Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 91
	OPINION OF LORD WOOLMAN in the cause S M, as guardian of the Child JM Petitioner; against ADVOCATE GENERAL FOR SCOTLAND ACTING ON BEHALF OF THE UK GOVERNMENT Respondents: ­­­­­­­­­­­­­­­­­________________

Petitioner: Bovey QC, Davidson; Drummond Miller WS

Respondent: Bartos; Office of the Solicitor to the Advocate General

25 June 2009

[1] JM was born on 2 June 2004. He has a rare genetic disorder, known as Prader-Willi syndrome. He requires oxygen 24 hours a day and is fed on liquids by way of a nasal tube. In April 2005, his parents made an application on his behalf for Disability Living Allowance ("DLA"). DLA is awarded to individuals who require assistance to lead a normal life. It is a non-contributory and tax-free benefit paid under the Social Security Contributions and Benefits Act 1992 ("the 1992 Act").

[2] DLA has two components. The care component is for individuals who need help being looked after, or supervision to keep them safe: section 72. The mobility component is for individuals who have difficulties with walking: section 73. Each component is paid at different rates, depending on the level of disability. Some people are entitled to receive one component, others may receive both.

[3] A claimant's age is relevant to DLA. Those under sixteen must show that they require more assistance than someone of the same age who is not disabled: these provisions are now contained in sections 72 (1A) and 73 (4A). That is known as the "extra requirement test". There is no lower age limit below which the care component cannot be claimed. However, the mobility component is only payable when a child reaches the age of three. The qualifying age was originally five, but it was lowered after the Secretary of State for Work and Pensions received further medical advice to the effect that the majority of children should be able to walk by the age of three: section 67(3) of the Welfare Reform and Pensions Act 1999.

[4] In April 2005, an application for DLA was made on behalf of JM. He received an award in respect of the care component, but was refused an award with regard to the mobility component because of his age. That decision was confirmed on appeal. It was held that JM was excluded by the unambiguous terms of the legislation. No award could be made until he reached the age of three.

[5] Subsequently, a further application for DLA was made on behalf of JM. The Secretary of State renewed the award in respect of the care component. In addition, he made an award in respect of the mobility component from JM's third birthday on 2 June 2007. I was told that this petition had been brought principally to clarify the position for the benefit of the other 6,000 to 7,000 children throughout the United Kingdom who are affected by this provision. The petitioner hopes that if his application is successful, that might ultimately lead to the legislation being changed.

[6] The substantive case made by the petitioner is that, but for the terms of section 73, JM would have been entitled to receive the mobility component when he was two years old. In particular, the petitioner relies on a medical report entitled Comments on The Normal Age of Walking for the purposes of Disability Living Allowance written in 2006 by Professor George Russell, honorary consultant paediatrician at the Royal Aberdeen Children's Hospital, which states:

"More than ninety nine per cent of normal children are able to walk independently by the age of eighteen months. Early ambulation is hesitant and awkward. It may be up to another six months before a child acquires useful walking skills. During this period, the child may require additional support and carrying. However, after the age of two, there is no objective justification for discriminating between disabled two-year-old and three-year-old children. Except in exceptional circumstances, a child who cannot walk after the age of two is unable to do so because of disability."

[7] The petitioner maintains that DLA is a "possession" for the purposes of the European Convention of Human Rights and that Article 8 and Article 1 of the First Protocol are therefore engaged. He claims that section 73 discriminated against JM on the basis of his age, without there being an objective justification for that different treatment. In consequence, there has been an infringement of Article 14 of the Convention.

[8] The respondent denies any breach of JM's Convention rights. It follows that the parties join issue on the question of whether or not the legislation does discriminate in the manner alleged. But that question was not discussed before me, as the respondent took a preliminary point. He challenged the competency of the petition.

[9] The challenge centred on the orders sought by the petitioner, which (after amendment at the start of the adjourned hearing) read as follows:

"(a) Declarator that Section 73 of the Social Security Contributions and Benefits Act 1992 insofar as it excludes from the mobility component of the disability living allowance solely by reason that he is not over the age of three years a person who is suffering from physical disablement such that he is either unable to walk or virtually unable to do so, between about 18 April 2005 and 2 June 2007, violated JM's Convention rights in terms of Article 8 of the European Convention of Human Rights, read in conjunction with Article 14 thereof.

(b) Declarator that Section 73 of the Social Security Contributions and Benefits act 1992 insofar as it excludes from the mobility component of the disability living allowance solely by reason that he is not over the age of three years a person who is suffering from physical disablement such that he is either unable to walk or virtually unable to do so, between about 18 April 2005 and 2 June 2007, violated JM's Convention rights in terms of Article I of the First Protocol of the European Convention of Human Rights, read in conjunction with Article 14 thereof.

(c) A declaration in terms of Section 4 of the Human Rights Act 1998 that Section 73 of the Social Security Contributions and Benefits Act 1992 is incompatible with Article 8 of the European Convention on Human Rights, read in conjunction with Article 14 thereof.

(d) A declaration in terms of Section 4 of the Human Rights Act 1998 that Section 73 of the Social Security Contributions and Benefits Act 1992 is incompatible with Article 1 of the First Protocol of the European Convention on Human Rights read in conjunction with Article 14 thereof."

[10] In seeking dismissal of the petition, Mr Bartos advanced three arguments. First, a declaration of incompatibility cannot be made by way of a petition for judicial review, as it does not fall within the supervisory jurisdiction of the court. Secondly, a court cannot declare that primary UK legislation is incompatible with an international convention. Thirdly, a declaration of incompatibility cannot be made in a "stand­alone" action. It can only be granted as an ancillary remedy in another action.

[11] At the cornerstone of the discussion was Section 4 of the Human Rights Act 1998. It provides:

"(1) ... in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right ... (2) ... if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility."

There was a measure of overlap between the first and third arguments. In each case, the respondent submitted that it was incompetent for the petitioner to proceed by way of judicial review. Instead he should have raised the matter as a question of law on a further appeal to the Court of Session: section 15 of the Social Security Act 1998. As the second argument deals with a different point, it is convenient to deal with it first.

I. The International Convention Point

[12] Mr Bartos divided the orders sought by the petitioner into two categories. He characterised (a) and (b) as common law declarators, while (c) and (d) were statutory declarations of incompatibility. His short point was that the courts have no power at common law to declare a United Kingdom statute in breach of an international treaty. Accordingly, it was not competent to grant orders (a) and (b).

[13] Mr Bovey began by making an important concession. He accepted that he could not rely on the Convention to contradict the clear terms of a statute. He submitted, however, that this was not the petitioner's case. Rather, the challenge made by the petitioner in relation to orders (a) and (b) was that contemplated by section 4 of the 1998 Act. The Court was being invited to express its view on the compatibility of section 73 with the Convention. That was because orders (a) and (b) refer to breaches of "Convention rights", the term used in section 1(1) of the Human Rights Act 1998.

[14] In my view, the petitioner's argument is unsound. As Mr Bovey accepted, the principle is not in doubt. The relevant line of authority can be traced back to Kaur v The Lord Advocate 1980 SC 319. In that case a declaration was sought that the Home Secretary had acted contrary to the Convention. Lord Ross dismissed the action on the basis that the Convention was not part of Scots law. That decision was followed in Moore v The Secretary of State for Scotland 1985 SLT 38, where the Second Division stated:

"In our view Lord Ross was perfectly correct in holding that the Convention plays no part in our municipal law so long as it has not been introduced into it by legislation." (page 41).

[15] Although the Human Rights Act 1998 incorporated certain Convention rights into UK law, it remains important to distinguish the Act from the Convention. In In re McKerr [2004] 1 WLR 807, Lord Hoffman stated:

"That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not in the United Kingdom as a State. And their meaning and application is a matter for domestic courts, not the court in Strasbourg." (paragraph 63)

That passage was quoted with approval in DJS v Criminal Injuries Compensation Appeal Panel 2007 SC 748.

[16] In the present case, there is a material difference in the wording of the orders sought by the petitioner. Two expressly refer to section 4 of the 1998 Act; two do not. The inference, in my view, is that the remedies fall into two distinct categories. Orders (c) and (d) plainly seek declarations of incompatibility in terms of section 4. Accordingly, I conclude that orders (a) and (b) invite the court to pronounce a different remedy: to declare that section 73 of the 1992 Act infringes JM's Convention Rights at common law. That issue is not justiceable in this court. Accordingly the petition, so far as it relates to orders (a) and (b), is incompetent.

[17] If the petitioner's approach was correct, orders (a) and (b) would in any event be redundant. They would merely duplicate orders (c) and (d). During the course of argument, Mr Bovey appeared to recognise that fact by stating that the petitioner's primary aim was to obtain a declaration of incompatibility in terms of orders (c) and (d).

II. The Extent of the Supervisory Jurisdiction

[18] The respondent's second argument related to the scope of judicial review in Scotland. Mr Bartos submitted that the supervisory jurisdiction of the Court of Session is a restricted one. It is only available to ensure that a person or body to whom a jurisdiction, power, or authority has been delegated or entrusted by statute agreement or other instrument does not exceed or abuse that jurisdiction: West v Secretary of State for Scotland 1992 SC 385. Accordingly, the present petition was incompetent, because it did not seek to review any such decision or action and the tri-partite relationship mentioned in West was absent. The petitioner was seeking to extend the supervisory jurisdiction to cover primary legislation, which was not permissible, he said, because Parliament remains the supreme lawmaking body and the duty of the Courts is to implement the legislation it makes. He noted that the relevant Rule of Court also refers to "decisions, acts or omissions", not to Acts of Parliament: RC 58.6.4.

[19] Mr Bovey emphasised that in principle, the petitioner is entitled to a clearly available and effective remedy: Shanks and McEwan (Contractors) Limited v Mifflin Construction Limited 1993 SLT 1124, 1129E-F per Lord Cullen. He submitted that the present petition was the only means by which he could obtain such a remedy. The normal appeal route was blocked, because as long as section 73 remained in force, it was inevitable that JM's claim for the mobility component would be refused.

[20] Mr Bovey queried whether the tri­partite relationship was an essential element of judicial review proceedings under reference to three Outer House cases: Jobeen v University of Stirling 1995 SLT 120 at 122; Naik v University of Stirling 1994 SLT 449 at 451; and Crocket v Tantallon Golf Club 2005 SLT 663 at 671. He also pointed out that a declaration of incompatibility had a limited effect. It did not result in the provision being quashed. Rather, the petitioner's hopes lay in the prospect of a declaration persuading the Minister to change the law if a declaration was made: section 10(2).

[21] The respondent's position rests on West. In the course of delivering the Opinion of the Court, Lord President Hope traced the history of the court's jurisdiction. He observed that Rule of Court 260B was introduced following recommendations made by a Working Party chaired by Lord Dunpark and continued:

"The following characteristics of Rule of Court 260B may therefore be noted at this stage. First, since it was introduced by Act of Sederunt without any further enabling power having been conferred on the court by general legislation, it was a procedural amendment only which did not and could not alter in any respect the substantive law. Thus neither the nature or scope of the supervisory jurisdiction nor the grounds on which it may be exercised were affected by the introduction of this new rule." (page 404)

[22] It follows that the Lord President was authoritatively stating the position, prior to any change in the substantive law. The issue in the present case can therefore be focussed in a short question - did section 4 of the Human Rights Act 1998 enlarge the supervisory jurisdiction of the Court? In my view the answer is yes. The starting point relates to the general powers of the Court. It is clear that they were extended. The Court can now determine whether primary legislation is in accordance with the Convention and make a declaration in an appropriate case. In Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, Lord Nicholls of Birkenhead put the matter as follows:

"61. The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation. This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right."

[23] The narrower question is whether those new powers are to be housed within the supervisory jurisdiction. In my view, the answer to that question is also yes. In the past, it was common to talk about judicial review of administrative action. That was the title assumed by Lord Dunpark's Working Party. It was also for many years the title of de Smith's classic work on the subject in English law. However, the sixth edition published in 2007 is simply called Judicial Review. The current editors decided that it was no longer appropriate to keep the words "of administrative action" in the title. In my view, if the line taken by the respondent were accepted, it would march judicial review in Scotland into a defile. It would mean that the procedure which appears most suitable to give effect to section 4- a petition for judicial review-is deemed to be the wrong route.

[24] That approach is supported by two factors. First, where a section 4 application is coupled with a section 7 application (a challenge to an act or proposed act of a public authority), such a petition may be the only vehicle to bring the matter before the Court: section 9 (1) (b). Secondly Rule of Court 82.3(1) provides that notification must be given to the Crown: "Where in any proceedings a party seeks a declaration of incompatibility or the court is considering whether to make such a declaration at its own instance". There is no hint there or elsewhere in the Rules of Court that petitions for judicial review are excluded.

[25] The extension to the Court's powers does not impinge upon Parliamentary sovereignty in the manner suggested by the respondent. That is because the power conferred on the Court is a limited one: it can only grant a declaration of incompatibility, not one of invalidity. Accordingly, I reject the respondent's second argument.

III. A Stand-alone Declaration of Incompatibility

[26] The respondent's third argument was that the Human Rights Act did not allow "free standing" challenges to primary legislation. In other words, he contended that it is incompetent to bring a petition for judicial review for the sole purpose of obtaining a declaration of incompatibility. Mr Bartos suggested that the parties' competing constructions of section 4 could be set out as follows. The petitioner's interpretation was:

"In any proceedings, including proceedings brought for that purpose, in which a court determines whether a provision of primary legislation is compatible with a Convention right ... it may make a declaration of incompatibility."

By contrast, the respondent's construction was:

"In any competent and existing proceedings, in which a court determines whether a provision of primary legislation is compatible with a Convention right ... it may make a declaration of incompatibility."

[27] During the course of the debate, a fictitious and extreme example was used to illustrate the practical consequences of the respective approaches. It was supposed that a Bill was introduced allowing for the arbitrary torture of all red-headed males. Before its Second Reading, the minister in charge provided a statement to Parliament indicating that the government wished the House to proceed with the Bill, even though it was not compatible with the Convention: section 19. The petitioner contended that a declaration of incompatibility could be sought immediately the bill passed into law. By contrast, on the respondent's construction no action could be taken prior to the statute being acted upon.

[28] The central feature of the respondent's approach requires section 4 proceedings to be yoked to section 7 proceedings. In my view, a reading of the Act does not immediately suggest that construction. A striking feature of section 4 is its wide scope. The phrase "any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right" is drawn very broadly. There is no hint that it can only be exercised when coupled with a section 7 application. In particular, there is no express linkage in the Act between the two types of proceedings.

[29] In Wilson, Lord Nicholls stated that there are two conditions for a section 4 application:

"Section 4 contains two prerequisites to the court's jurisdiction to make a declaration of incompatibility. First, subsections (2) and (4) of section 4 apply to proceedings in which the court 'determines' whether a legislative provision is compatible with a Convention right. So section 4 does not apply unless the court, in the proceedings in question, actually decides whether the relevant legislation is Convention-compliant. The second prerequisite is that the court must be satisfied the relevant legislative provision is incompatible with a Convention right: section 4(2) and (4). This presupposes that, despite application of the principle of interpretation stated in section 3, the legislation is non-compliant. In other words, interpretation of the legislation in accordance with section 3 is an essential preliminary step to making a declaration of incompatibility. It is an essential preliminary step because the court cannot be satisfied the legislation is incompatible until effect has been given to the interpretative obligation set out in section 3."

[30] In my view, the respondent is seeking to add a third pre-condition: that an act of a public authority is already under challenge. In his judgment in Wilson, Lord Rodger of Earlsferry stated:

"179. The 1998 Act is beautifully drafted. Its structure is tight and elegant, being marred only by the obvious interpolation of sections 12 and 13 as a result of amendments made while the Bill was passing through Parliament. The presence or absence of particular features in the Act is therefore unlikely to be due to oversight."

[31] Pausing at this point, if the respondent's approach was correct, one might therefore have expected the link between the two types of proceeding to be made explicit. Alternatively, the provisions might have been re-ordered to make the position obvious. The absence of such features to my mind weakens the idea that a "legislation" challenge can only be brought in the context of a "public authority" challenge. In my view, the respondent's construction does require the insertion of the words "competent and existing" to make his preferred meaning clear. That is in contrast to the petitioner's interpretation, where the insertion of the words "including proceedings brought for that purpose" is superfluous.

[32] Lord Rodger continued his analysis of the 1998 Act in Wilson by stating:

"205. Section 1(1) defines the expression "the Convention rights" as the rights and fundamental freedoms set out in certain specific articles of the Convention. The Act the goes on to provide the two mechanisms by which they are to have effect in the domestic law of the United Kingdom. First, under the appropriate cross-heading, in sections 3 to 5 - later complemented by section 10 - the Act provides a mechanism for giving effect to Convention rights in relation to legislation. Secondly, again under an appropriate cross­heading, in sections 6 to 9 it contains a mechanism for giving effect to Convention rights in relation to the acts of public authorities.

206. ... the two groups of sections constitute different, but complementary, mechanisms for giving effect to the same underlying Convention rights. It is a matter of chance whether the relevant act of a public authority occurs in an area covered by the common law or by statute, or by a mixture of both. In that sense, it is equally a matter of chance whether sections 6 and 7 only, or sections 2 to 5 also, are in play. ... If the relevant aspect of the proceedings is regulated, in whole or in part, by a statutory provision, he must be equally able to deal with it by invoking the court's obligation under section 3 to read and give effect to the statutory provision compatibility with article 6(1). If appropriate, section 4 also comes into play."

[33] Mr Bartos submitted that the inference from that passage is that a declaration of incompatibility can only be sought in the context of section 7 proceedings. I do not construe it in that way. In my view it underscores the distinct nature of the two types of proceedings. No doubt it will commonly occur that the two mechanisms will be sought as alternatives in the same legal action. Persons generally do not commence proceedings in order to deal with abstract questions. They wait until their interests are directly and adversely affected. Accordingly, in the normal case a challenge will be triggered when a public authority acts (or proposes to act) in a manner which is alleged to be incompatible with a Convention right. If the claim has merit, the court will first determine whether the provision can be "read down": section 3. If not, the public authority will argue that its act was not unlawful, because it acted in accordance with the relevant primary legislation: section 6(2). Assuming that the court finds that defence to be well founded, it might go on to make a declaration of incompatibility in an appropriate case.

[34] Another issue relates to the qualifications or eligibility of persons to bring a "stand alone" petition. No test is laid down in the Act, unlike proceedings against public authorities, which can only be brought by a "victim": section 7 (1) and (7). Although the respondent has a plea-in-law that the petitioner does not have the requisite title and interest, no argument was advanced before me on that point. Instead, Mr Bartos used it as an argument in support of his preferred construction. He suggested that it was unlikely that Parliament had left the question of eligibility to be determined by the common law of the different parts of the United Kingdom. He also observed that it would make it easier to seek a declaration of incompatibility than to challenge an act by a public authority.

[35] Employing Lord Rodger's dictum again, it is unlikely that the absence of any reference to title and interest in relations to such proceedings is due to oversight. The apprehension that there could be a flood of claims is misplaced. A challenge directed at the compatibility of legislation is likely to be rare. It has often been characterised as a measure of last resort:

"What is necessary, however, is to emphasise that interpretation under section 3(1) is the prime remedial remedy and that resort to section 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights." Ghaidan v Godin-Mendoza [2004] 2 AC 557 paragraph 39 per Lord Steyn.

Further, it is unlikely that a court will make a declaration when it would be "wholly gratuitous": Wilson per Lord Hobhouse of Woodborough at paragraph 127. Accordingly in my view the eligibility point does not drive the construction of section 4.

[36] My opinion is therefore that a "stand-alone" petition is permissible and that the respondent's third argument fails. For the sake of completeness, I should add that Mr Bovey cited a number of older Scots cases: Proprietors of Curruber's Close v William Reoch 1762 M. 13175; Ashley v Magistrates of Rothesay (1873) 11 M 708; and Earl of Mansfield v Stewart (1846) 5 Bell's App 139, 160. However, I did not find them of assistance in resolving what I perceive to be a question of statutory construction.

[37] In light of my decision in relation to the first argument, I will sustain the first plea-in-law for the respondent to the extent of deleting orders (a) and (b). As I have rejected the second and third arguments, I shall fix a second hearing to deal with the substantive issue between parties.