Public authorities have an obligation to treat people in accordance with their Convention rights. Everyone has the right to the peaceful enjoyment of their possessions – that includes their savings in TPLI funds!
On page 55 of the Ministry of Justice Handbook for Public Authorities, a clear obligation is set out for public authorities to weigh carefully the rights of individuals when embarking upon a course of action that will interfere with their human rights.
The FSA knowingly interfered with the human rights of existing savers in TPLI schemes when it made an announcement in November 2011 incorrectly branding them as ‘toxic’ and ‘ponzi like’.
That they did so knowingly is a matter of public record (Proposed guidance on traded life policy investments: cost benefit analysis – FSA 2011) and they have subsequently conceded that their use of the terms ‘toxic’ and ‘ponzi like’ were misleading.
As the following references show, before embarking upon a course of action that would interfere with the human rights of individuals (or companies), it was incumbant upon the FSA to investigate and choose only such action that would be least damaging to existing savers.
Despite requests under the Freedom of Information Act, there is no evidence to suggest that the FSA attempted to seek the least damaging course of action but there is evidence that they failed to consult on the wording of their announcement and that they failed to organise any events or roadshows to warn of their impending action or lessen the impact for individuals.
The wording of the FSA announcement in November 2011 was deliberately inflammatory to the extent that inaccurate and slang language was used. As such, the FSA sought precisely to ‘use a sledgehammer to crack a nut’ contrary to the Ministry of Justice guidelines. The conscious choice of this approach was confirmed in their ‘Cost Benefit Analysis’ of the same month.
A number of less damaging alternatives to their announcement existed but these were not considered by the FSA.
In the event that a public authority legally restricts or interferes with the qualified human rights of an individual or company, it is incumbant upon them to pay proper and fair compensation.
Tell your MP! (see letter on this link)
Sign the petition for reform http://epetitions.direct.gov.uk/petitions/63482
The Freedom of Information Act
The FCA have now confirmed in relation to the infamous announcement made by the FSA in November 2011:
Date: 23rd May, 2014 “FSA did not discuss their concerns on TLPIs at any FSA organised events or roadshows leading up to the announcement.”
Date: 10th April, 2014 “FSA did not pre-consult on the wording of the announcement.”
Human Rights Framework as a Tool for Regulators and Inspectorates
(Ministry of Justice Publication)
The principle of proportionality is at the heart of how the qualified rights are interpreted, although the word itself does not appear in the text of the Convention. The principle can most easily be understood by the saying “don’t use a sledgehammer to crack a nut”.
Human Rights: Human Lives – Handbook for Public Authorities
(Ministry of Justice Publication)
Public authorities have an obligation to treat people in accordance with their Convention rights. Everyone has the right to the peaceful enjoyment of their possessions.
A policy/decision should be no more restrictive than it needs to be in order to achieve its objective. This is called ‘proportionality’. For example, a blanket application of a policy/decision to everyone concerned will often be considered disproportionate, as it does not take into account individual circumstances, and the individual rights of each person affected. It will have the effect of imposing restrictions in circumstances where they are not really needed. Look at the objectives you identified at paragraph one of this section, and box 1 of the flowchart, and ask yourself whether the objectives can be achieved only by the policy/decision you are proposing. Ask yourself if there is any other less restrictive way of achieving the desired outcome. If there is another less restrictive way of achieving the desired outcome, but you decide not to adopt it, you will need to be prepared to say why you have made that choice. Your reasons will have to be good ones.
The Article requires public authorities to strike a fair balance between the general interest and the rights of individual property owners. Public authorities should take action to secure the right to property, as well as refraining from interfering with it.
Possessions and property has a wide meaning, including land, houses, leases, money and personal property. It also covers intangible things such as shares, goodwill in a business, patents and some forms of licences, including those which allow people to exercise a trade or profession. Entitlements to social security benefits are also generally classified as property.
“For example, if a public authority plans to build a road over someone’s land, it must have laws in place to let it do this. It must also have a procedure to check that a fair balance has been struck between the public interest in building the road, and the individual’s right to their land. It will not normally be fair to deprive a person of their land unless the person can get proper compensation for it.”
Setting aside whether or not a fair balance was struck and all alternatives were exhausted, if it was in the public interest to deprive a people of their savings, proper compensation should be paid.
Action Group For Life Settlement Fund Investors 