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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Sefton v Queen's Council Appointments N... The Right Honourable Sir Decla... Brian Fee QC Felicity Huston Norville Connolly Queen's Council Appointments N... The Right Honourable Sir Decla... Brian Fee QC Felicity Huston Norville Connolly [2012] NIFET 00112_11FET (04 May 2012)
URL: http://www.bailii.org/nie/cases/NIFET/2012/112_11FET.html
Cite as: [2012] NIFET 00112_11FET, [2012] NIFET 112_11FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 112/11 FET
2144/11
CLAIMANT: Peter Stewart Sefton
RESPONDENTS: 1. Queen’s Counsel Appointments Northern Ireland Ltd
2. The Right Honourable Sir Declan Morgan
(Lord Chief Justice of Northern Ireland)
3. Brian Fee QC
4. Felicity Huston
5. Norville Connolly
DECISION ON A PRE-HEARING REVIEW
The unanimous decision of the Tribunal is that the Fair Employment Tribunal does not have jurisdiction to determine the complaints of unlawful discrimination brought by the claimant. Those claims are therefore dismissed for want of jurisdiction.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Dr C Ackah
Mr D Walls
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Peden & Reid, Solicitors.
The respondents were represented by Mr G Simpson, Queen’s Counsel, and Mr P Coll, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.
Background
1. The claimant is a barrister. He applied to be appointed to the rank of Queen’s Counsel in 2011. That application was unsuccessful.
2. It is common case that the first-named respondent is a limited company set up by the Bar Council and the Law Society to provide administrative and secretarial support to the selection process leading to the appointment of Queen’s Counsel.
3. The claimant’s application was considered, and the claimant was interviewed, by an independent panel comprising the second, third, fourth and fifth-named respondents.
4. The independent panel made recommendations for appointment to the rank of Queen’s Counsel. Those recommendations were passed to the Minister of Justice.
5. The Minister of Justice in exercise of the royal prerogative accepted those recommendations. The Minister appointed the recommended candidates to the rank of Queen’s Counsel.
6. The claimant alleges that the respondents unlawfully discriminated against him on the grounds of age, gender, religious belief and political opinion contrary to domestic legislation and EU Directives.
Pre-hearing review
7. The claimant applied for a pre-hearing review to determine whether or not the Tribunal had jurisdiction to hear the claims of unlawful discrimination. The respondents objected to a pre-hearing review on the preliminary issue of jurisdiction and argued that all matters should be determined at a full hearing.
8. The claimant and the respondents lodged written arguments on whether a pre-hearing review was appropriate. Those written arguments were supplemented by further oral argument at a Case Management Discussion on 12 January 2012. The Vice President ordered that there should be a pre-hearing review on jurisdiction.
9. The circumstances in which it is appropriate for an employment tribunal to direct a pre-hearing review has been the subject of much debate recently in Northern Ireland. As a result of recent case law there has been a generally perceived ‘chill factor’ against pre-hearing reviews by employment tribunals. This has had a significant and adverse impact on effective case-management. Claims are proceeding to full hearings, at considerable expense to both parties, in circumstances where they could have been determined much earlier, and with less expense, at a pre-hearing review. Since it is probable that the decision on this pre-hearing review will go further on appeal and since it is equally probable that the Court of Appeal will, as it has done in the past, first consider whether it was appropriate for a pre-hearing review to be heard separately from a substantive hearing, the reasons given by the Vice President for his decision to direct a pre-hearing review are incorporated into this decision and are as follows:-
“(7) It was common case, and in any event evident from the authorities to which I was referred, that a pre-hearing review should only be directed after careful consideration. It is also clear that the power to direct a pre-hearing review should be exercised sparingly. What can appear, at first glance, to be a time-saving measure and a proper exercise in case-management, can very quickly go off the rails and can add to, rather than reduce, costs and delay.
Those are the general principles which must guide any Chairman who has to consider an application for a pre-hearing review.
(8) Not every application will raise the same issues and the weight to be attached to the various factors which would either tend to support or not to support a pre-hearing review will necessarily vary from case to case. In Dandpat v University of Bath and TUV Product Services Ltd [2009] UKEAT/0408/09/1011, Mr Justice Underhill stated:-
‘The second ground which Mr Laddie wishes to advance is that it was inappropriate for the Tribunal to direct that the Section 32 point be dealt with as a preliminary point at a pre-hearing review – the fourth pre-hearing review in the proceedings, as Mr Laddie points out. Mr Laddie reminded me of the many observations in the case law – most recently, as it happens, in SCA Packaging Ltd, to which I have already referred – to the effect that preliminary points of law in the employment tribunal are often shortcuts that lead to long delays and should only be used sparingly. Those observations are well-known and need always to be borne in mind, but the authorities do not say that preliminary points of law, and certainly preliminary points going to jurisdiction, should never be permitted. What is right in any given case depends on an assessment of different considerations in the interests of efficient case-management; and this Tribunal is always very reluctant to intervene in case-management decisions of this character taken by an Employment Judge. I can see no arguable case that Judge Peters exceeded the very broad discretion granted to him in deciding to deal with the Section 32 point in the context of a pre-hearing review.’
(9) It is, firstly, important for the Tribunal to determine whether the proposed preliminary issue, or issues, can be severed from the substantive issues, particularly those substantive issues of discrimination, which may fall to be determined. Another way of expressing this factor is whether the proposed preliminary issue or issues can be compartmentalised.
The authorities to which I have been referred contain examples of cases where the Tribunal has got this wrong. In Faulkner, Kerr LCJ held at Paragraph 30:-
‘The present case exemplifies the unsatisfactory situation that can arise where a preliminary point is segregated from the substantive issues that can arise in a claim of unlawful discrimination.’
At Paragraph 34, he highlighted the particular difficulty in that case and concluded that effective compartmentalisation, in the circumstances of that case, was not possible:-
‘We have concluded, therefore, that the Tribunal should have declined to deal with this matter as a preliminary issue. The claim that the base site engineers were entitled to rely on comparators in Great Britain required a close examination of all the relevant circumstances of the respective groups.’
(11) In Ryder, Kerr LCJ stated at Paragraphs 16 – 18:-
‘(16) A number of recent appeals from the Fair Employment/Industrial Tribunals have involved challenges to conclusions reached on preliminary points – see, for instance, Bombardier Aerospace v McConnell & Others and Cunningham v Ballylaw Foods. While I do not suggest that the hearing of a preliminary issue will never be appropriate for determination by a Tribunal, I consider that the power to determine a preliminary point should be sparingly exercised. It is, I believe, often difficult to segregate in a wholly compartmentalised way a single issue in this field from other material which may have relevance to the matter to be decided.
(17) The present case exemplifies the dangers of isolating a solitary subject from all the other questions that the topic gives rise to and dealing with it as an in limine matter. As I have already observed, discrimination on the grounds of political opinion may stem from the political view of the discriminator as well or as an alternative to those of the person who claims to have been discriminated against. Separating the respondent’s claim of political opinion from the entirety of the case is distinctly unhelpful as a means of dealing with all the various matters that may come under the umbrella of discrimination on the grounds of political opinion.
(18) I consider, therefore, that the Tribunal should have declined to deal with this matter as a preliminary issue. The claim of discrimination on the ground of political opinion called for – at least potentially – a much wider review of the reasons for the decision not to shortlist the respondent.’
In the particular circumstances of the Ryder case, as with the Faulkner case, the Court therefore concluded that effective compartmentalisation of the preliminary issue had not been possible.
(12) In SCA Packaging Ltd, the House of Lords stated at Paragraphs 9 and 10:-
‘(9) It has often been said that the power that Tribunals have to deal with issues separately at a preliminary hearing should be exercised with caution and resorted to only sparingly. This is in keeping with the overriding aim of the Tribunal system. It was set up to take issues away from the ordinary courts so that they could be dealt with by a specialist Tribunal as quickly and as simply as possible. As Lord Scarman said in Tilling v Whiteman [1980] AC 1, 25, preliminary points of law are too often treacherous shortcuts. Even more so where the points to be decided are a mixture of fact and law. That the power to hold a pre-hearing review exists is not in doubt; Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1, Rule 18. There are however dangers in taking what looks at first sight to be a shortcut but turns out to be productive of more delay and costs than if the dispute had been tried in its entirety, as Mummery J said in National Union of Teachers v Governing Body of St Mary’s Church of England (Aided) Junior School [1995] ICR 317, 323. The essential criterion for deciding whether or not to hold a pre-hearing review is whether, as it was put by Lindsay J in CJ O’Shea Construction Ltd v Bassi [1998] ICR 1130, 1140, there is a succinct knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require the consideration of a substantial body of evidence. In such a case it is preferable that there should only be one hearing to determine all the matters in dispute.
(10) In Ryder v Northern Ireland Policing Board [2007] NICA 43, Paragraph 16, Kerr LCJ said:-
‘A number of recent appeals from the decisions of the Fair Employment/Industrial Tribunals have involved challenges to conclusions reached from preliminary points –see, for instance, Bombardier Aerospace v McConnell & Others and Cunningham v Ballylaw Foods. While I do not suggest that the hearing of a preliminary issue will never be appropriate for determination by a Tribunal, I consider that the power to determine a preliminary point should be sparingly exercised. It is, I believe, often difficult to segregate in a wholly compartmentalised way a single issue in this field from other material which may have relevance to the matter to be decided.’
I would respectfully endorse those observations. The problem in this case is not so obviously one of overlap or inappropriate compartmentalisation. Mrs Boyle’s complaint that she was subjected to harassment and aggressive and hostile treatment is a distinct issue, and which seems likely that the effects that this may have had on her, if established, will not be capable of being determined without the leading of more medical evidence. It is rather the cost and delay that has been caused by separating out those aspects of the case from the question whether she was a disabled person within the meaning of the Act. The separation of these two fundamental issues, which are likely to be present in many disputed disability discrimination cases, will rarely be appropriate even if the parties are in favour of it. Furthermore, a decision to hold a pre-hearing review must not be regarded as the end of the process of case-management. If separation is resorted to, every effort must be made to ensure that pre-hearing reviews are dealt with, with the least possible delay, bearing in mind that the merits cannot be addressed until the preliminary issues have been resolved in the claimant’s favour.’
The preliminary issue in SCA Packaging Ltd was whether the claimant had been disabled for the purposes of the Act. The House of Lords stated at Paragraph 6 of the decision:-
‘But it will have been obvious from the outset that these were issues of real substance which were likely to take some time to determine. In the event the process took very much longer than must have been anticipated. The pre-hearing review began a year later on the 30th of November 2005. It was not possible to complete the review in the one day that had been set aside for it, so further hearings took place on the 6th, 8th, 9th and 27th of February 2006. Medical and speech therapy reports were tended in evidence, and they were supplemented by oral evidence which was given by five consultant surgeons and a speech therapist. It was not until the 23rd of May 2006, more than five years after the claim was lodged, that the Tribunal issued its decision.’
(13) In Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, Girvan LJ stated:-
‘This court has on occasion had to warn against the readiness of Tribunals to determine apparently preliminary points in such proceedings which turn out at the end of the day not to be shortcuts to a resolution of a dispute but in fact add to the delay and increase the length of the proceedings.’
However, Girvan LJ’s remarks were not primarily directed towards the suitability of pre-hearing reviews in the context of that case which had involved a substantive hearing of all issues lasting 18 days. Those comments, in the context of that particular decision, have to be seen as part of an entirely proper exhortation to Tribunals to avoid excessive costs and delay and to case-manage Tribunal litigation robustly.
(14) The preliminary issues in the present claim require the consideration of the following two matters against the wording of the various discrimination statutes:-
(i) the status of the office or post of Queen’s Counsel; and
(ii) the general functions of the respondents [not the particular exercise of those functions in this case] in relation to the selection of Queen’s Counsel.
(15) Those matters are, to my mind, clearly severable from the substantive issues in this claim which are set out in some detail in the appended List of Issues and which could be broadly summarised in the following way:-
(i) The manner in which the claimant’s application was considered.
(ii) The manner in which the claimant was interviewed.
(iii) The weight attached to various types of legal experience and expertise.
(iv) The identification of potential comparators.
(v) The treatment of those comparators’ applications.
(vi) The treatment of those comparators at interview.
(vii) Motivation.
(viii) The application of the shifting burden of proof.
(16) I therefore conclude that in the particular circumstances of this case, and unusually, the preliminary issues as identified can effectively be compartmentalised, ie severed from the substantive issues which comprise the bulk of this case and which are set out above and in the List of Issues.
The facts of the Faulkner case can and should be distinguished from the present case. In Faulkner the preliminary issue required a close examination of the treatment afforded to the engineers based both in Northern Ireland and in Great Britain. What had appeared to the Chairman and to counsel for the parties to be a severable issue was, in reality, not severable. In the present case, the substantive issues are severable from the jurisdictional issues and there is no cross-over.
The facts of Ryder can and should also be distinguished from the present case. In Ryder the separating out of the claimant’s political opinions alone for scrutiny was criticised. It left other issues unanswered. That does not apply in the present case. Either the Tribunal has jurisdiction, or it does not.
In SCA Packaging the criticism from the House of Lords of the decision to hold a pre-hearing review was not primarily related to compartmentalisation. The main criticism was of the decision to hold a pre-hearing review where the evidence and time required was disproportionate. This is not the situation in the present case.
(17) As SCA Packaging indicates, a particular factor which I have to weigh in the balance in reaching a decision is whether or not a pre-hearing review will require a great deal of evidence. It is difficult to see how either of the matters set out in Paragraph 15. above will require a great deal of evidence to determine. There will doubtless be some areas of dispute but there has been no indication from either party that those areas of factual dispute, as opposed to disputes in relation to statutory interpretation, could or would be substantial. The evidence which will be required will be evidence which would in any event be required if the claim were to proceed without a pre-hearing review. The evidence heard at a pre-hearing review will not need to be repeated should the claim proceed, in relation to all or any of the current heads of claim, to a substantive hearing. In other words, there will not be a duplication of expense.
(18) Since the preliminary points are jurisdictional points they are, of their nature, ‘knockout points’. If all the heads of claim are determined to be outside the jurisdiction of the Tribunal, there will be a significant saving in costs and time for the parties and for the Tribunal. If only some of the heads of claim are determined to be outside the jurisdiction of the Tribunal, the issues will have been narrowed to the remaining heads of claim and the evidence and argument at the pre-hearing review would have had to be heard in any event at a substantive hearing, if it had proceeded without the benefit of a pre-hearing review.
If all the heads of claim are determined to be within the jurisdiction of the Tribunal the entire claim will proceed to a substantive hearing but again, all the evidence and argument in relation to jurisdiction would have had to be heard anyway in a substantive hearing which had proceeded without the benefit of a pre-hearing review.
(19) There is a significant factor which must be considered as a factor pointing away from the holding a pre-hearing review. That is the possibility of appeals on the issue of jurisdiction and the delay that that would almost inevitably cause to the determination of the claim. That, however, is a factor which applies to all potential preliminary issues. If the proper approach for a Tribunal to adopt were that pre-hearing reviews should be automatically ruled out simply because there was a possibility of an appeal, there would be no scope for pre-hearing reviews and the Tribunal Rules would not provide for such hearings. It is also clear that the authorities to which I have been referred do not rule out the use of pre-hearing reviews where appropriate.
As with the other factors to be considered in the balancing exercise that I am called upon to make, the risk of an appeal has to be weighed in the balance against other relevant factors in the particular circumstances of the present case.
(20) One particular factor advanced by the respondents, as can be seen from the attached written arguments, is “that in the event that it is found that the FET does not enjoy jurisdiction over the claimant’s complaints then there will be no public airing of the substantive merits or otherwise of the substance of those complaints”.
The respondents point out that they do not seek a pre-hearing review. They wish to have all issues aired in the substantive hearing and have a full opportunity to ‘clear their names’. Furthermore, the respondents refer to what they refer to ‘an extra element of legitimate public interest in light of the office involved and in light of the fundamentally important role those holding the rank of Queen’s Counsel play in the administration of justice’.
(21) It has to be remembered that the Tribunal has only that jurisdiction which is properly conferred on it by statute. It should not and cannot exceed that jurisdiction simply to either allow a claimant to air a sense of grievance or to allow a respondent to seek vindication in a public forum. A statutory Tribunal cannot arrogate to itself a jurisdiction which it does not otherwise have by statute, by reference to the overriding objective or otherwise.
That was certainly the line taken by the Court of Appeal in the case of Bohill v Police Service of Northern Ireland, delivered on 13 January 2011.
In that case the claimant alleged that he had been unlawfully discriminated against by the respondent in relation to a recruitment exercise for non-police posts by Grafton. There was a question as to the jurisdiction of the Tribunal to hear a claim. There was no separate pre-hearing review, as such, on jurisdiction. However, the Tribunal heard the claimant’s evidence-in-chief subject to him being cross-examined only on the two issues relating to jurisdiction. In effect, the Tribunal case-managed this claim by having a pre-hearing review on jurisdiction at the start of the substantive hearing. The claim was dismissed on grounds of jurisdiction and the claimant appealed to the Court of Appeal. In Paragraph 10 of the decision the court stated:-
‘It is of fundamental importance when seeking to understand the difficulty faced by the appellant [claimant] both before the Tribunal and this court to bear in mind that the jurisdiction of the Tribunal is derived entirely from statute.’
In Paragraph 15 of the decision the court stated:-
‘The appellant [claimant] clearly feels a sense of frustration at his inability to put before the Tribunal the evidence that he claims to constitute the substance of his case. However, in the absence of any contract with either Grafton or the respondent, the Tribunal does not have jurisdiction.’
In Paragraph 18 of the decision the court stated:-
‘We emphasise that, as a consequence of the lack of jurisdiction, we are unable to give any consideration to the substance of the appellant’s case.’
The Court of Appeal did not criticise the manner in which the Tribunal had addressed the issue of jurisdiction and did not anywhere in its decision suggest that the Tribunal should have taken upon itself the responsibility of allowing the claimant to ventilate his feelings even if the Tribunal had no statutory jurisdiction. To the contrary the Court emphasised the importance and limitations of statutory jurisdiction. It does not seem to me to matter whether it is the claimant or the respondents who might feel aggrieved at the possibility of not being allowed to air their position in relation to an allegation, either to pursue an allegation or to seek vindication in relation to an allegation. The core issue remains the same. If the Tribunal does not have jurisdiction it should not use its resources or permit additional cost and delay by allowing one party or the other to tempt it into acting without statutory authority. Furthermore, I do not see any room for a proper argument to the effect that in a particular category of cases, because of a perceived constitutional importance, a statutory Tribunal should exceed its jurisdiction to permit the ventilation of issues and to arrogate to itself the responsibility for determining those issues.
Mr Coll sought to argue that it was open to a Tribunal panel, hearing the substantive case, to determine that it had no jurisdiction and to determine the substantive issues ‘in the alternative’, in case it were wrong about jurisdiction. That is indeed a possibility, but no more than a possibility. It is equally likely, if not significantly more likely, that the Tribunal panel, if it were to determine that it had no jurisdiction, would stop at that point, either after a Bohill-type initial consideration of jurisdiction or after hearing all the evidence in a full substantive hearing. If that were to happen, the time, cost and effort involved in hearing evidence and argument on the substantive issues would be wasted.
(22) There are two factors which particularly trouble me in all of this. Firstly, there is the possibility of appeals and the potential for further delay. That factor is, as I pointed out, a factor common to all preliminary issues and cannot, of itself, be determinative of the issue. It can also be, to an extent, mitigated by holding the pre-hearing review promptly in March and holding open a provisional listing for the substantive hearing towards the end of the year with sufficient time in between for at least an expedited Court of Appeal hearing on the relatively net jurisdictional issues involved.
The other issue that troubles me is that the evidence and the time necessary to determine the substantive issues far outweighs the relatively limited evidence and short period of time that would be necessary to determine the preliminary issues. The substantive issues will involve the detailed cross-examination of the interview panel members and a detailed and public discussion of the relative professional standing and experience of the claimant and the two named female comparators. This will occur in a public hearing with inevitable media interest. The two named female comparators will not be present (almost certainly) during this exercise and it is, to put it mildly, undesirable that this should occur at great cost and expense to the parties, and to the Tribunal, without any certainty that the Tribunal has jurisdiction and where the respondents assert that the Tribunal has no jurisdiction.
Given that I am satisfied that the preliminary issues as defined in Paragraph 5. above are clearly severable from the substantive issues, will not involve a great deal of evidence, or a great deal of time, to determine and are succinct knockout points, and for the reasons set out above, I have decided that a direction for a pre-hearing review is appropriate.
The risk of appeals delaying the eventual determination of this claim is outweighed in the balance by the undesirability of the Tribunal proceeding with a relatively lengthy and expensive hearing, of the type described above, where it may have no jurisdiction to do so.”
Application to join the Minister of Justice
10. At 09.08 am on the day of the pre-hearing review, the solicitor acting for the claimant e-mailed the Tribunal in the following terms:-
“We refer to the above matter and advise that we intend to apply this morning to join the Minister as a party to these proceedings. We would be grateful if you would bring this e-mail to the attention of Mr Kelly as soon as possible.”
11. At the commencement of the pre-hearing review at 10.00 am, Mr McKee argued that it would be appropriate to join the Minister of Justice as a person appearing to have an interest in the proceedings and as a person against whom a remedy may be sought. He accepted that this was a very late application. He argued that a letter had been received by way of discovery, from the respondents, after close of business on Tuesday 24 April 2012 (the pre-hearing review was on Thursday 26 April 2012) and that that letter disclosed information which made it appropriate to seek the joinder of the Minister of Justice. Mr McKee referred to the skeleton arguments lodged both on behalf of the claimant and on behalf of the respondents. He stated that one crucial difference between the parties was that the respondents argued that the entire process of considering the application, interviewing the applicants, making a recommendation and the decision of the Minister was a unitary process comprising the exercise of the royal prerogative. The claimant’s position was that the process could be compartmentalised and that it was not in its entirety an exercise of the royal prerogative. In short, the claimant was arguing that the actions of the first-named respondent (although it was suggested at one point that the case against the first-named respondent would be withdrawn) and the actions of the second, third, fourth and fifth-named respondents were separate from and could be severed from the decision of the Minister of Justice in accepting and acting upon the recommendation of the independent panel. The claimant argued therefore that the actions of those respondents, currently named, did not involve an exercise of the royal prerogative. He argued that that letter of 29 June 2011 showed that the Minister was drawing a distinction between the appointment decision and the recommendation. On that basis, Mr McKee argued that it was necessary that the Tribunal should hear from the Minister.
12. Mr Simpson QC, on behalf of the respondents, objected to the application.
13. The Tribunal heard arguments for and against Mr McKee’s application and rose to consider those arguments. On its return the application to join the Minister was rejected.
14. The reasons for the rejection of the application were:-
(a) the application was first made at 09.08 am on the morning of a hearing which had been in everybody’s diaries for several weeks;
(b) at a Case Management Discussion on the day before the pre-hearing review there had been no mention of any forthcoming application to join the Minister;
(c) it was clear from the response lodged on behalf of the respondents, right at the start of these proceedings, that the role of the Minister, as understood by the Minister, was to exercise the royal prerogative in making appointments to the rank of Queen’s Counsel. It stated:-
“In turn the Minister of Justice exercises the royal prerogative on behalf of Her Majesty the Queen to make the appointments to the rank of Queen’s Counsel”;
(d) the claimant, a lawyer advised by lawyers, had chosen to not include the Minister of Justice as a named respondent at the start of the process and had failed to apply to add the Minister after the very clear position adopted on behalf of the respondents in their response;
(e) in contrast, the claimant had included the first-named respondent as a named respondent in this matter. However, it would have been clear to all concerned, and particularly to the claimant, that the focus of the claimant’s allegations was the decision of the independent panel. There appears at no stage to have been a concrete allegation against the limited company in terms of discrimination. Furthermore, there could be no valid argument that the first-named respondent would or could have been vicariously liable for the actions of the independent panel. That panel was not, in any sense, under the direction or control of the first-named respondent. Since the claimant had chosen to cast his net sufficiently wide at the start of these proceedings to include the first-named respondent, it is difficult to understand why the claimant did not, at the same time, take the step of naming as a respondent, the Minister of Justice, ie the person who had actually made the ultimate decision to appoint the individuals named as his comparators. It was far too late to attempt to do so at 09.08 am on 26 April 2012;
(f) the issue to be determined at the pre-hearing review was solely a legal issue. The view of the Minister of Justice as to the scope of the royal prerogative, whether or not that view was based on advice from the Attorney General is nothing to the point. It was for the Tribunal to determine at the pre-hearing review to what extent the respondents’ arguments in relation to the royal prerogative had validity and to what extent the royal prerogative impacted on the jurisdiction of the Tribunal; and
(g) if the application were granted at this extremely late stage and in circumstances where it would add very little to the determination of the preliminary issue, it would cause a delay of several weeks, in fact months, while a joinder decision was issued, papers were served on the Minister of Justice, the Minister of Justice lodged a response, a further Case Management Discussion was held, the advisability of a pre-hearing review was further debated, and the pre-hearing review was re-listed. A delay of that nature cannot be countenanced and would be contrary to the overriding objective.
Decision
15. The issue here, puts in its simplest terms, is whether the Tribunal has jurisdiction to hear and determine those claims of unlawful discrimination, on the grounds of age, gender, religious belief and political opinion, brought by the claimant against the five named respondents.
16. That simple issue has provoked intense and learned argument and the Tribunal has been referred to a range of authorities and to witness statements. Those witness statements were from:-
the claimant;
Mr John O’Hara QC;
Mr Adrian Colton QC; and
included a report from Professor N Dawson. Those witness statements and Professor Dawson’s report had been provided to the Tribunal pursuant to a case-management direction and were in place of evidence-in-chief. Counsel for the claimant and counsel for the respondents confirmed that they did not wish to cross-examine any witnesses. The Tribunal had no questions to put to any of the witnesses. The witnesses were therefore not asked to attend the hearing and their witness statements and the report from Professor Dawson, were therefore not formally sworn. However, given the provenance of the witness statements and of the report, and in accordance with the overriding objective, the Tribunal has accepted the witness statements and the report into evidence.
17. The question of jurisdiction in the present case potentially gives rise to two separate lines of argument. The first line of argument is whether the actions of the named respondents, in relation to the claimant, were an integral part of the exercise of the royal prerogative and inseparable from that exercise; ie whether the exercise of royal prerogative was a unitary process encompassing:-
(i) the receipt of the claimant’s application;
(ii) the processing of that application;
(iii) the interview process;
(iv) the recommendations of the independent panel comprising the second, third, fourth and fifth-named respondents;
(v) the communication of those recommendations of that independent panel to the Minister of Justice; and
(vi) the decision of the Minister of Justice to appoint those individuals who had been recommended for appointment.
If that was accepted, the respondents’ argument was that the role undertaken by the five respondents in the exercise of the royal prerogative was outside the jurisdiction of the Tribunal and only properly justiciable by way of judicial review in the High Court.
18. The second potential line of argument was whether, as a matter of statutory interpretation, with or without the assistance of EU Directives, the relevant domestic legislation covered the complaints of the claimant. That second line of argument, broadly speaking, resolved down to two separate sub-issues, ie whether or not appointment to the rank of QC was appointment to a ‘office or post’ and, secondly, whether or not the process leading up to the appointment of QCs could be described as an exercise conducted by a ‘qualification body’ or an exercise in the awarding of a ‘qualification’.
Royal prerogative
19. It was common case that the appointment of QCs was and is an exercise of the royal prerogative. It was also common case, under current constitutional arrangements, that the Minister of Justice exercised that royal prerogative on behalf of the Crown.
20. Similarly, it was common case that the first-named respondent was a limited company set up by the Bar Council and the Law Society to provide secretarial and administrative support to the selection process. It was not contended that the first-named respondent either had, or could have had, direct or vicarious responsibility in this matter. In response to a direct question from the Tribunal, Mr McKee indicated at one point that the claims against the first-named respondent would be withdrawn. Counsel for the respondents was not in a position, at that point in the hearing, to indicate whether that withdrawal was accepted without further order and the matter was left in abeyance.
21. It was, in any event, not in dispute that the first-named respondent, as a limited company, had no direct input into the decision-making process undertaken by the independent panel comprising the second, third, fourth and fifth-named respondents. Those respondents considered the applications, including the application of the claimant, and those of the successful candidates, conducted an interview process and made recommendations to the Minister of Justice. The Minister of Justice then made the decision to appoint individuals to the rank of Queen’s Counsel in accordance with the recommendations made to him, in the exercise of the royal prerogative.
22. As indicated above, the respondents argued that the exercise of the royal prerogative was a single process. On their argument, the parts of the process leading up to the eventual decision and the eventual appointment of the QCs could not be severed from the ‘final’ stage of the process, ie the exercise of the royal prerogative by the Minister in relation to the recommendations that he had received.
23. The claimant argued that the earlier stages of the process, ie the processing of the application, the interview process and the recommendation process could and should be severed from the exercise of the royal prerogative by the Minister. Their argument was that the earlier stages of the process could not be described as an exercise of the royal prerogative.
24. It appears to the Tribunal, as a matter of common sense, whether it is the Crown exercising the royal prerogative or whether it is a Minister exercising the royal prerogative on its behalf, that such exercises are not made in a vacuum. The exercise of the royal prerogative, for example the issuing of a royal pardon, is not done on a whim by the Secretary of State acting in exercise of the prerogative. Any exercise of the prerogative is done on advice or recommendation, whether it is done on advice or recommendation from civil servants or from Ministers. It may also be exercised on advice or recommendation from appointment panels such as the independent panel in the present case.
In Re: Treacy’s Application, Kerr J stated:-
“As I have said above, the conferment of the title of Queen’s Counsel is a matter for the Sovereign, acting on the advice of her Ministers.” [Tribunal’s emphasis]
The House of Lords in the GCHQ case, Page 397H, recorded, without dissent, part of a submission:-
“That prerogative powers are discretionary, that is to say they may be exercised at the discretion of the Sovereign (acting on advice in accordance with modern constitutional practice).” [Tribunal’s emphasis]
Earlier at Page 397, Paragraph G, the House of Lords stated:-
“Like the previous Orders in Council on the same subject it was issued by the Sovereign by virtue of her prerogative, but of course on the advice of the Government of the day.” [Tribunal’s emphasis]
No one in the GCHQ case, or In Re: Treacy’s Application, sought to single out those upon whose advice the prerogative power had been exercised for separate or special attention.
The days when an exercise of the prerogative could be done in isolation, or could be a spontaneous exercise, of the ‘off with her head’ variety or otherwise, are long gone. The Tribunal is satisfied that obtaining and considering advice or recommendations is an integral part of any exercise of prerogative power.
25. It therefore appears to the Tribunal that it would be highly artificial to separate out the actions of the adviser, or those of a person making recommendations, from the technical and final exercise of the prerogative, ie the actual decision, so as to enable one part of the process to be justiciable before a statutory Tribunal where the other part of the process would not be so justiciable. If such an exercise were applied in a normal case of the exercise of the prerogative, where a Minister exercised the prerogative on behalf of the Crown after receiving advice from civil servants, advice touching upon a matter within the field of employment/ occupation might fall to be determined by this Tribunal but the decision of the Minister arguably would not. That approach would allow, if correct, the Tribunal to trespass on the field of judicial review through the back door; a sort of poor man’s judicial review. That would be a highly undesirable result. Furthermore, it is not all clear where such an approach, even if correct, would take the claimant in terms of remedy. The recommendation of the independent panel in the present case was just a recommendation and not, in any sense, mandatory. What loss could properly be attributed to the actions of the panel, as opposed to the actions of the Minister, as the final link in the chain?
26. The claimant’s argument would require a very narrow interpretation to be placed on the exercise of the prerogative. For that argument to succeed the exercise of the prerogative would begin and end when the Minister (or the person exercising the prerogative in any particular case) was actually engaged in receiving, accepting and implementing the recommendation or advice that he had received.
It has to be remembered that Kerr J In Re: Treacy’s Application [2000] NI 330 did not narrow the scope of the prerogative to that extent. He determined that the wording of the declaration to be made by Queen’s Counsel was also within the scope of the prerogative. The wording of a declaration, albeit a very important declaration, was simply part of the entire process of the exercise of the prerogative. The wording of the declaration was not, in that case, the final link in that chain; the decision of the Sovereign. If the wording of a declaration cannot be severed from the exercise of the prerogative, it is difficult to see how the actions of the five respondents in the present case could be so severed.
27. Mr McKee, in the context of his application to join the Minister of Justice and in his substantive argument on the preliminary issue of jurisdiction, sought to rely on a letter dated 29 June 2011 from the Minister to the Lord Chief Justice. That letter included the sentence:-
“Contrary to the position reflected in the appointment scheme, it is now considered that it is the prerogative power to appoint Queen’s Counsel (rather than the power to recommend persons for appointment) which is now exercisable by me.”
28. Mr McKee argued that this letter demonstrated, or might demonstrate, that the actions of the second, third, fourth and fifth-named respondents, and presumably those of the first-named respondent, were severable from the actions made by the Minister and that they therefore fell outside the exercise of the royal prerogative. That argument, on the papers before this Tribunal, appears to be based on a misinterpretation of the letter from the Minister. That letter appears to refer to Paragraph 5.17 of the draft Appointments Scheme which suggested initially that it was the monarch who made the appointment decisions and that the Minister only made recommendations to the monarch upon which those decisions would be made. That draft stated:-
“The Minister of Justice for Northern Ireland puts forward the names of the prospective applicants to Her Majesty the Queen for approval. Once approval has been given and the Royal Warrants have been signed, the MOJ?? shall inform the Lord Chief Justice, the Chairman of the Bar Council and the President of the Law Society of Northern Ireland that the names of the prospective appointees have been approved by Her Majesty the Queen.”
29. It therefore does not appear that the Minister of Justice was attempting in that letter to distinguish the recommendations made by the independent panel from the ultimate decision on whether or not to accept the recommendations of the independent panel. The letter appears to be directed towards the issue of whether or not the Minister would exercise the royal prerogative on behalf of the monarch as an alternative to the Minister merely making recommendations to the monarch for a decision to be made by the monarch. In any event, the view of the Minister, whether or not drawing on the advice of the Attorney General and whether or not the Minister had correctly understood and had correctly transposed that legal advice into his letter, is of little value in the determination of this technical legal point by the Tribunal.
30. The Vice President, in Case Management Discussions in relation to this claim, took the view, and that view is adopted by the complete panel hearing this pre-hearing review, that a statutory Tribunal needs to be careful to exercise only that jurisdiction which is properly conferred on it by statute. An inferior Tribunal does not have the inherent jurisdiction of the High Court and should not, as indicated in the case-management direction quoted above, arrogate to itself the power to do something which it is not expressly permitted, by statute, to do.
31. The Tribunal has found, as a fact, that the process for appointing QCs is a single process encompassing all the stages from the processing of the application to the formal decision, and that it is an exercise of the royal prerogative. It is clear that, until relatively recently in judicial history, the exercise of the royal prerogative was not justiciable at all before any Court. That position has changed, to an extent, and it is clear that the position now is that an exercise of the royal prerogative is only challengeable by way of judicial review in the High Court and only in certain circumstances.
32. Judicial review is the mechanism whereby the High Court exercise a supervisory jurisdiction over inferior Tribunals and over the exercise of powers by the State. It forms part of the High Court’s inherent jurisdiction. Mr McKee, on behalf of the claimant, invites the Tribunal to construe domestic legislation, either on its own terms, or in a way that is compatible with EU Directives, to give itself the jurisdiction to embark on an exercise which is far outside anything commonly understood to be within the Tribunal’s jurisdiction. In effect, he invites the Tribunal to give itself the jurisdiction to conduct an alternative judicial review of the exercise of the royal prerogative in this case, by first artificially severing the advisory function performed by the second, third, fourth and fifth-named respondents (the Tribunal does not see the relevance of the first-named respondent) from the overall exercise of the prerogative and then doing some considerable violence to the wording of the domestic legislation to squeeze the claims within that legislation. For example, he urged the Tribunal to construe the rank of Queen’s Counsel, as an ‘office or post’. Whether or not the Tribunal could alter or ‘read out’ the wording of the domestic legislation to fit the claims is beside the point. It simply begs the question of jurisdiction. If the Tribunal does not have jurisdiction in the first place it cannot tinker with or ‘read out’ the words of the domestic legislation. It has no right to conduct that exercise. That right would lie elsewhere; it would be a matter for the High Court.
It is clear that challenges to the exercise of the prerogative, to the extent that such challenges are justificable at all, have been dealt with solely by way of judicial review in the High Court. The Tribunal has not been referred to a single instance of such a challenge being considered other than by the High Court as part of its inherent (ie non-statutory) jurisdiction.
33. The parties in this case, both claimant and respondents, have, at various stages in the proceedings to date, done their level best to lead this Tribunal into error. The respondents, at the Case Management Discussion stage, tried to persuade the Tribunal that while, on their argument, it did not have jurisdiction to determine the claims, it should nevertheless embark upon a lengthy hearing on what could only have been, on their argument, an extra statutory basis simply to allow the second, third, fourth and fifth-named respondents to seek public vindication. The claimant, for his part, at the pre-hearing review stage, tried to convince the Tribunal that it should go far beyond the statutory jurisdiction and that it should conduct an exercise in jurisdictional ‘anschluss’, by entering into, and annexing for its own, the territory relating to the royal prerogative which, according to common law and common sense, is the exclusive preserve of the High Court. Both the claimant and the respondents, when pursuing those arguments, fundamentally misunderstood the role of a statutory Tribunal. As the Great Britain Court of Appeal made plain in Secretary of State for Employment v Mann [1996] IRLR 4, employment tribunals are creatures of statute and their jurisdiction is solely defined by statute; they have no inherent, general or residual jurisdiction.
34. In the Mann case, an employment tribunal had rashly decided that it had jurisdiction to determine what amounted to a Francovich case against the respondent, arising out of a failure to properly transpose the provisions of the Insolvency Directive within the time-limit laid down by the Commission. The Court of Appeal approved the arguments put forward on behalf of the Secretary of State:-
“On behalf of the Secretary of State on the other hand it was argued that the Appeal Tribunal had reached the correct conclusion in deciding that an Industrial Tribunal had no jurisdiction to entertain a Francovich claim for damages. Community law, it was submitted, permits Member States to specify the Courts and the procedures whereby claims under community law are to be enforced, provided that the conditions for their enforcement are not less favourable than those relating to similar claims under national law and do not render ‘virtually impossible’ the exercise of rights conferred by community law – community law does not require that an Industrial Tribunal should be able to entertain Francovich claims. The only requirement is that such claims can be entertained before an appropriate Court.
We were reminded that an Industrial Tribunal is a creature of statute (created under Section 128(1) of the Act of 1978) and that the jurisdiction of an Industrial Tribunal is that conferred by statute. The appropriate Court for a Francovich action is the High Court or, perhaps, the County Court. It has to be remembered that under Section 20(1) of the Crown Proceedings Act 1947, proceedings can be removed from the County Court to the High Court if a certificate of the Attorney General is produced to the effect that the proceedings may involve an important question of law or for other reasons are more fit to be tried in the High Court.”
35. Referring to arguments advanced on behalf of the claimant in Mann, Mummery J stated:-
“These arguments, although lucidly and attractively presented, have not ultimately persuaded us to uphold the Industrial Tribunal’s decision. The arguments do not answer the fundamental point that, under community law, questions of jurisdiction, procedure and remedy are, in general, for the Member State to determine, subject only to the principles that the domestic law procedures and remedies should provide an effective remedy and not be discriminatory as between similar claims under domestic law and community law. In our view, the statutory provisions which define and limit the jurisdiction and powers of Industrial Tribunals are not in themselves contrary to or incompatible with community law and do not violate these principles. An Industrial Tribunal has no jurisdiction to determine a claim against the State or an officer of the State for failing to perform a public legal duty. That is usually a matter for the High Court in judicial review proceedings. The same applies to a claim under community law. The effectiveness of such a claim is not impaired by allocation of the power to determine such claims to the High Court.”
36. In the circumstances of the present case, the right to challenge any exercise of the prerogative, whether that challenge is based on community law or on domestic law, is exercisable by way of judicial review in the High Court. A claim in relation to community law and a claim in relation to domestic law, where they relate to the exercise of the prerogative, would proceed in exactly the same way. The principle of equivalence is therefore observed in full. The High Court is also clearly capable of dealing with issues of equality and with disputed issues of fact. There are no grounds upon which this Tribunal could properly conclude that the principle of ‘effectiveness’ has been breached and, even if there were such grounds, no basis upon which this Tribunal, as a statutory Tribunal with statutory jurisdiction, could assert jurisdiction in the area and could shove the High Court to one side.
37. The arguments advanced on behalf of the claimant in the present case to the effect that the Tribunal should read domestic legislation in a way which confers jurisdiction upon itself to determine matters relating to the exercise of the royal prerogative simply begs the question of jurisdiction. If there is no jurisdiction in the first place, the Tribunal has no right or power to attempt to read the domestic legislation at all or in any particular way in respect of the current claims.
38. The Advocate General in Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1996] 1 CMLR 801 stated at Page 809, Paragraph 9:-
“In Simmenthal, the Court held that an National Court which was called upon, within the limits of its jurisdiction, to apply provisions of community law was under a duty to give full effect to those provisions … .” [Tribunal’s emphasis]
The first thing a statutory Tribunal has to do is to identify the limits of its jurisdiction. It should then ensure that it does not stray outside those limits in a misguided effort to give full effect to community law where that responsibility properly falls to others.
39. In Secretary of State for Scotland and the Advocate General for Scotland v Mann and McCourt [EAT/56/00], the EAT reviewed many of the authorities to which the parties have referred us in the present case. The issue was whether the employment tribunal had jurisdiction over the actions of a Returning Officer in the electoral process. The Tribunal had held that the Returning Officer was on ‘authority or body’ which ‘facilitated engagement in a particular profession’ for the purposes of Section 13 of the Sex Discrimination Act 1975.
40. At Paragraph 31 of that decision the EAT stated:-
“Firstly, we would not for a moment deny the validity of Mr Napier’s essential submission that Section 13(1) of the Sex Discrimination Act 1975 should be given the widest possible interpretation both in relation to the general requirements of the United Kingdom law to reflect European Directives but also by reason of the actual terms of the Equal Treatment Directive itself but we consider that the starting point of the exercise in this case begs the essential question of jurisdiction and we shall return to this point.”
41. At Paragraph 33, the EAT continued:-
“ … the jurisdiction of the Employment Tribunal system is entirely dependent upon statute, where positive jurisdictions are conferred whether by primary or subordinate legislation. Thus the original jurisdiction on employment matters has been extended to comprise matters of race, sex and disability but that does not mean that such a jurisdiction automatically arises if there is a competing one unless, in our view, the relevant legislation with regard to that competing jurisdiction makes express provision therefor.”
42. In the Mann and McCourt decision, jurisdiction had been given statutorily to another (criminal) court. The circumstances of the present case appear to be analogous in that the judicial review jurisdiction falls to the High Court as part of common law. The EAT referred to what it found to be the intention of Parliament and stated at Paragraph 34:-
“If that, as we think it is, was clearly the intention of the Westminster Parliament, we search in vain for an express power conferred to this Tribunal system to enter on this particular pitch, and we find none. We therefore consider this matter can be determined conclusively as a matter of statutory interpretation. We consider that jurisdiction is not conferred on the Employment Tribunal system in electoral matters.”
In the present case, the Tribunal concludes that jurisdiction is not conferred on the employment tribunal system in matters relating to the exercise of the royal prerogative. The proposition that it should have jurisdiction over the exercise of the prerogative, which is essentially an area of public law, is so startling that there would need to be clear evidence of that jurisdiction being conferred.
43. The Fair Employment Tribunal was created by Article 81 of the 1998 Order. That provides:-
“The Department shall by Regulations provide for the establishment of a Tribunal, to be known as the Fair Employment Tribunal for Northern Ireland, to exercise the jurisdiction conferred on it by this Order or any other statutory provision.”
44. The Fair Employment Tribunal, under a direction made under Article 85 of the 1998 Order, has taken jurisdiction in the present matter in respect of the claims under the Sex Discrimination (Northern Ireland) Order 1976, and the Employment Equality (Age) Regulations (Northern Ireland) 2006. It is clear from the wording of Article 81 and Article 85 that the sole jurisdiction of this Tribunal is a statutory jurisdiction. In short, if the Tribunal does not have a specific jurisdiction given to it under statute, it has no jurisdiction at all, and it should not entertain any claim or any argument falling outside a specific statutory jurisdiction.
45. It is also worth noting that the relevant legislation, for example of Article 62 of the Sex Discrimination (Northern Ireland) Order 1976, expressly contemplates judicial review as an appropriate remedy for a breach of the Order.
Article 62 provides:-
“(1) Except as provided by this Order no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Order.
(2) Paragraph (1) does not preclude the making of an order of certiorari, mandamus or prohibition.”
It is to be noted that Article 62 does not attempt to extend the jurisdiction in relation to certiorari, mandamus or prohibition to an employment tribunal. If it had been intended that the employment tribunal should be permitted to stray outside its commonly understood statutory jurisdiction to quash or otherwise interfere with an exercise of the royal prerogative, that would have been provided for in Article 62 or in equivalent provisions in FETO or in the Age Regulations. That has not been done.
Regulation 40 of the Age Regulations is in similar terms and states specifically that:-
“It does not prevent the making of an application for judicial review”.
Article 37 of FETO is again in similar terms and states:-
“Nothing in Paragraph (1) prevents any application for judicial review.”
46. Furthermore, and again using the Sex Discrimination Order as a template, Article 82 deals with the application of that Order to the Crown. It provides:-
“(1) This Order applies –
(a) to an act done by or for the purposes of a Minister of the Crown or Government Department, or
(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office, as it applies to an act done by a private person.”
47. For the purposes of sub-paragraph (a), the part played in the exercise of the royal prerogative in this case by the five named respondents is not an act done by or for the purposes of a Minister of the Crown or a Government Department. The actions of the five named respondents were actions done as part of a single exercise of the royal prerogative culminating in the decision of the Minister of Justice in the exercise of that prerogative, not for the purposes of the Minister. For the purposes of sub-paragraph (b) the actions of the independent panel and the limited company cannot be described as actions of a statutory body or a person holding a statutory office.
Article 91 of FETO and Regulation 50 of the Age Regulations are in similar terms.
48. If it had been intended, or had even contemplated by the legislative draftsman, that a statutory Tribunal, such as the employment tribunal, should have been given a quasi judicial review jurisdiction, in relation to prerogative power, there would have been some provision to that effect at this point in the SDO and in the equivalent legislative provisions relating to age, religion and political opinion. This was not done and the only proper inference that can be drawn from this absence of provision is that it was never contemplated that an employment tribunal should exercise that jurisdiction.
49. Mr McKee argued that the employment tribunal is the specialised Tribunal in this area and that the specialised nature of the Tribunal meant that it should strain statutory interpretation to achieve the desired result, ie that it should take jurisdiction in this matter. It is perhaps more correct to argue that this Tribunal is a specialised judicial body in relation to employment issues including discrimination where it relates to employment. It cannot be regarded as the only or the pre-eminent specialist Tribunal in the broader field of discrimination law and European Law. All Courts have to apply both domestic and EU law and indeed ECHR law in relation to discrimination. It is not the exclusive preserve of this Tribunal. The County Court is frequently called upon to exercise jurisdiction in relation to discrimination in the field of goods and services. The High Court is frequently called upon in the exercise of its judicial review jurisdiction to consider equality impact assessments and matters relating to equality. The mere fact that an employment tribunal may deal more frequently with issues of unlawful discrimination does not of itself mean that it is entitled to arrogate to itself a non-statutory jurisdiction.
50. Mr McKee also sought to rely, in particular, on three decisions to support his argument that the Tribunal, as ‘the specialist Tribunal’ in the area of discrimination had jurisdiction or should have jurisdiction to determine the claims in the present case.
These decisions were:-
(i) Barber v Staffordshire County Council [1996] IRLR 209
(ii) Unison & Another v Brennan & Others [2008] IRLR 492
(iii) Impact v Minister for Agriculture & Food & Others [2008] IRLR 592
The Tribunal does not accept that these decisions support the claimant’s argument on jurisdiction.
51. In Barber v Staffordshire County Council, the claimant had lodged a claim in an employment tribunal for a redundancy payment. She then withdrew that claim because it could not have succeeded under domestic law as it was then interpreted by the courts. The claim was dismissed upon its withdrawal by the claimant. The House of Lords subsequently determined that the relevant domestic law was contrary to European law. The claimant re-submitted her claim. An employment tribunal held that since the claimant had a direct claim under Article 119 of the Treaty and under both the Equal Pay and the Equal Treatment Directives, no part of her claim could be described as res judicata and that no question of action estoppel or issue estoppel arose.
The Court of Appeal held that European law did not create rights of action which were freestanding or which had an existence apart from that given to them in domestic law. Following the withdrawal and dismissal of the original claim, both cause of action estoppel and issue estoppel applied. The order of the employment tribunal dismissing the complaint upon its withdrawal had been a judicial decision. Res judicata also applied.
The Court held:-
“But, as I understand the matter, the impact of community law on claims brought before Industrial Tribunals is that community law can be used to remove or circumvent barriers against or restrictions on a claim, but that community law does not create rights of action which have an existence apart from domestic law.”
None of that can be read as indicating that an employment tribunal can properly assume jurisdiction for matters other than those which have been accorded to it by Parliament. To the contrary, when referring to the possibility of a Francovich action, the Court said in Barber:-
“The nature and extent of such a claim is presently being examined by the ECJ in the last stage of the Factortame litigation. But, unless Parliament otherwise decided, such a claim would not come within the jurisdiction of an Industrial Tribunal.”
52. In Unison & Another v Brennan & Others, the issue was whether the Tribunal could hear an application, under Section 77 of the Sex Discrimination Act 1975, for a declaration that parts of a collective agreement were void at the same time as the Tribunal heard an equal pay claim arising out of the same set of circumstances. The respondents, two trade unions, argued that the power to issue a formal declaration lay with the High Court. The significant point in this decision and the point which distinguishes it from the present claim, is that the claimants, if the respondents’ argument in that case had been correct, would have been compelled to pursue their claim in two separate jurisdictions. They would have had to pursue the equal pay claim in the employment tribunal and then to pursue the application for a declaration separately in the High Court. This would have incurred significant extra expense and delay and offended against the principal of effectiveness set out in european law. Furthermore, the Tribunal clearly had power under Section 6(4A) of the Sex Discrimination Act 1986 to make a binding determination of the issue under Section 77 but not to make a formal declaration.
Therefore this decision relates to what could be described as a ‘piggy back’ claim where the Tribunal already had clear and undisputed statutory jurisdiction in relation to the equal pay issue at the core of the complaint and where the Tribunal had already had a statutory power to issue a determination but not a formal declaration. The EAT, unsurprisingly, held that the European principal of effectiveness meant that the Tribunal should hear the application for the declaration:-
“Accordingly the domestic legislation must be construed in a manner compatible with EU Law. On that basis, Section 6(4A) of the 1986 Act would be read so as to permit employees who have current claims nonetheless to seek a Section 77 declaration.”
The situation in Unison appears to this Tribunal to be entirely different from the situation in the present case. In the Unison case, the Tribunal clearly already had jurisdiction given to it by statute. The EAT decision modified slightly an existing jurisdiction. It did not create an entirely new jurisdiction. Furthermore, the argument based on effectiveness which arose, in the circumstances of the Unison case, related to the obvious addition expense and delay in running in two separate claims in different jurisdictions and does not apply in the present case.
53. In Impact v Minister for Agriculture & Food & Others, the ECJ considered whether the Rights Commissioner in the Republic had jurisdiction to hear a complaint under the Fixed Term Workers Directive. The Commissioner already had statutory jurisdiction under the domestic legislation implementing that Directive from the date on which the domestic legislation was implemented. The question was whether the Commissioner should also have jurisdiction to determine a claim directly under the EU provision in respect of that period after the time-limit for transposition of the Directive into domestic legislation had expired but before the domestic legislation was actually implemented. In the circumstances of the Impact case, the Commissioner was already considering a claim under the relevant domestic legislation from the implementation date in respect of which it had clearly been given statutory jurisdiction under domestic legislation.
As in Brennan and unlike the present case, the Impact decision therefore concerned an additional claim which was to be added to an existing claim which was already being dealt with by the statutory Tribunal within its statutory jurisdiction. It does not therefore appear to this Tribunal that the Impact case supports an argument that the Fair Employment Tribunal can or should assume a jurisdiction in respect of the royal prerogative which it does not already have and which cannot be linked to an existing claim currently being litigated before it. The ECJ stated:-
“Community law, in particular the principal of effectiveness, requires that a specialised court which is called upon, under the, albeit optional, jurisdiction conferred on it by the legislation transposing Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed term work concluded by ETUC, ENICE and CEEP, to hear and determine a claim based on the infringement of that legislation, must also have jurisdiction to hear and determine an applicant’s claim arising directly from the Directive itself in respect of the period between the deadline for transposing the Directive and the date on which the transposing legislation entered into force, if it is established that the obligation on that applicant to bring, at the same time, a separate claim based directly on the Directive before an ordinary Court would involve procedural disadvantages liable to render excessively difficult the exercise of the rights conferred on him by community law.”
[Tribunal’s emphasis]
54. Again it does not appear to this Tribunal that the Impact decision supports an argument that a domestic Tribunal with no pre-existing statutory jurisdiction to determine a particular claim and with no parallel or linked claim for which it has jurisdiction, can assume, simply because of community law, the jurisdiction to hear the claim, where there is no question of litigants having to proceed simultaneously in two separate jurisdictions thereby incurring additional costs and delay and thereby offending against the principal of effectiveness.
55. The claimant has and always had a potential remedy in the circumstances of the present case. He could have sought judicial review of the decision of the Minister to appoint others as QCs and therefore, by necessary implication, the decision not to appoint the claimant as a QC. That jurisdiction is widely recognised and has been availed of by others; see In Re: Treacy’s Application and In Re: O’Rourke’s Application.
56. Mr McKee argued that the judicial review process was contrary to the principles of equivalence and effectiveness set out in EU law. Even if the Tribunal were persuaded by that argument, and it is not, that would not be a sufficient basis for a statutory Tribunal to take that jurisdiction. A statutory Tribunal cannot say:-
“We don’t like the way in which the High Court goes about its business. We can do better. We are taking over.”
57. In relation to whether or not a judicial review application is an adequate method of securing EU protected rights, it is correct that the normal practice in judicial reviews is for evidence to be given on affidavit and for there to be no cross-examination. However, the High Court does have power under Order 53 to permit the cross-examination of witnesses in a judicial review process. That is not in any real sense different from an employment tribunal conducting a discrimination case using the witness statement procedure. Discovery can be directed in a judicial review process and the High Court is more than capable of dealing with issues such as the shifting burden of proof. The Tribunal is therefore not in a position to determine that the judicial review process is an ineffective method of securing EU protected rights.
58. However, as indicated above, even if the Tribunal were in a position to make such a finding, it could not take that significant further step urged upon it by the claimant to take over that jurisdiction in relation to the prerogative which clearly resides in the High Court.
59. In terms of equivalence, all judicial supervision of the exercise of public law and indeed the exercise of the royal prerogative is subject to judicial review. There could therefore be no issue of a lack of equivalence on the facts of the present case.
60. In short, if the High Court judicial review process is ineffective, which the Tribunal does not accept, that is a matter for a Francovich case and not an excuse for this Tribunal to far exceed any statutory authority that it might have by entertaining the current claims.
61. The Tribunal therefore concludes that the claims brought by the claimant are matters forming part of the exercise of the royal prerogative and that they are therefore matters within the exclusive jurisdiction of the High Court. The claims are therefore dismissed in their entirety for want of jurisdiction.
62. The fact that there is no clear statutory authority for the Tribunal to encroach on what is clearly, post-GCHQ, the exclusive territory of the High Court, to adjudicate on matters relating to the exercise of the prerogative concludes the matter without the need for further debate.
63. However, for completeness sake, the Tribunal should also record that the claimant’s attempts to interpret the provisions of the domestic legislation in a manner which would render the exercise of the prerogative as a matter falling within the jurisdiction of the Tribunal must fail in any event.
64. In a decision which, unlike the present case, did not have the added complication of the royal prerogative, the House of Lords in Ahsan v Watt [2008] 1 ALL ER stated at Paragraph 31:-
“The question is therefore whether the EAT was a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within the meaning of Section 12.
The jurisdiction of an employment tribunal depends upon whether the facts fall within certain statutory concepts which the Act defines with varying degrees of precision. These include concepts such as ‘a contract of employment’ … and, in the present case, ‘body which can confer an authorisation or qualification’.”
65. The rank of Queen’s Counsel cannot be regarded as an ‘office’ or ‘post’. Queen’s Counsel are no longer required to advise, or act on behalf of, the Crown. They are no longer required to seek permission to act against the Crown. They no longer receive a payment from the Crown for being a Queen’s Counsel. It simply is not an ‘office’ or ‘post’ as a matter of plain English or for the purposes of Article 20A of FETO, Article 13A of the Sex Discrimination Order or Regulation 13 of the Age Regulations.
If anyone is to stretch the boundaries of statutory interpretation to squeeze this claim within those provisions, it will have to be the High Court.
66. Since the rank of Queen’s Counsel is not an ‘office’ or ‘post’, it does not matter whether any of the named respondents can be described as a ‘relevant person’ for the purposes of Article 13B of the SDO, Article 20A of FETO or Regulation 13 of the Age Regulations.
67. The five named respondents were not a ‘qualified body’. The first-named respondent was responsible for administrative and secretarial support. It did not ‘confer a professional or trade qualification’ on anyone. Neither did the second, third, fourth or fifth-named respondents. They assessed applications and made recommendations. Making a recommendation is not conferring a qualification. If the rank of Queen’s Counsel can properly be described as a professional or trade qualification, it was conferred by the Minister of Justice acting in right of the Crown.
Vice President:
Date and place of hearing: 26 April 2012, Belfast
Date decision recorded in register and issued to parties: