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Absence of fundamental rights jurisdiction without statutory power


Welsh Ministers v PJ [2017] EWCA Civ 194

The Court of Appeal has allowed the Welsh Ministers’ appeal against a decision of Mr Justice Charles sitting in the Upper Tribunal, who had allowed the Respondent’s (PJ’s) appeal against the decision of a Mental Health Review Tribunal for Wales refusing to discharge the patient’s then existing Community Treatment Order under s. 72 of the Mental Health Act 1983. Mr Justice Charles made declarations that presupposed an existing fundamental rights jurisdiction in the Upper Tribunal (and Mental Health Review Tribunal).

In its judgment the Court of Appeal held that the statutory regime relating to Community Treatment Orders did not confer any fundamental rights jurisdiction on either a Mental Health Review Tribunal (or the Upper Tribunal hearing an appeal).

Neither the Convention nor the Human Rights Act 1998 confers a fundamental rights jurisdiction on a tribunal. There is nothing in the general role and function of a tribunal that permits it to exercise a function that it does not have by statute. The positive obligations inherent in article 5 ECHR are not in any way diminished by the functions to which the Convention jurisprudence would apply being held by another body i.e. the responsible clinician. It is accordingly neither necessary nor appropriate for the tribunal to investigate or determine whether there is an objective deprivation of liberty as a consequence of a Community Treatment Order.

This ruling is important and has potentially far-reaching implications. A court, tribunal or other public body possessing only limited statutory powers cannot claim a fundamental rights jurisdiction on the footing of the European Convention on Human Rights or the Human Rights Act 1998. The question of whether such power exists can only be determined by analysis of the statutory power relevant to the functions of the body in question. 

The judgment is here.

Richard Gordon QC was instructed on behalf of the Welsh Ministers.