Source · Select Committees · Human Rights (Joint Committee)
Recommendation 141
141
Accepted
conclusion The Government has provided for the retrospective validation of fees charged without any statutory...
Recommendation
conclusion The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. 181 Ipswich Town v Suffolk Chief Constable [2017] EWHC 375 (QB), at [77]; see also [80]-[81] (claim for restitution based on mistake of law). 182 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25), para.192 183 E.g. National and Provincial v UK, Application No. 21319/93 et al, paras 80–83. Contrast e.g. Reilly and Hewstone v Secretary of State for Work and Pensions [2016] EWCA Civ 413; Zielinski v France, Application No. 24846/94 et al, paras 59–60 (both cases about Article 6). 51 6 Conditions on leave and bail
Government Response Summary
The government clarified its justification for the retrospective validation of fees, arguing that the legislation is justified and proportionate under ECHR Article 1 of Protocol 1, as claims for restitution do not have a sufficient basis in law to constitute a possession.
Government Response
Accepted
HM Government
Accepted
The Government maintains its position that the legislation is justified and proportionate. Article 1 of Protocol 1 to the European Convention on Human Rights protects the right to the peaceful enjoyment of possessions. The Government has considered whether those affected will be deprived of a ‘possession’ because they will not be able to bring successful claims for restitution of fees paid. As the Committee notes, to constitute a property right protected by the ECHR, the claim must have a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming that a claim of that kind can be brought. We note the Committee refers to Ipswich Town v Suffolk Chief Constable [2017] EWHC 375 (QB) to suggest that such settled case law exists. That case concerned fees charged by a public body. In that case, whilst the court recognised the existence of a continuum between public and private transactions, it does not determine the point at which any particular set of circumstances will fall. The transactions for which these fees are charged are not straightforward public or private transactions. Accordingly, the government maintains its position that any claim in respect of these fees does not have a sufficient basis in law to constitute a possession for the purposes of Article 1 of Protocol 1. In any event, even if there is a possession, the Government considers that the legislation strikes a fair balance between the individual interests affected and the general interests of the community. The impact on individual interests is slight: the fees were relatively modest and were reasonable sums for the services provided. Service users would reasonably expect to pay fees for services of this nature and users received the services they paid for. Being unable to bring claims seeking restitution of the sums already paid does not expose users to any disproportionate or excessive burden. On the other hand, the impact on the public interest of the loss of a substantial amount of already-collected fees would be very significant.