Anwar v The Advocate General for Scotland (Scotland) [2021] UKSC 44 (13 October 2021)
Citation:Anwar v The Advocate General for Scotland (Scotland) [2021] UKSC 44 (13 October 2021).
Subjects invoked: 11. 'Legal methods'.
Rule of thumb:How are ratified Treaty provisions to be interpreted? Is it the same as statutory provisions? No, ratified Treaty provisions are not interpreted the same ways as statutory provisions – ratified treaty are interpreted much more broadly – as long as a person is in any way broadly compliant with a ratified Treaty provision they will not be deemed to be in breach of it. The Court in this case affirmed that the rights granted by the Articles of a ratified Treaty, including a ratified EU Treaty/Directive, only have to be broadly interpreted to give broad and extremely basic rights, and they do not have to be interpreted to give extensive rights. When it comes to EU directives, these only have to be implemented in the most basic & limited of ways, and the Directive’s Articles do not have to be implemented to give far-reaching rights.
Background facts:
This case invoked the subject of legal methods and the principle of interpretation of Articles in ratified International Treaties/ EU Directives.
Ms Anwar raised a claim in the Employment Tribunal for discrimination and harassment against her former employer, a charity, Roshni, and her line manager, Mr Khan. She was successful in this action and was awarded £75k in damages by the Tribunal. However, shortly after this decision, her former employer moved all but £2,000 out of the charity bank account and effectively went bankrupt. Anwar was disgruntled about this because under the statute that creates the Employment Tribunal, the Tribunal did not have the right to freeze the bank account of the parties like Roshni/Khan in the Action or ring-fence their money to cover the costs of the action. Anwar believed that it was too much hassle to raise another insolvency action to ring-fence money in the Sheriff Court simultaneously at the same time as her case in the Employment Tribunal case was going on. Anwar believed that she should have been able to make a standard motion in the Employment Tribunal to ring-fence the potential damages she was owed from the action.
Anwar told the Scottish Government that they were liable for these damages and expenses she missed out on because of their non-implementation in full of the Articles in EU directives into Scottish Employment Tribunal statutory provisions, requiring people to be able to ring-fence the potential money for the damages easily. Anwar argued state liability lay with the Scottish Government for the £75k damages + expenses. The Scottish Government’s legal member, the Advocate General, denied this, and so the matter went to Court.
There are 3 underlying concepts that need to be understood before this case can be properly understood. Firstly, the concept of EU Directives automatically becoming ratified Treaties after a certain period. Normally Treaties agreed by the Foreign Affairs Minister with other countries must be ratified in the UK Parliament before they have any effect in law. However, with EU Directives, the EU Act 1972 passed in the UK Parliament stated that even if EU Directives were not directly ratified in the UK Parliament, after the elapse of a period of time, the EU Directives automatically become ratified, and their Articles become a part of UK law. Secondly, the concept of state liability for failure of the national Government to introduce an EU Directive. State Liability means that if the UK Government (or any other Government in the EU for that matter) does not have legislation or regulations under their laws to even broadly introduce an EU Directive, then the national Government can be sued by the person who was not able to benefit from using these in Court against another private party. This only occurs where the national Government has not remotely introduced the rights in the Directive at all, jettisoning their duty to do so and basically brazenly ignoring the EU directive. Thirdly, the concept of the broad interpretation of rights under ratified Treaties/Directives. The broad interpretation of rights under Directives/ratified Treaties means that the Articles in them only have to be complied with in the broadest and most limited of ways. If there is any remotely reasonable interpretation that the right under their Articles has been granted to some very limited degree, then the Directive/ratified Treaty Article is not deemed to be breached. Articles in a ratified Treaty are only deemed to be breached if the right they provide is not complied with at all.
Anwar referred the Court to ratified Articles in an EU anti-discrimination and anti-harassment directive. This directive stated that people raising legal claims in discrimination and harassment actions should be to ring-fence the potential damages fairly easily. Anwar argued that having to raise 2 separate concurrent actions to ring-fence the damages, and not be able to do so in the Employment Tribunal, meant that in reality this was the furthest thing from easy, and even interpreted broadly this ratified Treaty Article was breached. Anwar therefore argued that this complete failure to do this by the Government made them liable for the damages. The Scottish Gov. argued that they were not in breach of these Articles of the Directive when they were interpreted broadly. The Scottish Gov. argued that the option was open for Anwar to have raised an action in either the Court of Session, or even her local Sheriff Court, to ring-fence the money. The Scottish Government argued that these were not ground-breaking actions to raise from a legal practice perspective, and many people did them every day. The directive did not say that this right had to be available in the same action - the Scottish Gov. argued that if a broad interpretation was taken of the Directive there were not in breach.
Judgment:
The Court upheld the arguments of the Scottish Government. The Court affirmed that the principle of broad interpretations of Directive/Ratified Treaty Articles applied in this matter. The Court explained that although the current system of having to lodge 2 separate simultaneous actions was not ideal, it did ensure the Article’s purpose was introduced and it was not actually breached. The Court held that the ratified Treaty Articles Anwar referred to when interpreted broadly had not been breached under the current functional though awkward Scottish insolvency system. The Scottish Gov. did not have to pay the damages to Anwar.
In short, the Scottish Government had introduced a system that was awkward, presumptuous, and pricey for people pursuing claims in the Employment Tribunal against shifty employers, however, introducing even this awkward but nonetheless still functional system still meant that the Articles under the Directive were still broadly complied with, and not breached. Treaties/Directives are interpreted far more broadly than provisions in Acts. To successfully argue an Article from a Directive or Ratified Treaty has been breached, it must be argued that the Article was not complied with at all, not just that it was only just partially introduced.
Ratio-decidendi:
Lord Hodge Ratio-Decidendi at 64-69 ‘64… the expense and procedures involved in obtaining a warrant for diligence on the dependence in the sheriff court do not make the exercise of a claimant’s rights derived from EU law “impossible in practice or excessively difficult”. … 67… The EHRC also presented evidence of wider problems in the enforcement of orders for payment made by employment tribunals, which it had presented to the courts below… 68… The United Kingdom Government has recognised that this is an unsatisfactory state of affairs. In a consultation paper … the UK Government has recommended making the enforcement process simpler and establishing a naming and shaming scheme for employers who do not pay awards within a reasonable time… 69… the statistics which the EHRC has presented to the court are clearly disappointing… To establish a breach of the principle of effectiveness she must show that having to seek a warrant for diligence on the dependence in the sheriff court rather than in an employment tribunal renders the exercise of her rights derived from EU law practically impossible or excessively difficult. For the reasons set out above, that has not been shown’.
‘To establish breach … she must show … rights derived from EU law (or any ratified Treaty) practically impossible or excessively difficult … that has not been shown’, Lord Hodge
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.