Payroll legal claim rejected as "nothing if not bold"

Tuesday 02 June 2020

An islander who was made redundant because of the corona pandemic has failed to convince the Royal Court that the Government’s payroll co-funding scheme should be dismantled, because it provides no support to those who are out of work – a move that was dubbed “nothing if not bold” by the judge.

Representing himself, Jonathan Tindall Scott brought an application to have the Court intervene in the way the payroll scheme was being administered as he alleged that it is unfair, unlawful and unjust as it doesn’t support all islanders equally.

Whilst his efforts were in vain, Mr Scott’s arguments were praised as being “nothing if not bold” by Royal Court Commissioner Julian Clyde-Smith, who was considering the application.

Advocate Steven Meiklejohn appeared on behalf of the Treasury Minister and the Attorney General.

Detailed in a written judgment, the Commissioner summarises Mr Scott’s grievance. The Court was told that Mr Scott was made redundant earlier this year and although, after four weeks, he will be entitled to Income Support, he was told that he could not benefit from the payroll co-funding scheme.

Pictured: The Royal Court considered the legal challenge to the payroll co-funding scheme.

Mr Scott argued that the scheme “does not treat islanders equally and discriminates against workers made redundant”, because whilst someone out of work can only claim £100 a week, someone who retains their job “can indirectly benefit by up to £1600 per month” even if the employer is not viable or ultimately fails.

It was also put forward by Mr Scott that the scheme is not economically sound as it “risks squandering the finite reserves set aside for sustaining Jersey in what may become a very prolonged period of minimal economic activity.” 

Further to this, Mr Scott claimed that “in essence the scheme is unfair, and the island’s reserve should be distributed more equally. There is no justification in supporting business profits, but there is every justification for supporting individuals on an equal basis. He, for example, has a mortgage but will receive no help towards it.”

He claimed that what he sees as the unfair distribution of support under the scheme amounts to illegality and asks the Court to investigate the matter further by way of judicial review. 

Summed up by the Commissioner in his judgment: “The centrality of [Mr Scott’s] challenge, as he put it, is that the Scheme disadvantages one group and advantages another and spends reserves in a way which risks jeopardising the very thing it is trying to protect; jobs and prosperity, along with financial security for all islanders. A law is only administered lawfully, he says, when it is administered justly and thus an unfair distribution is an unlawful one.” 

In response, Advocate Meiklejohn contended that Mr Scott’s application had not met the legal criteria for seeking the intervention from the Court that he sought.

He also said that the scheme “cannot be considered in isolation as it is just one piece of the wider jigsaw of the economic and social support framework which has been adopted and/or modified to support islanders during the covid-19 crisis.”

Ultimately Commissioner Clyde-Smith found that Mr Scott’s arguments did not satisfy the legal criteria for seeking judicial review, commenting: “The Applicant puts forward political and fiscal arguments in respect of the Scheme, but its creation and funding are political acts that cannot be challenged, declared unlawful or struck down by the Court.”

Further to this, the Commissioner explained in his judgment that what Mr Scott is asking would be wholly outside of the remit of the Court and would constitute its “usurping” of Government. 

Pictured: The commissioner concluded that the intervention applied for would constitute the Court "usurping the role of Government".

“[Mr Scott] wants the decision of the Minister to approve and fund the Scheme not only to be set aside, but for the Court to put in place another scheme which distributes the funds in a manner which he says would be more equitable and benefit him and others in his position. 

“He wants that new scheme to be formulated by the Court in a case involving him and the Minister and then imposed by the Court upon the Minister and the democratically elected government of Jersey, a proposition that would give him an influence over governmental policy for which he has no democratic mandate and which would have the Court usurping the role of government.” 

“The process he envisages for arriving at a scheme that he would regard as fair is simply not one which a court of law can entertain.” 

Bringing his considerations to a close, the Commissioner concludes by refusing permission for judicial review, stating: “[Mr Scott] is in the same position as any other person in this jurisdiction with an interest as to how the funds of the States of Jersey are to be deployed.

“For the reasons he has put forward, he disagrees with the scheme, which he regards as being unfair to those, such as him, who have been made redundant as a result of this pandemic. Whatever the merits of his views in this respect may be, his complaint is as to political acts which cannot be challenged, declared unlawful or struck down in a court of law. His remedy lies within the political arena.”