Office for Gas and Electricity Markets v Pytel

Section 3 of the Human Rights Act 1998 permits a Convention-compatible interpretation only where that is possible. It does not authorise a court or tribunal to amend primary legislation, even where the tribunal itself cannot grant a declaration of incompatibility.

A proposed reading is impermissible where it contradicts the statutory scheme, removes a deliberate distinction made by Parliament, or requires policy choices and an assessment of ramifications for which the court is not equipped. A comprehensive statutory prohibition on disclosure, backed by criminal sanctions and carefully specified exceptions, could not be read as containing an additional exception for whistleblowing proceedings.

The claimant, an economic analyst employed by the Office for Gas and Electricity Markets, brought a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996. He sought disclosure of documents concerning his alleged protected disclosures.

The Employment Tribunal found that the information fell within section 105 of the Utilities Act 2000. It held that the provision was incompatible with the claimant’s Convention rights and, applying section 3 of the Human Rights Act 1998, purported to add an exception for Parts IVA and V of the 1996 Act. The respondent appealed only that interpretative ruling.

The respondent conceded before the EAT that section 105 was incompatible with the claimant’s rights under Articles 6 and 10. The central issue was whether it was possible to read section 105 compatibly with those rights.

1. Appeal allowed. The Employment Tribunal had materially erred in its approach to section 3 of the Human Rights Act 1998. Its inability to make a declaration of incompatibility did not oblige it to devise a Convention-compatible reading. It had to ask whether such a reading was possible.

2. Section 3 imposes a strong and far-reaching interpretative obligation, but it preserves the boundary between interpretation and legislation. A court cannot adopt a meaning inconsistent with a fundamental feature, underlying thrust, pith and substance, or deliberate scheme of primary legislation. It must also avoid making legislative policy choices whose practical ramifications it cannot properly evaluate.

3. Section 105 of the Utilities Act 2000 imposed a broad, criminally enforceable prohibition on disclosing regulatory information. Its detailed exceptions identified the purposes, bodies and specified statutory regimes for which disclosure was permitted. The omission of the whistleblowing provisions of the Employment Rights Act 1996 from section 105(6) meant that the prohibition applied to those proceedings. It was not permissible to infer that Parliament had overlooked them.

4. Adding Parts IVA and V of the 1996 Act as a new exception would contradict the carefully drawn scheme, override information-holders’ statutory right to withhold consent, remove criminal liability, and displace Parliament’s choice to entrust amendment to Parliament or the Secretary of State under section 105(7). The consequences for this multilateral regulatory scheme and comparable statutory confidentiality regimes were matters for the legislature.

5. It was therefore not possible to read section 105 compatibly with the claimant’s Convention rights. The EAT substituted that decision. The Tribunal’s consequential disclosure directions were wrong in law and had no effect.

• Employment Appeal Tribunal: Allowed the respondent’s appeal and substituted a decision that section 105 of the Utilities Act 2000 could not be read compatibly with the claimant’s Convention rights.
• Employment Tribunal, London Central: Decision sent to the parties on 9 January 2017. It held that section 105 was incompatible with the claimant’s Convention rights and purported, under section 3 of the Human Rights Act 1998, to add an exception for whistleblowing proceedings.