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Grampian University Hospitals NHS Trust v. Her Majesty's Advocate [2004] ScotHC 10 (13 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

Temporary Judge Sir Gerald Gordon

Appeal No: XJ171/02

OPINION OF THE COURT

delivered by LORD MARNOCH

APPEAL

GRAMPIAN UNIVERSITY HOSPITALS NHS TRUST

Appellants

against

PROCURATOR FISCAL, Aberdeen

Respondent:

_______

Appellant: Shead; McCourts

Respondent: Becket, A.D.; Crown Agent

13 February 2004

[1] This is an appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 which permits, with leave of the inferior court, an appeal to this court against a decision relating to such "objection or denial" as is mentioned in section 144(4) of the Act. In the present case the "objection" in question took the form of a Devolution Minute directed to the admissibility of certain evidence which it was accepted the Crown intended to lead. On 30 August 2002 the sheriff held that the Minute was incompetent on the view (although she does not expressly say so) that the appellants did not qualify as a "victim" for purposes of section 100(1)(b) of the Scotland Act 1998. Read short, that subsection states that the Act

"does not enable a person ...

(b) to rely on any of the Convention rights in any ... proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights."

[2] The reference to the "Convention" is, of course, a reference to the European Convention on Human Rights of which Article 34 is in the following terms:

"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto ... ".

[3] In the early stages of his submissions to us Mr. Shead, for the appellants, maintained that, even if his clients were a "non-governmental organisation", he could still succeed if they were also a "person" within the meaning of Article 34. In our opinion, however, that submission is patently ill-founded, first, because the French text refers to "personne physique" and, second, because it is, we think, quite clear that the three categories of applicants described in Article 34 are mutually exclusive with a clear distinction being drawn between "non-governmental organisations" on the one hand and "persons" or "groups of individuals" on the other. Indeed this was the subject of express decision by the Commission as long ago as May 1974 in Sixteen Austrian Communes v. Austria 1974 Y.B. 338 and that decision has since been endorsed by the court on a number of occasions. The only question, therefore, is whether or not the appellants can be seen as a "non-governmental organisation". That phrase must, of course, be given its autonomous meaning for the purposes of the Convention and it is clearly necessary, therefore, to look for guidance on that meaning to European case law.

[4] First, however, it is convenient to set out briefly the statutory position of the appellants.

[5] National Health Service Trusts were introduced by amendments made to the National Health Service (Scotland) Act 1978 by the National Health Service and Community Care Act 1990. It is, however, instructive to note at the outset that section 1(1) of the 1978 Act still reads:

"(1) It shall continue to be the duty of the Secretary of State to promote in Scotland a comprehensive and integrated health service ... ".

[6] The reference to the "Secretary of State" now falls to be read as a reference to the Scottish Ministers but it is clear, nonetheless, that the overall responsibility for promoting the National Health Service in Scotland continues to rest firmly on the executive arm of government.

[7] Section 12A(1) then provides that the Secretary of State (now Scottish Ministers)

"may by order establish bodies, to be known as National Health Service trusts (in this Act referred to as 'NHS trusts') to provide goods and services for the purposes of the health service".

The appellants, incidentally, were established by Statutory Instrument 1988 No. 2718.

[8] Detailed provisions anent NHS trusts are to be found in Schedule 7A to the amended Act and, in that regard, we note particularly Para. 6(1) which provides:

"In carrying out the functions for the time being conferred on it an NHS Trust shall comply with any directions given to it by the Secretary of State [now Scottish Ministers], whether of a general or of a particular nature."

Lastly, Para. 25(1) of Schedule 7A provides that the Secretary of State (now Scottish Ministers) "may by order dissolve an NHS trust".

[9] From the foregoing provisions alone it is clear that NHS Trusts, such as the appellants, are established by the executive, their functions are specified by the executive, they have to comply with any directions given to them by the executive, they can be dissolved by the executive and there was, of course, no dispute but that they are funded by the executive.

[10] We turn now to a consideration of the three European authorities to which we were referred for guidance as to the meaning of "non-governmental organisations". The first of these was a decision of the European Court of Human Rights as to the admissibility of Application No. 52559/99 in Danderyds Kommun v. Sweden (7 June 2001, unreported). The applicant was the Swedish municipality of Danderyd. After referring to the previous jurisprudence of the Court and Commission the text of the judgment reads as follows:

"According to this jurisprudence it is not only the central organs of the State that are clearly governmental organisation (sic), as opposed to non-governmental organisations, but also decentralised authorities that exercise public functions notwithstanding the extent of their autonomy vis-à-vis the central organs. This is the case even if the municipality is claiming that in this particular situation it is acting as a private organ.

Moreover, to consider a Swedish municipality a non-governmental organisation is clearly contradicted by the fact that its acts can engage the responsibility of the Swedish State under the Convention. From the Court's perspective the hierarchy between different organs of the State is thus not relevant while examining an application before it. Furthermore, a conflict between a central State organ and a municipality is rather a conflict of jurisdiction which is not for the Court to solve.

Neither can a municipality be considered to be a group of individuals. Such an interpretation would not be compatible with the distinction made between groups of individuals on the one hand and non-governmental organisations on the other.

Turning to the present case the Court finds that the applicant is clearly a public organ exercising public functions. It must therefore be considered to be a governmental organisation."

[11] We shall revert shortly to what is said there about governmental and non-governmental organisations but we note, in passing, that this is one case where the court endorses the distinction already made by the Commission in Sixteen Austrian Communes between groups of individuals on the one hand and non-governmental organisations on the other.

[12] The next authority to which we were referred was the decision of the court in Ayuntamiento de Mula v. Spain 2001 R.J.D. I, 533 which was a decision on admissibility in which the unsuccessful applicant was the local authority of a town in the region of Murcia. After again endorsing the construction put on Article 34 by the Commission in Sixteen Austrian Communes the court went on to say that, even as regards defending private property rights, local government organisations did not qualify under Article 34. For ease of reference the immediately relevant passage reads as follows:

"The Court reiterates that under the settled case-law of the Convention institutions, local-government organisations are public-law bodies which perform official duties assigned to them by the Constitution and by substantive law. They are therefore quite clearly governmental organisations (see Rothenthurm Commune v. Switzerland, application no. 13252/87, Commission decision of 14 December 1988, Decisions and Reports, (DR) 59, p. 251). In that connection, the Court reiterates that in international law the expression 'governmental organisations' cannot be held to refer only to the Government or the central organs of the State. Where powers are distributed along decentralised lines, it refers to any national authority which exercises public functions. The applicant authority cannot be regarded as a person or group of individuals within the meaning of Article 34 of the Convention either. Such a construction would not be consistent with the distinction drawn in that provision between non-governmental organisations, on the one hand, and persons or groups of individuals on the other. The fact that local authorities have capacity to defend their property rights in the courts in the same way as private individuals or non-governmental organisations does not mean that they can be assimilated to private individuals or non-governmental organisations for the purpose of Article 34 of the Convention".

[13] Lastly, in Holy Monasteries v. Greece (1994) 20 E.H.R.R. 1 at para. 49 the court concludes, so far as relevant to the present case, that:

"The Monasteries come under the spiritual supervision of the local Archbishop ... , not under the supervision of the State, and they are accordingly entities distinct from the State, of which they are completely independent.

The applicant Monasteries are therefore to be regarded as non-governmental organisations within the meaning of Article 25 [as it then was] of the Convention."

[14] From the foregoing case law it was not disputed by either Mr. Shead or the advocate depute that three possible tests as to whether an organisation was a governmental one could be distilled:

"(1) Is the organisation a decentralised authority which exercises public functions?

(2) Would the acts of the organisation engage the responsibility of the State under the Convention? and conversely,

(3) Can it be said that the organisation is not under the supervision of the State and is accordingly an entity distinct from the State of which it is completely independent?"

[15] The first two of these are derived from the court's decision as to admissibility in the applications by Danderyds Kommun and Ayuntamiento de Mula and the last from Holy Monasteries v. Greece.

[16] Mr. Shead was pleased to concede that the application of the first of these tests would suggest that his clients were a governmental organisation but he disputed that the same result was arrived at by an application of the second and/or third of these tests. He emphasised that the setting up of NHS Trusts represented a policy decision to decentralise the administration of the Health Service and he also suggested that bodies which could be regarded as being only agents of the Crown as opposed to representing the Crown itself could be viewed as qualifying under clause 34. He submitted more than once that it would be "an odd result" if the position were other than that for which he contended.

[17] In our opinion, apart from the concession, Mr. Shead's submissions, if not irrelevant, were entirely without foundation. The concession was, we think, properly made and indeed could hardly have been withheld. In that connection, we refer to the dicta of Diplock L.J. in Pfizer Corporation v. Ministry of Health [1964] Ch. 614 at pps. 652-653 as approved by the House of Lords in British Medical Association v. Greater Glasgow Health Board 1989 S.C. (H.L.) 65 at p. 92. The passage in question reads as follows:

"The duty to provide hospital and specialist services is imposed upon the Minister. It is in its nature a duty which he can only perform vicariously through agents acting on his behalf. The Act requires him to do so through the immediate agency of the Regional Hospital Boards. The Regional Hospital Boards, being corporations, can themselves only do the physical acts involved in the provision of the services on behalf of the Minister, vicariously through their offices and servants. Any act done by an officer or servant of a Regional Hospital Board for the purpose of providing hospital or specialist services is accordingly done on behalf of the Minister in performance of the statutory duty which is imposed upon him. Their acts are acts of a government department."

Although Lord Diplock is there referring to Regional Hospital Boards his remarks, in our opinion, apply mutatis mutandis to NHS Trusts. For the rest, the considerations that an NHS Trust is a decentralised body and can be viewed as being merely an agent of the Crown seem to us to be entirely beside the point, as the case law makes clear.

[18] As regards the second test the advocate depute was, we think, well-founded in relying on section 6(1) and (3)(b) of the Human Rights Act 1998 which are in the following terms:

"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...

(3) In this section 'public authority' includes ...

(b) any person certain of whose functions are functions of a public

nature ... ".

In our opinion these provisions make it clear that the United Kingdom would indeed be answerable in Strasbourg for any breach of the Convention by an NHS Trust.

[19] And, finally, as regards the third test, it follows from our analysis of the constitutional position of NHS Trusts that, as we see it, the appellants are wholly under the supervision of the State and very far from being an entity distinct from or independent of the State.

[20] For all the foregoing reasons we are satisfied that in this matter the sheriff reached the correct result (albeit on arguments far removed from those deployed before us) and we shall accordingly refuse the appeal and remit back to her to proceed as accords.

[21] We have only to add that we do not agree with Mr. Shead that our decision constitutes an "odd result". On the contrary, it seems to us to be wholly in accord with the provisions of the Scotland Act 1998 and the Human Rights Act 1998, and also with the underlying purposes of the Convention on Human Rights as reflected in Article 34.