COMMON LAW METHOD QUESTIONRead the following extracts and then answer the questions below:

Kostal UK Ltd v Dunkley and others

[2021] UKSC 47, (Transcript)

SUPREME COURT 27 October 2021

LORD LEGGATT: (with whom Lord Briggs and Lord Kitchin agree)

INTRODUCTION

[1] This case is the first occasion on which appeal courts have had to consider the proper interpretation of s.145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (the "1992 Act"), one of a group of provisions added to the 1992 Act by amendment in 2004. Its object, broadly stated, is to penalise offers made by employers to workers who are trade union members which, if accepted, would have the result that one or more terms of their employment will not (or will no longer) be determined by collective bargaining.

[2] Pursuant to s 145B(5), a worker (or former worker) may present a complaint to an employment tribunal on the ground that their employer has made an offer in contravention of s 145B. The complaint must normally be presented within three months from when the offer was made or, where the offer is part of a series of similar offers to the complainant, the date when the last of them was made: see s 145C(1) of the 1992 Act. If the tribunal finds that the complaint is well-founded, the worker is entitled to be paid a lump sum award by the employer in respect of the offer complained of: see s 145E(1)-(3). At the time of the offers made in this case, the amount of the award was fixed at 3,800.

....

INTERPRETATION OF SECTION 145B

[29] Against that background, I turn to the interpretation of s 145B of the 1992 Act. Three preliminary points may be made.

[30] First, as with any question ofstatutory interpretation, the task of the court is to determine the meaning and legal effect of the words used by Parliament. The modern case law - including, in the field of employment law, the recent decision of this court in Uber BV v Aslam [2021]para 70 - has emphasised the central importance of identifying the purpose of the legislation and interpreting the relevant language in the light of that purpose. Sometimes the context and background, or the statute viewed as a whole, provides clear pointers to the objectives which the relevant provisions were seeking to achieve. In other cases, however, the purpose needs to be identified at a level of particularity which requires it to be elicited mainly from the wording of the relevant provisions themselves. The present case is one in which, although the legal context and aim of seeking to secure art 11 rights is important, the somewhat complicated and elaborate wording of s 145B (and s 145D) calls, in my view, for a careful linguistic analysis on the assumption that the words used have been chosen with precision.

[31] Second, the critical provision in this case is s 145B(1)(a), read together with sub-s (2) which defines the "prohibited result". It is that result which (as its appellation indicates) represents the mischief which the legislation aims to prevent or deter. The employer has a defence if it shows that its sole or main purpose in making the offers was not to achieve that result. For short, I will refer to the purpose of achieving the prohibited result as the "prohibited purpose". It is, however, important to note that what constitutes the prohibited purpose is defined by reference to what constitutes the prohibited result. For that reason too, although the relevant provisions must be construed as a whole, the primary question must be to identify the nature and scope of the prohibited result.

[32] The third preliminary point is that, although (as noted above) the words "will not" were added to s 145B(2) during the Parliamentary process as part of an amendment to extend the scope of s 145B to cases where a trade union is "seeking to be recognised", I do not accept the Company's submission that those words are limited in their application to such cases. Certainly, the words "will no longer" can only apply in cases where the union is already recognised for the purpose of collective bargaining. But there is nothing in the language used which confines "will not" to cases where the union is seeking to be recognised or which ties each alternative in sub-s (2) exclusively to one of the alternatives referred to in sub-s (1). The alternatives do not even appear in the same order in the two subsections: in sub-s (1) a trade union "seeking to be recognised" is mentioned after a trade union "which is recognised", but in sub-s (2) the words "will not" appear before the words "or will no longer".

[33] Further, the words "will no longer" carry the implication that the workers' terms of employment were previously determined by collective agreement negotiated by or on behalf of the union. That may not be true, however, not only where the union is seeking to be recognised but also where a trade union has only recently been recognised by the employer. In that situation the existing terms of employment might have been determined by collective agreement negotiated by or on behalf of another trade union, or they might not have been determined by collective agreement at all (if there was previously no recognised union). It would be irrational to interpret s 145B as inapplicable in such circumstances - all the more so when it is expressly applicable where a trade union is seeking to be recognised. The only reasonable interpretation, in my view, is that, where a trade union is recognised, the right not to have an offer made by the employer applies where the result of acceptance would be that one or more terms of employment either (i) will not or (ii) will no longer be determined by collective agreement negotiated by or on behalf of the union.

Having read the extracts from the judgment above, answer these questions:

1. This case had previously been heard in the Court of Appeal. Describe the process by which it came to the Supreme Court, with particular reference to the very first sentence of Lord Leggatt's judgment above.

1. In paragraph [30]. Lord Leggatt mentions the Uber v Aslam case. Explain how our system of legal precedent operates. Was Lord Leggatt applying or distinguishing this case? Explain how you know.

1. Later in paragraph [30] there is mention of 'article 11 rights'. If there was a case from the European Court of Human Rights relevant to the outcome of this case, would Lord Leggatt have to follow it? Please refer to any statute or case law which explains your response.

1. Define the rules of statutory construction. Identify and give evidence as to which rule was most commonly used in the paragraphs reproduced above?

Please continue to the ethics part of this question

ETHICS QUESTION

Below is a summary of the facts of the case Aintree University Hospitals NHS Foundation Trust v James[2014] 1 All ER 573.

In May 2012, at the age of 68 years old, Mr James was admitted to hospital due to problems with a device fitted in 2001 in his colon (lower gut). It had been put there to help him get over cancer of the colon. Due to complications with Mr James' treatment, he acquired an infection which led to pulmonary disease, kidney injury and low blood pressure. He was put on a ventilator in the critical care unit. Over the next few months he had many severe medical problems, including infections, a cardiac arrest and a stroke.

He remained there until December 2012, when the NHS Trust sought a declaration that, if Mr James' condition were to suddenly get worse, they would be legally allowed not to treat him. The doctors and nurses put forward evidence that Mr James was very weak and would be very unlikely ever to leave the hospital. This evidence was confirmed by an independent medical expert.

Further, the NHS Trust sought at that December 2012 hearing to have the court acknowledge that Mr James had suffered such issues with his nervous system that he no longer had the capacity to make any decisions about his own health. This was agreed by the parties. The court would have to decide for him.

The NHS Trust argued that four specific and 'deeply physical' procedures should not be allowed, even if Mr James were to get worse, as they were so unpleasant and Mr James was so very unwell.

The family felt that Mr James might have the chance to get better and that every time he had an infection so far, he had managed to 'pull through'. They had also noticed that the infections were becoming further apart in time and hoped he might recover through some or all of the four procedures.

The first judge agreed with the family and refused to declare that the NHS Trust could avoid the treatments. The NHS Trust appealed and the appeal judge did make the declaration, so the four procedures were never carried out. Ten days after the appeal hearing, Mr James died of a cardiac arrest.

Mrs James was given leave to appeal as to whether the declaration was legally correct as a matter of public importance.

Please read Lady Hale's judgment in the case of Aintree University Hospital NHS Foundation Trust v James [2014] 1 All ER 573in particular paragraphs [2] to [15] to get a wider view of the facts of this case.

Please also read paragraphs [35] to [47] to understand the various ethical viewpoints Lady Hale considered in arriving at her decision.

Write an essay on the following:

In the case of Aintree University Hospital NHS Foundation Trust v James [2014] 1 All ER 573, did the Supreme Court correctly conclude that the Court of Appeal had made a mistake in law when they declared that the NHS Trust should not carry out four procedures to treat Mr James?

Try to consider the below points in your answer:

• Summarise briefly Mr James' medical problems and the procedures which had the potential to improve his condition.

• Give reasons why the NHS Trust felt that Mr James should not be treated. Link these reasons to any relevant ethical approach which might back them.

• Give reasons why the James family felt it would be correct to treat Mr James. Link these reasons to any relevant ethical approach which might back them.

• Which reasons did Lady Hale give in allowing the appeal? Which ethical approach(es) was she relying upon?

• Do you agree with Lady Hale's decision? Explain your conclusion with reference to the relevant ethical approach.