in a person's case under Regulation 5 shall be extended by 7 days if the person is warned.

(2)     A sanction period applicable in a person's case under Regulation 5 shall be extended by the number of days for which the person is in breach of a warning, as described in Regulation 5B.

(3)     Any period applicable in a person's case under Regulation 5, 5A or 5B shall be extended, subject to paragraph (4)(b), by the number of days for which the person is remanded in custody or detained as described in Article 3(1)(h) of the Law.

(4)     Any period applicable in a person's case under Regulation 5, 5A or 5B shall be terminated upon -

(a)     the person being exempt from the requirement to be in full time remunerative work by virtue of Article 3(1)(a) of the Law; or

(b)     the person having been remanded in custody or detained as described in Article 3(1)(h) of the Law for a continuous period of 365 days.

5D     Consequence of first or second breach

(1)     This Regulation applies where a person is in breach of a warning for a first or second time.

(2)     During the breach period, the household of which the person in breach is a member is not entitled to a basic component under Article 5(2)(a) or (b) of the Law in respect of the person in breach.

5E     Consequence of third or subsequent breach

(1)     This Regulation applies where a person is in breach of a warning for a third or subsequent time.

(2)     During the breach period, the person in breach shall not be eligible for any payment under Article 8(1) of the Law.

(3)     Any claim for income support by the original household of the person in breach shall be taken to be withdrawn upon the commencement of the breach period.

(4)     During the breach period, whilst the person in breach is a member of his or her original household -

(a)     no income support shall be paid to the household;

(b)     no member of the household shall be eligible for any payment under Article 8(1) of the Law; and

(c)     the household cannot make a fresh claim for income support.

(5)     The fact that, under paragraph (4), no income support is paid to the original household does not affect -

(a)     whether any member of the household is a person required to seek work and the consequences of the person not complying with the requirements of Regulation 4; or

(b)     any determination that a member of the household has ceased remunerative work without good cause and the consequences of such a determination under Regulation 5.

(6)     If, during the breach period, the original household makes a fresh claim for income support after the person in breach has ceased to be a member of it, but the person in breach subsequently rejoins the household, the fresh claim for income support shall be taken to be withdrawn upon the person in breach becoming a member of the original household again.

(7)     Whilst the person in breach is a member of another household, that other household is not entitled to a basic component under Article 5(2)(a) or (b) of the Law in respect of the person in breach.

(8)     In this Regulation, "original household" means the household of which the person in breach was a member at the time he or she received notice of the breach.

(9)     For the purposes of this Regulation the person in breach is a member of another household if, after he or she receives notice of the breach, another person who was not a member of the original household becomes a member of the same household as the person in breach, by virtue of Article 5(1) of the Income Support (General Provisions) (Jersey) Order 2008, in the circumstances described in sub-paragraph (a) or (aa) of that provision.

5F     Consequences and periods of successive breaches may run concurrently

A breach of a warning by a person for a second or subsequent time does not affect the operation of Regulations 5B to 5E in relation to the previous breach or breaches of the warning by the person."

96.      The first of the remaining two pieces of secondary legislation relevant to this appeal is the Income Support (General Provisions) (Jersey) Order 2008.  Article 12 of that Order sets out the functions of determining officers, which include determining the claim for an award, and by paragraph (1A) of that Order, determining whether a person has ceased remunerative work without good cause and, if he has, the commencement date for the sanction period, the giving of warnings under Regulation 5A of the 2007 Regulations, a notice of breach as described in Regulation 5B, and for determining whether a person has proved that he or she has satisfied the requirements of Regulation 4 of the 2007 Regulations for a continuous period of 42 days.  These provisions were mostly introduced alongside the 2013 Regulations but the latter provisions (sub-paragraph 1A(d)) was introduced by the Amendment No.17 Order R&O 85/2015 which commenced on 20th July 2015.  By Article 13 of the 2008 Order a claimant is entitled, when dissatisfied with the determination made in respect of the household, to require that the matter is re-determined.  Some amendments to this Article were similarly introduced in 2015 and only two came into force on 20th July of that year.

97.      Article 18 of the 2008 Order came into force on 6th March 2015 and makes different provision for appeals to the Royal Court. In the revised edition in force as of 1st January 2014 Article 18 of the General Provisions Order provided that a party to an appeal to the Social Security Tribunal aggrieved by its decision "may appeal to the Royal Court on a point of law".  The amendment, which applies to the present appeal which was brought in November 2015 provides as follows:-

"(1)     A person aggrieved by a decision of the Medical Appeal Tribunal or the Social Security Tribunal under this Part may, on a point of law only, appeal to the Royal Court.

(2)     An appeal under paragraph (1) may be made -

(a)     in the first instance, only with leave of the Tribunal; or

(b)     in the second instance, only with leave of the Royal Court where the Tribunal has in the first instance refused leave to appeal.

...

(4)     Subject to paragraph (5), an application for leave to appeal under paragraph (2)(a) must be made before the end of the period of 4 weeks beginning with the date of the Tribunal's decision or order.

(5)     The Tribunal may vary the period specified in paragraph (4) if, in the circumstances of the case, the Tribunal is satisfied it would be fair and just to do so.

(6)     An application for leave to appeal under paragraph (2)(b) shall be made within such period as may be specified by Rules of Court (within the meaning of Article 13 of the Royal Court (Jersey) Law 1948)."

98.      Finally the constitution of the Social Security Tribunal is prescribed by Article 8 of the Social Security (Determination of Claims and Questions) (Jersey) Order 1974.  The Tribunal comprises a Chairman and one or more Deputy Chairman, being persons holding a qualification in law and up to twelve other members.  The members shall each be appointed by the States on the recommendation of the Minister, made after consulting the Jersey Appointments Commission established by Article 17 of the Employment of States of Jersey Employees (Jersey) Law 2005.  The Tribunal members hold office for such period as is specified in their appointment and after expiry of that period they are eligible for re-appointment for such period as is specified in the new appointment.  They may continue in office after the expiry of their term for the purposes of completing any proceedings that they have begun to hear before the expiry of the term of office.  Tribunal members cease to hold office on resigning in writing delivered to the Minister, and under Article 8(6) of the 1974 Order on any or various grounds there set out - but it is relevant to note that they cannot be dismissed by the Minister or by any member of the executive.  For the purposes of hearing any case referred to it, the Tribunal consists of the Chairman or a deputy Chairman and two other members selected by the Judicial Greffier. 

99.      Article 8(9) of the 1974 Order provides that a person shall not hear any case if he or she was involved in an earlier determination of the case. 

100.   Against that factual and legislative background I now turn to the complaints which Mr Gosselin has made in this appeal. 

Summary of Mr Gosselin's case

101.   In the paperwork he has submitted to the court Mr Gosselin has made a wide ranging attack on the compatibility of the 2007 Law and the 2007 and 2013 Regulations with the European Convention on Human Rights, inviting me to make a declaration of incompatibility in respect of the Law and to strike down the Regulations.  He also submits that there is no sufficient vires in the 2007 Law for the Regulations.  He goes on to criticise the procedures of the Social Security department and the conduct of the appeal in the Social Security Tribunal.  I deal with all these issues below.  Before I turn to these, I must however deal first with the respondents' objection that these issues cannot be raised on an appeal against the Tribunal's decision on a point of law.  

The procedural objection

102.   As indicated above Article 9(4) of the Law contains an order making power which is in these terms:-

"Orders under paragraph (1) may further provide for any question of law arising in connection with the determination of a claim by a determining officer or a review or appeal before a tribunal to be referred to the Royal Court for a ruling on the question".

At Article 18 of the Law, there is this further provision:-

"(1) The States may make regulations and the Minister may make orders specifying or prescribing anything that is to be or may be specified or prescribed under this Law and generally for carrying this Law into effect.

(2) Without prejudice to any specific provision of this Law, any regulations or order under this Law may contain such incidental, supplemental or transitional provisions as appear to the States or the Minister, as the case may be, to be expedient for the purposes of the regulations or order".

103.   The Income Support (General Provisions) (Jersey) Order 2008 as amended makes provision for an appeal to the Royal Court on a point of law with leave either of the Tribunal or the Royal Court as the case may be.  The Respondents argue that the relief which Mr Gosselin seeks, for revoking, quashing or setting aside of the secondary legislation enacted by the Assembly of the States is relief which could be granted on an application for Judicial Review, but is not available in the context of an appeal to the Royal Court on a point of law.  It is said that a statutory right of appeal conferred on Mr Gosselin against the decisions of the departments' determining officers is not a right to challenge a decision of a different public authority, namely the States, when the 2007 regulations were enacted.  Furthermore it is said that an issue of secondary legislation lacking vires in primary legislation is not one which can simply be raised by a claimant or plaintiff who happens to have a right of appeal, or a right to seek leave to appeal, on a point of law from a decision of the Tribunal that has applied that secondary legislation.  In support of these contentions the Respondents rely upon a number of English authorities namely:-

(i)        O'Reilly and Others v Mackman and Others [1983] 2 AC 237, which is said to be support for the proposition that a challenge to a public authority decision should be by judicial review, with its safeguards for public authorities such as the need for leave, and the requirement for locus and an arguable case, and promptness in bringing the application.

(ii)       A defendant can use unlawfulness of the public authority decision by way of a shield.

(iii)      If a person is prosecuted for a statutory offence, he is entitled to raise his defence for lack of vires for the offence, that the enactment was unlawful - see Boddington v British Transport Police [1999] 2 AC 143 where a public authority brings civil proceedings, the defendant can say that the decision on which the public authority relies is ultra vires - see Wandsworth London Borough Council v Winder [1984] 3 WLR 1254, and similarly can defend civil enforcement proceedings by the tax authorities with a public law defence challenging the lawfulness of directions given - see Pawlowski (Collector of Taxes) v Dunnington CCRTF 98/0552.

104.   The Respondents have properly brought to my attention the decision of the Court of Appeal in Trustees of the Denis Rye Pension Fund and another v Sheffield City Council [1998] 1 WLR 840 where at page 849 Lord Woolf M R considered that the Court should look at the practical consequences of the choice of procedure, and said that:-

"If the choice has no significant disadvantages for the parties, the public or the court, then it should not normally be regarded as constituting an abuse."

105.   It was said by the Minister that there was a disadvantage to the Minister and the public in allowing Mr Gosselin to challenge the vires for the 2007 Regulations as a point of law in a purported appeal against a Tribunal decision applying the 2007 Regulations because the public of Jersey was entitled to have confidence in the subordinate legislation that had been enacted by the States of Jersey as the law of the land, and entitled to ensure that the threshold of an application for leave to bring an application for judicial review had been passed before such a case was heard.  Thus the Respondents submitted that the public of Jersey is not well served if a statutory right of appeal against a determining officer's decision was exercised so as to claim that the whole edifice of income support was unlawful and the Tribunal unable to apply the legislation that had been enacted. 

106.   I am not attracted by this argument on the facts of this case.  The issues which Mr Gosselin raises in his appeal are very much issues of law.  It is true that the arguments which Mr Gosselin wishes to raise, or some of them, could have been properly raised by an action brought under the Human Rights (Jersey) Law 2000 ("the "Human Rights Law") and equally true that again some of the arguments which he wishes to raise could properly have been raised on an application for judicial review.  Nonetheless the points which Mr Gosselin wishes to raise are equally relevant to his appeals against the decisions of the relevant tribunals, or to his applications for leave to appeal as the case may be.  I do not think there are any significant disadvantages for the Respondents in having to deal with these matters on an appeal in the present case, and in my judgment the court will lean against a procedural objection of this nature unless it can be shown that there is a real disadvantage in doing so.  Apart from anything else, some of the objections which Mr Gosselin raises could be raised again in the future, whether by him or by any other person who has lost an income support benefit and in those circumstances it is very much in the public interest that the court should deliver its opinion on the vires of the Regulations and the compatibility of the 2007 Law and Regulations with the European Convention on Human Rights.  For these reasons I decide against the Respondents in relation to that procedural objection. 

The vires of the 2007 and 2013 Regulation

107.   Mr Gosselin contends that Regulation 5 of the 2013 Regulations, which introduced consequences for failing to be available for and actively seeking remunerative work in the form of warnings and breaches of warnings with stated breach periods, and consequences for ceasing remunerative work without good cause in the form of a 91 day sanction period, had no basis in domestic law because the 2007 Law did not give the States Assembly the necessary vires to promulgate such consequences by means of subordinate legislation.  This is a technical argument, separate from the Human Rights arguments which I will turn to shortly.  The argument is based upon the proposition that because the 2007 Law did not expressly confer on the States the power to make regulations which might have the result of causing someone to lose a benefit, the Regulations which had this consequence were ultra vires. 

108.   The preamble to the 2007 Regulations makes it plain that the States purported to make the Regulations in pursuance of Articles 3, 5 and 18 of the 2007 Law.  Articles 3 and 18 are fully set out at paragraphs 86 and 90 above, and Article 5(4) is set out at paragraph 112 below. 

109.   To assess the issue requires first of all an analysis of the structure of income support benefit under the 2007 Law.  That structure is shown by Article 2 which provides the test for eligibility for income support.  One of the conditions is that the applicant must be in full time remunerative work or exempted under Article 3.  The only relevant provision under Article 3 for present purposes is at paragraph (1)(g) exempting from the requirement that a claimant be engaged in full time remunerative work those who are available for and actively seeking full time remunerative work. 

110.   Once eligibility has been established, then under Article 4 a person can make a claim to the Minister, which claim is then treated as being made on behalf of the household of which the person is a member.  Article 5 deals with the components of income support and Article 6 provides the household with an entitlement to an award of income support from the Minister where the calculated income is less than the total of the rates for each component of income support which the household is entitled. 

111.   It is clear against this framework that the regulation making power in Article 3(b)(ii) is intended to provide vires for the States by regulations to determine the circumstances in which a person falls within paragraph (1)(g) as someone available for and actively seeking full time remunerative work, thus establishing that person's eligibility for income support.  Clearly the States must have had in mind, when conferring the regulation making power, that the circumstances in which a person might be treated as being available for and actively seeking remunerative work might change from time to time, and hence it was necessary to reserve the regulation making power to introduce such changes more speedily than would be possible if Royal assent were needed.  Nonetheless, the regulation making power is there for establishing eligibility for income support in the context of somebody who is actively seeking and available for full time remunerative work.  In my judgment, regulations 2, 3 and 4 of the 2013 Regulations quite clearly fall within the regulation making power reserved by the States at Article 3(3)(b) of the 2007 Law. 

112.   It is relevant to note that the context of Article 2(1)(c) of the 2007 Law is that for the purposes of eligibility, an adult must either be in full time remunerative work or exempted under Article 3.  The regulation making power in Article 3 is limited to amending the class of those exempted from the requirement to be engaged in full time remunerative work, defining what is meant by full time remunerative work, and providing for the circumstances when a person is or is not to be treated as being available for actively seeking such work.  For the purposes of this case, only Article 3(b)(ii) applies and in my judgment, Regulations 5 to 5F of the 2013 Regulations, which introduce consequences of ceasing remunerative work without good cause do not fall within its vires.  This is so for four reasons.  First of all, these Regulations deal with the components of Income Support to which a claimant is not entitled rather than the circumstances in which he is to be treated as available for and actively seeking remunerative work.  Secondly, it is clear that a person could in some cases meet Regulation 4 in its entirety and yet still face the consequences under Regulation 5 because he is adjudged to have ceased remunerative work without good cause, and the household income was such that it was, while he was employed, also in receipt of income support.  That possibly demonstrates that this Regulation does not exclusively address the circumstances in which a person is not to be treated as actively seeking remunerative work.  Thirdly Regulations 5A to 5C go to process and have nothing to do with the circumstances necessary for the purposes of Article 3(3)(b)(ii) of the 2007 Law.  Finally, and most importantly, Regulations 5 - 5F on their proper construction effectively provide for penalties rather than the circumstances envisaged in Article 3(3)(b)(ii) of the 2007 Law. 

113.   I return next to Article 5 of the 2007 Law.  Under Article 5(4):-

"The States shall make regulations setting out the criteria to be used when determining to which components an eligible household is entitled."

114.   Those components will be either basic components as listed in paragraph (2) or special components as listed in paragraph (3) of that Article.  The question arises as to whether this regulation making power is adequate for the purposes of Regulations 5 and 5A - 5F of the 2007 Regulations as amended by the 2013 Regulations.  In my judgment that cannot be so, for two reasons.  First of all, Regulation 6 of the 2007 Regulations sets out specifically that the criteria for entitlement to each component of income support mentioned in Article 5 and the rates of income support payable in respect of each component are set out in Schedule 1.  It follows that the States cannot have considered the preceding regulations as setting the criteria for entitlement to these components.  Furthermore, a review of Schedule 1 makes it plain that there are set out there some detailed criteria which make sense for establishing the various components, and Regulations 5 - 5F do not fall in that sort of category.  One cannot in my judgment regard these Regulations as setting out the criteria to be used when determining to which components an eligible household is entitled because they do not set any criteria. They provide only negative provisions in the sense that they provide a framework not for granting benefit but for removing it. 

115.   This is supported by my conclusion in relation to Regulation 5E.  The language of paragraph (2) indicates that during the breach period, the person in breach shall not be eligible for any payment until Article 8(1) of the law.  That seems to suggest that this regulation goes to questions of eligibility rather than questions of criteria.  Furthermore, Article 8 of the Law which deals with special payments provides that the States may by regulations enable the Minister to make special payments in such circumstances as the regulations specify, which again suggests that Regulation 5E of the 2007 Regulations was not really intended to have as its vires Article 5(4). 

116.   Finally I consider vires under Article 18.  By paragraph (1) of that Article, regulations may be made to specify anything that is to be specified under the 2007 Law - which does not help for the purposes of the 2013 Regulations - but also "generally for carrying [the] Law into effect".  By paragraph (2), regulations may contain "such incidental [or] supplemental....provisions as appear to the States... to be expedient".  In my judgment this Regulation making power is adequate for the 2013 Regulations.  The income support regime was introduced to provide for a means of supporting those who were in work but on low incomes, and those who were out of work and therefore without income but actively seeking work.  It is clear that the 2007 Law provides a framework for income support and the States contemplated by Article 18(1) that gaps might need to be filled.  One such potential gap would involve those who wrongly sought to exploit the scheme.  In my judgment, it was objectively feasible that some provision might be needed to guard against the possibility that some claimants might not be in work because they were not trying hard - or very hard - to find it.  Subject to any human rights considerations to which I will shortly turn, it was open to the States as a matter of vires to use Article 18 of the 2007 Law for the purposes of restricting the rights to income support as in fact has been achieved by the 2013 Regulations, if the States considered it was expedient to do so. 

117.   For these reasons I find that Mr Gosselin's submissions in relation to the lack of vires for the 2007 Regulations as introduced by the 2013 Amendment fail. 

The Regulations and the European Convention on Human Rights

118.   Regulations 5 - 5F of the 2007 Regulations contain a mechanism by which a person's entitlement to claim income support is lost for the relevant period.  Mr Gosselin submits that the structure of those regulations affects his human rights under the European Convention on Human Rights, and for those reasons the Regulations are not compatible with the Convention and ought to be struck down as secondary legislation.  This submission requires first of all an identification of whether there is any human right under the convention which is amended or interfered with by the regulations or by the conduct of the officers. 

The Convention

119.   Article 1 of the First Protocol is in the following terms:-

"Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance of the general interest or to secure the payment of taxes or other contributions or penalties."

120.   The Second Section of the European Court of Human Rights has recently reaffirmed that this Article of the First Protocol does not create a right to aquire property.  At paragraph 35 in the judgment of the majority in the case of Bélàné Nagy v Hungary, delivered on 10th February 2015, the Court said this:-

"The principles which apply generally in cases under Article 1 of Protocol No.1 are equally relevant when it comes to social and welfare benefits.  In particular, Article 1 of Protocol No.1 does not create a right to acquire property (see Van Der Mussele v Belgium 23rd November 1983, §48, Series A No.70).  Nor does it guarantee, as such, any right to a pension of a particular amount (see, for example, Kjartan Asmundsson v Iceland, Number 60669/00, §39, ECHR2004 - IX).  Indeed, the right to an old age pension or any social benefit in a particular amount is not included as such among the rights and freedoms guaranteed by the convention (see, for example, Aunola v Finland (dec.), No. 30517/96, 15 March 2001).

36.      Article 1 of Protocol No.1 places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type of amount of benefits to provide under any such scheme.  If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - whether conditional or not on the prior payment of contributions - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No.1 for persons satisfying its requirements (see, in the context of Article 14 read in conjunction with Article 1 of Protocol No.1, Stec and Others v The United Kingdom (dec).[GC], nos. 65731/01 and 65900/01, §54 ECHR 2005 - x).  For the Court, the latter principle allows for a particular interpretation in the context of disability care, which is a welfare benefit of a special character......" [emphasis added]

121.   The judgment of the majority in Nagy went on as follows:-

"37.    In the modern democratic State many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits.  Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid - subject to the fulfilment of the conditions of eligibility - as of right.  Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No.1 to be applicable......

38.      The Court has accepted the possibility of reductions in social security entitlements in certain circumstances.  In particular, the Court has noted the significance which the passage of time can have for the legal existence and character of social insurance benefits.  This applies both to amendments to legislation, which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situation.....  However, where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Kjartan Asmundsson, cited above, §40; and Rasmussen v Poland No.3886/05, §71 28 April 2009).

39.      An essential condition for interference to be deemed compatible with Article 1 of Protocol No. 1 is that it should be lawful.

Moreover, an interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest.  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is "in the public interest".  Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions.....

Article 1 of Protocol No.1 also requires that any interference be reasonably proportionate to the aim sought to be realised.....  The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden....."

122.   The controversial language in that judgment really related to the decision that a disability care benefit was a welfare benefit of a special character.  In that case the court, by a majority of 4 votes to 3, held that there had been a violation of Article 1 of Protocol No.1 of the Convention.  The approach of the dissenting three judges is summarised in paragraph 1 of the their joint dissenting opinion:-

"Article 1 of Protocol No.1 to the Convention has never, before today, been interpreted by this court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law.  The majority have thus expanded the scope of the right to property under the Convention in a manner that is flatly inconsistent with this Court's case law and the object and purpose of Article 1 of Protocol No.1.  As the right to property under the European Convention on Human Rights is not an autonomous repository for economic and social rights not granted by the member States, we respectfully dissent."

123.   The majority quoted from the Grand Chambers admissibility decision in Stec and Others v United Kingdom (supra) emphasising that in that case the court had held that where an individual had an assertable right under domestic law to a welfare benefit, the importance of that interest should be reflected by holding Article 1 of Protocol No.1 to be applicable.  The minority cited the Grand Chambers caveat at paragraph 5:-

"However, the Grand Chamber cautiously introduced an important caveat in this regard by stating (ibid. §§ 54 - 55, emphasis added) that:

It must, nonetheless, be emphasised that the principles.... which apply generally in cases under Article 1 of Protocol No.1 are equally relevant when it comes to welfare benefits.  In particular, the Article does not create a right to acquire property.  It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme.....  If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - whether conditional or not on the prior payment of contributions - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No.1 for persons satisfying its requirements.....".

124.   Being clear therefore that Article 1 of Protocol No.1 does not create a right to a benefit, it is necessary to look at the legislation to identify whether our own domestic legislation creates such a right.

125.   In my judgment, the structure of the legislation which I have set out at paragraphs 104 to 111 above does create a right to income support.  The right is conferred upon those who are eligible (see Articles 2 and 3) - it does not have to be claimed (see Article 4) because the person 'may' claim from the Minister on behalf of the household; but if it is claimed, the entitlement comes with Article 6 where the language is expressly that the household 'is entitled' to income support depending on various monetary calculations.  That language of entitlement, in my judgment, creates a right, notwithstanding that this is a non-contributory benefit.  Provided the various eligibility conditions are satisfied, the Minister must pay the income support.

126.   I have considered whether Article 8 of the Convention is engaged by this legislation.  If I had to decide it, my conclusion would be that it is. However, I do not see that any different test comes to be applied to the compatibility of the 2007 Law or the Regulations, whichever Convention right is in question, although there is one feature of the proportionality argument which needs to be addressed specifically in relation to Article 8.

127.   That conclusion then prompts a requirement under the Human Rights Law to analyse whether the right has been interfered by the adoption of the relevant Regulations, or by the application of those Regulations by officers of the Social Security department; and if there has been such interference, whether that interference is lawful, serves a legitimate public or general interest, and is reasonably proportionate to the aim sought to be realised (see Nagy supra). 

128.   I have already found the regulations which are attacked by Mr Gosselin to be lawful in the sense that they have been validly promulgated as secondary legislation under the vires of the principal law.

129.   The next question is whether they address a legitimate aim.  The scheme of 2007 Law is described in its preamble - it is a law "to establish a benefit scheme for households with low income....".  The scheme is clearly directly connected with the claimant's work record.  Eligibility under Article 2(1)(c) depends upon all the adult members of the household being engaged in full time remunerative work or exempted under Article 3.  By Article 3(3), the States may by regulation provide for the circumstances in which a person is or is not to be treated as available for and actively seeking remunerative work.  It is clear therefore that the structure of the scheme for income support is closely related to persons on low income who are employed, or who are actively seeking work.  In my judgment, the 2013 Regulations, which are intended to ensure that those who are unemployed obtain remunerative work if it is available, address a legitimate aim, namely encouraging those who are unemployed to gain employment.  If it were otherwise, the scheme for payment of income support to those on low incomes would not need to have been framed, in terms of eligibility, as it has been framed under Article 2.  The structure envisages that income support should not be available to those who refuse or neglect to help themselves by gaining employment.  In my judgment, the States were able to adopt either that policy or a different policy - either would be reasonable, and in my view the issue falls within the margin of appreciation which ought to be allowed to the legislature in respect of such a matter.  As is said in Nagy, the National Authorities are in principle better placed than the international judge to decide what is "in the public interest" and indeed better able than a judge of this court so to decide, because the issue of the quantum of benefits payable and to whom is a matter for the legislature and not for the judiciary.

130.   It is clear on the authorities that the European Convention on Human Rights does not prevent the reduction or removal of a benefit, provided, where there is a right to such benefit, the interference is lawful, pursues a legitimate aim, and is proportionate.  In terms of proportionality, the 2013 Regulations introduced a system of warnings and breaches, progressively reducing the right to income support until the benefit was completely removed.  I do not see that as disproportionate.  The ability to ensure that the right to benefit was not removed lay with the Representor.  He could have maintained his income support benefits simply by attending for the relevant meetings with the Social Security Department as required and seeking remunerative work.

131.   It was suggested by the Representor that the particular structure of the 2013 Regulations interfered with his right to respect for his private and family life particularly because all the income support was removed, including the rent component.  Thus it was said that the consequence of the sanctions applied might have been to remove from him his home and that that was out of proportion to the legitimate aim to be secured by the Regulations.  He told us that, were it not for his mother's support of him during the relevant period, he would not have been able to afford to pay his rent, and he would have been unable to find accommodation.  In my judgment, this argument fails.  Income support is broken down into different components, but all of them are capable of being essential for the purposes of ordinary living.  A person in receipt of income support needs to pay his rent, but he also needs to be able to buy food.  It would be artificial to say that it is disproportionate to remove the special component of reasonable housing costs but not the basis component which enables the purchase of food.  In both cases, the removal of the income support is proportionate if the cause of the removal lies with the refusal of the claimant to show himself actively seeking remunerative work.

132.   In summary therefore I find that the relevant legislation creates a right to income support, but the interference with that right was lawful in accordance with the European Convention on Human Rights.  I specifically do not accept the contention of Mr Gosselin that the removal by the 2013 Regulations of his ability to claim a special payment as of right under Article 8(1) of the Income Support law failed to meet the Convention.  The proportionality of the removal of the special payments provision is guaranteed by the provisions of Article 8(2) which allow the Minister in exceptional circumstances to make a special payment.

133.   I now turn to the process which was adopted in this particular case and deal with Mr Gosselin's complaints in that respect. 

134.   I note first of all that Mr Gosselin in his submissions to me made a number of political criticisms of the States in the debate and adoption of the 2013 Regulations.  He said that the debate only lasted two and a half hours, that the proposition was lodged during a States recess, and members did not become aware that it had been tabled until the 10th September; that the debate took place just one month after that; that members of the States were negligent in failing to ask questions and that on 9th September there was a secret briefing of the Scrutiny Panel and no one knows what was said.  He asserted that the debate was very limited, and that the Minister promised guidelines to the department but none have been seen.

135.   In my judgment these are political criticisms which do not raise issues of law for this Court.  The means by which the States arrive at adopting legislation are a matter of political judgment into which this Court does not enquire.  For the reasons given at paragraphs 134 - 135 below there is no adequate basis for establishing what did or did not cause particular members to cast their votes when the legislation was adopted as they did.

136.   In Burt and another v States of Jersey [1996] JLR 1, a challenge was brought to a decision of the States Assembly to acquire by compulsory purchase the property of the appellants in Clarendon Road, St Helier.  It was contended on appeal that it was permissible to look at the transcript of the debate in the States to identify the motivation which the States had in resolving to acquire the derelict property of the appellants.  Le Quesne JA, at page 8 line 27 said this:-

"I do not consider it is necessary to consider these questions because it is in my judgment perfectly clear that the ground upon which Mr Boxall bases his argument is untenable.  He submitted that the mind of the States could be discerned from the speeches of the six or seven members who spoke in the debate and who emphasised their concern about the nuisance and annoyance which the house was constituting. What is in question here is, what was the collective mind of the States upon the proposition put before them? The collective mind of the States can be shown in one way only: that is, by a vote.  It was so shown on August 20th, 1991.  When an assembly of about 50 members has shown what is its collective mind by a vote, that cannot be contradicted by reference to the views of six or seven individual members who spoke in the debate."

137.   In my judgment a similar conclusion falls to be drawn here.  The criticisms which the Representor makes of the process by which the 2013 Regulations were adopted invite the Court to enquire into whether members of the States really knew what they were doing when they voted in favour of these Regulations.  In my judgment, the vote which members took on that occasion is conclusive of the issue.  To reach any other conclusion would be for the Court to trespass on the jurisdiction of the elected members of the Assembly, the Island legislature.  On the other hand, the legislation now having been passed, it is for the Minister to apply it and for the Court to ensure she does so lawfully.

138.   I now turn to the particular points arising on this appeal.

139.   First of all I deal with the question of the Representor's application for leave to appeal in respect of the Third and Fourth Appeals.  I heard the Representor in this respect and I grant him leave to appeal.  The matters which he has raised in my judgment warrant consideration by this Court. I have taken the application for leave as the basis for the substantive hearing of the appeals.

140.   In the various documents which the Representor submitted on this appeal, he raised a great many points and it is convenient for the purposes of this judgment to divide them into the following categories - procedural and substantive fairness, administrative points not amounting to procedural fairness, and general Human Rights points related more to the appeals process rather than the legislation.

141.   I take first the issues of procedural and substantive fairness.

142.   First of all it was contended by the Representor that the Social Security Department allocated him a mentor to assist him in getting back to work, but the relationship between her and him broke down completely.  Indeed, the Department issued the various warning notices and sanctions in a way which the Representor claimed was procedurally unfair, not least because the person issuing the notices in question required to be independent and impartial, but in fact was not.  That person was his mentor, and she was always contacting the Representor, according to him.  He says that he spent hours with her but when she issued the breach 3 notice which gave rise to the Fourth Appeal, she barely gave him an opportunity to explain why he had missed the interview in question.  In particular he said that he had proof that he had applied for two jobs during that week.  In fact the Social Security Officer in question made no real enquiry, and made her decision immediately afterwards, never asking him for his reasons for not attending or steps he was taking to gain employment. The Representor asserts that the Tribunal also made very limited enquiry of him in this respect.

143.   The structure of the 2013 Regulations makes it plain that an assessment has to be made by the determining officer as to whether a person is taking all reasonable steps to obtain remunerative work that is suitable work, does not unreasonably turn down any offer of remunerative work, and has a reasonable excuse for not attending an interview arranged by the Minister.  The determining officer cannot make such an assessment without giving the person concerned the opportunity of explaining his or her position.  If it were true that the Representor was not given any opportunity to explain his position to the determining officer at the Social Security Department, that would amount to procedural unfairness for the purposes of the determination which was made, and would be a point of law justifying an interference by this Court with the conclusion of the Tribunal. It does not arise because this was not a point which the Representor took before the Tribunal.

144.   The Representor was given notice that he could seek a re-determination, which on some occasions he did, and he therefore had every opportunity to explain why he did not attend the various meetings. That is clear from the paperwork put before me on this appeal.

145.   I have reviewed the decisions of the Tribunals in relation to the first appeals, which have been signed by the Tribunal Chairmen, Advocate Thacker and Advocate Whittaker respectively.  Contrary to what the Representor said to me on appeal, it appears from the record of each decision that the respective Tribunals did investigate his reasons for not attending the different meetings to which he had been invited and, where he gave reasons, did not find them to be reasonable.  In each appeal, the Tribunal in question adequately explained its reasons for finding against the Representor.  No cause has been shown to me as to why I should set aside those conclusions as a matter of law and accordingly I decline to do so.  In the circumstances I do not find this ground of appeal to be justified. It does not arise because this was not a point which the Representor took before the Tribunal.

146.   The second ground upon which the Representor asserts procedural unfairness relates to the timing of the breach periods.

147.   Under Regulation 5B of the 2013 Regulation a person in relation to whom a warning is in force is in breach of the warning if he is a person required to seek work and does not comply with the requirements of Regulation 4.  A breach of the warning for the first time is treated as a breach for 14 days; if the person breaches the warning for a second time, he is treated as being in breach for 28 days.  By Regulation 5D(4):-

"A person who is in breach of a warning for a third or subsequent time shall be treated as being in breach for 42 days."

148.   On 14th March 2014 Ms Wright wrote to the Representor to refer to her letter of 20th February in which she advised that continued non-compliance would result in breach 3 being imposed.  The description she gave to breach 3 was as follows:-

"Breach 3 - the entire income support claim which you are part of will close and NO benefit will be paid.  For the avoidance of doubt, this will result in all components of your claim being stopped in respect of every member of your household.

Please be aware that if you are receiving the accommodation component of income support it is your responsibility to advise your landlord that rental payments have ceased.

Furthermore your warning period for future non-compliance will run for a further 356 days from this date.  If you fail to comply again during this period breach 3 will be imposed again.

To have your claim reinstated you must immediately contact your personal adviser, mentor or job coach to discuss what actions you need to take for this to happen.  As a minimum you will be required to fully engage with the Department for six consecutive weeks.

..."

149.   As was identified by the Master in his decision of 4th February 2016, the issue arises as to whether benefit is restored on the expiry of a 42 day breach period, as long as the applicant is available for and seeking work on its expiry, or whether an applicant has to satisfy the Social Security Department that he was available and actively seeking work during the 42 day period notwithstanding the withdrawal of income support. As the Master pointed out, the latter approach could lead to income support being withdrawn for a much longer period than 42 days, and this is precisely what happened in this case.  It should be noted that the amendment to Regulation 5B(4) which came into force on 30th June 2015 does not apply to the present appeal which concerns decisions taken by determining officers during 2014.

150.   In my judgment, the Representor had no grounds of complaint in this respect.  Prior to the amendment in June 2015, the 2013 Regulations provided a system of warning notices and breach notices.  Where a warning was given, it remained in force for a period of 365 days beginning with the day the person was given notice of it (Regulation 5A(2)). Where a breach notice was given for  a third or subsequent time, the person was treated as being in breach for 42 days commencing with the day he was given notice of the breach (Regulation 5B(4) and (5)). The consequence of being in breach for a third time was set out at Regulation 5E - the person in breach was not eligible for any payment under Article 8(1) of the 2007 Law and, upon commencement of the breach period, any existing claim for income support was treated as withdrawn. This does not arise from a specific decision of the determining officer. The claim is withdrawn as a matter of law.  During that breach period, the household receives no income support, no member of the household is eligible for any payment under Article 8(1) and the household cannot make a fresh claim for income support.

151.   It follows that a person who is in breach for the third occasion may be without income support for a period in excess of 42 days because that period has to expire and he then has to apply again.  Accordingly the benefit is not restored automatically on the expiry of the 42 day period.

152.   I do not say that the letter of 14th March 2014 giving the breach 3 notice is a paradigm of clarity.  It does advise the Representor that he should immediately contact his personal adviser, mentor or job coach to discuss what actions he needed to take to have his claim reinstated, but it does not indicate that if he takes no action (which was after all the cause of being in breach three times) the income support claim would not be reinstated at all.  On the other hand, the letter does advise him that "as a minimum you will be required to fully engage with the Department for 6 consecutive weeks". 

153.   By 5th November 2014, Ms Mary Brooks was the determining officer, and her letter of that date giving formal notice that there had been a further breach of warning was expressed in slightly clearer terms although even so, it does not say clearly that no income support will be paid unless the claim is re-opened. On the other hand, she does indicate that the Representor should contact her immediately.

154.   The Representor said that the Department had contended that the breach period started only when he contacted the Department at the end of May 2014.  He suggested the breach period started on 20th March 2014. In support of his contention, he pointed to an email from Ms Brooks to him dated 10th June 2014 timed at 17.06 in which she said this:-

"In answer to your question of earlier today at Job Club I can confirm that the medical certificate you submitted has no impact on your income support claim being regenerated and therefore as previously advised your claim will start again once you have been actively seeking work for a period of 42 days.  The 42 days timeframe commences from the point of contact with the Department. Having looked at our records day 1 will from 30th May 2014 which is the date you came into Work Zone."

155.   I have to confess I did not find this email to be particularly helpful. The first breach 3 notice was issued on 14th March 2014. It ran for a period of 42 days. The 42 day period expired on Friday 25th April 2014.  Under the 2013 Regulations, it was open to the Representor to re-issue his claim for income support the following Monday, namely 28th April, assuming he was actively seeking work.  If he did not re-issue his claim, there would be nothing upon which the Department could make a determination.  Under the 2015 Regulations, a person who is in breach of a warning for a third or subsequent time must prove to the satisfaction of the determining officer that he has satisfied the requirements of Regulation 4 for a continuous period of 42 days commencing on or after the day the person is given notice of the breach or the expiry of the warning, whichever is the earlier. In this case, that amendment, which came into force in 2015, did not apply. There was no basis therefore for the advice that the claim would start again once the Representor had been actively seeking work for a period of 42 days.  In my judgment the problem with this particular email is not the date from which the 42 day period is said to be calculated, but the existence of the 42 day period at all. I cannot see anything in the principal Law or the secondary legislation at that time which allows one to arrive at that figure.  Accordingly the Representor was entitled to make a claim for income support as soon as the 42 day period had expired. Once he did so, he was required to establish to the satisfaction of the determining officer that he was actively seeking remunerative work for the purposes of Article 3(1)(g) of the 2007 Law.

156.   If it could be shown that this notification from Ms Brooks of 10th June 2014 inhibited the Representor from filing an earlier claim for Income Support, he would undoubtedly have a legitimate cause for complaint.  However, this is not an issue which arises on the present appeals, which are in respect of different decisions by the Tribunal, and there is simply not enough evidence before me in relation to this particular point to indicate when he did submit his fresh claim for income support. For those reasons I conclude that while the Representor is right in what he says in respect of his particular complaint, nothing arises as a result, because this complaint was not raised on any of the appeals, to the different Tribunals and an appeal to this court from their decisions is only available on a point of law on which it could be said they went wrong.  As this was not a point taken before them, it is not now available to the Representor.

157.   On his appearance before me, the Representor elided this issue as to when the breach period started with whether he had an effective right of appeal on the consequences of the third breach.  In my judgment, these are quite separate issues.

158.   The Representor also raised a number of other process points which are not in my judgment relevant for the purposes of this appeal. An example is that he indicated that the claim forms for income support were not available online. I do not doubt that it would be helpful if claim forms could be downloaded in this way, but it does not seem to me that the fact that the claim form is unavailable online, if that is the case, has any impact on the merit or otherwise of these appeals.  The Representor also submitted that it was unfair that claim forms are unavailable unless and until the claimant has spoken in person to an income support adviser who agrees to issue an application form.  I do not find this to be a valid objection in respect of a procedural matter which lies in the province of the Minister. There is a process for making claims and for my part I do not see why it should not be followed.

159.   The Representor has also made some assertions that the Social Security Tribunal is not a Convention complaint tribunal for the purposes of the Human Rights Law and that accordingly his rights under Article 6 of the European Convention have been breached. I have already found that the right to income support has been created by the 2007 Law, and it follows that an applicant for income support is entitled to have that claim dealt with by the state in a Convention compliant way.  The objections which Representor puts up in support of his asserted breach of this Article 6 right are these:-

(i)        The judgments of the Tribunal have not been published.

(ii)       There has been a delay in concluding the proceedings which amounts to a violation of Article 6(1) of the Convention because the claim has not been heard "within a reasonable time".

(iii)      The decisions of the Tribunal do not always indicate the names of the Tribunal members, and in some cases show only the name of the chairman.

160.   Other grounds of objection to the constitution of the Tribunal were out before the Tribunal by the Representor but were not maintained before me.

161.   These points can be dealt with in relatively short order. The consequence of the finding that the Representor's rights under Article 1 of Protocol No.1 arise in the context of the 2007 Law mean that the judgments of the Tribunals ought to be published.  That has not been done in the present case, although no damage to the Representor arises in the sense that he has received a copy of those Tribunal decisions. In my judgment, the Tribunal needs to consider how to give effect in the most appropriate way to the requirement for publication - it is in the public interest that publication takes place, not only so that there is a transparency around the Tribunal's decisions, but also so that those who might wish themselves to make a claim for income support are able to see the basis upon which the legislation is being applied. The Tribunal will want to consider the extent to which it is appropriate to anonymise the published judgment, which otherwise may contain a good deal of sensitive personal data in so far as the applicant for income support is concerned.

162.   As to the time it has taken to have the Representor's rights under Article 1 of Protocol No.1 adjudicated, this does not in my judgment offend Article 6.  The first Tribunal decision was given on 3rd July 2014, the second decision given on 3rd November 2014, the third decision given on 7th August 2015 and the fourth decision given on 6th October 2015.  The Representor filed his representation in November that year, and the hearing took place in April 2016, with the judgment now being handed down.  Convention jurisprudence would indicate that considerably longer periods between the accrual of the right and the disposal of its adjudication have not resulted in a breach of Article 6.

163.   As to the third complaint which is that the identity of the Tribunal members ought to be disclosed on the face of the Tribunal decision, I agree with the Representor that the names of the Tribunal members should appear.  However, I do not think that the objections which the Representor has put up in these three respects under the Human Rights Law have caused him any significant damage. Accordingly I award him nominal damages of £50 in this respect.

164.   I am left with the appeal against the different Tribunal decisions. Having reviewed the case file by the Representor, I find nothing of substance in the objections - other than the point relating to Ms Brooks email of 10th June 2014, which does not strictly speaking arise on these appeals in any event.

165.   In summary therefore:-

(i)        I refuse the prayer in the Representation that the primary legislation breaches the European Convention on Human Rights and I do not make any declaration of incompatibility;

(ii)       I similarly decline to strike down Regulations 5 to 5F of the 2013 Regulation as breaching the Human Rights Law; and

(iii)      I decline to strike down those Regulations for lacking vires.

(iv)      I do not find in favour of the Representor on any point of law which would result in the various Tribunal decisions being reversed.

166.   Accordingly I dismiss the appeals, having granted leave to appeal in relation to the Third and Fourth Appeals.

Authorities

Income Support (Jersey) Regulations 2007.

Income Support (Miscellaneous Provisions) (Jersey) Regulations 2013.

Committee of the Privy Council on proposed reforms in the Channel Islands.

Porter v McGill [2002] 2 AC 357.

Bordeaux Vineries Limited v The States of Guernsey - Plaits de Meubles 13.11.92, reported in 1993 Guernsey Law Journal 33.

Mayo Associates SA and Others v Cantrade Private Bank Switzerland (CI) Limited and Another [1998] JLR 173.

Eves v Le Main [1999] JLR 44.

McGonnell v United Kingdom (2000) 30 EHRR 289.

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Procola v Luxemburg (1996) 22 EHRR 193.

Pabla Ky v Finland [2006] 42 EHRR 35.

Davidson v Scottish Ministers [2004] UK HL 34.

Crown Proceedings Act 1947.

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Victoria v Commonwealth and Connor [1975] 134 CLR 81.

R (on the application of Sir David Barclay and another) v Secretary of State for Justice and the Lord Chancellor and others [2014] UKSC 54 (Re Barclay No.2).

Craighead in Helow v Home Secretary [2008] 1 WLR 2416.

Syvret v Chief Minister and others [2011] JRC 116.

Income Support (Amendment) (Jersey) Law 2015.

Social Security (Jersey) Law 1974.

Income Support (General Provisions) (Jersey) Order 2008.

Social Security (Determination of Claims and Questions) (Jersey) Order 1974.

Employment of States of Jersey Employees (Jersey) Law 2005.

O'Reilly and Others v Mackman and Others [1983] 2 AC 237.

Boddington v British Transport Police [1999] 2 AC 143.

Wandsworth London Borough Council v Winder [1984] 3 WLR 1254.

Pawlowski (Collector of Taxes) v Dunnington CCRTF 98/0552.

Trustees of the Denis Rye Pension Fund and another v Sheffield City Council [1998] 1 WLR 840.

Human Rights (Jersey) Law 2000.

Burt and another v States of Jersey [1996] JLR 1.