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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Zaidi v Fimbra [1995] UKEAT 773_94_0302 (3 February 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/773_94_0302.html
Cite as: [1995] UKEAT 773_94_0302, [1995] UKEAT 773_94_302
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At the Tribunal
THE HONOURABLE MRS JUSTICE SMITH
MR J H GALBRAITH CB
MR T C THOMAS CBE
JUDGMENT
Revised
APPEARANCES
For the Appellant MS K MONAGHAN
(Of Counsel)
Commission for Racial Equality
Alpha Tower
Suffolk Street
Queensway
Birmingham
B1 1TT
For the Respondents MR P NICHOLLS
(Of Counsel) AND
MR A KORN
(In-house Counsel)
Dibb Lupton Broomhead
Solicitors
125 London Wall
London
EC2Y 5AE
MRS JUSTICE SMITH: This is an appeal brought by Mrs Zaidi from the decision of an Industrial Tribunal sitting at London (North) on 20th April 1994. It raises the question of whether an appeal brought under the rules of a self-regulating body recognised under the Financial Services Act 1986 (the 1986 Act) is an appeal `brought under any enactment' for the purpose of determining the jurisdiction of an industrial tribunal to hear a complaint of racial discrimination under section 54 of the Race Relations Act 1976 (the 1976 Act). The Tribunal decided that they had no jurisdiction to hear the appellant's complaint that the respondent had discriminated against her on racial grounds. They held that they were precluded from doing so by section 54(2) of the 1976 Act.
The respondent is the Financial Intermediaries Managers and Brokers Regulatory Association, better known as `FIMBRA'. It is a company limited by guarantee and was formed in 1979. In 1987 it was recognised as a self-regulating organisation (an SRO) by the Secretary of State for Trade and Industry under the Financial Services Act 1986. That is an Act to regulate the carrying on of investment business and for connected purposes. The Act provides that is is unlawful for any person to carry on investment business unless he is an authorised or exempted person. Section 7 provides that a member of an SRO becomes an authorised person by virtue of such membership.
The factual background to this appeal may be shortly stated. The appellant wished to set up in business as an independent financial services consultant. She was the sole director of a company called Pure Dynamictrust Financial Services Ltd. In order to carry on business in this way, she and her company required authorisation under the Financial Services Act 1986. In December 1992, the appellant applied to FIMBRA for Class R1 1 membership. That is the class of membership which entitles the holder to carry on business as a principal, that is without supervision. Her application was considered by a Membership Committee and she was asked to attend for interview on 28th January 1993. The day following the interview, she was told that her application had been refused. She considered that this refusal was an act of racial discrimination. She is of Arabian origin.
Under the Rules of FIMBRA, the appellant was entitled to appeal to its Appeal Tribunal against the refusal of her application for membership. Her appeal was heard on 22nd April 1993 but was dismissed. It does not appear from the report of the hearing that the issue of race discrimination featured very prominently in the appellant's submissions, although she was free to put such arguments to the Appeal Tribunal as she thought fit.
She then pursued other remedies. She had already lodged an originating application in the industrial tribunal alleging that the refusal of membership was an act of racial discrimination. She also sought leave to apply for judicial review of the decision of the appeal tribunal on quite different grounds. Leave was granted but before the substantive hearing, the appellant was invited by FIMBRA to re-submit her application for membership. On this occasion she was admitted.
By her originating application, the appellant complained that FIMBRA's rejection of her application for membership was discriminatory on racial grounds, contrary to section 12(1) of the 1976 Act.
Section 12 is headed `Qualifying Bodies'. So far as relevant it provides:
"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates engagement in a particular profession or trade to discriminate against a person-
.........
(b) by refusing, or deliberately omitting to grant his application for it;
......... "
At the hearing before the Industrial Tribunal on 20 April 1994, FIMBRA contended that the provisions of Section 54 of the 1976 Act precluded the appellant from pursuing her claim.
So far as relevant Section 54 provides:
"(1) A complaint by any person ("the complainant") that another person ("the respondent")-
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II;
............
may be presented to an industrial tribunal.
(2) Subsection (1) does not apply to a complaint under section 12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment, ....."
The respondent contended that, as the appellant's complaint was brought under section 12(1) and as it was in respect of FIMBRA's refusal to admit her to membership, which was an act in respect of which an appeal may be brought under an enactment, section 12(2) applied to debar her complaint.
The appellant contended that the FIMBRA appeal was not `an appeal brought under any enactment'. Thus section 12(2) did not apply and she was entitled to proceed with her complaint.
The Tribunal held that the appeal to the FIMBRA Appeal Tribunal had been brought under the FIMBRA Rules which had been made under the Financial Services Act 1986. We shall consider the basis of their decision later in this judgment.
At the hearing of this appeal, we have been greatly assisted by the submissions and skeleton arguments of both counsel. Miss Monaghan, for the appellant who is supported in this appeal by the Commission for Racial Equality, submitted first that the appeal in question was brought not under an enactment, but under the FIMBRA Rules. The power to make those Rules comes not from the 1986 Act but from FIMBRA's Articles of Association. Second she submitted that the expression `an appeal brought under any enactment' means an appeal the right to which and process of which must derive from a statute or at most from subordinate legislation made under a statute. FIMBRA's Rules are not subordinate legislation and an appeal under those Rules cannot therefore be described as `brought under any enactment'. Third, she submitted that in all the cases in which it had been held that jurisdiction had been ousted under section 54(2) of the 1976 Act the appeal in question had been brought by virtue of a provision in the statute itself, which statute had provided at least for the constitution and jurisdiction of the appellate body.
Mr Nicholls for the respondent submitted that the expression `brought under any enactment' should be construed widely to give effect to the presumed intention of Parliament when enacting the Financial Services Act 1986. Parliament provided that when the Secretary of State approved an SRO such as FIMBRA, he delegated his power to grant authorisation to conduct investment business by the enforcement of rules for admission and discipline of members. Before making a recognition order, the Secretary of State has to scrutinise and approve the rules of the SRO. Thus Parliament must have intended to give the rules of the SRO statutory force. The Rules of FIMBRA were thus a creature of statute and an appeal brought under them could properly be described as having been brought under an enactment.
Further he submitted that the purpose of section 54(2) of the 1976 Act was to prevent a person from having two separate remedies in respect of his complaint of racial discrimination. If an appeal were provided under any enactment, Parliament intended that that remedy be used and that the remedy of a complaint to an industrial tribunal be excluded. At the time of passing the 1976 Act, Parliament had never yet provided for the regulation of a business or profession by the device of recognising a self-regulating organisation which was empowered to control its members. Parliament's preferred method was to create a statutory body, such as the General Medical Council under the Medical Act 1983, and give it statutory powers to make rules including the power to hold appeals. Such an appeal was clearly an appeal `brought under an enactment' which would oust the jurisdiction of the industrial tribunal in a race discrimination case. However, when Parliament decided to adopt a different and less direct method of regulating a profession or business, as it did in the 1986 Act, by clothing a recognised SRO with the power to authorise, it was to be presumed that it intended the same result, namely that an appeal brought under the rules of the recognised SRO would oust the jurisdiction of the industrial tribunal in race discrimination cases.
Before examining the opposing submissions in detail, it is necessary to look at part of the scheme of the 1986 Act and the Rules of FIMBRA.
Sections 3 and 4 of the 1986 Act provide that it is unlawful and a criminal offence for a person to carry on investment business unless he is an `authorised' or `exempted' person under the Act. By section 7, one of the ways to become `authorised' is to become a member of a recognised SRO. By section 8(1) of the Act, an SRO is defined as "a body (whether a body corporate or an unincorporated association) which regulates the carrying on of investment business of any kind by enforcing rules which are binding on persons carrying on business of that kind either because they are members of that body or because they are otherwise subject to its control." Section 8(3) provides that references in the Act to the rules of an SRO are references to the rules (whether or not laid down by the SRO itself) which the SRO has power to enforce in relation to the carrying on of the business in question or which relate to the admission and expulsion of members of the SRO or otherwise to its constitution.
Under the Act, the Secretary of State has many powers to regulate the conduct of investment business. He has the power under section 114 to make "a delegation order" transferring some of his functions under the Act to "a designated agency". He has made at least one such order, the Financial Services Act 1986 (Delegation) Order 1987 SI 1987/942, under which he transferred many of his functions under the Act to the Securities and Investments Board, commonly known as the SIB. One of the functions which the SIB now carries out is to make orders recognising SROs under section 10 of the Act.
By sections 25-30, the Secretary of State or the SIB has the power directly to grant or refuse authorisation upon application to him in a form which he determines. Also he has the power to withdraw or suspend an existing authorisation. Any person aggrieved by the exercise of those direct powers, may require that his case be referred to the Financial Services Tribunal, which is provided for at sections 96 to 101 of the Act. Section 96 provides for the constitution of the Tribunal; section 97 provides for its jurisdiction; section 98 provides that the Tribunal shall report to the Secretary of State its opinion on the matter referred, with reasons, whereupon he will decide the matter forthwith in accordance with that opinion. Schedule 6 of the Act provides inter alia for the making of rules of procedure by the Secretary of State. It also empowers the Tribunal to administer the oath and to require the attendance of witnesses by summons, disobedience being punishable as a criminal offence. We interpose to say that it appears to us that a reference to the Financial Services Tribunal against a refusal to grant authorisation under this direct power would plainly be a proceeding in the nature of an appeal `brought under an enactment', the 1986 Act, and would oust the jurisdiction of the industrial tribunal in a race discrimination case.
Under sections 9 to 11 of the Act, the Secretary of State or the SIB has the power to grant, refuse or revoke a recognition order, which if granted to an SRO confers upon its members the status of authorised person under the Act.
Section 9 provides that an application for recognition must be made in accordance with directions given by the Secretary of State or by the SIB and must be accompanied by a copy of the applicant's rules and a copy of any written guidance to members which it is intended to have continuing effect.
Section 10 provides that the Secretary of State or the SIB will make a `recognition order' in respect of an applicant organisation where it appears that the organisation meets the requirements, inter alia, of Schedule 2 of the Act.
Schedule 2 provides, inter alia:
1(1) The rules and practices of the organisation must be such as to secure that its members are fit and proper persons to carry on investment business of the kind with which the organisation is concerned.....
2 The rules and practices of the organisation relating to -
(a) the admission and expulsion of members; and
(b) the discipline it exercises of it members,
must be fair and reasonable and include adequate provision for appeals."
It is to be noted that the Act does not directly confer any right of appeal against the refusal of an application for membership of an SRO. Nor does the Act provide for the establishment of an Appeal Tribunal with jurisdiction to hear such an appeal.
Once an SRO has been recognised, the Secretary of State or the SIB have some powers of control over it. By section 11, the Secretary of State or the SIB may, upon certain conditions, revoke a recognition order. Less severe measures are provided by section 12, which enables the Secretary of State or the SIB to apply to the High Court for a `Compliance Order' if it appears that a recognised SRO is not complying with one of the requirements of Schedule 2 or that it has failed to comply with any of its obligations under the Act.
By section 13, as amended, the Secretary of State or the SIB may amend the rules of an SRO, in so far as they relate to certain matters covering the protection of investors. The rules providing for an appeal against a refusal of membership are not rules relating to the protection of investors. Thus if, after recognition, FIMBRA had amended its rules, so that they no longer made adequate provision for appeals, as required by Schedule 2, the SIB could apply to the Court for an order requiring it to re-amend its rules to as to comply with the Schedule. However, neither the Secretary of State nor the SIB has the power directly to amend FIMBRA's rules, other than those designed for the protection of investors.
Section 14 of the Act provides that the Secretary of State or the SIB may make regulations requiring an SRO to provide him with various kinds of information. By section 14(6), it is provided that where a recognised organisation amends, revokes or adds to its rules, it shall given written notice of the amendment, revocation or addition within 7 days.
Chapter V of Part 1 of the Act provides that the Secretary of State or the SIB may make rules and regulations on a wide variety of topics, all aimed at the control of investment business for the protection of investors.
Volume 1 of the Rules of FIMBRA were before the Industrial Tribunal and before this Appeal Tribunal. Part 1 shows that FIMBRA is a company limited by guarantee whose affairs are managed in accordance with its Articles of Association by the 23 members of the Council. The Council may appoint committees to whom it may delegate any of its powers. We have not seen the Articles of Association but the respondents' counsel did not dissent from the assertion made by Miss Monaghan that the power to make and amend rules was contained therein. Indeed that is what one would expect of an organisation of this kind. We note that by Rule 1.4 various rules and regulations made by the SIB under Chapter V of the Act are incorporated into the FIMBRA Rules.
Part 2 describes the business regulated by FIMBRA. Part 3 defines the categories of membership. Part 4 defines the obligations of membership. Part 5 sets out the rules relating to applications for membership. Rule 5.10.1 provides that where an application for membership is refused, the applicant must be told of his right of appeal under rule 9.2.1.
Rule 9.1 establishes an Appeal Tribunal and specifies its constitution. Rule 9.2 provides inter alia that an applicant for membership whose application has been refused by the Membership Committee may appeal to the Appeal Tribunal. It also provides for members a right to appeal against certain decisions. Rules 9.3 to 9.11 set out the procedures to be followed, before, during and after the appeal hearing, including the making of decisions and orders and the giving of written reasons. It is not necessary to say more of the rules of procedure save that they are comparable with the rules of many statutory tribunals.
The basis of the Tribunal's decision was that:
(i) The Secretary of State and Securities Investment Board may delegate their powers to approved organisations, including SROs such as FIMBRA.
(ii) An SRO may be recognised under section 10 of the Act. Recognition will not take place until, inter alia, the requirements of Schedule 2 of the Act are satisfied.
(iii) Schedule 2 provides that an SRO shall have rules and practices which, inter alia, 'must ... include adequate provision for appeals'.
(iv) As FIMBRA has been recognised as an SRO, it follows that its Rules, including the provision for appeals, must have been approved by the Secretary of State. As Schedule 2 provides that an SRO must have an appeals procedure, an appeal brought under the FIMBRA Rules is one `brought under the Act'.
Second, the Tribunal assumed that Parliament had deemed that an SRO's rules, having been approved by the `Government', were as effective as procedures created directly by statute. Thus, the appeal to FIMBRA's Appeal Tribunal in this case had been brought under the 1986 Act. Section 12(2) applied to debar the appellant's complaint.
The rationale of the Tribunal's decision as summarised above appears to be that recognition as an SRO conveys delegated statutory power. However, it does not seem to us that the Tribunal could have thought that FIMBRA had acquired expressly delegated statutory powers. The Tribunal must have been aware of that but considered that the process of recognition under section 10 amounted to a delegation of statutory powers. In that the Secretary of State and/or the SIB have the power directly to grant, suspend and withdraw authorisation under the sections 25-28 of the Act, it may be said that by recognising an SRO the Secretary of State or the SIB are delegating their statutory powers of authorisation to the SRO. We assume that that was the basis of the Tribunal's decision.
They then deduced that because the 1986 Act provided that in order to be recognised, an SRO had to have rules approved by the Secretary of State, an appeal brought under the rules was brought under the Act.
We do not accept this reasoning. Although we can see that it may be said that the power of FIMBRA to authorise persons by admission to membership is a delegated statutory power, and we accept that the Rules of FIMBRA must have been approved (at least as providing an adequate appeal procedure), we do not think that it follows as a matter of logic that the appeal provided within those Rules is therefore an appeal brought under the Act.
Nor do we think that the Tribunal's second approach takes the matter any further. To consider or to assume that Parliament deemed that the appeal provided by FIMBRA under approved rules is as effective as an appeal procedure created directly by statute seems to us to avoid the question of whether the appeal is one which is brought under an enactment. In any event, we do not think the Tribunal should have assumed that Parliament deemed an SRO's appeal procedure to be as effective as a statutory appeal. An SRO which applies for recognition must comply with the requirements of Schedule 2. Schedule 2 paragraph 2 provides that the rules of the SRO must be fair and reasonable and make adequate provision for appeals. That is all that can be assumed about the rules relating to appeals, if the SRO is granted recognition. Schedule 2 paragraph 3 makes more specific provision for the SRO's rules to afford protection for investors at least equivalent (our emphasis) to that afforded by the rules and regulations for the time being in force under Chapter V of Part 1 of the Act. That Chapter, as we have seen, contains provisions for the making of detailed statutory rules for the conduct of the relevant types of business. Parliament was here making it clear that the SRO must have rules for the protection of investors which are at least equivalent to the statutory rules. But the rules relating to appeals need only be fair, reasonable and adequate. Thus we do not think it can be assumed that Parliament deemed the rules of an SRO's appeal procedure to be as effective as a statutory appeal.
Miss Monaghan's first submission was that if an appeal is to be described as being `brought under an enactment', it must derive its power from an Act of Parliament or from subordinate legislation made under the Act. She submitted that the power of FIMBRA to hold this appeal did not stem from the 1986 Act. The 1986 Act does not seek to confer or regulate any rights or obligations as between members (or applicants for membership) and an SRO. In particular it does not confer a right to appeal. The Act only provides for recognition of an SRO and defines the criteria to be satisfied before recognition is granted.
She submitted that the appeal in the present case was plainly brought under Rule 9 of the FIMBRA Rules. The Rules of FIMBRA regulate the relationship between members or applicants and FIMBRA itself and the nature of the relationship is contractual. FIMBRA is free to make its own rules. It had existed for about seven years prior to its application for recognition under the 1986 Act. It must have had rules from the outset, made under the Articles of Association. Those rules could have included Rule 9 in its present form. We do not know what, if any, amendments were made to the Rules for the purpose of preparing for the application for recognition, but the rules relating to appeals must have existed, in a form which would satisfy Schedule 2 and attract the approval of the SIB, before the application for recognition was made.
Miss Monaghan submitted that the status of the Rules can be seen from the situation which would prevail if FIMBRA were to alter its Rules so that they did not meet the requirements of Schedule 2. There is no power in the Act for the Secretary of State or the SIB to amend FIMBRA's Rules, in so far as they relate to membership requirements and appeals. If the Rules do not satisfy Schedule 2, he or the SIB must either adopt the procedure for revocation of recognition or must apply to the Court for a compliance order.
The effect of recognition under the 1986 Act was that existing members of FIMBRA automatically became authorised persons and future members became authorised from the momemt of admission. If the 1986 Act had been repealed, FIMBRA would still have continued to exist; its rules would still have been valid and it would still have had the right to admit persons to membership, with the concomitant obligation under the Rules to allow an unsuccessful applicant to appeal. The only difference in its position would have been that applicants no longer needed membership before they could carry on business. They might still want membership for other reasons, for example to gain the `seal of approval' which goes with membership of any reputable Trade Association. She thus submitted that the passing of the Act and the recognition of FIMBRA under the Act had no effect whatever upon the nature of the appeal brought under the FIMBRA rules.
Mr Nicholls sought to tell us that the Rules of FIMBRA were amended specially prior to the application being made for recognition so as to comply with the perceived requirements of the Secretary of State. That may be so, but that does not alter the fact that FIMBRA had the power to make these rules and to operate under them at any time whether they were to seek recognition or not; also they could continue to operate under them, if they so chose, after the repeal of the Act.
He further submitted that although FIMBRA had the power to contract with employees, its relations with its members and applicants for membership were governed not by contract but by statute. FIMBRA, he said, is a public body performing a public regulatory function. Its decisions are susceptible to judicial review. So indeed they are and FIMBRA does indeed have a public function. But it does not follow that its relations with its members are governed by statute. In our view they are not, they are governed by its Rules which since 1979 have been made and amended under the Articles of Association.
However, Mr Nicholls' real answer to Miss Monaghan's submission is that the making of FIMBRA's recognition order gave its Rules statutory force. Even accepting, as we think he must, that the Rules pre-existed the recognition order and that the power to make them arose from the Articles of Association, he submitted that under section 8(1) an SRO is given the power to enforce its rules, including (see section 8(3)) its rules relating to membership. Thus he submits, the rules become creatures of statute so that it can be said that an appeal under the rules is an appeal `brought under' the Act. It is not necessary for the power to make the rules or the power to hold the appeal to come directly from the Act. It is enough if the Act provides the power to enforce the rules. Thus an appeal brought under a set of rules will be an appeal brought under an Act if the Act gives the power to enforce the rules although not the power to make them.
If it were the case that the power to enforce its rules did derive from the Act, we might accept Mr Nicholls' argument. However, it seems to us that the argument is flawed, as can be seen from examination of section 8(1). Section 8(1) does not, in our judgment, confer any power to enforce rules or indeed any power at all. It simply defines a self-regulating organisation as a body which regulates the carrying on of investment business by enforcing its rules, including it rules relating to membership. Section 8(1) does not refer to a recognised SRO, but to an SRO simpliciter. Thus the SRO is defined as a body which, even before recognition, has power to enforce its rules. That must mean that it has the power to enforce its rules by virtue of the contractual relationship between the body and its members. The power is not conferred by statute. The recognition order does not give the power to govern the carrying on of business by enforcing rules. That the SRO already has. Recognition gives an additional and very important incident to membership, namely the benefit of authorisation under the Act.
Thus, on this important issue we accept Miss Monaghan's submissions. We conclude that neither the power to make the Rules, nor the power to enforce them, nor the power to hold an appeal under them comes from the 1986 Act or from legislation subordinate to it. All of those powers come from the Articles of Association.
Mr Nicholls submitted that the fact that the Rules had been approved by the Secretary of State or by the SIB before recognition was sufficient to clothe them with statutory force, so that it could be said that an appeal under them was brought under the Act. It was this argument which appealed to the Industrial Tribunal below. The argument runs as follows. The rules are submitted to the SIB with the application for membership. Acting under statutory powers, the SIB peruses the rules and if it approves them, it recognises the SRO. Thus it is said first, that the appeal is brought under rules which have been approved under a statutory power. Second, it is said that the appeal process is there only because the Secretary of State requires it to be. Therefore it is there by virtue of his statutory powers. We cannot accept this second proposition. The appeal process may in practice have been devised in order to satisfy the Secretary of State but it cannot be said to exist by virtue of his statutory powers. It exists because FIMBRA has decided to amend its rules under their powers under the Articles of Association.
As to the first proposition, we accept that the FIMBRA Rules have been approved by the SIB acting under a statutory power. However, it could only be said that a FIMBRA appeal was brought under the Act if `brought under the Act' meant `brought under rules approved under the Act.' For that to be so, would require a very wide construction of the words `brought under any enactment'. Let us assume for the sake of argument that such a construction is correct. It would then follow that when Parliament passed the 1986 Act, it must have intended to create two different forms of appeal under the Act. We do not think that Parliament, having expressly created one proceeding in the nature of an appeal under sections 96-101 of the Act, intended to create another, ranking similarly as an appeal brought under the Act, by the side wind of approval of the rules of an SRO. If Parliament had intended to provide for two different types of appeal under the Act, we would have expected it to do so expressly. We conclude that if, which is doubtful, a wide construction of the words `brought under any enactment' is permissible, Parliament did not intend that there should be two different forms of appeal under this Act.
Miss Monaghan's second submission relied on the Interpretation Act 1978. She began from the premise that an `appeal brought under an enactment' must be one which derives from statute or from subordinate legislation made thereunder. Section 21 of the 1978 Act defines subordinate legislation as meaning `Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act. She then submitted that if the Rules of FIMBRA were not made under the Act of 1986, they are not subordinate legislation. As it is clear that the Rules of FIMBRA are not a form of subordinate legislation, which like an elephant is easily recognised, it must follow that the rules of FIMBRA are not made under the 1986 Act.
Mr Nicholls at first accepted the logic of this and agreed that he was in the difficult position of asserting that the Rules must be a form of subordinate legislation. Then he resiled from that position and argued that there can be rules, made under an enactment, which are not subordinate legislation. He was not able to provide an example of this species of rule other than to assert that the Rules of FIMBRA were of such a type.
It seems to us that this is an interesting argument but not very helpful. It is clear that the Rules of FIMBRA were not made under the Act. The question is whether an appeal under the Rules may be said to be brought under the Act even though the Rules were not made under the Act.
Miss Monaghan's third point was that all the cases in which it had been decided that an available appeal had taken the act complained of outside the jurisdiction of the industrial tribunal by virtue of section 54(2) of the Race Relations Act 1976 had been cases in which the appeal had clearly been brought under an enactment.
In Wadi v. Cornwall and Isles of Scilly Family Practitioner Committee and another [1985] ICR 492, Ealing Hammersmith FSHA v. Shukla [1993] ICR 711 and R. v. Department of Health Ex parte Ghandi [1991] ICR 805, it was accepted in each case that the applications concerned could not be made under section 12 (or in Shukla's case under the equivalent section under the Sex Discrimination Act 1975) because redress under that section was left to the statutory appeal procedure under paragraph 12 of Schedule 1 of the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 (SI 1974/160). Those Regulations provide that an appeal is to be made to the Secretary of State; they determine his jurisdiction; they set out the procedure for making and determining the appeal; they also provide for a right of representation at the oral hearing.
Similarly in Khan v. General Medical Council [1994] IRLR 646, the question arose as to whether a review provided expressly under section 29 of the Medical Act 1983 was a proceeding in the nature of an appeal. It was held that it was. No point was taken that the review arose `under any enactment'. It clearly did. Sections 28 and 29 of the Medical Act 1983 establish the review and determine the membership of the Review Board and its jurisdiction.
Miss Monaghan submitted that in those cases in which the availability of an appeal has ousted the jurisdiction of the industrial tribunal under section 54(2), the statute concerned has provided at least for the constitution and jurisdiction of the appellate body. By contrast, in the present case, the constitution and jurisdiction of the appellate body are determined by the FIMBRA Rules. Moreover, the 1986 Act provides for the constitution and jurisdiction of an appellate tribunal, the Financial Services Tribunal, a reference to which would in our view be a proceeding in the nature of a appeal which would plainly be brought under the Act. However, its jurisdiction does not include a reference in respect of the refusal of an SRO to admit an applicant to membership.
We find this additional argument of some assistance in confirming us in the view we have taken, namely that the appeal in this case was not an appeal brought under the 1986 Act. We accept Miss Monaghan's primary submission that an appeal `brought under an enactment' must derive its power from an Act of Parliament or its subordinate legislation.
It remains only to deal with Mr Nicholls' more general arguments. He submitted that we should have regard to the manifest intention of Parliament that the appellant should not be given two simultaneous avenues of remedy. Where Parliament has provided a statutory appeal procedure, it is clear that it intended that that should be the only remedy, subject to the supervision of the Court by judicial review. That we accept is so, but it begs the question as to whether Parliament has provided a statutory appeal procedure in this case. We have already dealt with that issue.
Mr Nicholls sought to put the matter in a slightly different way by submitting that it was sufficient if Parliament had conferred statutory power upon FIMBRA to make its own appeal procedure. We do not accept that Parliament did confer any such power on FIMBRA. We think that FIMBRA already had the power to make its appeal procedure under its Articles of Association.
Finally Mr Nicholls submitted that the question can be put in this way. `But for the Act, does there have to be an appeal procedure?' The answer, he says, is `no' because the Act requires that there be an appeal procedure. True, the Act requires that if FIMBRA wish to be recognised, they must have an appeal procedure, but FIMBRA can exist and operate, with or without an appeal procedure, by virtue of its own constitution, regardless of the 1986 Act.
We have not considered the question of whether the FIMBRA appeal was or could be an effective remedy for the appellant's complaint of racial discrimination. We regard the question as irrelevant to the real issue which is whether the appeal was brought under any enactment, namely the 1986 Act.
There is nothing in these additional arguments which dissuades us from the view that Miss Monaghan's submissions are correct. We are firmly of the view that the appellant's appeal to FIMBRA was not `brought under' the 1986 Act and does not therefore oust the jurisdiction of the industrial tribunal under section 54(2) of the 1976 Act. This appeal is therefore allowed and the case will be remitted to the industrial tribunal for a hearing.
At the conclusion of the hearing both counsel agreed that this case raises a point of law which may be of some general importance. Accordingly, if the respondents seek leave to appeal, it will be granted.