Recommendation 16

HM Government Acknowledged

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. The Committee notes that “The case law suggests that something more is needed, such as that the retroactive legislation is restoring a widely held understanding of the legal position that has been unexpectedly disrupted.” The principle of restoring Parliament’s original intention is clearly a factor in the caselaw relevant to whether retrospective alteration is foreseeable (see National & Provincial Building Society & Others v United Kingdom [1998] 25 EHRR 127), but it is not established that this principle is the only circumstance in which retrospective legislation extinguishing a potential claim will be compatible with Article 1 of Protocol 1. There is no fixed list of factors that the court will examine, and each case needs to be analysed on its own facts. The Government maintains that there are compelling public interest reasons for the legislation. Accordingly, the Government considers that the legislation is compatible with Article 1 of Protocol 1.