Appeal against decision of the Royal Court.
[2017]JCA074
Court of Appeal
23 May 2017
Before :
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Jonathan Crow, Q.C., President;
Sir Richard Collas, Bailiff of Guernsey.,
and
Robert Logan Martin, Q.C.
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Between
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Jeremy Patrick Michael Gosselin
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Appellant
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And
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Minister for Social Security
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First Respondent
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And
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Attorney General
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Second Respondent
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The Appellant appeared on his own behalf.
Advocate S. M. Roberts for the Respondent.
judgment
the president:
This is the judgment of the court.
INTRODUCTION
1.
Jeremy
Patrick Michael Gosselin (“the Appellant”) has brought an appeal
against the decision of the Royal Court (Bailhache, Bailiff, sitting alone)
recorded in the judgment Gosselin v Minister for Social Security and Her
Majesty’s Attorney-General [2016] JRC 204 in which the Bailiff
dismissed four appeals by the Appellant on questions of law from decisions of
the Social Security Tribunal (“the Tribunal”). This judgment is in respect of a preliminary
issue raised by the Respondents as to whether the Court of Appeal has
jurisdiction to hear an appeal from a decision of the Royal Court on an appeal
on a question of law from the Tribunal.
The Factual Background
2.
The
factual background to the appeals is set out in detail in paragraphs 63 to 82
of the Bailiff’s judgment which we will not repeat. The position may be summarised as
follows:
(a) In early 2014 the Appellant was in receipt of
weekly means-tested income support benefit from the Social Security Department
(“the Department”) pursuant to the Income Support (Jersey) Law
2007 (“the 2007 Law”).
(b) On the 29th January 2014 a warning notice was
issued to the Appellant by the Department under the Income Support (Jersey)
Regulations 2007 (“the 2007 Regulations”) because of his
failure to meet the ‘actively seeking work’ requirement by failing
to attend an appointment at the Department.
(c) A further appointment at the Department was
arranged for the 7th February 2014, but the Appellant again failed to attend. As a result the Department issued a
first breach notice to him on the 10th February 2014, meaning that the adult
component of his income support was removed for 14 days, and the formal warning
period would run for 365 days from the 10th February 2014.
(d) A further appointment at the Department was
arranged for the 17th February 2014, but the Appellant again failed to
attend. As a result the Department
issued a second breach notice to him on the 19th February 2014, meaning that
the adult component of his income support was removed for a further 28 days,
and that the formal warning period would run for 365 days from the 19th
February 2014.
(e) A further appointment at the Department was
arranged for the 24th February 2014, but the Appellant again failed to attend. As a result the Department issued a
third breach notice to him on the 14th March 2014, meaning that his entire
income support claim was closed, and that the formal warning period would run
for 365 days from the 14th March 2014.
(f)
The
Appellant asked for the Department’s decision to issue the warning notice
to be re-determined pursuant to Article 13 of the Income Support (General
Provisions) (Jersey) Order 2008 (“the 2008 Order”). On the 7th February 2014 the second
determining officer upheld the warning notice. The Appellant appealed that decision to
the Tribunal, which dismissed his appeal on the 28th May 2014 (with written
reasons given on the 3rd July).
(g) The Appellant similarly asked for the second
breach notice to be re-determined, which it was – the decision of the
second determining officer being to uphold the decision. The Appellant then appealed that
determination to the Tribunal, which dismissed his appeal on the 29th September
2014 (with written reasons given on the 3rd November).
(h) The Appellant also asked for the decision to
issue the third breach notice to be re-determined, which it was. Again, the second determining officer
upheld the decision. The Appellant
then appealed that decision to the Tribunal, which dismissed his appeal on the
13th May 2015 (with written reasons given on the 9th June).
(i)
Finally,
the Appellant also appealed against a re-determination in respect of a
subsequent breach notice served on him by the Department on the 5th November
2014. The Tribunal dismissed that appeal
on the 7th August 2015 (with written reasons given on the 6th December).
Proceedings in the Royal Court
3.
The
Appellant sought to challenge the four decisions of the Tribunal dismissing his
appeals against the decisions of the Department in a Representation to the
Royal Court dated the 4th November 2015.
The Representation came before the Master to determine the appropriate
procedural route, in particular whether it was to proceed by way of judicial
review or otherwise. He ordered
that the Representation stand as an appeal on a question of law in respect of two
of the four Tribunal decisions listed in paragraphs 2(f) to (i) above, and as
an application for leave to appeal in respect of the other two.
4.
In his
Representation to the Royal Court, the Appellant made a number of assertions
including that: (i) he had been treated unfairly and unlawfully under the
procedures followed by officers of the Department and in the conduct of the
appeals before the Tribunal; (ii) the States had acted ultra vires by adopting the 2007 Regulations and the Income
Support (Miscellaneous Provisions) Regulations 2013 (“the 2013
Regulations”); and (iii) the 2007 and 2013 Regulations breached his
rights under the European Convention for the Protection of Human Rights and
Fundamental Freedoms (“the ECHR” or “the
Convention”).
5.
The two
appeals and two applications for leave to appeal came before the Bailiff who
gave a detailed and careful judgment dated the 8th November 2016. He granted leave to appeal in respect of
the two Tribunal decisions where leave was required and he dismissed all four
appeals. In particular:
(a) he refused the prayer in the Representation
that the primary legislation breaches the Convention, he declined to make a
declaration of incompatibility and he refused to strike down any Regulations as
breaching the Human Rights (Jersey) Law 2000;
(b) he declined to strike down any Regulations as
being ultra vires; and
(c) he did not find in favour of the Appellant on
any point of law which would have resulted in any of the Tribunal decisions
being reversed.
Proceedings in the Court of Appeal
6.
The
Appellant’s Notice of Appeal dated the 6th December 2016 contained three
grounds of appeal.
(a) The first alleged that the Bailiff had erred in
law by not granting an effective remedy to the Appellant for the financial loss
he suffered consequent upon the procedural irregularities on the part of the
Department, including in particular having denied him an opportunity to apply
for income support benefit during a period of time when the Department
interpreted the Regulations as prohibiting him from applying for benefit which,
the Bailiff had ruled, was incorrect.
(b) The second ground of appeal alleged that the
Bailiff had erred in law by concluding that the States had not acted ultra vires when it enacted the 2007 and
the 2013 Regulations.
(c) The third ground of appeal contended that the
Bailiff had been wrong in law to conclude that there had been no unlawful
interference with his rights under the Convention.
7.
In a
Respondents’ Notice dated the 19th December 2016, the Respondents claimed
that the Bailiff’s decision should be affirmed or varied on three
alternate or additional grounds:
(a) First, that an appeal to the Tribunal may only
be on a point of law and the Appellant had not identified any point of law on
which the Tribunal erred in assessing the reasonableness of his excuses for not
attending mandatory meetings at the Department.
(b) Secondly, that there were additional powers
that were not cited by the Bailiff which gave the States vires to enact the relevant Regulations.
(c) The third point in the Respondents’
Notice was that the Appellant’s Representation was an abuse of process
because the challenge to the vires of
the secondary legislation should have been pursued by way of judicial review
and not on appeal. In their written
contentions, however, the Respondents declared that they would not pursue that
argument. They conceded that it
would fall to be decided on a case-by-case basis whether it is appropriate to
allow a litigant to challenge the vires
of secondary legislation when exercising a right of appeal on a point of law
from a decision of a tribunal which has applied that secondary
legislation.
8.
The
Appellant lodged his contentions in support of the Appeal dated the 27th
January 2017. The
Respondents’ Contentions in respect of the issues raised in the Notice of
Appeal and in the Respondents’ Notice were dated the 28th April. Supplementary Contentions were
subsequently lodged by the Respondents dated the 15th May 2017 raising a
preliminary issue as to whether the Court of Appeal has jurisdiction to hear
the appeal. That is the issue to
which we will now turn.
Jurisdiction
9.
We should
start by recording the fact that the Respondents’ argument on
jurisdiction was raised very late in the day, only a week before this appeal
was due to be heard. The Appellant,
who appeared in person without the benefit of legal representation, expressed
grave concern at the limited time he had had to prepare his response, and also
at the fact that this new argument distracted him from preparing his
submissions on the substantive appeal.
We have some sympathy with the Appellant in this regard. Having said that, the question of this
Court’s jurisdiction is a short point of law which requires no factual
evidence to be considered, and in the event the Appellant was able to offer
clear and well prepared submissions.
10. The question of jurisdiction turns on the
correct interpretation of Article 33(6) of the Social Security (Jersey) Law
1974 (“the 1974 Law”), as it was in force at the relevant
time. The question arises in this
way. Under the 1974 Law (as
originally enacted) and the Social Security (Determination of Claims and
Questions) (Jersey) Order 1974 (“the 1974 Order”) a social
security regime was established.
One of the features of that regime was that appeals to the Tribunal
could be made from determinations of social security officers, and (on questions
of law) from the Tribunal to the Royal Court. In that context, Article 33(6) of the
1974 Law provided that determinations of the Royal Court “shall be final and without
appeal”. When the
income support regime was later established by the 2007 Law, the 2007
Regulations and the 2008 Order, provision was made (i) for appeals to the
Tribunal to be made from determinations by income support officers and (ii) for
appeals on questions of law to be made from the Tribunal to the Royal Court. The question in this case is whether
Article 33(6) of the 1974 Law applies to such appeals to the Royal Court, and
if so whether the jurisdiction of this Court to determine appeals from the
Royal Court is thereby excluded.
11. It is convenient to start by reciting two propositions
which are as important as they are uncontroversial. The first is the general rule that this
Court has jurisdiction to hear and determine appeals “from any judgment
or order of the Royal Court” (emphasis added): see Article 12(2)
of the Court of Appeal (Jersey) Law 1961 (“the 1961
Law”). The second is the
exception to that general rule: the jurisdiction of this Court can be excluded
by “any
... enactment” (see Article 12(2)), and in particular no appeal
lies to this Court from any decision “which, by virtue of any enactment, is
final” (Article 13(1)(a)).
For these purposes, the word ‘enactment’ includes any
provision of any Regulations or Order: see Article 1(1) of the Interpretation
(Jersey) Law 1954.
12. The next step is to identify the correct approach
to be adopted when seeking to ascertain whether any given enactment does, or
does not, exclude the jurisdiction of this Court for the purposes of Articles
12 and 13 of the 1961 Law. So far
as that is concerned, we do not consider that any special rules of
interpretation should apply, but nevertheless we would expect to find clear
legislative language before reaching the conclusion that any given enactment
has the effect of excluding the right of appeal from the Royal Court to this
Court which would otherwise be available by virtue of Article 12(2) of the 1961
Law: see In the Matter of the Désastre of Blue Horizon Holidays Ltd
[1997] JLR 124, at 132.
13. There can be no doubt as to the effect of
Article 33(6), in any case where it applies: the decision of the Royal Court is
“final
and without further appeal”. The
doubt arises in this case not as to the effect of Article 33(6) (if it applies)
but as to whether it applies at all to decisions of the Royal Court under the
income support legislation, as much as it applies to decisions of the Royal
Court under the social security legislation.
14. In our judgment it does. We reach this conclusion on the basis of
the language used in the 1974 Law (as amended), properly construed in its
relevant context and in light of its legislative history.
15. As originally enacted in 1974, when it applied
only to appeals under the social security regime, Article 33(6) provided that
any decision of the Royal Court “on any reference or appeal by virtue
of paragraph (4)” would be final and without appeal. At that time, Article 33(4) was an
enabling provision, allowing provision to be made for appeals from social
security officers to the Tribunal and (on any question of law) from the Tribunal
to the Royal Court. However, when
the income support regime was introduced by the 2007 Law, under which provision
was made (by Article 9) for appeals from income support officers to be made to
the Tribunal, and from the Tribunal (on questions of law) to the Royal Court,
Article 33(6) was amended (by Article 21 of the 2007 Law). Instead of providing (as it did in its
original form) that any decision of the Royal Court “on any reference or appeal
by virtue of paragraph (4)” would be final and without appeal, it
now provided that any decision of the Royal Court “on any reference or appeal
arising in connection with this Law” (emphasis added)
shall be final and without further appeal.
16. In our judgment, the only purpose in making
that amendment was to reflect the fact appeals could now be made to the
Tribunal, and thence to the Royal Court, not only under the 1974 Law (i.e.
under the social security regime), but also under the 2007 Law (i.e. under the
income support regime). There was
no other reason to amend Article 33(6) at that particular juncture. We would accordingly start from the
assumption that the legislator’s intention was to apply, to appeals under
the income support regime, the same structure as applied to appeals under the
social security regime.
17. The language of Article 33(6), as amended,
supports that view:
(a) Significantly, Article 33(6) does not refer to
decisions of the Royal Court on any appeal to the Tribunal “arising under”
the 1974 Law: rather, it refers to
decisions of the Royal Court on appeals “arising in connection with”
the 1974 Law. The expression ‘in
connection with’ is of wide import, and it simply means ‘having
to do with’: see Re
Claremont Petroleum v. Cummings [1992] FCA 446, (1992) 110 ALR 239, at
§139–142.
(b) Viewed in context, an appeal to the Tribunal
from a determination by an income support officer under Article 9(1) of the
2007 Law is an appeal “arising in connection with” the
1974 Law, because (i) it is an appeal to a Tribunal which was itself
established by the 1974 Law (under Schedule 4), and (ii) it is (by virtue of
Article 17(1) of the 2008 Order) an appeal from a decision by that Tribunal “as
if the appeal [to the Tribunal] was in respect of any matter determined in
accordance with the 1974 Order”. The 1974 Order was itself made pursuant
to Articles 29 and 33 of the 1974 Law, and it laid down the procedure for
determinations by social security officers and for appeals to the
Tribunal.
(c) In the circumstances, the conclusion that any
decision of the Royal Court on appeal from the Tribunal under Article 18(1) of
the 2008 Order is a decision on an appeal “arising in connection with”
the 1974 Law is, in our judgment, inescapable.
18. It is also apparent (from the way in which the
appellate regime under the 2007 Law and the 2008 Order was bolted onto the
existing appellate regime under the 1974 Law and the 1974 Order) that the
legislator’s intention was to establish an essentially identical regime
under both systems. It would be
asymmetrical and anomalous if appeals could be made from the Royal Court to
this Court in relation to decisions of the Tribunal under the income support
regime, but not in relation to decisions of the same Tribunal under the social
security regime. The Appellant
sought to persuade us otherwise because, he said, determining officers under
the income support regime have a far wider range of discretionary powers than
determining officers under the social security regime, and so (he submitted) it
is only logical for the legislator to have established a more generous
appellate route in relation to appeals arising under the income support
regime. However, even if the
predicate for that argument were true (i.e. even if determining officers under
the income support regime do indeed have a wider discretion than determining
officers under the social security regime – a point on which we express
no view) we would reject the conclusion which the Appellant seeks to derive
from it, for the simple reason that appeals to the Royal Court are, in both
cases, only allowed on questions of law (i.e. not per se in relation to any exercise of discretion). As a result, it cannot be suggested that
the legislator intended to establish a more generous appellate regime for the
purpose of challenging income support officers’ discretionary
decisions.
19. The Appellant also sought to persuade us that
the jurisdiction of this Court is not excluded by Article 33(6) of the 1974
Law, as amended, by reference to the fact that the relevant amendment to that
Article was described in the heading to Article 21 of the 2007 Law as one of
the “Minor
or consequential amendments” effected by Schedule 1. The Appellant submitted that the
withdrawal of a right of appeal from the Royal Court to this Court could not be
described as a ‘minor’ or ‘consequential’
provision. However, we would reject
his argument in that regard. The
2007 Law established a regime for income support, and it did so subject to
certain conditions and limitations.
One of those conditions and limitations was that the determinations of
an income support officer would be appealable to the Tribunal and (on questions
of law) from the Tribunal to the Royal Court – but no further. The legislator was and is under no
generally applicable obligation to extend rights of appeal to this Court, as
Articles 12 and 13 of the 1961 Law expressly recognise. Furthermore, Article 33(6) in its
original form already provided that determinations of the Royal Court would be
final and without further appeal, so it would be wrong to regard the amendment
to Article 33(6) which was introduced by Schedule 1 to the 2007 Law as
effecting the abolition of any right of appeal to this Court which had
previously existed.
20. The Appellant also urged on us the fact that
there was no evidence that any specific consideration had been given to
excluding the jurisdiction of this Court from hearing appeals from the Royal
Court when the drafts of the 2007 Law and the 2008 Order were under
consideration by the legislator.
However, we would reject that argument too. This Court’s task is to interpret
the words used in the legislation.
As a result, it is only in exceptional circumstances (and this is not
one of them) that any assistance can legitimately be derived from a
consideration of the content of the debate that led to their enactment. Even less is it possible to infer
anything about the meaning of an enactment from the absence of any specific
debate regarding the intended effect of any particular provision, let alone
from the absence of any explanation of the legislator’s motives for
having included or excluded any particular provision.
21. The Appellant also drew our attention to the
age of 1974 Law. However, we derive
no assistance from that factor, for two reasons. First, the intended effect of Article
33(6), when it applies, is not open to any doubt. Second, the question we are seeking to
answer concerns an amendment to Article 33 introduced in 2008, less than 10
years ago. In the circumstances,
the age of the original legislative provision is irrelevant.
22. The Appellant also submitted that, in England
and Wales, an appeal is allowed from the First-tier Tribunal to the Upper
Tribunal (the equivalent, he said, of an appeal from the Tribunal to the Royal
Court in this jurisdiction) and then from the Upper Tribunal to the Court of
Appeal in England and Wales (which would, in this jurisdiction, be the
equivalent of admitting appeals from the Royal Court to this Court). However, we derive no assistance from
considering the policy choices that have been adopted in other jurisdictions as
to the scope of any right of appeal in relation to comparable regimes. We are concerned, in this case, only
with the correct interpretation of the legislation of this jurisdiction. The legislation of other jurisdictions
is not a relevant aid to interpretation in this context.
23. Finally, the Appellant urged on us that his
rights under the ECHR are engaged, and he submitted that it would be
incompatible with his Convention rights for legislation to be made which
undermined the very essence of his right to appeal. However, we would reject that argument
as well. The question in this case
is whether the Appellant has a right of appeal at all. In that context, it is important to
recognise that the ECHR does not confer a free standing right to appeal in all
cases, let alone a right to multiple levels of appeal. What the ECHR case-law demonstrates is
that, if a Contracting State chooses to introduce an appellate regime in
relation to any particular field of judicial decision-making, then it must do
so consistently with the rule of law and it cannot (for example) then introduce
secondary legislation which effectively neutralises that right of appeal. None of that is of any assistance to the
Appellant in this case. Jersey is
not under an obligation to confer a right of appeal to the Court of Appeal in
all cases: if it were, then
Articles 12 and 13 of the 1961 Law would have been incompatible with the ECHR,
because they expressly recognise that the jurisdiction of this Court can be
excluded by any enactment. In
relation to income support, if a person is aggrieved by a decision of the
determining officer then he can (i) ask for the matter to be re-determined
under Article 13 of the 2008 Order, and then (ii) appeal that re-determination
to the Tribunal under Article 17 of the 2008 Order, and then (iii) appeal the
decision of the Tribunal on a point of law to the Royal Court under Article 18
of the 2008 Order. The ECHR does
not impose any requirement for affording a fourth level of review in this Court.
24. For completeness we would also mention that the
Appellant referred us to some case-law regarding the exercise of this
Court’s jurisdiction on appeals concerning the exercise of a discretion by
the Royal Court. In that context,
it is sometimes said that this Court has ‘jurisdiction’ to
interfere with the exercise of a discretion at first instance where injustice
would otherwise result. However,
what that means, in context, is that this Court is free in such circumstances
to exercise its undoubted appellate jurisdiction in relation to the exercise,
at first instance, of a discretionary judgment in ordinary civil
litigation. As such, that line of
case-law is irrelevant in the present context. The question before us is not whether
this Court should choose to exercise a jurisdiction it undoubtedly has in
ordinary civil litigation: rather, the question is whether this Court has any
jurisdiction at all to determine appeals from the Royal Court on appeal from
the Tribunal in income support cases.
In this context, the question whether any injustice might arguably
result from the absence of any such jurisdiction is a function of the policy
decision taken by the legislator in conferring, or withholding, jurisdiction
from this Court. If, on the true
construction of the relevant enactments, it emerges the this Court does not
have any jurisdiction, we cannot alter that result and clothe ourselves with
jurisdiction simply because we happen to believe (if we do) that any injustice
might result, on the facts of any given case, from our inability to review a
decision of the court below.
25. We would also mention that the Respondents
sought to rely on the fact that Article 9(2)(c) of the 2007 Law conferred a
power to make Orders providing for appeals on questions of law from the
Tribunal “to be made to the Royal Court” – without
then adding any express power to make provision for onward appeals from the
Royal Court to this Court. However,
we do not consider that that offers any support for the Respondents’
argument on jurisdiction. The
correct analysis is that, by virtue of Article 12(2) of the 1961 Law, there is
an a priori right of appeal to this Court from any judgment of the Royal Court,
and it was entirely unnecessary for the 2007 Law to confer an Order-making
power replicating or preserving that right of appeal. The existence of Article 12(2) of the
1961 Law means that the question in this case is not whether the 2007 Law or
the 2008 Order conferred a right of appeal: rather, the question is whether those
enactments precluded the right of appeal to this Court which would
otherwise have been available.
Conclusion
26. For the reasons set out above, we are satisfied
that they did, and as a result this Court has no jurisdiction to determine the
appeal. In the circumstances, it
would be wrong to express any views on the arguments which the Appellant sought
to deploy in relation to the substance of his appeal. The appeal must be dismissed purely for
want of jurisdiction.
27. The parties are invited to agree, within 7 days
of the date on which this judgment is handed down (that is, by 4pm on Tuesday
the 30th May), any consequential order as to costs. In the absence of such agreement within
the specified time limit, the parties are directed to make written submissions
as to the appropriate costs order within 14 days of the date on which this
judgment is delivered (that is, by 4pm on Tuesday the 6th June), with liberty
to each party to reply in writing within a further 7 days thereafter (that is,
by 4pm on Tuesday the 13th June).
The Court will then make any necessary ruling on costs in writing.
Authorities
Gosselin
v Minister for Social Security and Her Majesty’s Attorney-General
[2016] JRC 204.
Income Support (Jersey) Law 2007.
Income Support (Jersey) Regulations
2007.
Income Support (General Provisions)
(Jersey) Order 2008.
2007 Regulations and the Income
Support (Miscellaneous Provisions) Regulations 2013.
European Convention for the
Protection of Human Rights and Fundamental Freedoms.
Human Rights (Jersey) Law 2000.
Social Security (Jersey) Law 1974.
Social Security (Determination of
Claims and Questions) (Jersey) Order 1974.
Court of Appeal (Jersey) Law 1961.
Interpretation (Jersey) Law 1954.
In
the Matter of the Désastre of Blue Horizon Holidays Ltd [1997] JLR
124.
Re Claremont Petroleum v. Cummings
[1992] FCA 446.