This week at Law School I had to work along with 3 other members as judges in deliberating a claim for Judicial review exercise. The Decisions which form the subject were provided by the school while Claimants and Defendants were learned colleagues from the class.

The decisions which form the subject of the claim for Judicial Review: The (fictional) University Students (Work Placement) Act establishes a scheme whereby university students can apply for a three-month work placement position in government departments. At the Second Reading of this legislation the Secretary of State for Education told the House of Commons that its purpose was

"to give persons of outstanding ability and potential, experience of working in the public service, in the hope ultimately of attracting such persons to work in the public sector when they finish their studies."

Section 1 of the Act provides that "No student shall be eligible for consideration for a work placement unless they have already attained 120 credits worth of first class marks in modules taken on a degree programme at a British University." No definition of "degree programme" is given in the Act.

Section 2 of the Act provides that "Those appointed must be suited in terms of expertise, attitude, and conduct, to undertake a placement in the particular department  in which they are to work."

(A) Laura is a British citizen in the final year of her law degree at a British university. Prior to studying law she undertook one year of a degree in politics, where she attained 100 credits of first class marks. In her law exams she has obtained 20 credits of first class marks. Her application for a work placement at the Department of Justice is rejected. The Department concluded that Laura had not fulfilled the requirement set out in section 1 of the Act, that she should have obtained 120 credits worth of first class marks in "modules taken on a degree programme" since she had only obtained 20 credits of first class marks in her law degree programme and only 100 credits in her politics degree programme.

(B) Ahmad is an Iranian citizen in the final year of his studies for a physics degree at a British university. He has obtained first class marks in all 240 credits worth of modules he has taken so far, and recently won a nation-wide prize for the "Best undergraduate project in the field of physics". In rejecting his application for a work placement in the science section of the Department of Education, the Department stated that bearing in mind the purposes of the Act as well as considerations of national security, it was not their policy to offer work placements to non-EU nationals.

Judgement
A 4 memeber group had to collectively deliberate on a decision. The bit that I had to provide in writing is with regard to some aspects on Ahmed and is as follows. A consolidated view of all 4 judges and a comprehensive decision is to be offered in due course:

Implied Repeal:
Defendants have rightfully suggested that the stand on alien employment under Alien’s Restriction Amendment 1919 Act was relaxed by the enactment of the Alien Employments Act (AEA) in 1955. Claimant’s citation of European Communities order of 1991 that was amended to allow European nationals to work in the UK civil service has no bearing on Ahmad as Iran falls outside of the Jurisdiction of European Union.

USWPA does not make specific provisions on hiring or non-hiring of aliens and as such there is neither an inconsistency nor a conflict of the Acts in question. The work placement scheme proposed within the USWPA cannot therefore be held to mean removal or alteration of restrictions on alien employment covered under the Alien Employments Act (AEA) of 1955. The Acts in question cannot be stretched to force a public body to employ an alien. The claim for implied repeal does not apply in this case and is herewith dismissed.

Relevant Considerations:
Cited by the Claimants, in the case of Tesco Stores Ltd v Secretary of State for the Environment (1995) 1 WLR 759 Lord Keith held that although a public body may have a large amount of discretion over how much weight is given to a particular consideration, if the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, the decision cannot stand and the public body is required to think again. Following Vasilou v Secretary of State for Transport (1991) claimants further argue that a failure by a Minister or his department to take into account palpably important considerations on one side of the argument makes a decision unlawful and that Ahmad’s top achievements have not been given a cursory consideration.

With regard to consideration, in Tesco case it was held that if a planning obligation has some connection with a proposed development it is a "material consideration" when considering whether planning permission should be granted and regard must be had to it. The term ‘material’ in the course of judgment by Sir Thomas Bingham’s in Tesco meant ‘relevant’. What is a relevant consideration is for the courts to decide. In analogy to Tesco case, the ‘relevant considerations’ in the present case are (a) qualifications under Section 1 of the USWAPA and (b) suitability requirements under Section 2 of USWAPA.

As Submitted in Tesco case a relevant consideration must be given some weight, even it was very little, and it was wrong for a public body to accept that an offer was a material consideration but it would give it no weight at all. It was further held that if the planning authority ignores a relevant consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd. Vv Secretary of State for the Environment [1991] J. P. L. 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.

Defendants cite that according to Lord Keith in Tesco case it is for the decision maker to attribute weight as it thinks fit and that courts must not interfere unless in the Wednesbury sense. It is correct if in the present case if little or some weight was given to the relevant consideration. In such a circumstance it is not for the courts to decide how much weight is to be given to a relevant consideration unless in the Wednesbury unreasonableness. This does not hold in the case in question. In rejecting Ahmed’s application DOE makes no mention on any relevant considerations. This is to say that (a) qualifications under Section 1 of the USWAPA and (b) suitability requirements under Section 2 of USWAPA were given no weight at all. The need to review the amount of weight given and condition of Wednesbury unreasonableness to be satisfied for interference are hence unnecessary on the facts of the case. Consequently a light touch approach under Wednesbury unreasonableness is unavailable.

If DOE’s decision to give Ahmad’s qualification and suitability no weight is based on rational assessment for employment, as applied in Tesco, then DOE is entitled to ignore it. However this is not the case. DOE’s statement in rejecting Ahmad’s application makes no mention of a short fall in qualification or suitability but has given regard to national security considerations. Either because DOE has thought that national security precludes it from taking into account relevant considerations or that it has forgotten about it. Having examined the terms of DOE decision latter to Ahmed, We disagree with the defendant’s claim that DOE in this instance has acted in full fairness. In direct contrast DOE has failed to have regard to a relevant consideration. As a result Ahmad has been wrongly treated. DOE’s decision is thus unlawful and is required to think again.

Human Rights Act:
In rejecting Ahmad’s application for a work placement DOE stated that it was not their policy to offer work placements to non-EU nationals. DOE’s decision, according to the statement was based on their view of the purposes of the Act as well as considerations of national security. Claimants have asserted that DOE did not make efforts to act in line with Article 14 of ECHR while defendants argue that DOE’s rejection of application for employment on the basis of nationality was not an infringement of convention rights.

In considering Art. 14, as in the case of Wandsworth LBC v Michalak [2003] 1 W.L.R. 617,  the court should ask itself four questions: Firstly, that did the facts of the case fall within the remit of one of the substantive Convention rights; secondly, if so, was there a difference in treatment between the complainant and other comparators; thirdly, were the chosen comparators in a sufficiently analogous situation to the complainant, and fourthly, was there some objective and reasonable justification for that difference in treatment.

We note that Art 14 provides protection against discrimination based on sex, race, colour, language, religion, nationality and other criteria but its scope is limited only to discrimination with respect to rights under the convention. The convention does not guarantee or offer specific right to work and thus the Claimant’s enjoyment of a specific right couldn’t have resulted in discrimination due to the nationality. Non parasitic but free standing provisions against discrimination, under Protocol 12 of the convention have now extended to include any legal right. The UK agrees in principle that such an extension is a necessary provision but has not signed the protocol for it being too broad. Yet again right to work does not fall under Prot. 12 as work is not a guaranteed legal right.

Ahmad’s claim under Art. 14 is dismissed on the grounds that the case does not fall within the remit of the convention which is an essential test and we are inclined to agree with the defendants that the Claimant’s rights have neither been infringed based on nationality nor have DOE acted unlawfully under HRA.