Anwar v The Advocate General (representing the Secretary of State for Business Energy and Industrial Strategy)
| Jurisdiction | Scotland |
| Judge | Lord Burrows,Lord Briggs,Lord Lloyd-Jones,Lord Leggatt,Lord Hodge |
| Judgment Date | 13 October 2021 |
| Neutral Citation | [2021] UKSC 44 |
| Court | Supreme Court (Scotland) |
[2021] UKSC 44
Supreme Court
Michaelmas Term
On appeal from: [2019] CSIH 43
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Briggs
Lord Leggatt
Lord Burrows
Appellant
Aidan O'Neill QC
Scott Blair
(Instructed by Drummond Miller LLP (Edinburgh))
Respondent
David Johnston QC
John MacGregor QC
(Instructed by Office of the Advocate General for Scotland)
Intervener (Equality and Human Rights Commission)
Christine O'Neill QC
(Instructed by Equality and Human Rights Commission)
Heard on 25 February 2021
( with whom Lord Lloyd-Jones, Lord Briggs, Lord Leggatt and Lord Burrows agree)
This appeal from the Inner House of the Court of Session in Scotland concerns proceedings for judicial review by the appellant (“Ms Anwar”). So far as is now relevant, she claims compensation from the United Kingdom Government for an alleged failure properly to implement Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, and Parliament and Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (together “the Equality Directives”). Her claim, which is directed against the Secretary of State for Business, Energy and Industrial Strategy, is that the United Kingdom failed to provide an effective remedy for the harassment which she suffered at the hands of her former employer on the grounds of sex, race and religion. As explained below, Ms Anwar asserts that that failure is the failure to enact a legislative provision to enable an employment tribunal in Scotland to grant a warrant for the interim remedy of arrestment on the dependence. Ms Anwar argues that she should have been able to obtain such a warrant against her former employer at or after the commencement of the tribunal proceedings, thereby giving her the ability to freeze her former employer's bank account and thus prevent the alleged dissipation of the funds which otherwise would have been available to meet her financial claim.
As explained by Lord Drummond Young, who wrote the majority judgment in the Inner House ( [2019] CSIH 43; 2020 SC 95), under EU law, member states are obliged to provide effective remedies for the implementation of EU law-based rights (“the principle of effectiveness”) and in so doing must provide remedies that are equivalent to those available for comparable claims that do not involve EU law (“the principle of equivalence”) (see the judgment of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Impact v Minister for Agriculture and Food (Case C-268/06) EU:C:2008:223; [2009] All ER (EC) 306; [2008] ECR I-2483. The principle of effectiveness is articulated in the Treaty on European Union ( 2012/C 326/13) (“the TEU”) itself in article 19(1), which states:
“Member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
Similarly, article 47 of the Charter of the Fundamental Rights of the European Union ( 2012/C 326/02) (“the Charter”) recognises the general principle of EU law of effective judicial protection by providing:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.”
Article 52(1) of the Charter addresses the scope of the rights which the Charter recognises:
“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
As the CJEU observed in Impact (paras 44–45) and in many other cases, in the absence of EU law rules governing the matter, it is for the domestic system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, but a member state is responsible for ensuring that those rights are effectively protected in each case. Effective protection means that the procedural rules must not render the exercise of those rights practically impossible or excessively difficult: Impact para 46. That statement remains good law. (See for example ENEFI Energiahatekonysagi Nyrt v Directia Generala Regionala a Finantelor Publice Brasov (DGRFP) (Case C-212/15) EU:C:2016:841; [2017] ILPr 10, para 30; ML v Aktiva Finants OU (Case C-433/18) EU:C:2019:1074; [2020] ILPr 9, para 29; SL v Vueling Airlines SA (Case C-86/19) EU:C:2020:538; [2021] 1 WLR 2479, para 39 and the cases cited therein, and the judgment of this Court in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2) [2017] UKSC 51; [2020] AC 869, para 106.)
It is not in dispute that the principle of effectiveness mandates that there be an interim measures procedure available to a claimant in an action that safeguards his or her rights derived from the Equality Directives. In my view counsel were correct so to agree. The CJEU in R v Secretary of State for Transport, Ex p Factortame (No 2) (Case C-213/89) EU:C:1990:257; [1991] 1 AC 603 ruled that the full effectiveness of EU law would be impaired if a rule of national law were to prevent a court seised of a dispute governed by EU law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under EU law (para 21). The CJEU made a similar statement in Unibet (London) Ltd v Justitiekanslern (Case C-432/05) EU:C:2007:163; [2007] ECR I-2271, para 67. Further, in Križan v Slovenská inšpekcia životného prostredia (Case C-416/10) EU:C:2013:8; [2013] Env LR 28, which concerned the prevention and control of pollution under Council Directive 96/61/EC, the CJEU held (paras 107–109) that the right to bring a legal action under article 15a of that Directive included a right to seek interim relief pending the determination of the lawfulness of a permit.
The remedy which Ms Anwar seeks is compensation in the form of damages. A member state may incur liability to a person under Community law where three conditions are satisfied. Those conditions are that (1) the rule of EU law is intended to confer rights on individuals; (2) the breach is sufficiently serious, and in particular that there was manifest and grave disregard by the member state of its discretion; and (3) there is a direct causal link between the breach of the obligation resting on the member state and the damage sustained by the injured party. This summary of the decisions of the CJEU in Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) EU:C:1991:428; [1991] ECR I-5357; [1995] ICR 722 and Brasserie du Pêcheur SA v Federal Republic of Germany (Joined Cases C-46/93 and C-48/90) EU:C:1996:79; [1996] QB 404; [1996] ECR I-1029 by Sir Andrew Morritt V-C in Phonographic Performance Ltd v Department of Trade and Industry [2004] 1 WLR 2893, para 11 was approved by this court in Nuclear Decommissioning Authority v EnergySolutions EU Ltd [2017] UKSC 34; [2017] 1 WLR 1373, para 38 in the judgment of Lord Mance with whom the other Justices agreed.
Ms Anwar was employed by the charity, “Roshni”, a company limited by guarantee, which received public funding to protect children and young adults within ethnic minority communities against abuse. In September 2015 Ms Anwar commenced proceedings in the employment tribunal in Glasgow against her former employer and her former line manager, who was the executive chairman of Roshni, Mr Ali Khan. Her complaint was that she had been subjected to workplace and work-related harassment on the grounds of her sex, her race and her religion contrary to section 26 of the Equality Act 2010 (“the 2010 Act”). The employment tribunal upheld her claims for harassment against both her former employer and Mr Khan in an oral judgment in May 2016 and a written judgment dated 15 July 2016. The tribunal then proceeded to a remedies hearing followed by a judgment dated 24 August 2016 in which it made an award of £74,647.96 against both respondents on a joint and several basis.
Ms Anwar's solicitor, Mr McGrade, who represented her in the tribunal proceedings, has stated in an affidavit that Ms Anwar had expressed her concerns that Roshni would try to prevent her from receiving compensation which the tribunal might award and that following the tribunal's oral judgment on the merits in May 2016 he had checked Roshni's abbreviated financial statements for the year to 30 June 2015 which appeared to show that the charity had sufficient funds to meet her claim. Nonetheless, after the tribunal issued its judgment on the remedy, Ms Anwar told Mr McGrade that she had received information that those who controlled Roshni proposed to close down the existing charity and transfer its funds to a new charity. This appeared to be an attempt to avoid paying the award in her favour. On 28 September 2016 Mr McGrade obtained an interim interdict from the sheriff court at Glasgow which prohibited Roshni or anyone acting on its behalf from disposing of or transferring any funds held by it to a third party other than in payment of any salaries or debts legally incurred. Mr...
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