Application no.50330/07 IN THE EUROPEAN COURT OF HUMAN RIGHTS BETWEEN: ROBERT SEAL

Applicant

-andTHE UNITED KINGDOM

Respondent

-andTHE EQUALITY AND HUMAN RIGHTS COMMISSION Intervener ______________________________________________ SUBMISSIONS ON BEHALF OF THE EQUALITY AND HUMAN RIGHTS COMMISSION _______________________________________________ Introduction 1.

The Equality and Human Rights Commission is grateful for the opportunity to submit these brief representations having been granted leave to intervene as a third party under Article 36(2) of the Convention and been given leave to make these submissions under Rule 44(2) of the Rules of Court.

2.

Although the Commission had asked to be permitted to address both Article 14 and Article 6, leave has only been granted for it to address the general principles arising under Article 6 of the Convention, which it does below.

The Commission 3.

The Commission is a non-departmental statutory public body independent of government established by section 1 of the Equality Act 2006. It is required by statute to promote understanding of the importance of human rights, to encourage good practice in relation to human rights, to promote awareness, understanding and protection of human rights and to encourage public authorities to comply with section 6 Human Rights Act 1998. It is also required promote understanding of the importance of equality and diversity, to encourage good practice in relation to equality and diversity, and to enforce the UK legislation on equality and discrimination.

4.

The Commission can and frequently does intervene in proceedings before the domestic courts which raise equality and human rights issues. It has been accredited with “A” status by the International Co-ordinating Committee which 1

assesses and reviews the compliance with the Paris Principles for “National Human Rights Institutions” giving it formal status with the Human Rights Council and human rights treaty bodies of the United Nations.

The Government’s suggestion that it is section 2 not section 139(2) which is the barrier 5.

The Commission considers that section 139(2) of the Mental Health Act 1983 erects a substantive barrier which impermissibly restricts the access to court required in the circumstances by Article 6 ECHR.

6.

The Commission rejects the suggestion in the UK Government’s written observations (paragraph 62) that it is section 2 of the Limitation Act 1980, rather than section 139(2) of the 1983 Act, which should be the focus of attention in terms of the requirements of Article 6.

7.

Section 139(2) creates two hurdles. Firstly, that a claimant must obtain leave of the High Court and (as found here) that failure to do so renders the proceedings a nullity. Secondly, as a consequence of this is that if the limitation period has expired by the time that the procedural error comes to light the claimant cannot issue fresh proceedings with a view to obtaining leave.

8.

In A v Hoare [2008] UKHL 6 [2008] 2 WLR 311 the House of Lords concluded that their previous decision in Stubbings v Webb [1993] AC 498 had been wrongly decided such that actions in trespass to the person involving the torts of assault or battery giving rise to claims for personal injuries will be covered by sections 11, 14 and 33 of the Limitation Act 1980. This gives the court discretion to allow the action to proceed under section 33. However, an action (or, as here, a ground of claim within a wider action) based on false imprisonment not involving any personal injury to the claimant will still be governed by section 2 of the 1980 Act, with its six year limitation period and no discretion to extend time. Many of the claims brought in relation to detention under the Mental Health Act 1983 will be for false imprisonment.

9.

However, whether or not the court ultimately has a discretion in relation to the limitation period does not affect the fact that section 139(2) imposes an additional barrier for people with mental health problems which is not in place for others.

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The need for any restriction to be justified and proportionate 10.

The Government is, however, correct in saying (paragraph 67) that restrictions on access to court are not in principle contrary to Article 6 where the aim pursued is legitimate and the means employed to achieve the aim are proportionate: see, for example Ashingdane –v- United Kingdom (1985) 7 EHRR 528 at para 56.

Section 139(2) is not justified and proportionate 11.

As for whether that is the case here, the Commission notes and gratefully adopts what Baroness Hale said in paragraphs 57 and 61 of her speech (dissenting from the majority of the House of Lords), in the appeal here. In particular, she said this: “To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. This is not only empirically unproven. It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever. On the one hand, therefore, section 139(2) goes too far. On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself. If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection. … Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. I do not believe that Parliament ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain the High Court's leave in time. Defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims. But if that was Parliament's intention, it is an irrational and disproportionate interference in the Convention right to access to justice.” [underlining added]

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12.

As above, the EHRC wholeheartedly agrees with that analysis, including in relation to the legal approach to be taken, the factual position (i.e. the lack of evidence) and thus the overall conclusion on proportionality.

The Government’s abandonment of the previous claimed justification 13.

The Government’s response to that analysis is very instructive. In particular, the Government does not seek to identify any evidence that people with a mental disorder are more likely to bring vexatious actions and thus abandons any reliance on that proposition. It says this: “The aim and purpose of the provision is set out above at paragraphs 32, 36 and 41. Importantly, it is no part of the Government’s case that those who are mentally ill are, for that reason, more likely to bring groundless litigation than the general population (notwithstanding Baroness Hale’s observation, at paragraphs 38 and 57 of her opinion, that there are some mental disorders such as paranoid delusions and psychopathic disorders that may cause those suffering from them to bring vexatious claims).

14.

Notably, however, paragraph 36, to which reference is there made, explains some of the history to section 139(2): “It is clear from the debates that the Government resisted attempts to remove or reduce the protection afforded by section 141(2) of the 1959 Act. In the course of the debates there was discussion of the decision of the House of Lords in Pountney v Griffiths [1976] AC 314, the complaint brought by Mr Ashingdane and the decision of the European Commission of Human Rights in Ashingdane. On 25.1.82, during the committee stage, Lord Elton said (HL Debs 25.1.82 col 804): The intention of Section 141 is to protect staff who were going carefully and conscientiously about their duties under the Act, often in very difficult circumstances, from the continual threat of litigation. We have to realise that for staff caring for the mentally disordered this threat can be a very real one. Patients may suffer from severe and persistent delusions which make them quite unreasonably antagonistic towards a member of the hospital staff. The problem is particularly severe in the case of detained patients. These patients are in hospital against their will and it is likely that they will harbour resentment towards the staff whose duty it is to prevent their leaving hospital, particularly until they have had the opportunity to understand what their presence in the hospital is all about. It is not reasonable to expect staff to work in constant fear of malicious litigation. If we ask people to do this difficult work we must provide them with some protection from the risks associated with it … If we do not have [some protection], it will

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in the end be the patients themselves who will suffer both regarding the reduction in the quality of staff who are willing to do this work and from an understandable preoccupation on the part of staff as regards their legal position. You really may arrive at the position where members of staff, going about their perfectly ordinary duties in relation to patients, would find it necessary to do so continually accompanied by a witness. Therefore, I would not think that the undiluted repeal of Section 141 … is something to which the Committee should give its support. … our view is that Section 141 is an essential safeguard, but that it would perhaps be worth considering whether the reference to the High Court is appropriate. I can see that there may be some advantage in providing that the leave of the Director of Public Prosecutions, rather than the High Court, should be sought, before criminal proceedings may be brought.” [underlining added] 15.

Accordingly, while ostensibly disavowing the assumption which Baroness Hale criticised, the Government explains its past defence of the restriction by reference to what is, in effect, the very same assumption.

16.

Notably, its new disavowal of the point is also entirely inconsistent with the longstanding explanation of the rationale which the courts have given for section 139(2) (or its predecessors). Specifically, the very thing which is now abandoned is precisely what has always previously been relied on. Thus Scrutton LJ had explained in Everett v Griffiths [1920] 3 KB 163 at 197-198 that: 'Very few lunatics think they are properly incarcerated, and most of them would enjoy an action in which the individual has always a better chance of getting the sympathy of the jury than the officers of the state who are performing the unpleasant duty of incarcerating him ... To leave the person who has to decide this difficult question as to the exact degree of unsoundness of mind which justifies immediate restraint, when he has acted honestly in forming his judgment, exposed to the threat of an action by the person restrained, to be decided by persons who did not see the alleged lunatic at the time he was incarcerated, but do see him when his condition may be different, by persons who may be struck by his cleverness without appreciating how near it may be to deranged intellect, seems to me calculated to hinder his properly executing the duty he owes to the community. This exemption is not giving him a licence to be negligent; it is removing from him the threat of harassing actions.”

17.

Similarly, in Pountney v Griffiths [1976] AC 314 Lord Simon specifically explained that the rationale for a provision protecting individuals who have to make decisions under the mental health legislation was that (page 329): “patients under the Mental Health Act may generally be inherently likely to harass those concerned with them by groundless charges and

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litigation, and may therefore have to suffer modification of the general right of free access to the courts.” [underlining added] 18.

In other words, the only justification which was previously identified and relied on has now been abandoned by the Government.

The Government’s new argument 19.

However, the Government has attempted, perhaps surprisingly, to identify a new justification. It is worth setting the text out in full to expose its obvious weakness. The Government says this: “Rather, the purpose of the provision is to provide a very limited measure of protection for individual public servants (and others who may have to use the powers of the 1983 Act) who seek to act in the best interests of those who may be unable to care for themselves (e.g. by removing them to a place of safety under section 136 of the 1983 Act). Those who have to make use of such compulsory powers, even whilst seeking to act in the best interests of the person concerned, are nevertheless, of necessity, acting contrary to their wishes. This invites litigation. It is important that those responsible for exercising compulsory powers do not do so by adopting detrimentally defensive practices, or even by avoiding making use of such powers because of a fear of unmeritorious litigation. It is also important that good quality staff, who are much needed to carry out this difficult and highly responsible job, are not driven away from the work, or deterred from even starting the work, by the increased risk of litigation that comes with the nature of the powers that are exercised under the 1983 Act. The consistent view of Parliament over more than 100 years (and of the authorities in some other jurisdictions) is that such protection is required. (i) The means by which section 139(2) seeks to achieve the legitimate aim bear a reasonable relationship of proportionality to the aim that is sought to be achieved: It does not provide any substantive protection to potential defendants (in contrast to section 139(I) of the 1983 Act) – it only provides procedural protection; (ii) There is no time limit for seeking the leave of the High Court, and a substantial period of time is available to seek leave before the limitation period for the substantive claim expires 6 years for a non personal injuries claim (possibly 3 years for a personal injuries claim, with the potential for a claim to be brought out of time); (iii)

20.

The threshold for seeking leave is set very low.”

Thus, the Government explains that it considers public servants need protection (i.e. from vexatious litigation) and asserts that the barrier in question is not great (“the threshold for seeking leave is set very low”). But it offers no evidence as to why these particular civil servants need this particular

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protection in this situation. The Government simply offers no substantive justification for making persons with a mental disorder jump over an additional procedural hurdle which other would-be litigants do not face. That is not surprising because, once it had abandoned any claim that persons with a mental disorder are more likely to bring vexatious claims than any other person, there really is no substantive justification. And the argument that the hurdle is relatively low (even if correct) does not help the Government because it cannot (without some evidential basis) justify any hurdle, however low. As it happens, of course, from Mr Seal’s point of view, the hurdle was not low: it in fact provided an absolute barrier from his point of view in progressing at least part of his underlying claim. 21.

Moreover, even if, somehow, the Government’s new argument could be considered to have identified a problem which needed to be addressed, then the evaluation as to whether the chosen solution (i.e. s139(2)) met the need with the least interference with basic rights. It plainly fails that test: in particular, if – in any particular case – the court considers that a litigant has brought the claim, or is behaving, vexatiously, the court has existing powers to deal with that problem. Those powers are available regardless of whether the particular claimant has a mental disorder or not. Accordingly, there is, in event, no need for any additional hurdle (however arguably low it may be). And there is thus simply no conceivable way in which section 139(2) can now be considered proportionate, and thus be considered compliant with the requirements of Article 6 ECHR.

22.

In fact, the hurdle is not low, because it requires the person with a mental disorder to show that the act complained of “was done in bad faith or without reasonable care”.

23.

So overall, there is no justification, let alone proportionate justification, for what on analysis is a relatively high hurdle.

The UN Convention 24.

That conclusion is reinforced by consideration of the UN Convention on the Rights of Persons with Disabilities. On 8 June 2009, the UK ratified that UN Convention. Article 12 of the UN Convention provides that persons with disabilities have equal recognition before the law thus giving express recognition to something which the Commission says is inherent with Article 6 ECHR. Article 12(2) is very specific, thus: “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

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25.

That reinforces and emphasises the clear need for any additional hurdles (even if low) placed in the way of disabled people’s access to court to be subject to close scrutiny and to only be considered justified if underpinned by the clearest of evidence.

26.

As above, section 139(2) simply does not withstand scrutiny on that basis. Section 139(2) in play here is a clear example of a failure to comply with the obligation in Article 12(2) and thus, and in any event, with the requirements of Article 6 ECHR.

Overall 27.

Put simply: section 139(2) treats disabled persons as second class citizens without any justification let alone is it a proportionate action even if some justification can be teased out.

DAVID WOLFE Matrix 16 October 2009 The Equality and Human Rights Commission 3 More London Riverside Tooley Street London SE1 2RG

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