United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J HENDY One of Her Majesty's Counsel And MS M TETHER (of Counsel) Instructed By: Messrs Russell Jones & Walker Solicitors 4th Floor Brazennose House West Brazennose Street Manchester M2 5AZ
For the Respondents	MR P HAVERS One of Her Majesty's Counsel Instructed By: Messrs Carter Lemon Camerons Solicitors 11 Breams Buildings London EC4A 1DW


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Rajendra Chaudhary, the applicant before the Manchester Employment Tribunal, against the decision of a Chairman, Mr C J Chapman sitting alone on 25 July 200, that the tribunal had no jurisdiction to entertain his complaint of unlawful racial discrimination brought, among others, against the first respondent below, The Specialist Training Authority of The Royal Medical Colleges (STA). That decision was promulgated with Extended Reasons on 28 September 2000.

The Appellant

2. Mr Chaudhary is a registered medical practitioner of Indian ethnic origin. Having first qualified in India he was awarded his FRCS by the Royal College of Surgeons in December 1988 (Edinburgh) and July 1989 (London). His specialism is in the field of urology and in July 1991 he gained the Diploma in Urology from the Institute of Urology, London.
3. His recent posts held include Senior Registrar (LAT) in Urology at St Mary's Hospital Portsmouth from 19 February 1996 to 21 January 1997; Locum Specialist Registrar in Urology at St George's Hospital, London, from 1 April to 30 September 1998, Locum Consultant in Urology at Leighton Hospital, Crewe from January – August 2000 and from 1 September 2000 Locum Consultant Urologist at Gartnavel General Hospital, Glasgow.
4. He wishes to become a Consultant. In order to do so he must have his name entered on the Special Register maintained by the General Medical Council.
5. The STA accepts that it is a relevant qualifying body (within the meaning of section 12 Race Relations Act 1976) which decides whether or not his name should be entered on the Specialist Register.
6. Mr Chaudhary has applied for his name to be entered on the Register. That application has been rejected by the STA. He complains, by way of an Originating Application to the Employment Tribunal presented on 23 December 1998, that he has thereby suffered unlawful racial discrimination at the hands of the STA. The question before the Chairman, and now before us in this appeal, is whether the tribunal has jurisdiction to entertain that complaint.

STA

7. Article 38 (formerly 49) of the Treaty of Rome provides for the free movement of workers within the European Community, that freedom entails the abolition of any discrimination based on nationality between the workers of member states as regards employment.
8. Council Directive 93/16/EEC is designed to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications. Effect is given to the Directive in domestic UK law by the European Specialist Medical Qualifications Order 1995 (the 1995 Order) made under section 2(2) of the European Communities Act 1972 (the 1972 Act). It came into effect on 12 January 1996, having been subject to the annulment procedure provided for in paragraph 2(2) of Schedule 2 to the 1972 Act. It has since been amended by the European Specialist Medical Qualifications Amendment Regulations 1997.
9. By virtue of the 1995 Order STA became the competent authority for determining entry on the Specialist Register.
10. The appellant's application for registration fell to be determined under the provisions of Article 12 of the 1995 Order which provides, so far as is material:

"(1) A person is entitled to have his name included in the specialist register if he applies to the Registrar f the GMC … and satisfies him -

…

(b) that he falls within paragraph (2).

(2) A person falls within this paragraph if –

…

(c) he has satisfied the STA that –

(i) he has been trained in the United Kingdom in such a speciality and that training complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it, or

(ii) he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST [Certificate of Completion of Specialist Training] in that speciality."

11. The right of an applicant to appeal against a refusal to register under Article 12 is provided for in Article 13 in these terms:

"(1) The STA shall secure that -

…

(c) a person who fails to satisfy the STA of the matters referred to in Article … 12(2)(c)

has the right to appeal against its decision to a panel of independent persons (in this Article referred to as an 'appeal panel') which shall be convened by the STA as soon as practicable to reconsider the question and determine whether or not the Appellant … should so satisfy the STA …

(2) The STA shall determine and publish the procedure governing its selection of the members of appeal panels and the conduct of appeals.

(3) The STA shall secure that an appeal panel gives reasons for its determination."

12. On 24 January 1997 STA promulgated Regulations Governing Appeals, said to be made pursuant to Article 13(2) of the 1995 Order (the STA appeals procedure).
13. The STA appeals procedure contains the following, among other, features:

A Director of Appeals (the Director), who must be legally qualified, is appointed by STA and is solely responsible for every aspect of the appeal system. He may serve as a chairman of appeal panels. (regulation 2(4)).

14. Each appeal panel consists of a Chairman and two other members nominated by the Director (regulation 4(1)). The Chairman must be a qualified lawyer (regulation 4(3)) and the two other members must be Fellows of Medical Royal Colleges and Faculties (but not from the same speciality as each other) (regulation 4(4)).
15. No-one may sit on an appeal panel if he has had any previous contact with the appellant, professionally or personally, or if he is a Fellow of a Medical College or Faculty in the same speciality in which the appellant has received specialist training (regulation 4(5)).
16. The procedure to be adopted in determining an appeal includes the following; the appellant is entitled to be represented by a lawyer or other representative (regulation 13(8)); the appeal takes the form of a rehearing (regulation 5(2)); appeals are heard in private unless the appellant asks for a public hearing, subject to the chairman's power to exclude the public (regulation 13(3)); the rules of natural justice apply (regulation 13(6)); the appellant may address the panel, give evidence, call witnesses and question witnesses (regulation 13(7); the appeal panel must give reasons for its decision (regulation 18(2)) and rulings under Article 13(3). Decisions may be by a majority (regulation 18(1)).
17. Regulation 3 provides for remuneration and expenses to be paid by STA to the Director, Chairman and members of appeal panels. It seems that members, as opposed to the Chairman and Director, receive expenses only and not a fee for sitting on the appeal panel.

Mr Chaudhary's application to STA

18. His application for entry on the Specialist Register under Article 12(2)(c)(i) or (ii) of the 1995 Order was initially refused by letter dated 28 September 1998. He then presented his Originating Application to the tribunal on 23 December 1998. A review application was rejected on 24 May 1999. On 16 August 1999 he lodged a Notice of Appeal, together with the required fee of £1,000. His grounds of appeal included a complaint of racial discrimination.
19. The Chairman of the appeal panel nominated by the Director to hear Mr Chaudhary's appeal, Mr Farington, a solicitor, made two procedural rulings prior to the substantive hearing of the appeal. First, he ruled on 9 August 2000 that the STA was not required to answer a questionnaire in the style of that provided for under section 65 RRA; secondly, on 13 September 2000 Mr Farington ruled, with written reasons, that the appeal panel would not consider the appellant's allegations of racial discrimination on the grounds that they were bare assertions, unsupported by any evidence. That second ruling was confirmed by a later order, with reasons, made by Mr Farington on 22 September. In the course of those reasons the Chairman acknowledged that:

"If the Divisional Court [now Administrative Court] decides that issues of race discrimination do form part of this Appeal, then those issues must be dealt with by the Appeal Panel."

20. The appeal panel reached its decision, after the tribunal's determination, on 29 November 2000. Reasons for that decision are dated 26 April 2001 and were sent to the appellant on 8 May. The appeal under Article 12(c)(i) of the 1995 Order was dismissed; the appeal under Article 12(c)(ii) was allowed to the extent that the period of required further training specified in the STA original determination was reduced from 25 to 21 months. Mr Chaudhary was also required to pass the Intercollegiate Board Examination.
21. On 13 December 2000, shortly after the appeal panel's determination was first promulgated, Mr Chaudhary applied for judicial review of that determination. That application was in part based on the complaint that the appeal panel, pursuant to the Chairman's earlier ruling, was wrong to find that Mr Chaudhary's allegations of racial discrimination were not integral to his appeal.
22. Permission to apply for judicial review was initially refused on paper by Newman J on 9 March 2001. That application was renewed at an oral hearing before Sullivan J on 7 June 2001. Again, permission was refused. There has been no appeal to the Court of Appeal against that order.

The Employment Tribunal Jurisdiction

23. It being accepted by STA that it is a qualifying body within the meaning of section 12 RRA, the tribunal has jurisdiction to entertain a complaint of discrimination rendered unlawful by virtue of Part II of the Act under section 54(1) of the Act, subject to section 54(2), which provides:

"(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."

24. The Tribunal decision

For the reasons which he gave, the tribunal chairman concluded that the appellant's right of appeal to the STA appeal panel was an appeal, or proceedings in the nature of an appeal, brought under an enactment, thereby excluding the tribunal's jurisdiction to entertain his complaint of unlawful racial discrimination by virtue of section 54(2) RRA. As to the argument addressed to him on behalf of the appellant based on Article 6 of the European Convention on Human Rights, the Chairman observed that the Human Rights Act 1998 was not then in force (it came into force on 2 October 2000) and held that he was not obliged to interpret the provisions of section 54 RRA consistently with Article 6.

The Appeal

25. The appeal as originally presented raised three questions:

(1) as a matter of ordinary domestic law and on its proper construction does section 54(2) RRA apply to the appellant's right of appeal under the STA appeal procedure?

(2) read purposively in accordance with Article 6 ECHR can section 54(2) apply only to a right of appeal if the constitution and jurisdiction of the appeal body is established by a law emanating from Parliament and if so, does the STA appeal panel meet that criteria?

(3) does the STA appeal machinery established under Article 13 of the 1995 Order comply with the requirements of Article 6 ECHR; in particular is it a tribunal established by law; is it an independent tribunal; does it provide an effective remedy

The first question

26. Mr Hendy QC submits that the expression "an appeal … brought under any enactment" in section 54(2) RRA means that the right of appeal is laid down by Parliament in primary legislation. It does not include secondary legislation in the form of statutory regulations or, as here, an Order in Council.
27. In support of that submission he first seeks to distinguish the Court of Appeal decision in Kahn v General Medical Council [1994] IRLR 646. There, Dr Khan, who was of Asian ethnic origin, twice applied unsuccessfully to the GMC for full registration as a medical practitioner. His application having been rejected, he applied, also without success, for a review of the Council's decisions to a Review Board set up under section 29 of the Medical Act 1983.
28. An Employment Tribunal held that his right to apply for a review under the procedure laid down by section 29 of the 1983 Act amounted to a "proceeding in the nature of an appeal" within the meaning of section 54(2) RRA and consequently it had no jurisdiction to entertain his complaint of unlawful discrimination under section 12 of that Act.
29. That decision was upheld by the Court of Appeal. As we understand the report, the issue before the Court of Appeal was whether or not the review procedure constituted "proceedings in the nature of an appeal". If it was, then it was not argued that it was other than an appeal brought under any enactment. Indeed, section 29 of the 1983 Act laid down detailed provisions for the constitution and organisational framework of the Review Board.
30. Similarly, the right of appeal to the relevant appeal tribunal, the Secretary of State, in R v Department of Health ex p Ghandi [1991] ICR 805 was laid down by statute.
31. In Zaidi v FIMBRA [1995] ICR 876, on which Mr Hendry principally relies in this part of his submissions, the EAT (Janet Smith J presiding) held that an appeal under the rules of FIMBRA, a self-regulating organisation as defined by section 8(1) of the Financial Services Act 1986, against that body's refusal to admit the appellant, who was of Arabian ethnic origin, was not an appeal "brought under any enactment" within the meaning of section 54(2) RRA. The right of appeal came not from the 1986 Act or from legislation subordinate to it, but from the FIMBRA Articles of Association which pre-dated the coming into force of the Act.
32. Further, Mr Hendry relies upon the decision of the divisional court in Rathbone v Bundock [1962] 2 QB 260, where it was held that the word "enactment" as used in the Road Traffic Act 1960 was not wide enough to include a statutory regulation made under that Act.
33. In these circumstances he submits that since the appellant's right of appeal to the STA appeal panel does not derive from primary legislation, but from the 1995 Order, it is not an appeal, or proceedings in the nature of an appeal, brought under any enactment.
34. Mr Havers QC first submits that the words "under any enactment" can and do in this case include secondary legislation, including an Order in Council.
35. He points out that the issue in Rathbone turned on the particular construction of the Road Traffic Act 1960, a penal statute. On its construction, the word enactment did not extend to statutory regulations.
36. More generally, he relies upon Allsop v North Tyneside Metropolitan Borough Council [1992] LGR 462, in which the Court of Appeal held that the powers of a local authority, contained in section 111 Local Government Act 1972, expressed to be "subject to the provisions of this Act and any enactment passed before or after this Act …" including regulations made by statutory instrument. See page 490, per Parker LJ.
37. Turning to Zaidi, Mr Havers points out, page 885 H – 886 A, that the essential finding by the EAT is expressed by Smith J in this way:

"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 Financial Services Act 1986 or from legislation subordinate to it. All of those powers come from the articles of association."

38. He seeks to distinguish the instant case on the basis that here the right of appeal to the STA appeal panel derives from Article 13 of the 1995 Order. That is subordinate legislation made under powers contained in section 2(2) of the 1972 Act. It is an appeal brought under any enactment for the purposes of section 54(2) RRA.
39. In our judgment Mr Havers is correct on this part of the appeal. We have concluded that unlike the right of appeal derived solely from the articles of association of FIMBRA in Zaidi, here, the right of appeal to the STA appeal panel derives from Article 13 of the 1995 Order, itself made under the powers conferred by Parliament in section 2(2) of the 1972 Act, and that the word "enactment" in section 54(2) RRA encompasses subordinate legislation, including Orders in Council.
40. Accordingly we uphold the Chairman's conclusion that the tribunal has no jurisdiction to entertain the appellant's complaint of unlawful racial discrimination as a matter of construction of the domestic legislation, that is section 54(2) RRA, without more.

The Second and Third Questions

41. Both these questions were addressed in oral argument by counsel on 9-10 July 2001 on the footing that although the Chairman had declined to consider argument based on Article 6 ECHR because the HRA 1998 was not then in force, there being no ambiguity in the provisions of section 54(2) in his view (reasons; paragraph 7), since the HRA had now come into effect it was necessary for the EAT to construe section 54(2) consistently with Article 6.
42. In these circumstances substantial argument, based on European Court authority, was advanced. Indeed, Mr Hendy and Ms Tether lodged a supplementary skeleton argument directed solely to the proposition, forming part of the third question, that judicial review is no sufficient cure for defects in the internal appeal panel procedure, and citing no less than 10 authorities in support of that single proposition.
43. Taken somewhat by surprise, Mr Havers, at the end of the oral hearing, was given the opportunity to consider those authorities and to put in further written argument in response; with an opportunity given to his opponents to reply. Both sides took advantage of that opportunity.
44. By the time that those further written submissions had been received I had become aware of the House of Lords decision in R v Lambert, now reported at [2001] 3WLR 206, speeches having been delivered on 5 July. Counsel had not referred to that case in their submissions, oral or written.
45. Accordingly, on 2 August 2001 I directed that the parties be at liberty to provide further written submissions on the question as to whether the appellant's arguments based on Article 6 fell foul of the rule against retrospectivity as explained by the majority of their Lordships in Lambert. They did so; Mr Havers' submissions in reply being lodged on 4 October following a further direction which I gave on 1 October.
46. Having considered those submissions we have decided to rule first on the preliminary issue as to whether or not it is open to the appellant to rely upon Article 6 before us in circumstances where the first instance decision by the Chairman was promulgated before the HRA came into force.
47. In Lambert the appellant was charged with possession of a class A drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. His defence, under section 28 of that Act, placing the onus of proof on him to establish that defence on the balance of probabilities, was that he was unaware of the contents of the bag containing drugs found in his possession. At his trial, which took place before the HRA came into force, the trial judge summed up the case to the jury on the basis that the onus of proving lack of knowledge lay on the defendant in accordance with section 28 of the 1971 Act. He was convicted. On appeal he argued that the provision contained in section 28, placing the onus of proof on him, was incompatible with Article 6(2) of the Convention, the presumption of innocence. His appeal was heard after the HRA came into force and the Court of Appeal proceeded on the basis that the Act was in force for the purposes of determining the appeal, but dismissed the appeal.
48. On further appeal to the House of Lords, the question arose as to whether the appellant was entitled to rely on Article 6(2), incorporated into domestic law by section 3(1) HRA.
49. By a majority (Lord Steyn dissenting on this aspect of the case) their Lordships held that, apart from the limited extension in section 22(4) HRA, the relevant provisions of HRA were not intended to apply to things happening before the date when they came into force and decisions of courts or tribunals made before that date were not to be impugned under section 6 of the Act on the grounds that the court or tribunal had acted in a way incompatible with Convention rights; to hold otherwise would be inconsistent with the rule against retrospectivity.
50. Section 22(4) HRA provides:

"Paragraph (b) of sub-section (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section."

Section 7(1)(b) provides:

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [unlawful for a public authority to act in a way which is incompatible with a Convention right] may –

(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."

51. On this preliminary issue Ms Tether takes two points.
52. First, whilst implicitly acknowledging that we are bound by the opinion of the majority of their Lordships in Lambert on the question of retrospectivity, she nevertheless submits that the instant case falls within the exception provided by section 22(4).
53. She contends that here there are proceedings brought by or at the instigation of a public authority within the meaning of section 22(4) HRA in that STA is a public authority and the proceedings giving rise to this appeal are that authority's application to strike out the appellant's Originating Application to the Employment Tribunal by reason of the existence of his right to appeal to the STA appeal panel.
54. Since that strike out application would have the effect, if successful, on her case of depriving the appellant of his entitlement to a determination of his rights by a tribunal which is compatible with Article 6, the appellant is entitled to rely defensively on his Convention rights.
55. Whilst struck by the ingenuity of that argument we are quite unable to accept it. As Mr Havers submits, the proceedings in this case are those instigated by the appellant, namely his Originating Application to the Employment Tribunal complaining of racial discrimination on the part of, among others, STA. They are not proceedings instigated by the authority, but proceedings to which the authority is respondent. Further, the words "whenever the act took place" in section 22(4) can only refer to the act relied upon by the authority as founding its cause of action. The fact that, within those proceedings, the respondent authority makes a procedural application to strike out the Originating Application cannot invoke the provisions of section 22(4) so as to relieve the appellant of the rule against retrospectivity.
56. Accordingly we reject Ms Tether's first point.
57. Secondly and alternatively she submits that even if Article 6 is not directly applicable in this case by virtue of HRA, nevertheless as a matter of pre-HRA law, we are under a duty to have resort to the Convention in order to resolve ambiguities in domestic legislation, here section 54(2) RRA. Salomon v Commissioners of Customs & Excise [1967] 2QB 116, 143 per Diplock LJ; R v Secretary of the Home Department ex p Brind [1991] AC 696, 747 H, per Lord Bridge
58. That principle is accepted by Mr Havers. He submits that no ambiguity arises on the proper construction of section 54(2) RRA.
59. We return to our reasoning under the first question. Like the Chairman below we can see no ambiguity in the provision, having concluded that the word "enactment" plainly includes subordinate legislation. In these circumstances we are not persuaded that this is a provision which is ambiguous such that resort to the Convention is necessary as an aid to construction.
60. It follows that we resolve this preliminary issue against the appellant. Consequently, applying the ruling of the House of Lords in Lambert, it is not open to us in this appeal to consider the second and third questions identified earlier.
61. In these circumstances the appeal must be dismissed.