‘Fairness’ in an unfair world

15 April 2011 by Rosalind English

Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) – Read judgment

The Administrative Court has ruled that the employment of an army chaplain involves a “a special bond of trust and loyalty” between employee and state such that the full panoply of fair trial rights under Article 6 could not apply.

This interesting judgment by Nicol J provides an illuminating analysis of the role of Article 6 in military employment disputes, exploring the scope of the “civil rights” concept for the purposes of that provision, and the extent to which these kinds of disputes are excluded from its purview by Strasbourg case law.

Background to the case

The claimant had held a three year commission as an army chaplain. At then end of the three year period he applied for the commission to be extended but his application was refused and these decisions were upheld by two different Army bodies.

As a member of the armed forces he was not able to avail himself of the protections of the Employmet Act 1996 so he exercised his statutory right under Army Act 1955 s.180 to complain to the Army Board. He submitted that he had been prejudiced by material which had been given to the army by a Church of England official, material which remained associated with his Personal File but which he had never been given the opportunity to comment on during his service. He had learned of this prejudicial material as a result of legal proceedings he had taken to obtain a Norwich Pharmacal discovery order prior to suing the Church in defamation.

The Board accepted that he had been wronged because of the non-disclosure to him of the this material and had given him an apology, but refused him compensation for the expense he had incurred in obtaining access to the documentation. The Board concluded that he had not received another commission due to his own failures, and therefore decided that financial compensation was inappropriate.

This application

He applied for judicial review on conventional grounds of unfairness and irrationality, and he invoked Article 6 in his contention that the Army Board was incapable of adjudicating on his right to practise his profession as army chaplain since it was composed of senior army officers and so was not ‘independent’ as Article 6 requires. He sought redress in the form either of reinstatement or compensation for the loss of his career in the army and with the Church in general.

Held

Application dismissed.

The claimant may have been justified in his allegation that it had been unfair for the army authorities to take account of the prejudicial material when he had never had an opportunity to refute the accusations which it contained. But the focus of this challenge was not those prior decisions but the determination of the Army Board itself, and the judge did not find that it had taken improper material in to account. And their refusal to order compensation for the claimant’s legal expenses in obtaining copies of the prejudicial material was not irrational since it was open to them to assume that this was a matter between the Claimant and the Church of England (against whom he took defamation proceedings which ultimately settled).

Article 6: “Civil Right”

The claimant contended that his right to pursue his career was a “civil right” and that was brought to an end by the Army Board’s decision. Moreover, the truncation of his Army career adversely affected his career in the Church, which itself constituted a civil right.

Whilst he was able to apply for judicial review of the Army Board’s decision, he submitted that opportunity did not give him what Article 6 requires since the administrative court could not investigate for itself whether he was in fact treated fairly.

Nicol J concluded that the claimant had no domestic law right to have his commission extended. It had only be granted for three years and the Board was under no obligation to extend it. As for his career in general, whilst it may be common practice for a priest who leaves one post to be able to secure a recommendation for another (a “safe to receive” letter), that is not the same thing as saying he has a legal right to one. So the claimant had not shown “any source from which he could derive a right to receive a safe to receive letter”.

The absence of an arguable right under domestic law may not of itself have been determinative of the matter – the concept of a “civil right” is an autonomous one (Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1). But the judge was not satisfied on the evidence that the decisions of the army authorities not to extend the claimant’s commission had any effect on his later career. The claimant had no arguable right as a matter of domestic law, and there was no decision of the Strasbourg court that extended the meaning of “civil right” to the degree the claimant would require.

Fair trial rights and state employment

Although he reached the overall conclusion that the proceedings before the Army board did not involve a “civil right” Nicol J gave detailed consideration to the question of the applicability of Article 6 fair trial rights to this particular type of employment.

The early Strasbourg jurisprudence which excluded disputes over the employment of public servants from the guarantees of Article 6 has been attenuated somewhat by recent case law which establishes that such an exclusion can only be argued by the respondent state if the subject matter of the dispute is related to the exercise of state power.

there can in principle be no justification for the exclusion from the guarantees of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Art.6 applies” (Eskelinen v Finland (2007)

So the claimant argued that even though the current employment regime expressly excluded servicemen from the protections of the Employment Act (thereby triggering the Pellegrin exclusion of state disputes from Article 6), the fact that there were proposals to amend this legislation brought his case back within the purview of Article 6 under the Eskelinen test. He therefore pressed his complaint that the Army Board had not been an independent tribunal for the purpose of Article 6.

Nicol J did not accept this argument. In the present statutory scheme, Parliament has given the executive the power, not only to postpone implementation, but to deny members of the armed forces the listed rights.

Legislation in this contingent form means that very little the weight can be given to it in deciding whether the exclusion of armed forces from the statutory protection from unfair dismissal is objectively justified.

The fact that an army chaplain was part of a sector of public employment, namely the armed forces (which plainly did exercise state power) did not of itself exclude him under Eskelinen from Article 6. But the employment of chaplains in the armed forces did depend on “a special bond of trust and loyalty” (Pellegrin) and this meant that the exclusion of the Claimant’s asserted civil right to continue his career as an Army chaplain was objectively justified.

So, on the assumption that Article 6 was applicable at all, the judge found that the combination of a hearing before the Army Board, and the opportunity to seek judicial review of the Board’s decision, did give the claimant what Article 6 requires.

Philip Havers QC of 1 Crown Office Row represented the Defendant

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