Jersey Unreported Judgments

Appeal against decision of the Royal Court.

[2017]JCA074

Court of Appeal

23 May 2017

Before     :		Jonathan Crow, Q.C., President; Sir Richard Collas, Bailiff of Guernsey., and Robert Logan Martin, Q.C.
Between	Jeremy Patrick Michael Gosselin		Appellant
And	Minister for Social Security		First Respondent
And	Attorney General		Second Respondent

The Appellant appeared on his own behalf.

Advocate S. M. Roberts for the Respondent.

judgment

the president:

This is the judgment of the court.

INTRODUCTION

1.        Jeremy Patrick Michael Gosselin ("the Appellant") has brought an appeal against the decision of the Royal Court (Bailhache, Bailiff, sitting alone) recorded in the judgment Gosselin v Minister for Social Security and Her Majesty's Attorney-General [2016] JRC 204 in which the Bailiff dismissed four appeals by the Appellant on questions of law from decisions of the Social Security Tribunal ("the Tribunal").  This judgment is in respect of a preliminary issue raised by the Respondents as to whether the Court of Appeal has jurisdiction to hear an appeal from a decision of the Royal Court on an appeal on a question of law from the Tribunal. 

The Factual Background

2.        The factual background to the appeals is set out in detail in paragraphs 63 to 82 of the Bailiff's judgment which we will not repeat.  The position may be summarised as follows:

(a)       In early 2014 the Appellant was in receipt of weekly means-tested income support benefit from the Social Security Department ("the Department") pursuant to the Income Support (Jersey) Law 2007 ("the 2007 Law"). 

(b)       On the 29th January 2014 a warning notice was issued to the Appellant by the Department under the Income Support (Jersey) Regulations 2007 ("the 2007 Regulations") because of his failure to meet the 'actively seeking work' requirement by failing to attend an appointment at the Department. 

(c)       A further appointment at the Department was arranged for the 7th February 2014, but the Appellant again failed to attend.  As a result the Department issued a first breach notice to him on the 10th February 2014, meaning that the adult component of his income support was removed for 14 days, and the formal warning period would run for 365 days from the 10th February 2014. 

(d)       A further appointment at the Department was arranged for the 17th February 2014, but the Appellant again failed to attend.  As a result the Department issued a second breach notice to him on the 19th February 2014, meaning that the adult component of his income support was removed for a further 28 days, and that the formal warning period would run for 365 days from the 19th February 2014. 

(e)       A further appointment at the Department was arranged for the 24th February 2014, but the Appellant again failed to attend.  As a result the Department issued a third breach notice to him on the 14th March 2014, meaning that his entire income support claim was closed, and that the formal warning period would run for 365 days from the 14th March 2014. 

(f)        The Appellant asked for the Department's decision to issue the warning notice to be re-determined pursuant to Article 13 of the Income Support (General Provisions) (Jersey) Order 2008 ("the 2008 Order").  On the 7th February 2014 the second determining officer upheld the warning notice.  The Appellant appealed that decision to the Tribunal, which dismissed his appeal on the 28th May 2014 (with written reasons given on the 3rd July). 

(g)       The Appellant similarly asked for the second breach notice to be re-determined, which it was - the decision of the second determining officer being to uphold the decision.  The Appellant then appealed that determination to the Tribunal, which dismissed his appeal on the 29th September 2014 (with written reasons given on the 3rd November). 

(h)       The Appellant also asked for the decision to issue the third breach notice to be re-determined, which it was.  Again, the second determining officer upheld the decision.  The Appellant then appealed that decision to the Tribunal, which dismissed his appeal on the 13th May 2015 (with written reasons given on the 9th June). 

(i)        Finally, the Appellant also appealed against a re-determination in respect of a subsequent breach notice served on him by the Department on the 5th November 2014.  The Tribunal dismissed that appeal on the 7th August 2015 (with written reasons given on the 6th December). 

Proceedings in the Royal Court

3.        The Appellant sought to challenge the four decisions of the Tribunal dismissing his appeals against the decisions of the Department in a Representation to the Royal Court dated the 4th November 2015.  The Representation came before the Master to determine the appropriate procedural route, in particular whether it was to proceed by way of judicial review or otherwise.  He ordered that the Representation stand as an appeal on a question of law in respect of two of the four Tribunal decisions listed in paragraphs 2(f) to (i) above, and as an application for leave to appeal in respect of the other two. 

4.        In his Representation to the Royal Court, the Appellant made a number of assertions including that: (i) he had been treated unfairly and unlawfully under the procedures followed by officers of the Department and in the conduct of the appeals before the Tribunal; (ii) the States had acted ultra vires by adopting the 2007 Regulations and the Income Support (Miscellaneous Provisions) Regulations 2013 ("the 2013 Regulations"); and (iii) the 2007 and 2013 Regulations breached his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR" or "the Convention"). 

5.        The two appeals and two applications for leave to appeal came before the Bailiff who gave a detailed and careful judgment dated the 8th November 2016.  He granted leave to appeal in respect of the two Tribunal decisions where leave was required and he dismissed all four appeals.  In particular:

(a)       he refused the prayer in the Representation that the primary legislation breaches the Convention, he declined to make a declaration of incompatibility and he refused to strike down any Regulations as breaching the Human Rights (Jersey) Law 2000;

(b)       he declined to strike down any Regulations as being ultra vires; and

(c)       he did not find in favour of the Appellant on any point of law which would have resulted in any of the Tribunal decisions being reversed. 

Proceedings in the Court of Appeal

6.        The Appellant's Notice of Appeal dated the 6th December 2016 contained three grounds of appeal. 

(a)       The first alleged that the Bailiff had erred in law by not granting an effective remedy to the Appellant for the financial loss he suffered consequent upon the procedural irregularities on the part of the Department, including in particular having denied him an opportunity to apply for income support benefit during a period of time when the Department interpreted the Regulations as prohibiting him from applying for benefit which, the Bailiff had ruled, was incorrect. 

(b)       The second ground of appeal alleged that the Bailiff had erred in law by concluding that the States had not acted ultra vires when it enacted the 2007 and the 2013 Regulations. 

(c)       The third ground of appeal contended that the Bailiff had been wrong in law to conclude that there had been no unlawful interference with his rights under the Convention. 

7.        In a Respondents' Notice dated the 19th December 2016, the Respondents claimed that the Bailiff's decision should be affirmed or varied on three alternate or additional grounds:

(a)       First, that an appeal to the Tribunal may only be on a point of law and the Appellant had not identified any point of law on which the Tribunal erred in assessing the reasonableness of his excuses for not attending mandatory meetings at the Department. 

(b)       Secondly, that there were additional powers that were not cited by the Bailiff which gave the States vires to enact the relevant Regulations. 

(c)       The third point in the Respondents' Notice was that the Appellant's Representation was an abuse of process because the challenge to the vires of the secondary legislation should have been pursued by way of judicial review and not on appeal.  In their written contentions, however, the Respondents declared that they would not pursue that argument.  They conceded that it would fall to be decided on a case-by-case basis whether it is appropriate to allow a litigant to challenge the vires of secondary legislation when exercising a right of appeal on a point of law from a decision of a tribunal which has applied that secondary legislation. 

8.        The Appellant lodged his contentions in support of the Appeal dated the 27th January 2017.  The Respondents' Contentions in respect of the issues raised in the Notice of Appeal and in the Respondents' Notice were dated the 28th April.  Supplementary Contentions were subsequently lodged by the Respondents dated the 15th May 2017 raising a preliminary issue as to whether the Court of Appeal has jurisdiction to hear the appeal.  That is the issue to which we will now turn. 

Jurisdiction

9.        We should start by recording the fact that the Respondents' argument on jurisdiction was raised very late in the day, only a week before this appeal was due to be heard.  The Appellant, who appeared in person without the benefit of legal representation, expressed grave concern at the limited time he had had to prepare his response, and also at the fact that this new argument distracted him from preparing his submissions on the substantive appeal.  We have some sympathy with the Appellant in this regard.  Having said that, the question of this Court's jurisdiction is a short point of law which requires no factual evidence to be considered, and in the event the Appellant was able to offer clear and well prepared submissions. 

10.      The question of jurisdiction turns on the correct interpretation of Article 33(6) of the Social Security (Jersey) Law 1974 ("the 1974 Law"), as it was in force at the relevant time.  The question arises in this way.  Under the 1974 Law (as originally enacted) and the Social Security (Determination of Claims and Questions) (Jersey) Order 1974 ("the 1974 Order") a social security regime was established.  One of the features of that regime was that appeals to the Tribunal could be made from determinations of social security officers, and (on questions of law) from the Tribunal to the Royal Court.  In that context, Article 33(6) of the 1974 Law provided that determinations of the Royal Court "shall be final and without appeal".  When the income support regime was later established by the 2007 Law, the 2007 Regulations and the 2008 Order, provision was made (i) for appeals to the Tribunal to be made from determinations by income support officers and (ii) for appeals on questions of law to be made from the Tribunal to the Royal Court.  The question in this case is whether Article 33(6) of the 1974 Law applies to such appeals to the Royal Court, and if so whether the jurisdiction of this Court to determine appeals from the Royal Court is thereby excluded. 

11.      It is convenient to start by reciting two propositions which are as important as they are uncontroversial.  The first is the general rule that this Court has jurisdiction to hear and determine appeals "from any judgment or order of the Royal Court" (emphasis added): see Article 12(2) of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law").  The second is the exception to that general rule: the jurisdiction of this Court can be excluded by "any ... enactment" (see Article 12(2)), and in particular no appeal lies to this Court from any decision "which, by virtue of any enactment, is final" (Article 13(1)(a)).  For these purposes, the word 'enactment' includes any provision of any Regulations or Order: see Article 1(1) of the Interpretation (Jersey) Law 1954. 

12.      The next step is to identify the correct approach to be adopted when seeking to ascertain whether any given enactment does, or does not, exclude the jurisdiction of this Court for the purposes of Articles 12 and 13 of the 1961 Law.  So far as that is concerned, we do not consider that any special rules of interpretation should apply, but nevertheless we would expect to find clear legislative language before reaching the conclusion that any given enactment has the effect of excluding the right of appeal from the Royal Court to this Court which would otherwise be available by virtue of Article 12(2) of the 1961 Law: see In the Matter of the Désastre of Blue Horizon Holidays Ltd [1997] JLR 124, at 132. 

13.      There can be no doubt as to the effect of Article 33(6), in any case where it applies: the decision of the Royal Court is "final and without further appeal".  The doubt arises in this case not as to the effect of Article 33(6) (if it applies) but as to whether it applies at all to decisions of the Royal Court under the income support legislation, as much as it applies to decisions of the Royal Court under the social security legislation. 

14.      In our judgment it does.  We reach this conclusion on the basis of the language used in the 1974 Law (as amended), properly construed in its relevant context and in light of its legislative history. 

15.      As originally enacted in 1974, when it applied only to appeals under the social security regime, Article 33(6) provided that any decision of the Royal Court "on any reference or appeal by virtue of paragraph (4)" would be final and without appeal.  At that time, Article 33(4) was an enabling provision, allowing provision to be made for appeals from social security officers to the Tribunal and (on any question of law) from the Tribunal to the Royal Court.  However, when the income support regime was introduced by the 2007 Law, under which provision was made (by Article 9) for appeals from income support officers to be made to the Tribunal, and from the Tribunal (on questions of law) to the Royal Court, Article 33(6) was amended (by Article 21 of the 2007 Law).  Instead of providing (as it did in its original form) that any decision of the Royal Court "on any reference or appeal by virtue of paragraph (4)" would be final and without appeal, it now provided that any decision of the Royal Court "on any reference or appeal arising in connection with this Law" (emphasis added) shall be final and without further appeal. 

16.      In our judgment, the only purpose in making that amendment was to reflect the fact appeals could now be made to the Tribunal, and thence to the Royal Court, not only under the 1974 Law (i.e. under the social security regime), but also under the 2007 Law (i.e. under the income support regime).  There was no other reason to amend Article 33(6) at that particular juncture.  We would accordingly start from the assumption that the legislator's intention was to apply, to appeals under the income support regime, the same structure as applied to appeals under the social security regime. 

17.      The language of Article 33(6), as amended, supports that view:

(a)       Significantly, Article 33(6) does not refer to decisions of the Royal Court on any appeal to the Tribunal "arising under" the 1974 Law:  rather, it refers to decisions of the Royal Court on appeals "arising in connection with" the 1974 Law.  The expression 'in connection with' is of wide import, and it simply means 'having to do with':  see Re Claremont Petroleum v. Cummings [1992] FCA 446, (1992) 110 ALR 239, at §139-142. 

(b)       Viewed in context, an appeal to the Tribunal from a determination by an income support officer under Article 9(1) of the 2007 Law is an appeal "arising in connection with" the 1974 Law, because (i) it is an appeal to a Tribunal which was itself established by the 1974 Law (under Schedule 4), and (ii) it is (by virtue of Article 17(1) of the 2008 Order) an appeal from a decision by that Tribunal "as if the appeal [to the Tribunal] was in respect of any matter determined in accordance with the 1974 Order".  The 1974 Order was itself made pursuant to Articles 29 and 33 of the 1974 Law, and it laid down the procedure for determinations by social security officers and for appeals to the Tribunal. 

(c)       In the circumstances, the conclusion that any decision of the Royal Court on appeal from the Tribunal under Article 18(1) of the 2008 Order is a decision on an appeal "arising in connection with" the 1974 Law is, in our judgment, inescapable. 

18.      It is also apparent (from the way in which the appellate regime under the 2007 Law and the 2008 Order was bolted onto the existing appellate regime under the 1974 Law and the 1974 Order) that the legislator's intention was to establish an essentially identical regime under both systems.  It would be asymmetrical and anomalous if appeals could be made from the Royal Court to this Court in relation to decisions of the Tribunal under the income support regime, but not in relation to decisions of the same Tribunal under the social security regime.  The Appellant sought to persuade us otherwise because, he said, determining officers under the income support regime have a far wider range of discretionary powers than determining officers under the social security regime, and so (he submitted) it is only logical for the legislator to have established a more generous appellate route in relation to appeals arising under the income support regime.  However, even if the predicate for that argument were true (i.e. even if determining officers under the income support regime do indeed have a wider discretion than determining officers under the social security regime - a point on which we express no view) we would reject the conclusion which the Appellant seeks to derive from it, for the simple reason that appeals to the Royal Court are, in both cases, only allowed on questions of law (i.e. not per se in relation to any exercise of discretion).  As a result, it cannot be suggested that the legislator intended to establish a more generous appellate regime for the purpose of challenging income support officers' discretionary decisions. 

19.      The Appellant also sought to persuade us that the jurisdiction of this Court is not excluded by Article 33(6) of the 1974 Law, as amended, by reference to the fact that the relevant amendment to that Article was described in the heading to Article 21 of the 2007 Law as one of the "Minor or consequential amendments" effected by Schedule 1.  The Appellant submitted that the withdrawal of a right of appeal from the Royal Court to this Court could not be described as a 'minor' or 'consequential' provision.  However, we would reject his argument in that regard.  The 2007 Law established a regime for income support, and it did so subject to certain conditions and limitations.  One of those conditions and limitations was that the determinations of an income support officer would be appealable to the Tribunal and (on questions of law) from the Tribunal to the Royal Court - but no further.  The legislator was and is under no generally applicable obligation to extend rights of appeal to this Court, as Articles 12 and 13 of the 1961 Law expressly recognise.  Furthermore, Article 33(6) in its original form already provided that determinations of the Royal Court would be final and without further appeal, so it would be wrong to regard the amendment to Article 33(6) which was introduced by Schedule 1 to the 2007 Law as effecting the abolition of any right of appeal to this Court which had previously existed. 

20.      The Appellant also urged on us the fact that there was no evidence that any specific consideration had been given to excluding the jurisdiction of this Court from hearing appeals from the Royal Court when the drafts of the 2007 Law and the 2008 Order were under consideration by the legislator.  However, we would reject that argument too.  This Court's task is to interpret the words used in the legislation.  As a result, it is only in exceptional circumstances (and this is not one of them) that any assistance can legitimately be derived from a consideration of the content of the debate that led to their enactment.  Even less is it possible to infer anything about the meaning of an enactment from the absence of any specific debate regarding the intended effect of any particular provision, let alone from the absence of any explanation of the legislator's motives for having included or excluded any particular provision. 

21.      The Appellant also drew our attention to the age of 1974 Law.  However, we derive no assistance from that factor, for two reasons.  First, the intended effect of Article 33(6), when it applies, is not open to any doubt.  Second, the question we are seeking to answer concerns an amendment to Article 33 introduced in 2008, less than 10 years ago.  In the circumstances, the age of the original legislative provision is irrelevant. 

22.      The Appellant also submitted that, in England and Wales, an appeal is allowed from the First-tier Tribunal to the Upper Tribunal (the equivalent, he said, of an appeal from the Tribunal to the Royal Court in this jurisdiction) and then from the Upper Tribunal to the Court of Appeal in England and Wales (which would, in this jurisdiction, be the equivalent of admitting appeals from the Royal Court to this Court).  However, we derive no assistance from considering the policy choices that have been adopted in other jurisdictions as to the scope of any right of appeal in relation to comparable regimes.  We are concerned, in this case, only with the correct interpretation of the legislation of this jurisdiction.  The legislation of other jurisdictions is not a relevant aid to interpretation in this context. 

23.      Finally, the Appellant urged on us that his rights under the ECHR are engaged, and he submitted that it would be incompatible with his Convention rights for legislation to be made which undermined the very essence of his right to appeal.  However, we would reject that argument as well.  The question in this case is whether the Appellant has a right of appeal at all.  In that context, it is important to recognise that the ECHR does not confer a free standing right to appeal in all cases, let alone a right to multiple levels of appeal.  What the ECHR case-law demonstrates is that, if a Contracting State chooses to introduce an appellate regime in relation to any particular field of judicial decision-making, then it must do so consistently with the rule of law and it cannot (for example) then introduce secondary legislation which effectively neutralises that right of appeal.  None of that is of any assistance to the Appellant in this case.  Jersey is not under an obligation to confer a right of appeal to the Court of Appeal in all cases:  if it were, then Articles 12 and 13 of the 1961 Law would have been incompatible with the ECHR, because they expressly recognise that the jurisdiction of this Court can be excluded by any enactment.  In relation to income support, if a person is aggrieved by a decision of the determining officer then he can (i) ask for the matter to be re-determined under Article 13 of the 2008 Order, and then (ii) appeal that re-determination to the Tribunal under Article 17 of the 2008 Order, and then (iii) appeal the decision of the Tribunal on a point of law to the Royal Court under Article 18 of the 2008 Order.  The ECHR does not impose any requirement for affording a fourth level of review in this Court. 

24.      For completeness we would also mention that the Appellant referred us to some case-law regarding the exercise of this Court's jurisdiction on appeals concerning the exercise of a discretion by the Royal Court.  In that context, it is sometimes said that this Court has 'jurisdiction' to interfere with the exercise of a discretion at first instance where injustice would otherwise result.  However, what that means, in context, is that this Court is free in such circumstances to exercise its undoubted appellate jurisdiction in relation to the exercise, at first instance, of a discretionary judgment in ordinary civil litigation.  As such, that line of case-law is irrelevant in the present context.  The question before us is not whether this Court should choose to exercise a jurisdiction it undoubtedly has in ordinary civil litigation: rather, the question is whether this Court has any jurisdiction at all to determine appeals from the Royal Court on appeal from the Tribunal in income support cases.  In this context, the question whether any injustice might arguably result from the absence of any such jurisdiction is a function of the policy decision taken by the legislator in conferring, or withholding, jurisdiction from this Court.  If, on the true construction of the relevant enactments, it emerges the this Court does not have any jurisdiction, we cannot alter that result and clothe ourselves with jurisdiction simply because we happen to believe (if we do) that any injustice might result, on the facts of any given case, from our inability to review a decision of the court below. 

25.      We would also mention that the Respondents sought to rely on the fact that Article 9(2)(c) of the 2007 Law conferred a power to make Orders providing for appeals on questions of law from the Tribunal "to be made to the Royal Court" - without then adding any express power to make provision for onward appeals from the Royal Court to this Court.  However, we do not consider that that offers any support for the Respondents' argument on jurisdiction.  The correct analysis is that, by virtue of Article 12(2) of the 1961 Law, there is an a priori right of appeal to this Court from any judgment of the Royal Court, and it was entirely unnecessary for the 2007 Law to confer an Order-making power replicating or preserving that right of appeal.  The existence of Article 12(2) of the 1961 Law means that the question in this case is not whether the 2007 Law or the 2008 Order conferred a right of appeal:  rather, the question is whether those enactments precluded the right of appeal to this Court which would otherwise have been available. 

Conclusion

26.      For the reasons set out above, we are satisfied that they did, and as a result this Court has no jurisdiction to determine the appeal.  In the circumstances, it would be wrong to express any views on the arguments which the Appellant sought to deploy in relation to the substance of his appeal.  The appeal must be dismissed purely for want of jurisdiction. 

27.      The parties are invited to agree, within 7 days of the date on which this judgment is handed down (that is, by 4pm on Tuesday the 30th May), any consequential order as to costs.  In the absence of such agreement within the specified time limit, the parties are directed to make written submissions as to the appropriate costs order within 14 days of the date on which this judgment is delivered (that is, by 4pm on Tuesday the 6th June), with liberty to each party to reply in writing within a further 7 days thereafter (that is, by 4pm on Tuesday the 13th June).  The Court will then make any necessary ruling on costs in writing. 

Authorities

Gosselin v Minister for Social Security and Her Majesty's Attorney-General [2016] JRC 204.

Income Support (Jersey) Law 2007.

Income Support (Jersey) Regulations 2007.

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

2007 Regulations and the Income Support (Miscellaneous Provisions) Regulations 2013.

European Convention for the Protection of Human Rights and Fundamental Freedoms.

Human Rights (Jersey) Law 2000.

Social Security (Jersey) Law 1974.

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

Court of Appeal (Jersey) Law 1961.

Interpretation (Jersey) Law 1954.

In the Matter of the Désastre of Blue Horizon Holidays Ltd [1997] JLR 124.

Re Claremont Petroleum v. Cummings [1992] FCA 446.