- The court
has before it six separate claims seeking the annulment of
certain provisions
of the
Employment Equality (Sexual Orientation) Regulations 2003 ("the Regulations"), which were made under
section 2(2) of the European Communities Act 1972 ("the 1972
Act") for the purpose of implementing Council Directive 2000/78/EC
of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation ("the Directive") so far as
it relates to discrimination
on grounds of sexual orientation.
In broad terms the Regulations prohibit discrimination on grounds
of
sexual orientation in the fields
of employment and vocational
training. The targets of the challenge are certain exceptions to
that general
prohibition, namely those in
regulations 7(2), 7(3), 20(3)
and 25 and in other regulations incorporating the exceptions in regulation
7. Regulations 7(2), 7(3) and
20(3) concern exceptions for
occupational requirements, including
in particular exceptions in relation
to employment for purposes of an organised
religion. Regulation 25 contains
an exception for benefits dependent on marital status.
- The claimants are trade unions with a very large total membership covering
a wide range of occupational sectors. They have a very significant
number of gay, lesbian or bisexual members who are potentially affected
by the provisions in issue. It is not in dispute that they have a
sufficient interest to bring these claims.
- Mr Rabinder
Singh QC and Miss Karon Monaghan appear for all but one of
the claimant
unions:
Amicus, National Association of Teachers in Further and Higher
Education
(NATFHE),
Unison, NASUWT, Public and Commercial Services Union and The
National Union of Rail, Maritime
and Transport Workers. I shall
refer
to them collectively as "the
Amicus claimants".
- Mr Singh has made clear that in general the Amicus claimants welcome
the Regulations. They object, however, to the specific provisions
I have mentioned. There are some differences of detail between their
claim forms, but it is unnecessary to draw out those details for
the purposes of this judgment. The main grounds advanced are that
the provisions are (1) incompatible with the obligations imposed
on the United Kingdom by the Directive, and therefore ultra vires section
2(2) of the 1972 Act; and (2) incompatible with articles 8 and 14
of the European Convention on Human Rights.
- The remaining
union, the National Union of Teachers ("the NUT"),
is represented by Mr Aidan O’Neill
QC (Scot.)
and Miss Sandhya Drew. The NUT challenges the exceptions for
occupational requirements in
regulation 7 and in other regulations
that
incorporate those exceptions. It does not challenge regulation
25. In
broad terms the NUT case with regard to the impugned exceptions
covers
the same ground as that of the Amicus claimants, but
one of
the distinct additional submissions made by Mr O’Neill
is that
the exceptions are ultra
vires in that they have the effect of lowering the pre-existing
level of protection in national law as regards discrimination on
grounds of sexual orientation.
- Miss Monica Carss-Frisk QC and Miss Dinah Rose appear for the Secretary
of State for Trade and Industry, the correct defendant in the proceedings.
The Secretary of State’s position is that the Regulations, including
the exceptions to the general prohibition of discrimination on grounds
of sexual orientation, properly implement the Directive and are not
incompatible with Convention rights or otherwise unlawful.
- Pursuant to permission granted by Elias J, there are also three interveners
before the court, all represented by Mr James Dingemans QC and Mr
Paul Diamond. The interveners are all evangelical Christian organisations:
CARE (Christian Action Research Education), the Evangelical Alliance
and the Christian Schools Trust. They and their members hold to the
biblical teaching that monogamous heterosexual marriage is the form
of partnership uniquely intended for full sexual relations between
persons. They support the Secretary of State’s position with regard
to the validity of the Regulations, submitting in particular that
the exceptions in regulation 7 as regards occupational requirements
represent an appropriate and lawful balance between the rights and
freedoms of followers of organised religions and the right not to
be discriminated against on grounds of sexual orientation. Although
concentrating on their own factual position, they stress that their
submissions are not intended to assist just one religious group.
- Between
them, the parties submitted "skeleton" arguments
of a total length of well over
200 pages
(with Mr O’Neill accounting for the major part) and 14 bundles
of authorities, only a relatively
small proportion of which could
be looked
at directly in the course of the 3-day hearing. In this judgment
I concentrate on what appear
to me to be the main issues,
without
attempting to cover every aspect of the arguments advanced.
Even then the judgment is unduly
lengthy.
The Directive
- The Directive was adopted by the Council pursuant to article 13 (ex
article 6a) of the EC Treaty, which in its amended form confers specific
powers to take action to combat discrimination based on sex, racial
or ethnic origin, religion or belief, disability, age or sexual orientation.
The Directive’s recitals include:
"(1)
In accordance
with Article 6 of the Treaty on European Union, the European
Union is founded on the principles
of liberty, democracy, respect
for human
rights and fundamental freedoms, and the rule of law, principles
which are common to all Member States
and it respects fundamental rights,
as guaranteed
by the European Convention for the Protection of Human Rights
and Fundamental Freedoms
and as they result from the constitutional
traditions
common to the Member States, as general principles of Community
law.
…
(4) The right of all persons to equality before the
law and protection against discrimination constitutes a universal
right recognised by the Universal Declaration of Human Rights, the
United Nations Convention on the Elimination of All Forms of Discrimination
against Women, United Nations Covenants on Civil and Political Rights
and on Economic, Social and Cultural Rights and by the European Convention
for the Protection of Human Rights and Fundamental Freedoms, to which
all Member States are signatories. Convention No 111 of the International
Labour Organisation (ILO) prohibits discrimination in the field of
employment and occupation.
…
(11) Discrimination based on religion or belief, disability,
age or sexual orientation may undermine the achievement of the objectives
of the EC Treaty ….
(12) To this end, any direct or indirect discrimination
based on religion or belief, disability, age or sexual orientation
as regards the areas covered by this Directive should be prohibited
throughout the Community ….
(13) This Directive does not apply to social security
and social protection schemes whose benefits are not treated as income
… nor to any kind of payment by the State aimed at providing access
to employment or maintaining employment.
…
(17) This Directive does not require the recruitment,
promotion, maintenance in employment or training of an individual
who is not competent, capable and available to perform the essential
functions of the post concerned or to undergo the relevant training,
without prejudice to the obligation to provide reasonable accommodation
for people with disabilities.
…
(22) This Directive is without prejudice to national
laws on marital status and the benefits dependent thereon.
(23) In very limited circumstances, a difference of
treatment may be justified where a characteristic related to religion
or belief, disability, age or sexual orientation constitutes a genuine
and determining occupational requirement, when the objective is legitimate
and the requirement is proportionate ….
(24) The European Union in its Declaration No 11 on
the status of churches and non-confessional organisations, annexed
to the Final Act of the Amsterdam Treaty, has explicitly recognised
that it respects and does not prejudice the status under national
law of churches and religious associations or communities in the
Member States and that it equally respects the status of philosophical
and non-confessional organisations. With this in view, Member States
may maintain or lay down specific provisions on genuine, legitimate
and justified occupational requirements which might be required for
carrying out an occupational activity.
…
(28) This Directive lays down minimum requirements,
thus giving the Member States the option of introducing or maintaining
more favourable provisions. The implementation of this Directive
should not serve to justify any regression in relation to the situation
which already prevails in each Member State ….
…
(31)
The rules
on burden of proof must be adapted when there is a prima facie
case of discrimination and, for the principle
of equal treatment to be applied
effectively,
the burden of proof must shift back to the respondent
when
evidence of such discrimination is brought. However, it is
not for the respondent to prove that the
plaintiff adheres to a particular
religion
or belief, has a particular disability, is of a particular
age or has a particular sexual orientation
…"
- The Directive’s substantive provisions of principal relevance are these:
"Article 1: Purpose
The purpose of this Directive is to lay down a general
framework for combating discrimination on the grounds of religion
or belief, disability, age or sexual orientation as regards employment
and occupation, with a view to putting into effect in the Member
States the principle of equal treatment.
Article 2: Concept of discrimination
(1) For the purposes of this Directive, the ‘principle
of equal treatment’ shall mean that there shall be no direct or indirect
discrimination whatsoever on any of the grounds referred to in Article
1.
…
(5) This Directive shall be without prejudice to measures
laid down by national law which, in a democratic society, are necessary
for public security, for the maintenance of public order and the
prevention of criminal offences, for the protection of health and
for the protection of the rights and freedoms of others.
Article 3: Scope
(1) Within the limits of the areas of competence conferred
on the Community, this Directive shall apply to all persons, as regards
both the public and private sectors, including public bodies, in
relation to:
(a) conditions for access to employment, to self-employment
or to occupation, including selection criteria and recruitment conditions
…
(b) access to all types and to all levels of vocational
guidance, vocational training, advanced vocational training and retraining,
including practical work experience;
(c) employment and working conditions, including dismissals
and pay ….
…
(3) This Directive does not apply to payments of any
kind made by state schemes or similar, including social security
or social protection schemes ….
Article 4: Occupational requirements
(1) Notwithstanding Article 2(1) and (2), Member States
may provide that a difference of treatment which is based on a characteristic
related to any of the grounds referred to in Article 1 shall not
constitute discrimination where, by reason of the nature of the particular
occupational activities concerned or of the context in which they
are carried out, such a characteristic constitutes a genuine and
determining occupational requirement, provided that the objective
is legitimate and the requirement is proportionate.
(2) Member States may maintain national legislation
in force at the date of adoption of this Directive or provide for
future legislation incorporating national practices existing at the
date of adoption of this Directive pursuant to which, in the case
of occupational activities within churches and other public or private
organisations the ethos of which is based on religion or belief,
a difference of treatment based on a person’s religion or belief
shall not constitute discrimination where, by reason of the nature
of these activities or of the context in which they are carried out,
a person’s religion or belief constitute a genuine, legitimate and
justified occupational requirement, having regard to the organisation’s
ethos. This difference of treatment shall be implemented taking account
of Member States’ constitutional provisions and principles, as well
as the general principles of Community law, and should not justify
discrimination on another ground.
Provided that its provisions are otherwise complied
with, this Directive shall thus not prejudice the right of churches
and other public or private organisations, the ethos of which is
based on religion or belief, acting in conformity with national constitutions
and laws, to require individuals working for them to act in good
faith and with loyalty to the organisation’s ethos.
…
Article 8: Minimum requirements
(1) Member States may introduce or maintain provisions
which are more favourable to the protection of the principle of equal
treatment than those laid down in the Directive.
(2) The implementation of this Directive shall under
no circumstances constitute grounds for a reduction in the level
of protection against discrimination already afforded by Member States
in the fields covered by this Directive.
…
Article 10: Burden of proof
(1)
Member
States shall take such measures as are necessary, in accordance
with their national judicial systems, to ensure
that,
when persons who consider themselves
wronged
because the principle of equal treatment has not been applied
to them establish, before
a court or other competent authority,
facts
from which it may be presumed that there has been direct or
indirect discrimination, it
shall be for the respondent to
prove
that there has been no breach of the principle of equal treatment
…."
- Article 18 of the Directive requires Member States to adopt the laws,
regulations and administrative provisions necessary to comply with
the Directive by 2 December 2003 at the latest. The Regulations,
which relate to employment equality as regards sexual orientation
and which came into force on 1 December 2003, form part of the measures
adopted by the United Kingdom to implement the Directive.
The Regulations
- Part I
of the Regulations contains definitions and other general provisions,
including
a definition
of "employment" (regulation 2(3)),
a definition of "discrimination" on grounds of sexual orientation
(regulation 3) and a definition of "harassment" on grounds
of sexual orientation (regulation
5).
- Part II is concerned with discrimination in employment and vocational
training. Regulation 6 contains a prohibition on discrimination,
in these terms:
"6.(1)
It is
unlawful for an employer, in relation to employment by him
at an establishment in Great Britain, to discriminate
against a person –
(a) in the arrangements he makes for the purpose of
determining to whom he should offer employment;
(b) in the terms on which he offers that person employment;
or
(c) by refusing to offer, or deliberately not offering,
him employment.
(2) It is unlawful for an employer, in relation to a
person whom he employs at an establishment in Great Britain, to discriminate
against that person –
(a) in the terms of the employment which he affords
him;
(b) in the opportunities which he affords him for promotion,
a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording
him, any such opportunity; or
(d)
by dismissing him, or subjecting
him to any other detriment…."
- Regulation
7, headed "exception for genuine occupational requirement
etc.", contains some of the main provisions under challenge:
"7.(1)
In relation
to discrimination falling within regulation 3 (discrimination
on grounds of sexual orientation)
–
(a) regulation 6(1)(a) or (c) does not apply to any
employment;
(b) regulation 6(2)(b) or (c) does not apply to promotion
or transfer to, or training for, any employment; and
(c) regulation 6(2)(d) does not apply to dismissal from
employment,
where paragraph (2) or (3) applies.
(2) This paragraph applies where, having regard to the
nature of the employment or the context in which it is carried out
–
(a) being of a particular sexual orientation is a genuine
and determining occupational requirement;
(b) it is proportionate to apply that requirement in
the particular case; and
(c) either –
(i) the person to whom that requirement is applied does
not meet it; or
(ii) the employer is not satisfied, and in all the circumstances
it is reasonable for him not to be satisfied, that that person meets
it,
and this paragraph applies whether or not the employment
is for purposes of an organised religion.
(3) This paragraph applies where –
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual
orientation –
(i) so as to comply with the doctrines of the religion,
or
(ii) because of the nature of the employment and the
context in which it is carried out, so as to avoid conflicting with
the strongly held religious convictions of a significant number of
the religion’s followers; and
(c) either –
(i) the person to whom the requirement is applied does
not meet it, or
(ii)
the employer
is not satisfied, and in all the circumstances it is reasonable
for him not
to be satisfied, that that person
meets it."
- Regulations 8, 10 and 14 prohibit discrimination against contract workers,
office holders and partners in a firm respectively. They each provide
that such discrimination is not unlawful if the work to be done is
such that if it were to be done by an employee, it would be lawful
by reason of regulation 7 (see regulations 8(3), 10(5) and 14(4)).
Those exceptions therefore depend on the validity of regulation 7.
- Regulation
16 prohibits discrimination by authorities or bodies which
can confer a
professional
or trade qualification, but contains an exception in relation
to qualifications "for purposes of an
organised religion where a requirement related to sexual orientation
is applied to the qualification so as to comply with the doctrines
of the religion or to avoid conflicting with the strongly held religious
convictions of a significant number of the religion’s followers" (regulation
16(3)). The exception is therefore
in similar terms to regulation
7(3), but without the equivalent of regulation 7(3)(c), and its validity
is dependent on the same arguments
as are addressed towards regulation
7(3).
- Regulation 18 prohibits discrimination by employment agencies but provides
that such discrimination is not unlawful if it only concerns employment
which, by virtue of regulation 7, the employer could lawfully refuse
to offer the person in question. The exception therefore depends
on the validity of regulation 7.
- Regulation 20 prohibits discrimination by institutions of further and
higher education:
"20.(1)
It is
unlawful, in relation to an educational establishment to which
this regulation applies, for the governing
body of that establishment to
discriminate against a person
–
(a) in the terms on which it offers to admit him to
the establishment as a student;
(b) by refusing or deliberately not accepting an application
for his admission to the establishment as a student; or
(c) where he is a student of the establishment –
(i) in the way it affords him access to any benefits,
(ii) by refusing or deliberately not affording him access
to them, or
(iii) by excluding him from the establishment or subjecting
him to any other detriment.
…
(3)
Paragraph
(1) does not apply if the discrimination only concerns training
which would help fit a person for employment
which, by virtue of regulation
7 (exception
for genuine occupational requirement etc.), the employer could
lawfully refuse to offer the
person in question …."
- The exception in regulation 20(3) is therefore again dependent on the
validity of regulation 7, but its terms are also the subject of separate
complaint.
- Part III of the Regulations is concerned with other unlawful acts.
- Part IV sets out general exceptions from Parts II and III. One such
exception is in regulation 25, which gives rise to the other main
area of challenge:
"25.
Nothing
in Part II or III shall render unlawful anything which prevents
or restricts access to a benefit by reference
to marital status."
- Part V contains provisions for enforcement. Proceedings may be brought
in employment tribunals or county courts in respect of complaints
or claims that a person has been subject to discrimination or harassment
which is unlawful under the Regulations.
Issues
- In the broadest of terms, the main issues are whether the impugned
regulations are compatible with the Directive and whether they are
compatible with the Convention.
- As regards compatibility with the Directive, I have broken matters
down into the following topics: (i) general principles concerning
implementation of directives, including the requirement of legal
certainty and the approach towards interpretation of implementing
measures; (ii) the specific issues raised in relation to regulation
7(2); (iii) the specific issues raised in relation to regulation
7(3); (iv) the specific issues raised in relation to regulation 20(3);
(v) the specific issues raised in relation to regulation 25; and
(vi) the separate argument as to reduction of pre-existing levels
of protection.
- As regards compatibility with the Convention, I have broken matters
down into (vii) the alleged breach of article 8 and (viii) the alleged
breach of article 14. I have referred briefly at the end to (ix)
an alternative argument as to breach of the common law principle
of legality, which is founded on the same substantive points as the
Convention arguments.
- Before dealing with those topics, however, it is convenient to look
at the general nature of the rights in issue in this case and, in
that context, to deal in particular with some of the points made
by and against the interveners. This is the backdrop against which
the various detailed arguments in the case need to be assessed.
The fundamental rights in issue
- It is self-evident that the case is concerned with fundamental rights
of great weight, which are recognised as such both in Community law
and under the Convention. Reference was also made in the course of
submissions to the EU Charter of Fundamental Rights; but in my view,
and as Mr Singh at least appeared to accept, it adds nothing material.
- Sexual orientation is a most intimate aspect of private life and personal
identity. It is protected under the Convention, in particular under
articles 8 and 14 the application of which is considered later in
this judgment. Such protection extends to the employment context.
The Convention case-law also shows that weighty reasons are required
to justify any interference with an individual’s Convention rights
not to be discriminated against on grounds of sexual orientation.
- Part of the background to the wording of regulation 7(3), and one of
the matters that will need to be considered in examining the challenge
to that provision, is a distinction drawn between sexual orientation and
sexual behaviour. As regards the protection conferred by the
Convention, however, I do not consider there to be any material difference
between them. Sexual orientation and its manifestation in sexual
behaviour are both inextricably connected with a person’s private
life and identity.
- Although Community law was relatively late in affording similar protection
in respect of sexual orientation, this has now been addressed by
amendments to article 13 of the EC Treaty and, as regards the employment
context, by the Directive adopted pursuant to it. The Directive’s
recitals refer to the Convention and to other human rights instruments
and, as has been seen, include sexual orientation as one of a number
of fundamental rights to which the principle of equal treatment is
applied.
- The right not to be discriminated against on grounds of sexual orientation
is not, however, an absolute right. Much of this case is concerned
with the striking of the balance between that right and other interests.
In the case of regulation 7(2) the interests in issue are those of
employers for whom being of a particular sexual orientation is a
genuine and determining occupational requirement. There may, for
example, be an occupational requirement for a homosexual (as for
certain posts in gay or lesbian organisations) or an occupational
requirement for a heterosexual (as for certain religious posts).
It is in relation to employment for purposes of an organised religion,
however, that issues of particular sensitivity and difficulty may
arise. That is why regulation 7(3) seeks to make specific additional
provision in relation to employment for such purposes.
- In the course of his submissions on behalf of the interveners, Mr Dingemans
drew attention to the problem faced in many jurisdictions by the
competing claims of those asserting rights in respect of sexual orientation
and those asserting religious rights. The tension is illustrated
by the interveners’ own position, which is that their ability to
hold their religious beliefs and to carry on their teaching and practices
would be undermined if they were forced to employ persons whose sexual
practices, and beliefs about those sexual practices, were completely
at odds with the interveners’ religious beliefs, teachings and practices.
- The interveners’ evidence expresses the strength of their religious
beliefs on the issue of homosexual behaviour and other forms of sexual
conduct. For example, Mr Roger Smith, who is Head of Public Policy
at CARE, states:
"Any
inappropriate
sexual activity on the part of an employee would be considered
grounds for dismissal. This would
include behaviour amounting to
adultery
for a married member of staff, and any other inappropriate
sexual conduct by unmarried members of
staff. This would include an
unmarried
employee’s sexual activity with a member of the opposite sex
or with a member of the same sex
….
The
requirement
relating to behaviour is a Genuine Occupational Requirement
because it is necessary
to maintain
the ethos relating to Religion and Belief of the organisation.
Every employee is, to
a certain extent, an ambassador
for CARE, both inside and out
of work …."
- Mr Martyn Eden, Director of Strategic Development for the Evangelical
Alliance, states:
"Evangelicals,
like
all orthodox, mainstream Christians, hold to the biblical teaching
that monogamous heterosexual marriage
is the form of partnership uniquely
intended
for full sexual relations between people. At the same time,
we affirm God’s love and concern
for all humanity, including those
with
an orientation towards people of their own sex, but believe
that
homoerotic sexual practice to be incompatible with his will
as revealed in scripture …."
- Ms Hilary
Reeves, Director and Chairman of the Trustees of the Christian
Schools
Trust
("CST"), describes the objectives, work and
values of CST schools, which
are established
in order to provide a Christian alternative for the education
of children. In CST’s view,
unrighteous sexual acts include
sexual
intercourse with a person other than one’s spouse, outside
marriage, with a close member of
one’s family, or with a person
of the
same gender. CST’s standards are applied to teachers at their
schools:
"…
[T]he
teacher’s own lifestyle must be a righteous one as defined
above. This must, by definition, exclude from being
a teacher in one of our schools
a person
whose lifestyle is known, or is reasonably believed, to include
unrighteous sexual acts as
listed above ….
To
employ
or continue to employ such a teacher would have such an adverse
effect on our ability to educate our pupils
in the way to which we are committed
as to
fatally undermine our ability to achieve our objectives and
so our vision."
- The NUT disputes the existence of a coherent theological basis for
the interveners’ views on sexual morality, in particular on homosexuality
and homosexual behaviour. The evidence before the court includes
witness statements, extracts from the Bible and other material directed
to this issue. In my view, however, it is not an appropriate issue
for this court to entertain. First, this is a judicial review challenge
in the context of which the interveners’ beliefs have an illustrative
rather than determinative function, helping in particular to cast
light on the background to regulation 7(3) and on the competing claims
between which a balance has to be struck. Secondly, and in any event,
I consider that the resolution of the theological dispute raised
by the NUT would take the court beyond its legitimate role.
- In R (Williamson) v. Secretary of State for Education and Employment [2003]
QB 1300, which raised the question
whether
the claimants’ belief in the use of mild corporal punishment
as part
of a Christian education was a "belief" for the purposes
of article 9 of the Convention, Arden LJ observed that the
court’s
function at the fact-finding
stage was to decide what the claimants’ beliefs were and whether
they were
genuinely held:
"Religious texts often form the basis from which
adherents develop specific beliefs. It is not the court’s function
to judge whether those beliefs are fairly based on the passages said
to support them" (1370B-C, para 252).
Although the other members of the court did not adopt
the same approach, it is one that seems to me to have a great deal
to commend it.
- A more extreme case, relating as it did to a doctrinal assessment of
the fitness of a rabbi, but again one that points to the appropriateness
of judicial restraint in this general area is R v. Chief Rabbi,
ex parte Wachmann [1992] 1 WLR 1036. In that case Simon Brown
J stated that "the court would never be prepared to rule on
questions of Jewish law" and that, in relation to the determination
of whether someone is morally and religiously fit to carry out the
spiritual and pastoral duties of his office, the court "must
inevitably be wary of entering so self-evidently sensitive an area,
straying across the well-recognised divide between church and state" (1042G-1043A).
- I should also note a case on which Mr Dingemans has placed substantial
weight, namely the decision of the US Supreme Court in Boy Scouts
of America v. Dale (2000) 8 BHRC 535, where it was said (at 541h-542b):
"The
[New
Jersey Supreme Court] concluded that the exclusion of members
like Dale ‘appears antithetical to the organization’s
goals and philosophy’ …. But
our cases
reject this sort of inquiry; it is not the role of the courts
to reject
a group’s expressed values because they disagree
with
those values or find them internally inconsistent …. The Boy
Scouts asserts that
it ‘teaches
that homosexual conduct is not morally straight’ and that it
does ‘not want to promote homosexual
conduct as a legitimate form
of behavior’ …. We accept the
Boy Scouts’ assertion …."
Such an approach is certainly in line with that which
I consider to be appropriate in the present case in relation to religious
beliefs, but the legal context of Dale was very different;
and Mr Singh has drawn attention to a marked divergence, until very
recently, between the jurisprudence of the US Supreme Court and the
case-law under the Convention on the issue of homosexual rights.
In the circumstances I think it advisable not to place any separate
weight on Dale.
- Accepting, however, for present purposes the interveners’ evidence
as to the nature and strength of their religious beliefs, I turn
to consider the way in which the interveners’ own rights and freedoms
are engaged by the subject-matter of the present claims. Mr Dingemans
has referred to several provisions of the Convention, but article
9 is plainly the most important. Article 9 reads:
"(1)
Everyone
has the right to freedom of thought, conscience and religion;
this right includes freedom to change his
religion or belief and freedom,
either
alone or in community with others and in public or private,
to manifest
his religion or belief, in worship, teaching, practice
and observance.
(2)
Freedom
to manifest one’s religion or beliefs shall be subject only
to such limitations as are prescribed by law and
are necessary in a democratic
society
in the interests of public safety, for the protection of public
order, health or morals, or
for the protection of the rights
and freedoms of others."
- Section 13 of the Human Rights Act 1998 provides that if a court’s
determination might affect the exercise by a religious organisation
of the Convention right to freedom of thought, conscience and religion,
it must have particular regard to the importance of that right. I
understand it to be common ground that, whilst there is a need to
have specific regard to the rights protected by article 9, section
13 of the 1998 Act does not give greater weight to those rights than
they would otherwise enjoy under the Convention. But they are in
any event important rights. In Kokkinakis v. Greece (1993)
17 EHRR 397 the Strasbourg Court stated (at 418):
"31.
As enshrined
in Article 9, freedom of thought, conscience and religion is
one of the foundations of a ‘democratic
society’ within the meaning of
the Convention.
It is, in its religious dimension, one of the most vital elements
that go to make up the
identity of believers and of
their conception of life …
While religious freedom is primarily a matter of individual
conscience, it also implies, inter alia, freedom to ‘manifest
[one’s] religion’. Bearing witness
in words and deeds is bound up
with the existence of religious convictions …."
- Through the rights granted to its members under article 9, a church
is protected in its right to manifest its religion, to organise and
carry out worship, teaching practice and observance, and is free
to act out and enforce uniformity in these matters: see the admissibility
decision of the European Commission of Human Rights in X v. Denmark (application
7374/76, decision dated 8 March 1976). In Hasan v. Bulgaria (2002)
34 EHRR 55 the Strasbourg Court stated (at page 1359 para 62):
"Where
the organisation
of the religious community is at issue, Article 9 must be interpreted
in the light of Article
11 of the Convention which safeguards
associative
life against unjustified State interference. Seen in this perspective,
the believer’s right
to freedom of religion encompasses
the expectation
that the community will be allowed to function peacefully free
from arbitrary State
intervention. Indeed, the autonomous
existence
of religious communities is indispensable for pluralism in
a democratic society and is thus
an issue at the very heart of
the protection
which Article 9 affords. It directly concerns not only the
organisation of the community as
such but also the effective enjoyment
of the
right to freedom of religion by all its active members …."
- Mr Dingemans submits that the impugned regulations plainly affect the
organisation of religious communities, which is protected by article
9. Employment is an aspect of a religion’s organisation; it engages
the right to bear witness and the right to associate with those who
have a uniformity of views. The closer one gets to the organisation
and its essential values, the more difficult it is to justify an
interference. These points lead to the submission that there is no
question of the claimants’ rights outranking those of the interveners.
The Directive covers both, and they are ranked equally for the purposes
of protection against discrimination. The Directive confronts the
tension between them, and the Secretary of State had proper regard
to both in striking the balance in the implementing Regulations.
The provisions of regulation 7 are justified by the terms of the
Directive and are carefully drafted to ensure as much certainty in
the law as is consistent with preserving the rights and freedoms
of the claimants’ members and of the interveners and others.
- Whether the impugned regulations strike an appropriate balance and
are in other respects lawful are matters that I consider later in
this judgment. What the submissions for the interveners serve to
emphasise, however, is the need to strike a balance. Religion is
an area where the principle of non-discrimination on grounds of sexual
orientation may conflict very obviously with other important rights
which are themselves recognised by the Convention and by the Directive.
At the same time it should be noted that the weight to be given to
religious rights may depend upon how close the subject-matter is
to the core of the religion’s values or organisation. X v. Denmark concerned
a clergyman. Hasan v. Bulgaria concerned executive interference
in the appointment of the Chief Mufti of the Bulgarian Muslims. The
statements of principle in those cases must be read in context. Mr
Singh makes the point that article 9 involves a spectrum. At one
end is the right to freedom of thought, conscience and religion,
which is an unqualified right. There is then the right to manifest
one’s religion or beliefs, which is a qualified right that may encompass
a range of activities from private acts of worship to acts that intrude
heavily into the rights of others. He submits that the greater the
degree of intrusion into the rights of others, the more likely it
is that those other rights will have to prevail. Such considerations
are plainly relevant to whether the impugned regulations strike an
appropriate balance or enable an appropriate balance to be struck.
- Before considering the specific grounds of challenge to the regulations,
however, I bring together under the heading of general principles
a variety of points that arose in the course of submissions and that
are more conveniently dealt with in this way.
Implementation of directives: general principles
- Article 249 (ex Article 189) of the EC Treaty provides:
"A
directive
shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed,
but shall leave to the national
authorities the choice of form
and methods."
- Although Member States are free to choose how a directive is implemented,
they must adopt in their national legal systems all the measures
necessary to ensure that the directive is fully effective, in accordance
with the objective which it pursues: Von Colson v. Land Nordrhein-Westfalen [1984]
ECR 1891 at pages 1906-1907, paras 15 and 18. It is inherent in article
249 EC, and is clear from Von Colson and later authorities,
that a Member State is not required to copy out the exact wording
of the directive. It has considerable flexibility in implementation,
provided that the requisite result is achieved.
- That point is underlined in the present case by the broad nature of
the Directive’s provisions. In evidence to the House of Lords Select
Committee on the European Union, Mme Odile Quentin, the Acting Deputy
Director General of the Directorate General for Employment and Social
Affairs at the European Commission, stated:
"We were also reminded by Governments and by NGOs
that some Member States already had developed legislation on non-discrimination
and that we should not force change for its own sake. We of course
took into account the experience of this legislation; and in particular,
we acknowledge the achievements of British legislation. We have therefore
opted, in the case of the Directives, for proposals which set objectives
without going into too much detail as to how those objectives should
be achieved. At the same time, we have suggested definitions of the
most important concepts such as direct and indirect discrimination,
drawing on the extensive case-law of the European Court of Justice,
to ensure that there is at least a comparable level of protection
across the EU as a whole. But most of the provisions leave considerable
latitude to the Member States …" (Ninth Report of the Select
Committee, 16 May 2000, page
1279).
- Member States’ broad discretion as to the manner of implementation
is circumscribed not just by the need to achieve the required result
but also by the principle of legal certainty. This has been emphasised
in particular in the context of failures by a Member State to adopt
any or any adequate implementing legislation, or a failure to amend
incompatible national legislation. It is, however, a principle of
general application. It was expressed in this way in Commission
v. France [1997] ECR I-1489 at page I-1501, para 15:
"Accordingly,
the provisions
of a directive must be implemented with unquestionable binding
force and with the specificity,
precision and clarity required
in order
to satisfy the requirement of legal certainty, under which,
in the case of a directive intended
to confer rights on individuals,
persons
concerned must be enabled to ascertain the full extent of their
rights …."
I shall come back to the principle of legal certainty
in a moment, in dealing with a submission by Mr O’Neill. In order
to put the matter in context, however, I deal first with the normal
position as regards implementing regulations under United Kingdom
law.
- Section 2(2) of the 1972 Act confers a power to make regulations in
order to meet the obligation of the United Kingdom to implement a
directive:
"Subject
to Schedule
2 to this Act, at any time after its passing … any designated
Minister … may by regulations,
make provision –
(a) for the purpose of implementing any Community obligation
of the United Kingdom …; or
(b)
for the
purpose of dealing with matters arising out of or related to
any such obligation …."
- In this case the Secretary of State was the designated Minister. By
virtue of Schedule 2 to the 1972 Act, the Regulations made by him
had to be laid in draft before Parliament and approved by a resolution
of each House.
- It is common ground that any regulations made under s.2(2) that were
incompatible with the directive sought to be implemented would not
be made for the purpose of implementing a Community obligation and
would be ultra vires.
- In Pickstone v. Freemans Plc [1989] AC 66 it was held by the
House of Lords that where regulations had been made in order to give
effect to a Community obligation, there was an obligation to apply
a purposive construction so as to give effect to the legislative
intention and implement the Community obligation (see in particular
per Lord Templeman at page 123B-D and Lord Oliver at pages 124G-128D). Pickstone was
applied in Litster v. Forth Dry Dock Co. Ltd. [1990] 1 AC
546 in relation to regulations made for the express purpose of implementing
a directive. The position was summarised in this way by Lord Oliver
(at page 559):
"The
approach
to the construction of primary and subordinate legislation
enacted to give effect to the United Kingdom’s
obligations under the EEC Treaty
has been
the subject matter of recent authority in this House (see Pickstone …)
and is not in doubt. If the legislation can reasonably
be construed
so as to conform with those obligations – obligations which
are to be ascertained not only
from the wording of the relevant
Directive
but from the interpretation placed upon it by the European
Court of Justice at Luxembourg – such
a purposive construction will
be applied
even though, perhaps, it may involve some departure from the
strict and literal application
of the words which the legislature
has elected to use."
- That approach accords with the classic statement of principle by the
ECJ in Marleasing SA v. La Comercial Internacional de Alimentacion
SA [1990] ECR I-4135 that "in applying national law, whether
the provisions in questions were adopted before or after the directive,
the national court called upon to interpret it is required to do
so, as far as possible, in the light of the wording and purpose of
the directive in order to achieve the result pursued by the latter
…" (para 8 of the judgment). (A similar approach is required
in relation to compatibility
with the Convention. In making
the Regulations the Secretary of State was obliged by s.6(1) of the
Human Rights
Act 1998 to act compatibly with
Convention rights, and by virtue
of s.3(1) of the 1998 Act, so far as it is possible to do so, the
Regulations must be read and
given effect in a way which is
compatible with Convention rights.)
- Mr O’Neill, for the NUT, challenged the applicability of the above
line of reasoning by reference to a series of ECJ cases dealing with
the adequacy of a Member State’s implementation of a directive. His
original submission was that it was simply not open to the Secretary
of State to rely, as a defence to a challenge to the implementation
of a directive, on the obligation of the courts to adopt a purposive
interpretation of national law. By the time of his reply he had modified
this stance slightly, accepting that it was permissible to take account
of an actual and consistent body of case-law of the national courts
on the interpretation of national law but contending that it was
not open to a Member State to defend inadequate implementation by
the argument that the national courts would adopt a purposive interpretation
of national law so as to ensure its compatibility with Community
obligations. In order to meet the requirement of legal certainty
there must be a sufficiently precise and clear implementation in
national law and individuals must be made fully aware of their rights.
- I have already referred to Commission v. France [1997] ECR I-1489,
in which the principle of legal certainty was articulated. The further
cases cited by Mr O’Neill in this connection were Commission v.
Netherlands [2001] ECR I-3541, Commission v. Italy [2002]
ECR I-819, Commission v. Luxembourg (Case C-97/01, judgment
of 12 June 2003, not yet reported) and Evans v. Secretary of State
for the Environment, Transport and the Regions (Case C-63/01,
judgment of 4 December 2003, not yet reported). In my judgment that
line of authority does not carry the weight that Mr O’Neill sought
to place on it. It is true that the cases stress the requirement
of legal certainty and in particular that a directive must be implemented
in a manner that is sufficiently precise and clear. They show that
if the legal position is not sufficiently precise and clear, as where
there has been no specific implementing measure or only an inadequate
implementing measure, a Member State cannot plug the gap by reliance
on the obligation of the national courts to interpret national law
compatibly with Community obligations. It does not follow, however,
that where detailed implementing measures have been adopted it is
impermissible to have regard to the interpretative obligation of
the national courts when determining whether the national measures
comply with the directive and are lawful.
- For example, in Commission v. Netherlands, after referring to
the obligation of the national court to interpret national law, so
far as possible, in the light of the wording and purpose of the directive
so as to achieve the result pursued by the directive, the Advocate
General went on (at para 35 of his Opinion):
"However,
I repeat,
that principle of interpretation does not solve the problem
at issue here. It is designed to be of
issue pending the transposition
of a
directive into national law – or even after transposition if
this is incorrect or incomplete
– but it certainly cannot serve
as an excuse for failure to transpose
or for inadequate transposition."
That is very far from suggesting that the principle
cannot apply in a context such as the present.
- It is also helpful to refer to the most recent of the cases, Evans,
which concerned the United Kingdom’s implementation of a directive
relating to insurance against civil liability in respect of the use
of motor vehicles. Implementation had been effected by means of a
number of agreements between the Secretary of State and an existing
body, the Motor Insurers’ Bureau. In considering the adequacy of
such implementation, the ECJ stated:
"35.
As to
whether it is sufficient, for the purposes of transposing the
Second Directive, to rely on an existing body,
it must be borne in mind that,
whilst
legislative action on the part of each Member State is not
necessarily required in order to implement
a directive, it is essential
for national
law to guarantee that the national authorities will effectively
apply the directive in full,
that the legal position under
national
law should be sufficiently precise and clear and that individuals
are made fully aware of all
their rights and, where appropriate,
may rely on them before the national
courts …
…
37. In those circumstances, it must be held that a body
may be regarded as authorised by a Member State within the meaning
of Article 1(4) of the Second Directive where its obligation to provide
compensation to victims of damage or injury caused by unidentified
or insufficiently insured vehicles derives from an agreement concluded
between that body and a public authority of the Member State, provided
that the agreement is interpreted and applied as obliging the body
to provide victims with the compensation guaranteed to them by the
Second Directive and provided that victims may apply directly
to that body" (emphasis added).
Far from supporting Mr O’Neill’s submissions, that judgment
plainly contemplates that the normal interpretative obligation can
be relied on as ensuring adequate implementation even in a case where
no implementing legislative measure has been adopted. The point should
apply with even greater force in relation to the interpretation of
detailed implementing measures such as the Regulations at issue in
the present case.
- I take the view that Mr O’Neill has produced nothing capable of displacing
the approach laid down by the House of Lords in Pickstone and Litster.
It would moreover be extraordinary if, in considering the challenge
to the lawfulness of implementation, this court were precluded from
interpreting the Regulations in accordance with the normal principles
applicable to a national measure adopted for the purpose of implementing
a directive. The Regulations, as Miss Carss-Frisk submitted, can
have only one true construction. Their meaning cannot vary according
to whether they are being considered in the context of a challenge
to their validity or in the context of a claim by an individual that
he or she has been subject to unlawful discrimination. Accordingly
I take the view that I should construe the Regulations purposively
so as to conform so far as possible with the Directive, and that
the present challenge should be resolved in the light of what I consider
to be the true construction of the relevant provisions.
- None of this removes the need for compliance with the requirement of
legal certainty. It does mean, however, that the normal principles
of interpretation can be considered and applied in determining whether
the provisions of the Regulations are sufficiently precise and clear
to comply with that requirement.
- A further submission made by Mr O’Neill is that in interpreting the
Regulations the court is not entitled to take into account ministerial
statements to Parliament. He submits that the rule in Pepper v.
Hart [1993] AC 593 operates only as an estoppel, "to prevent
the executive seeking to place a meaning on words used in legislation
which is different from that which ministers attributed to those
words when promoting the legislation in Parliament" (per Lord
Hope in R v. Secretary of State for the Environment, Transport
and the Regions, ex p. Spath Holme Ltd [2001] 2 AC 349 at pages
407-408) and is in any event not concerned with statements about
matters of policy as opposed to the meaning of words (ibid.). Thus,
as he puts it, the executive cannot rely on Parliamentary materials
to shore up its position in defending the present challenge.
- I reject that submission. It is not necessary to examine in this case
the precise scope of the rule in Pepper v. Hart and in particular
to look at what precisely was laid down by the House of Lords in
the Spath Holme case. It is well established that a wider
principle operates when considering legislation implementing a Community
obligation. In Pickstone Lord Keith stated (at page 112B-C):
"The
draft
Regulations of 1983 were presented to Parliament as giving
full effect to the decision [of the ECJ] in
question. The draft Regulations
were
not subject to the Parliamentary process of consideration and
amendment in Committee, as a Bill would
have been. In these circumstances
and in
the context of section 2 of the European Communities Act 1972
I consider it to be entirely
legitimate for the purpose of
ascertaining
the intention of Parliament to take into account the terms
in which the draft was presented by
the responsible Minister and
which formed the basis of its
acceptance"
- In the same case Lord Templeman set out at some length what had been
said by the relevant Minister to Parliament (pages 121H-122G). There
is nothing in Pepper v. Hart to suggest that such an approach
was being disapproved. On the contrary, Lord Browne-Wilkinson referred
to it without question as an existing major inroad into the rule
that references to Parliamentary material as an aid to statutory
construction is not permissible – i.e. the exclusionary rule into
which the decision in Pepper v. Hart itself represented a
further inroad (see [1993] AC at page 631).
- Further, the admissibility of background material, including Parliamentary
statements, in the present context is supported by recent developments
in relation to the application of the Convention. In Wilson v.
First County Trust Ltd. (No.2) [2003] UKHL 40, [2003] 3 WLR 568,
the House of Lords held that such material is admissible for the
purpose of evaluating compatibility of legislation with Convention
rights, including the value judgment inherent in the test of proportionality.
As Lord Nicholls expressed it (at pages 587-588):
"63.
When
a court makes this value judgment the facts will often speak
for themselves. But sometimes the court may
need additional background information
tending
to show, for instance, the likely practical impact of the statutory
measure and why the
course adopted by the legislature
is or
is not appropriate. Moreover, as when interpreting a statute,
so when identifying the policy objective
of a statutory provision or assessing
the ‘proportionality’
of a statutory provision, the court may need enlightenment
on the nature
and extent of the social problem
(the
‘mischief’) at which the legislation is aimed. This may throw
light on the rationale underlying the legislation.
64. This additional background material may be found
in published documents, such as a government white paper. If relevant
information is provided by a minister or, indeed, any other member
of either House in the course of a debate on a Bill, the courts must
also be able to take this into account. The courts, similarly, must
be able to have regard to information contained in explanatory notes
prepared by the relevant government department and published with
a Bill. The courts would be failing in the due discharge of the new
role assigned to them by Parliament if they were to exclude from
consideration relevant background information whose only source was
a ministerial statement in Parliament or an explanatory note prepared
by his department while the Bill was proceeding through Parliament.
By having regard to such material the court would not be ‘questioning’
proceedings in Parliament or intruding improperly into the legislative
process or ascribing to Parliament the views expressed by a minister.
The court would merely be placing itself in a better position to
understand the legislation.
…
66.
I expect
that occasions when resort to Hansard is necessary as part
of the statutory ‘compatibility’ exercise will
seldom arise. The present case
is not
such an occasion. Should such an occasion arise the courts
must be careful not to treat the ministerial
or other statement as indicative
of the
objective intention of Parliament. Nor should the courts give
a ministerial statement, whether made
inside or outside Parliament,
determinative
weight. It should not be supposed that members necessarily
agreed with the minister’s reasoning
or his conclusion."
- What was said in Wilson, a case about primary legislation, should
apply at least as strongly to secondary legislation. Similar considerations
should also apply when determining whether legislation enacted for
the purpose of implementing a Community obligation is compatible
with that obligation. In my judgment, therefore, it is clear not
only that the principles stated in Pickstone remain good law
but that a wide range of relevant background material can properly
be looked at in accordance with the approach approved in Wilson,
albeit subject to care in the use of such material as also emphasised
in Wilson.
- Having considered those general points concerning implementing regulations,
I turn to consider the specific grounds of challenge to the individual
regulations.
Regulation 7(2): compatibility with the Directive
- Regulation 7(2), read with regulation 7(1), contains an exception in
respect of discrimination where sexual orientation is a genuine and
determining occupational requirement. It is intended to implement
article 4(1) of the Directive. It may be helpful to repeat its terms:
"This
paragraph
applies where, having regard to the nature of the employment
or the context in which it is carried
out –
(a) being of a particular sexual orientation is a genuine
and determining occupational requirement;
(b) it is proportionate to apply that requirement in
the particular case; and
(c) either –
(i) the person to whom that requirement is applied does
not meet it; or
(ii) the employer is not satisfied, and in all the circumstances
it is reasonable for him not to be satisfied, that that person meets
it,
and
this
paragraph applies whether or not the employment is for purposes
of an organised religion."
- It is common ground that a derogation in respect of occupational requirements
is permitted by article 4(1) of the Directive, and there are important
respects in which regulation 7(2) is accepted to be an appropriate
form of derogation: in particular, by providing that proportionality
is to be assessed on a case by case basis (in contrast to the approach
adopted in regulation 7(3)). The Amicus claimants contend, however,
that it is defective and incompatible with the Directive in two respects:
(i) it does not include a provision that the discriminatory requirement
must meet a legitimate objective; and (ii) the exception applies
not only where a person does not in fact meet the requirement as
to sexual orientation but also, by virtue of regulation 7(2)(c)(ii),
where the employer is reasonably not satisfied that the person meets
it. The NUT supports the second ground of challenge.
- The first
ground, concerning legitimate objective, is based on the absence
from
regulation
7(2) of language corresponding to the express proviso in article
4(1) that "the objective is legitimate".
Mr Singh does not press the contention
hard, accepting that the concept
of legitimate objective may be implicit and that the absence
of an
express reference to it may be
remedied by a purposive construction.
But he seeks a ruling to that effect for the avoidance of doubt.
- For my
part, I accept the submissions for the Secretary of State that
the concept
is indeed
implicit and that express reference to a legitimate objective
is unnecessary. The
exception
applies only where being of a particular sexual orientation
is "a genuine and determining
occupational requirement" and it is "proportionate" to
apply that requirement in the
particular case. If the exception
can apply only where the requirement is genuine and determining,
it is difficult to see how the objective could be anything other
than legitimate. Moreover, it is inherent in the test of proportionality
that the exception must serve a legitimate aim. Nor has anyone suggested
any factual scenario in which it could sensibly be argued that, in
the absence of an express reference to a legitimate objective, regulation
7(2) could be relied on in pursuit of a non-legitimate objective.
- It is true
that article 4(1) itself contains the same language of "a
genuine and determining occupational requirement" which must
be "proportionate", yet makes additional reference to the
need for a legitimate objective.
It does not follow, however,
that the reference to a legitimate objective adds anything of substance.
If it does add something, then
I see no difficulty in the national
court implying a corresponding
substantive requirement in pursuance
of its duty to interpret the
Regulations purposively so as
to ensure compliance with the Community obligation.
- The second ground of challenge raises a more serious point. The rationale
for regulation 7(2)(c)(ii) is set out in the witness statement of
Rosalind McCarthy-Ward, Director of the Selected Employment Rights
Branch in the Department of Trade and Industry:
"Regulation
7(2)(c)(ii)
was included in order to cater for cases in which there may
be some uncertainty as to the
sexual orientation of the complainant,
or in
which the complainant may prefer not to disclose his or her
sexual orientation. The provision
is intended to enable an employer
to rely
on the GOR [genuine occupational requirement] where the applicant
refuses to disclose his or her sexual
orientation, without having to
impinge
on the applicant's privacy unnecessarily. In the absence of
this provision, it would be very
difficult for the respondent
to show
that the complainant did not meet a GOR, because the complainant's
sexual orientation may be something
which is in his or her exclusive
knowledge.
The respondent might even feel compelled, in those circumstances,
to collect as much evidence
as possible about the private
life
of the complainant with or without his or her consent. Regulation
7(2)(c)(ii) is intended to prevent
this situation arising. An employer
is not
required to prove the actual sexual orientation of a job applicant
or employee.
The
Government
recognised that the inclusion of Regulation 7 was likely nevertheless
to result in employers asking questions
about sexual orientation which
some
complainants would consider personal and intrusive. However,
once
it is
accepted (as the Directive envisages) that there are some cases
(however rare) in which sexual orientation
truly is a GOR for a particular
post,
some such inquiry is inevitable and, in the Government's view,
justified. The Government has thus
sought in Regulation 7(2) to
strike
a balance between the protection of privacy and the availability
of a GOR defence."
- The claimants contend, however, that the provision is objectionable
for a number of reasons. There is, submits Mr Singh, no provision
in the Directive that allows for reliance on an occupational requirement
based on perceived, as opposed to actual, sexual orientation.
By allowing an employer to rely
on an occupational requirement
where he "is not satisfied" that
a person meets the requirement,
regulation 7(2)(c)(ii) extends the exception in a way that is incompatible
with the Directive and is therefore ultra vires.
- In supporting
Mr Singh’s submissions on this issue, Mr O’Neill expresses
the
point
in this way. Whilst "being of a particular sexual
orientation" may be a "characteristic related to sexual
orientation" for the purposes of article 4(1) of the Directive, "appearing,
to the employer’s reasonable satisfaction, to be of a particular
sexual orientation" cannot be said to be a "characteristic
related to sexual orientation" for such purposes. It transforms
a potentially legitimate occupational requirement of being of a particular
sexual orientation into the wholly illegitimate one of seeming to
be of a particular sexual orientation. This leads to employers acting
on the basis of assumptions and social stereotyping (e.g. by reliance
on a man’s "camp" appearance as a reason for believing
him to be a homosexual), one
of the very things that the principle
of non-discrimination is intended to challenge. Mr O’Neill also submits
that the provision places a reverse
burden of proof on the individual
to prove to the employer’s satisfaction
that he is of the required
sexual orientation, contrary
to article 10(1) of the Directive
which places the burden of proof on the employer.
- The claimants
further contend that, since regulation 7(2)(c)(ii) requires
an employer
to take
reasonable steps to satisfy himself as to a person’s sexual
orientation, this must
at least
involve questioning a person about the matter and possibly
making
other intrusive inquiries. Such inquiries would almost certainly
amount to "harassment" within
article 2(3) of the Directive ("unwanted conduct … with the
purpose or effect of violating the dignity of a person or creating
an intimidating, hostile, degrading, humiliating or offensive environment").
Under the Directive the prohibition
of harassment is not subject
to any exception based on a genuine and determining occupational
requirement. Inquiries of this
kind would also be likely to
violate article 8 of the Convention: see Smith and Grady v. United Kingdom (2000)
29 EHHR 493. In the claimants’ submission, an employer must accept
what a person says about his or her sexual orientation. Further questioning
about such an intimate aspect of a person’s private life and personal
identity is impermissible.
- In response to the claimants’ case, Miss Carss-Frisk submits first
that there is no substance to the argument that the provision encourages
stereotyping. An employer can rely on perceived orientation only
to the extent that in all the circumstances it is reasonable for
him not to be satisfied that a person meets an occupational requirement.
Reliance on mere stereotyping would have no chance of meeting the
reasonableness test.
- Secondly, she submits that although article 4(1) of the Directive does
not refer in terms to perceived orientation, it is not limited
in scope to those who are actually of a particular orientation.
The permitted exception applies
to "a difference of treatment
which is based on a characteristic related to any of the grounds
referred to in Article 1" (emphasis added). Where a particular
sexual orientation is a genuine and determining occupational requirement
for a post, an employer who refuses to employ a person in that post
because he is reasonably not satisfied that the person meets the
requirement is applying a difference of treatment "based on" on
a characteristic related to sexual orientation. It is common sense
and also accords with recital (31) of the Directive (which refers
to the burden of proof and states inter alia that "it is not
for the respondent to prove that the plaintiff … has a particular
sexual orientation") that an employer should not be required
to prove that a person is of
a particular sexual orientation.
Further, the prohibition on discrimination in article 2 of the Directive
is
clearly intended to apply not
just to discrimination on grounds
of actual sexual orientation but also to discrimination on grounds
of
perceived sexual orientation;
and the power to derogate in
article 4(1) should be similarly construed.
- Miss Carss-Frisk further submits that, in a case where sexual orientation
is a genuine and determining occupational requirement, it would place
an employer in a difficult if not impossible situation if he could
rely on the requirement only where he could prove that the person
did not meet the requirement. An employer should not be required
to accept a person’s say-so, or be precluded from making further
inquiry if the person refuses to give an answer about sexual orientation
at all. He must be entitled to ask further questions directed at
determining whether the occupational requirement is or is not met.
The advantage of regulation 7(2)(c)(ii) is that it avoids the risk
of seriously intrusive questioning or inquiry in an attempt to ascertain
a person’s actual sexual orientation to the extent required to discharge
a burden of proof in the event of legal challenge. If reasonable
steps have been taken to ascertain that person’s sexual orientation,
an employer is entitled to act on the basis of his reasonable belief.
- The same line of reasoning is relied upon to meet the claimants’ argument
that the provision could lead to a breach of the prohibition on harassment
and to a breach of article 8 of the Convention. Regulation 7(2)(c)(ii)
has the effect of limiting the questioning that might otherwise be
necessary. Reasonable inquiries of this kind would not amount to
harassment or to an unjustified interference in article 8 rights.
- In general I accept the submissions for the Secretary of State on this
issue. In my judgment regulation 7(2)(c)(ii) has a sensible rationale.
In those cases where being of a particular sexual orientation is
a genuine and determining occupational requirement, it cannot be
right that an employer, having asked the plainly permissible initial
question whether a person meets that requirement, is bound in all
circumstances to accept at face value the answer given or is precluded
from forming his own assessment if no answer is given. At the same
time the provision limits the risk of unduly intrusive inquiry. If
the employer is not satisfied that the person meets the requirement,
and if it is reasonable in all the circumstances for him to do so,
the employer can decline to employ the person without having to make
the same degree of inquiry as might be called for if it were necessary
to gather sufficient evidence by way of proof of sexual orientation
to meet a potential complaint of unlawful discrimination.
- The requirement of reasonableness ensures that decisions cannot lawfully
be based on mere assumptions or social stereotyping to which Mr O’Neill
took particular objection in his submissions.
- Nor do I accept the claimants’ argument that any form of inquiry beyond
the initial question whether a person meets the requirement would
amount to unlawful harassment or to breach of article 8 of the Convention.
It is certainly true that particularly intrusive inquiries could
give rise to such breaches, but that possibility exists independently
of regulation 7(2)(c)(ii). In my view the provision serves to reduce
rather than to increase the risk.
- That still
leaves the question whether the provision comes within the
terms of
the derogation
in article 4(1) of the Directive. In my view the derogation,
which refers
to a
difference of treatment "based
on a characteristic related to" sexual orientation, is wide
enough to cover it, even allowing
for the need to construe derogations
strictly (see e.g. Johnston v. Chief Constable of the Royal Ulster
Constabulary [1986] ECR 1651 at para 36 of the judgment). Equally
I see nothing in the policy of the Directive that calls for so restrictive
a construction as to preclude a provision of this kind.
- I should make clear that, whilst I accept that the general prohibition
on discrimination in article 2 is intended to apply to discrimination
on grounds of perceived as well as actual sexual orientation, I do
not think that the same reasoning can automatically be applied to
the power to derogate in article 4(1). Article 2 confers protection
in respect of a fundamental right and should be given a broad construction.
On the other hand, a derogation from such protection should in principle
be given a narrow construction. Nevertheless, as I have indicated,
the derogation in article 4(1) is in my view apt to cover regulation
7(2)(c)(ii).
- I should also indicate that, although both sides have referred to the
Directive’s provisions concerning burden of proof, I do not find
those provisions of assistance either way. Recital (31) must be read
with article 10(1), which is directed in particular at the nature
of the burden on a respondent when a prima facie case of discrimination
is made out. The provisions relate to a different question from that
which arises here.
- I should mention finally that in the course of argument comparisons
were drawn with provisions of other anti-discrimination legislation.
Mr Singh pointed out that the s.5 of the Race Relations Act 1976,
which contains exceptions for employment requiring genuine occupational
qualifications, lays down an objective test relating to actual rather
than perceived membership of a racial group. On the other
hand, an amendment made to that Act in July 2003 by way of implementation
of a directive requiring the prohibition of racial discrimination
has added a new s.4A, which contains exceptions for genuine occupational
requirements in terms that correspond closely to those of regulation
7(2) of the Regulations here in issue. The Sex Discrimination Act
1975 contains an objective test in s.7 and has not as yet been amended
so as to include any provision comparable to regulation 7(2) or to
s.4A of the Race Relations Act 1976. Those references to other legislative
provisions show that regulation 7(2) does not stand alone and that
the issues raised in this case have implications in related areas,
but I do not think that they assist the resolution of the substantive
dispute in the present case.
- For the reasons previously given, however, I reject the claimants’
challenge to the compatibility of regulation 7(2) with the Directive.
Regulation 7(3): compatibility with the Directive
- As has been seen, regulation 7(2) applies to employment of any kind.
Regulation 7(3), read with regulation 7(1), contains a further, specific
exception from the prohibition on discrimination where the employment
is for purposes of an organised religion and the other conditions
laid down are met. Again it may be helpful to repeat its terms:
"This
paragraph applies where –
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual
orientation –
(i) so as to comply with the doctrines of the religion,
or
(ii) because of the nature of the employment and the
context in which it is carried out, so as to avoid conflicting with
the strongly held religious convictions of a significant number of
the religion’s followers; and
(c) either –
(i) the person to whom the requirement is applied does
not meet it, or
(ii)
the employer
is not satisfied, and in all the circumstances it is reasonable
for him not
to be satisfied, that that person
meets it."
- The Secretary of State has made clear that the provision is intended
to form part of the implementation of article 4(1) of the Directive
(the general derogation for occupational requirements) rather than
of article 4(2) (the derogation in respect of differences of treatment
based on a person’s religion or belief where religion or belief constitutes
an occupational requirement).
- Regulation 7(3) was not included in the detailed draft regulations
originally published for the purposes of consultation. It was added
as a result of representations from the Churches, including in particular,
it would seem, the Archbishops’ Council of the Church of England.
The rationale is explained as follows in the witness statement of
Ms McCarthy-Ward:
"…
Regulation
7(2) simply sets out criteria of general application and leaves
it to the courts and tribunals to
determine in individual cases
if those
criteria are met. This was not done in relation to employment
for purposes of an organised religion
in regulation 7(3), because the
Government
was concerned it would lead to litigation in tribunals about
the extent to which requirements
dictated by doctrine or the religious
convictions
of followers could legitimately limit working for an organised
religion, and to what
extent those requirements, and
by extension,
the doctrine or convictions giving rise to them, could be said
to be reasonable or proportionate.
The Government was engaged in
striking
a delicate balance between the employment rights of gay and
lesbian people, and the right of
religious groups to freedom of
religion.
The Government took the view that it is not appropriate for
courts or tribunals to make such
judgments, and that the balance
should be identified in the Regulations
themselves."
- The Government's position was explained in more detail by the Minister
of State, Lord Sainsbury of Turville, in replying to the debate on
the Regulations in the House of Lords on 17 June 2003:
"It
became
clear that with the regulations as [originally] drafted the
Churches would have some difficulty upholding the doctrine
and teaching of their faith in
relation
to particular posts …. [W]e do not believe that these regulations
should
interfere with religious teachings or doctrine, nor
do we
believe it appropriate that doctrine should be the subject
of litigation
in the civil courts ….
This is not a question of extreme positions. Article
4(1) of the European directive is quite clear that religious considerations
can be taken into account. What we are debating this evening is exactly
where that line is drawn.
Under these circumstances I believe that Government
need to take a lead - and we did that in preparing Regulation 7(3).
It resolves the problem of interfering with doctrine and teachings
while remaining consistent with the directive. We believe that Regulation
7(3) is lawful because it pursues a legitimate aim of preventing
interference with a religion's doctrine and teaching and it does
so proportionately because of its narrow application to a small number
of jobs and the strict criteria which it lays down ….
When drafting Regulation 7(3) we had in mind a very
narrow range of employment: ministers of religion, plus a small number
of posts outside the clergy, including those who exist to promote
and represent religion. The words on the page reflect our intentions
….
First, this is no 'blanket exception'. It is quite clear
that Regulation 7(3) does not apply to all jobs in a particular type
of organisation. On the contrary, employers must be prepared to justify
any requirement relating to sexual orientation on a case by case
basis. The rule only applies to employment which is for the purposes
of 'organised religion', not religious organisations. There is a
clear distinction in meaning between the two. A religious organisation
could be any organisation with an ethos based on religion or belief.
However, employment for the purposes of an organised religion clearly
means a job, such as a minister of religion, involving work for a
church, synagogue or mosque.
A care home run by a religious foundation may qualify
as a religious organisation, for example … but I believe that it
would be very difficult under these regulations to show that a job
of a nurse in a care home exists 'for the purposes of an organised
religion'. I would say exactly the same in relation to a teacher
at a faith school. Such jobs exist for the purposes of health care
and education ….
Regulation 7(3) does not stop there. Even if an employer
can show that the job exists for the purposes of organised religion,
and that is a significant hurdle, he may only apply a requirement
related to sexual orientation if one of two further tests are met.
In the first test the requirement must be applied to comply with
the doctrines of the religion. We do not believe that that test would
be met in relation to many posts. It would be very difficult for
a church to argue that a requirement related to sexual orientation
applied to a post of cleaner, gardener or secretary. Religious doctrine
rarely has much to say about posts such as those.
If
the first
test is not met, what about the second? … Both elements have
to be satisfied before the second test can be
met. It is, therefore, a very
strict
test and one that will be met in very few cases. The position
of a cleaner and librarian, which
has been raised many times, has
to be
judged against those strict criteria. They are strict criteria
and one cannot say in a specific
case what the situation will
be. In
such cases one has to apply the criteria and see whether or
not they are fulfilled …."
- Reference should also be made to evidence indicating that one reason
for the different terms of regulation 7(3) is to encompass occupational
requirements related not to sexuality as such but to sexual behaviour.
A letter dated 9 June 2003 from the Secretary General of the General
Synod and the Archbishops’ Council to the Clerk to the Parliamentary
Joint Committee on Statutory Instruments states (para 13):
"The
difficulty
is that regulation 7(2) applies only where being of a particular
sexual orientation is a genuine
and determining occupational
requirement.
As explained above, we have no posts or offices where there
is a requirement to be heterosexual
(or indeed homosexual). Our requirements
are in
relation to behaviour, not sexuality itself. That is why the
new regulations 7(3) and 16(3)
refer to a ‘requirement related
to sexual orientation’."
- I have already dealt with the general issue of admissibility of such
background material. The Secretary General’s letter may be thought
to be stretching the limits, but it helps to explain the difference
in wording and the related issue in the case.
- In his submissions for the Amicus claimants, Mr Singh contends that
regulation 7(3) is unduly broad. It is additional to regulation 7(2),
which applies to employment whether or not for the purposes of an
organised religion, and it would be unnecessary unless it were capable
of applying to a wider range of circumstances than regulation 7(2).
A requirement related to sexual orientation can be applied, under
regulation 7(3)(b), either (i) so as to comply with the doctrines
of an organised religion or (ii) so as to avoid conflicting with
the strongly held religious convictions of a significant number of
the religion's followers. It thereby permits discrimination on grounds
of sexual orientation in circumstances where the requirement does
not pursue a legitimate objective or is not proportionate. The very
absence of a specific requirement of proportionality, to be applied
by the courts by reference to the facts of individual cases, is a
particular ground of complaint. In addition, issue is taken with
the authorising of discrimination on grounds of perceived sexual
orientation, by regulation 7(3)(c)(ii), i.e. the same point as that
already considered in relation to regulation 7(2)(c)(ii). All these
matters, it is submitted, mean that the exception fails to meet the
strict requirements of the derogation in article 4(1) of the Directive.
- To illustrate those concerns, Mr Singh submits that regulation 7(3)
appears to authorise discrimination in the following cases, among
many others: (a) a church is unwilling to engage a homosexual man
as a cleaner in a building in which he is liable to handle religious
artefacts, to avoid offending the strongly-held religious convictions
of a significant number of adherents; (b) a school for girls managed
by a Catholic Order dismisses a science teacher on learning that
she has been in a lesbian relationship, reasoning that such a relationship
is contrary to the doctrines of the Order; (c) a shop selling scriptural
books and tracts on behalf of an organisation formed for the purpose
of upholding and promoting a fundamentalist interpretation of the
Bible is unwilling to employ a lesbian as a sales assistant since
her sexual orientation conflicts with the strongly held religious
convictions of a significant number of Christians and/or of that
particular organisation; (d) an Islamic institute open to the general
public but frequented in particular by Muslims is unwilling to employ
as a librarian a man appearing to the employer to be homosexual,
reasoning that his sexual orientation will conflict with the strongly
held religious convictions of a significant number of Muslims. In
each of those cases, it is submitted, it is doubtful whether the
characteristic of sexual orientation could be said to be a genuine
and determining occupational requirement and in accordance with the
principle of proportionality; and if those conditions were satisfied,
the case would fall within regulation 7(2) and it would not be necessary
to rely on regulation 7(3).
- The interveners'
written
grounds of resistance and witness statements are relied upon
as providing concrete evidence that the fullest reach
will be pursued if regulation
7(3)
remains in place. For example, their grounds of resistance
state that the interveners’ standards
of morality apply to "trans-denominational movements, societies
and groups, as well as to churches and congregations", and that "the
same standards would apply to any avowedly evangelical organisation
whether the member of staff is a secretary or a technician".
- It is further submitted that even if it were possible to reconcile
the terms of regulation 7(3) with those of the Directive by a narrow,
purposive construction, the gulf between the two is so great that
the regulation cannot be said to be a proper implementation of the
Directive. It does not implement article 4(1) with the specificity,
precision and clarity required to enable persons concerned to ascertain
the full extent of their rights. It therefore fails to comply with
the principle of legal certainty.
- Mr Singh also refers to doubts as to vires that have been expressed
by the Parliamentary Joint Committee on Statutory Instruments, in
its Twenty-First Report (13 June 2003, paras 1.11-1.20), and to observations
of distinguished commentators such as Lord Lester of Herne Hill QC.
In response to my concerns about the admissibility of some of this
material, Mr Singh used the device of adopting it by way of submission,
though acknowledging that he could not then derive any additional
weight for the submission from the authority of the original author.
- In supporting Mr Singh’s submissions, Mr O’Neill makes clear that a
particular concern of the NUT is the position of teachers in faith
schools. In summary Mr O’Neill submits that regulation 7(3) has no
counterpart in the Directive and is therefore unlawful. As a derogation
from the protection of a fundamental right – and a permitted rather
than mandatory derogation – article 4(1) of the Directive has to
be read narrowly, and there is a very limited margin of appreciation
afforded to the Member State in implementing it. The Secretary of
State has exceeded such margin of appreciation as exists.
- Mr O’Neill submits that regulation 7(3) does not pursue a legitimate
aim. It is not entirely clear to what extent he accepts that the
protection of religious rights can constitute a legitimate aim. But
in relation to article 9 of the Convention, which comes in here through
the medium of Community law, he submits that it is directed primarily
to the personal sphere of personal belief and worship and does not
guarantee the right to behave in the public sphere of society as
a whole in a way which is dictated by particular religious beliefs.
He cites the admissibility decision of the European Commission of
Human Rights in Hibbs and Birmingham v. United Kingdom (application
11991/96, decision dated 18 July 1996), a case concerning an objection
by Quakers to the obligation to contribute through general taxation
to funds which may then be used by the State for arms procurement.
Similarly, he submits, the act of employing others in the context
at least of public schooling involves an engagement in the public
sphere, is not intimately linked to religious practice or observance,
and cannot involve a legitimate aim of protecting the freedom to
manifest and practise one’s religion.
- Mr O’Neill submits further that the proportionality test is fact-sensitive
and requires assessment by the court. Particular occupational requirements
can only be considered to be justified if the court is able
to consider how they apply in practice in an individual case before
it. It is not open to the State to specify in advance by general
legislation that certain occupational requirements are to be regarded
in all cases as proportionate and therefore legitimate. Reliance
is placed on Case 222/84, Johnston v. Chief Constable of the Royal
Ulster Constabulary [1986] ECR 1651. That case concerned provisions
implementing the Equal Treatment Directive under which an unreviewable
certificate by the Secretary of State amounted to conclusive evidence
that the conditions for derogating from the principle of equal treatment
were fulfilled. The ECJ found in paragraphs 17-20 that the certificate
was contrary to the principle of effective judicial control laid
down by article 6 of the Equal Treatment Directive, and observed
in paragraph 39 that it was for the national court to ensure that
the principle of proportionality was observed. To similar effect
is the decision of the Strasbourg court in Tinnelly and Sons Ltd
v. United Kingdom (1999) 27 EHRR 249. It is submitted that the
same approach is required in the present case. Article 9 of the Directive
contains a similar provision to article 6 of the Equal Treatment
Directive, namely an obligation to ensure that judicial or administrative
procedures for enforcement of obligations under the Directive are
available to all persons who consider themselves wronged by failure
to apply the principle of equal treatment to them. Regulation 7(3)
takes away from the national court the question whether an occupational
requirement is proportionate in the particular circumstances of the
case. Johnston shows that it is unlawful to adopt such an
approach. In so far as the Secretary
of State relies on the difficulties
for a tribunal or court having to determine whether religious doctrines
are reasonable and proportionate,
that is based on a misunderstanding.
It would not be necessary for
the court to go that far in order
to determine whether there was a
legitimate aim and whether the
application of an occupational requirement was proportionate. In
any event the
court will inevitably have to
go into areas of potential religious
controversy in determining e.g. whether employment is "for purposes
of an organised religion", whether convictions are "religious
convictions" and how strongly they are held.
- Either as a further aspect of the same submission or as a separate
point, Mr O’Neill submits that regulation 7(3) fails to allow proper
weight to be given to the individual’s rights to private life and
not to be discriminated against, as against the employer’s apparently
competing rights with regard to the manifestation (and imposition
on employees) of religious beliefs and dogmas.
- The case for the Secretary of State is in summary that the concerns
expressed about the width of regulation 7(3) are misplaced. The exception
has a very narrow scope. The criteria are tightly drawn and are to
be construed strictly (since this is a derogation from the principle
of equal treatment). The exception represents a proportionate striking
of the balance between the competing interests involved. Without
prejudice to the decisions that might be reached by employment tribunals
in individual cases, Miss Carss-Frisk suggests that it is unlikely
that any of the examples put forward by Mr Singh would meet the conditions
in regulation 7(3).
- Miss Carss-Frisk’s detailed submissions reflect the tenor of Lord Sainsbury’s
statement in Parliament, set out above, emphasising the number of
hurdles to be overcome by an employer seeking to rely on the exception.
- First,
it is stressed that regulation 7(3)(a) provides that the employment
must be "for purposes of an organised religion", not "for
purposes of a religious organisation". This is contrasted with the
broader wording of regulation 7(3) of the Employment Equality (Religion
or Belief) Regulations 2003, which are separate regulations implementing
the Directive in relation to discrimination on grounds of religion
and belief. They provide an exclusion for a genuine and determining
occupational requirement "where an employer has an ethos based on
religion or belief". It is submitted that the latter wording would
be apt to apply, for example,
to a faith school and other religious
organisations of that nature, whereas the wording of regulation 7(3)(a)
of the Regulations relating to
sexual orientation would not.
- Secondly,
it is submitted that the provisions of regulation 7(3)(b) are
likewise
very
restrictive. In order to satisfy the first of the two alternatives,
in regulation
7(3)(b)(i),
the requirement must be applied "so as to comply with the doctrines of the religion".
This condition is likely to be satisfied in only a very small number
of cases: it will have to be shown that employment of a person not
meeting the requirement would give rise to a breach of the doctrines
of the religion. In order to satisfy the second alternative, in regulation
7(3)(b)(ii), the requirement must be applied "because of the nature
of the employment and the context in which it is carried out, so
as to avoid conflicting with the strongly held religious convictions
of a significant number of the religion's followers". That test creates
formidable hurdles for an employer
to overcome.
- As to the
expression "a significant number", that is an ordinary English
expression which courts or tribunals should have no difficulty in
applying in practice: cf. "considerably smaller" in other discrimination
legislation, which has proved workable in practice. Reference is
also made to Lord Sainsbury’s reply to a question about what is meant
by "a significant number":
"Ultimately,
that
is a question of fact for the tribunals or the courts and will
depend on the circumstances of each
case, but it is not expected
that
this question should prove more difficult to resolve than other
questions of fact which are regularly
faced by the courts. Sexual orientation
Regulation
7 has to be phrased in those terms to be workable in practice.
If we had stricter wording,
referring, for example, to a
majority
of the religion's followers, that could lead tribunals and
courts to expect detailed statistical
analysis to be submitted to them
on the
number of followers with religious convictions about particular
requirements or the numbers
without such religious convictions.
I think we would all agree that
that would not be practicable."
- Miss Carss-Frisk
takes
issue with the claimants' contention that regulation 7(3) cannot
be given such a narrow construction because it
would
then be subsumed within regulation
7(2)
and would be unnecessary. She suggests that in one respect
regulation 7(3) is wider than regulation
7(2), in that it applies to "a requirement related to sexual
orientation" (regulation 7(3)(b)) as opposed to a requirement of "being of
a particular sexual orientation" (regulation 7(2)(a)). The choice
of wording is deliberate, so
as to meet the representations
made by some Churches to the effect that they were concerned not
with
sexual orientation per se but with sexual behaviour that
was related to sexual orientation. A broader point, however, is that
in the case of employment for purposes of an organised religion,
regulation 7(3) itself makes clear where the balance is struck rather
than leaving this extraordinarily difficult area for determination
by tribunals on a case by case basis (with the burden of deciding
e.g. whether the doctrines of a particular organised religion can
themselves be said to be justified). To this extent the legislature
has recognised that a requirement meeting the conditions of regulation
7(3) is necessarily a genuine and determining occupational requirement
and has struck the balance in a manner that is submitted to be proportionate.
- Miss Carss-Frisk submits that, if strictly construed as above, regulation
7(3) is a lawful implementation of article 4(1) of the Directive.
The fact that it transposes a general provision through specific
legislation is not objectionable. The obligation is to achieve the
objective sought by the Directive, rather than to mirror the precise
wording of the Directive. Nothing in the Directive prevents this
approach to implementation, provided that, as is the case, the derogation
from the principle of equal treatment remains within the limits of
what is appropriate and necessary to achieve the aim in view.
- The conditions
of regulation 7(3) are also submitted to be sufficiently specific,
precise
and clear. The fact that the application of those
criteria has to be worked out
by the
courts on the facts of specific cases cannot in itself amount
to objectionable uncertainty. The authorities
cited in support of that submission
are in
fact cases on the "in
accordance with the law" limb of article 8(2) of the Convention,
and like provisions which allow
for the possibility of justification
of interferences with Convention rights. For example, in Olsson
v. Sweden (1988) 11 EHRR 259 at page 283, paragraph 61(a), the
Strasbourg Court stated that
the requirements identified by
the Court as flowing from the phrase "in accordance with the law" include
this:
"A
norm
cannot be regarded as a 'law' unless it is formulated with
sufficient precision to enable the citizen - if
need be, with appropriate advice
- to
foresee, to a degree that is reasonable in the circumstances,
the consequences
which a given action may entail; however, experience
shows
that absolute precision is unattainable and the need to avoid
excessive rigidity and to keep
pace with changing circumstances
means
that many laws are inevitably couched in terms which, to a
greater or lesser extent, are vague."
- In addition,
Miss Carss-Frisk observes that the detailed provisions of regulation
7(3)
are far more certain in ambit and predictable
in their effects in any individual
case
than if the United Kingdom had simply transposed article 4(1)
of the Directive verbatim, as
the claimants at times appear
to be
submitting should have been done. Nor is there anything novel
about the approach adopted. For example,
sections 7 and 19 of the Sex
Discrimination
Act 1975 contain similarly detailed exceptions in implementation
of the Equal Treatment Directive
(Council Directive 76/207/EEC).
Section
7 of the 1975 Act contains an exception where sex is a genuine
occupational qualification, making
specific provision for a range
of circumstances
in which employers are permitted to discriminate on grounds
of sex. Section 19(1) contains
an exception for employment for
purposes
of an organised religion "where
the employment is limited to one sex so as to comply with the doctrines
of the religion or avoid offending the religious susceptibilities
of a significant number of its followers". It has never been
suggested that such provisions
are not an appropriate and proper
implementation of a derogation expressed in general terms in article
2(2) of the Equal Treatment Directive.
- For the interveners, Mr Dingemans makes clear that they support the
Secretary of State’s case on regulation 7(3). He takes issue with
the claimants’ suggestion that the interveners’ position on construction
is inconsistent with that of the Secretary of State, and he submits
that the interveners’ grounds and evidence are not to be read as
seeking a broader construction of the provision. He adds the distinct
point that the protection conferred by regulation 7(3) is necessary
to protect the rights and freedoms of the interveners. Those with
particular sexual orientations or practices should not be able to
make religious organisations change to accommodate them. Both can
co-exist.
- Those are the main points in the rival submissions. My conclusions
on them are as follows.
- In relation to regulation 7(3), as in relation to regulation 7(2),
in general I accept the submissions for the Secretary of State.
- The main question, as it seems to me, concerns the scope of the exception.
If it had as wide a scope as was submitted by Mr Singh and Mr O'Neill,
then it would be open to serious objection on the grounds that they
put forward. But if it is as narrow in scope as contended for by
Miss Carss-Frisk, the objection advanced loses much of its force.
I think it clear from the Parliamentary material that the exception
was intended to be very narrow; and in my view it is, on its proper
construction, very narrow. It has to be construed strictly since
it is a derogation from the principle of equal treatment; and it
has to be construed purposively so as to ensure, so far as possible,
compatibility with the Directive. When its terms are considered in
the light of those interpretative principles, they can be seen to
afford an exception only in very limited circumstances.
- The fact
that the exception applies, by regulation 7(3)(a), only to
employment "for purposes of an organised religion" is an important
initial limitation. I accept Miss Carss-Frisk's submission that that
is a narrower expression than "for purposes of a religious organisation",
or the expression "where an employer has an ethos based on religion
or belief", as used in the corresponding regulations relating
to discrimination on grounds of religion or belief. I also accept
the example she gave, that employment as a teacher in a faith school
is likely to be "for purposes of a religious organisation" but not "for
purposes of an organised religion".
- The conditions
in regulation 7(3)(b) impose very real additional limitations.
In my view the condition in regulation
7(3)(b)(i),
that the employer must apply the requirement "so as to comply with the doctrines of
the religion", is to be read not as a subjective test concerning
the motivation of the employer, but as an objective test whereby
it must be shown that employment of a person not meeting the requirement
would be incompatible with the doctrines of the religion. That is
very narrow in scope. Admittedly the alternative in regulation 7(3)(b)(ii)
is wider; but even that is hemmed about by restrictive language.
The condition must be applied "because of the nature of the employment
and the context in which it is carried out" - which requires careful
examination of the precise nature of the employment - "so as to avoid
conflicting with the strongly held religious convictions of a significant
number of the religion's followers". Again this is in my view an
objective, not subjective, test.
Further, the conflict to be avoided
is with religious convictions, which must be strongly
held; and they must be the convictions of a significant number of
the religion's followers. This is going to be a very far from easy
test to satisfy in practice.
- The fact
that reference is made to "a significant number" rather than
to all or the majority of a religion's
followers
not only reflects the desirability of avoiding detailed statistical
analysis, to which
Lord Sainsbury referred in the
Parliamentary
debate, but also ensures that proper account is taken of the
existence of differing bodies
of opinion even within an organised
religion.
Sexual orientation is a matter on which some followers of a
religion may hold stronger
religious convictions than others.
In my
view it is legitimate to allow for the possibility of applying
a relevant requirement even
if the convictions in question
are held only by a significant
minority of followers.
- One further
point I should deal with in connection with regulation 7(3)(b)
concerns
its opening
words, which refer to an employer applying "a
requirement related to sexual orientation". Those words may in one
way make the provision wider in scope than the regulation 7(2), where
the relevant occupational requirement is expressed in terms of "being
of a particular sexual orientation". I note that the choice of wording
in regulation 7(3) was deliberate,
so as to accommodate the concerns
of some Churches about certain forms of sexual behaviour rather
than sexuality as such. In my
view the wording is apt to cover
the point, and it may have been prudent to use such wording in order
to avoid argument about the scope
of the expression "being of a particular
sexual orientation". I do not consider, however, that the point has
a material effect on the present analysis. The protection against
discrimination on grounds of sexual orientation relates as much to
the manifestation of that orientation in the form of sexual behaviour
as it does to sexuality as such. I have already mentioned this when
looking generally at the fundamental rights in issue in this case.
The wording of the derogation in article 4(1) of the Directive, which
refers to a difference of treatment "which is based on a characteristic
related to" sexual orientation, is wide enough to embrace a difference
of treatment based on sexual
behaviour related to sexual orientation.
- The conditions in regulation 7(3)(c), that either (i) the person does
not meet the requirement or (ii) the employer is not satisfied, and
in all the circumstances it is reasonable for him not to be satisfied,
that the person meets the requirement, are the same as in regulation
7(2)(c) and do not need to be considered separately. In particular,
as regards the question of perceived as opposed to actual sexual
orientation (regulation 7(3)(c)(ii)), I refer back to my conclusion
on regulation 7(2)(c)(ii). For the reasons given in that context,
I take the view that it is lawful for the exception to apply where
the employer is reasonably not satisfied that the requirement is
met.
- It is unnecessary for me to decide whether regulation 7(3), if narrowly
construed, would apply in all the situations in which, from their
evidence, it might be thought that the interveners would seek to
rely upon it. Mr Dingemans very sensibly did not contend for a wider
construction than that put forward on behalf of the Secretary of
State. It suffices for me to note that the narrow construction that
I favour would substantially limit the range of circumstances in
which the exception could be relied on successfully. The narrow construction
also makes it unlikely that the exception would apply in the various
specific situations put forward by Mr Singh to illustrate the concerns
of the claimants. I think it inappropriate to go further than that.
Actual decisions on particular situations need to be made on the
basis of full consideration of all the relevant facts of the case,
which would be the function of a court or tribunal in applying the
Regulations.
- Looking at regulation 7(3) as a whole, and bearing in mind what I have
said about its terms and the strict construction that they must be
given, I take the view that the exception is a lawful implementation
of article 4(1) of the Directive.
- The exception involves a legislative striking of the balance between
competing rights. It was done deliberately in this way so as to reduce
the issues that would have to be determined by courts or tribunals
in such a sensitive field. As a matter of principle, that was a course
properly open to the legislature (an expression which I take for
this purpose to include the Secretary of State, as the person who
made the Regulations, as well as Parliament which approved them).
I reject Mr O'Neill's submission that it is not permissible to specify
by general legislation the circumstances in which occupational requirements
may be lawful. Johnston, upon which he bases the submission,
was not concerned with a substantive provision of this kind, but
with a procedural provision removing effective access to the tribunal
where the Secretary of State had signed a national security certificate.
Regulation 7(3) does not have the same effect at all. It lays down
the specific conditions that have to be met and thereby avoids the
need for the court or tribunal to consider some of the issues that
might otherwise arise on a case by case basis under regulation 7(2).
But in no way does it remove effective access to the court or tribunal,
which will still have an important role in determining whether the
conditions laid down are met. The fact that this may still take the
court or tribunal into difficult areas does not invalidate the motivation
of reducing the issues to be determined. The value of cutting down
the issues is illustrated by the debate raised before me about the
theological validity of the interveners’ religious beliefs, a matter
which I have concluded is inappropriate for determination by the
court.
- The conditions laid down must themselves, of course, comply with article
4(1) of the Directive. As to that, I think it clear that a requirement
meeting the conditions pursues a legitimate aim. In addition, should
it be necessary, I would rely here on what I say later in this judgment
about the protection of religious rights and freedoms as a justification
for interference with rights under article 8 of the Convention. I
reject the submission by Mr O'Neill in particular that a restriction
on employment by reference to the religious convictions of followers
of a religion cannot pursue a legitimate aim. As to proportionality,
the balance struck in this sensitive and difficult area is in my
view an appropriate one. If regulation 7(3) had the wide scope that
the claimants attribute to it, the issue of proportionality would
be one of real concern. But the view that I take about the narrow
scope of the provision also leads me to the conclusion that it complies
with the test of proportionality. For the same reason, and subject
to the point already covered about its application to sexual behaviour as
well as sexuality as such, I do not think that the exception in regulation
7(3) is likely to apply in practice in a wider range of circumstances
than would fall within the exception in regulation 7(2), though the
difference in legislative approach in relation to the two exceptions
leads to some differences in the issues to be determined by a court
or tribunal when considering whether the exceptions apply.
- I reject
the claimants' argument that regulation 7(3) is in breach of
the principle
of legal
certainty. As I have explained earlier, when dealing with a
general submission
by Mr
O'Neill, the normal principles of purposive interpretation
can properly be relied on
by the Secretary of State in
the context
of a challenge to the lawfulness of implementation of a directive.
They are of relevance here, in
helping to ensure that an appropriately
narrow
construction is given to regulation 7(3). But in truth there
is little need for them. The
provision contains a very detailed
set of
conditions, and it needs little by way of purposive interpretation,
and no straining of language,
to read them in a way that ensures
compatibility
with the Directive. To the extent that they contain imprecise
terms, such as the reference
to a "significant number" of the religion's followers, they ought
not to present any serious problem to a tribunal in their practical
application or to individuals in determining the rights afforded
to them. That view is supported by the absence of any evidence of
difficulty in the application of similar language in the Sex Discrimination
Act 1975. There is nothing in the case-law of the Community (or,
for that matter, the Convention) to suggest that a greater degree
of precision is necessary. Indeed, as Miss Carss-Frisk submitted,
the provisions are far more certain in ambit and predictable in their
effects than if, say, article 4(1) of the Directive had been transposed
verbatim. In my view there is no substance in the argument about
lack of legal certainty. (I have not dealt with a further point raised
by Mr O'Neill concerning the difference between "for purposes of" and "for the purposes
of", out of which nothing of substance emerged. In so far as Mr O’Neill
contended, particularly in his reply, that "for purposes of" is
too vague an expression, and
cited for that purpose Commission
v. United Kingdom [1983] ECR 3431, I reject the submission and
take the view that the decision cited does not support it.)
- There is some overlap as regards proportionality and legal certainty
between points canvassed in the context of compatibility with the
Directive and those canvassed in the specific context of compliance
with article 8 of the Convention. I do not consider that anything
said in relation to article 8 should lead to a different conclusion
from that expressed above in relation to compatibility with the Directive.
- For the reasons given above I hold that regulation 7(3) is compatible
with the Directive.
- That finding, coupled with my corresponding finding in relation to
regulation 7(2), disposes of the challenge under the Directive both
to regulation 7 and to the other regulations that incorporate the
exceptions in regulation 7. There remains the short additional point
in relation to regulation 20(3), as well as the separate challenge
to regulation 25.
Regulation 20(3): compatibility with the Directive
- Regulation
20(3) provides an exception to the prohibition of discrimination
by institutions
of further and higher education. The exception
arises "if
the discrimination only concerns training which would help fit a
person for employment which, by virtue of regulation 7 …, the employer
could lawfully refuse to offer the person in question". The Amicus
claimants challenge it not only
because of its cross-reference
to regulation 7, about which nothing further needs to be said, but
also
on additional grounds. They submit
that regulation 20(3) goes wider
than article 4(1) of the Directive in that it does not require that
sexual orientation be a genuine
and determining occupational
requirement for the training.
It does not provide that the
training concerned must be directly or necessarily related to any
employment
to which regulation 7 might apply,
but requires merely that the
training "would
help fit a person" for such employment. It does not tie the permitted
discrimination to pursuit of a legitimate objective and compliance
with the principle of proportionality. And it lacks a sufficient
degree of certainty, because the expression "would help fit" is undefined
and its meaning is obscure. For
example, a degree in theology
might qualify a person to enter the clergy but would also constitute
a
qualifying degree for the purposes
of entering a CPE course; and
a higher education course in English might qualify a person to study
for a theology degree but also
for a law degree.
- For the
Secretary of State, Miss Carss-Frisk submits that regulation
20(3) is
intended
to be limited in scope and should be construed strictly. It
applies where the
discrimination "only" concerns
training which would help fit a person for employment to which could
lawfully be refused by virtue of regulation 7. It does not cover
training which has any purpose other than to help fit a person for
employment in relation to which sexual orientation is a genuine and
determining occupational requirement. Thus, for example, it does
not apply to a theology degree but does cover training at a theological
seminary. The expression "would help fit" is a way of referring to
vocational training and has been used for many years in that connection
in other legislation: see s.14 of the Sex Discrimination Act 1975
and s.13 of the Race Relations Act 1976. The intention is simply
that if an employer is entitled to refuse to employ a person in a
particular job because of their sexual orientation, a college is
similarly entitled to refuse to enrol them on a training course that
would only train them to perform that job. So the provision is simply
consequential on regulation 7. Seen in that light it is within the
ambit of article 4(1) of the Directive, the relevant occupational
activity being "vocational training" as referred to in article 3(1)(b).
It meets the requirements of
a legitimate aim and proportionality:
it must be right that, if a person would not meet the requirement
applicable to the employment,
a college should be able to exclude
that person from the training
for that employment. As to the
principle of legal certainty, similar language
is to be found in existing legislation
and a court or tribunal will have no difficulty in understanding
or applying it.
- On this issue, too, I prefer the submissions for the Secretary of State.
In my view regulation 20(3) can and should be construed strictly;
and, so construed, it falls within the ambit of the derogation in
article 4(1) of the Directive.
- Although
the positioning of the word "only" may not be entirely
happy, the provision is to be
read
on the basis that, for training to come within the exception,
it must
be training that would only help fit a person for a relevant
employment.
If training has a broader purpose, as in the case
of a
degree course in theology, it cannot come within the exception.
- The expression "would help fit … for employment" is
likewise
to be strictly construed, as referring to vocational training
rather
than to training of a more general
nature.
Mr Singh makes the point that although the expression does
appear in other discrimination
legislation, it does so in liability-creating
provisions
rather than in provisions containing exceptions to protection
of a fundamental
right. Nevertheless, if the expression
has been
used without apparent difficulty for many years in other discrimination
legislation as
a way of referring to vocational
training,
there should be no problem about giving it a similarly limited
construction in the context of
a provision containing an exception.
- Construed in that way, the exception has a narrow scope, being tied
closely to training directed specifically and solely towards an employment
to which an occupational requirement can lawfully be applied under
regulation 7. On that basis it can readily be seen to pursue a legitimate
aim and to be proportionate. Nor do I consider the wording to be
so imprecise or unclear as to give rise to any breach of the principle
of legal certainty.
- I therefore reject the challenge to regulation 20(3).
Regulation 25: compatibility with the Directive
- Regulation
25 provides that nothing in Part II or Part III of the Regulations,
including
therefore
the prohibition on discrimination, "shall
render unlawful anything which prevents or restricts access to a
benefit by reference to marital status". Its effect is that employment
benefits defined by reference to marital status, such as a surviving
spouse's pension, are not prohibited by the Regulations. The Amicus
claimants submit that this is in breach of the Directive. Article
3(1)(c) of the Directive prohibits discrimination on grounds of sexual
orientation in "working conditions, including … pay". That applies
to employment benefits, including
benefits under occupational pension
schemes, which have been held to be a form of pay. Under domestic
law same-sex partners are prohibited
from marrying. To make employment
benefits dependent on marital status
is therefore either directly
discriminatory or at the very
least indirectly discriminatory
and requiring to be justified in each individual case. There is no
provision
in the Directive authorising
the general exception contained
in regulation 25. It follows that the regulation is ultra vires.
- To underline the principles on which his submissions are based, and
to show that the case advanced accords with current trends in human
rights law, Mr Singh has cited a number of cases from other jurisdictions.
Two of them merit specific reference here.
- In a judgment of 12 July 2002 in Halpern v. Attorney General of
Canada (60 OR (3d) 321) the Court of Appeal for Ontario
held
that
the common law definition of marriage, which was restricted
to heterosexual
couples, breached the Canadian Charter of Rights
and Freedoms
and should be reformulated as "the
voluntary union for life of two persons to the exclusion of
all others". The judgment contained powerful observations
about
the importance
of human dignity and, in that context, of equal rights and
opportunities without discrimination on
grounds
of sexual
orientation:
"5.
Marriage
is, without dispute, one of the most significant forms of personal
relationships. For centuries, marriage
has been a basic element of social
organization
in societies around the world. Through the institution of marriage,
individuals can publicly
express their love and commitment
to each
other. Through this institution, society publicly recognizes
expressions
of love and commitment between individuals, granting them respect
and legitimacy
as a couple. This public recognition and sanction
of marital
relationships reflect society’s approbation of the
personal
hopes, desires and aspirations that underlie loving, committed
conjugal relationships. This can
only enhance an individual’s
sense of self-worth and dignity.
6. The ability to marry, and to thereby participate
in this fundamental societal institution, is something that most
Canadians take for granted. Same-sex couples do not; they are denied
access to this institution simply on the basis of their sexual orientation.
…
107. … Exclusion perpetuates the view that same-sex
relationships are less worthy of recognition than opposite-sex relationships.
In doing so, it offends the dignity of persons in same-sex relationships.
108. Based on the foregoing analysis, it is our view
that the dignity of persons in same-sex relationships is violated
by the exclusion of same-sex couples from the institution of marriage.
Accordingly, we conclude that the common-law definition of marriage
as ‘the voluntary union for life of one man and one woman to the
exclusion of all others’ violates s.15(1) of the Charter. The next
step is to determine whether the violation can be justified under
s.1 of the the Charter.
…
142.
… [W]e
conclude that the violation of the couples’ equality rights
under s.15(1) of the Charter is not justified under
s.1 of the Charter. The AGC [Attorney
General
of Canada] has not demonstrated that the objectives of excluding
same-sex couples from
marriage are pressing and substantial.
The AGC
has also failed to show that the means chosen to achieve its
objectives are reasonable
and justified in a free and democratic
society."
- In similar vein is a judgment of the Constitutional Court of South
Africa in Satchwell v. President of the Republic of South Africa (Case
CCT 45/01, judgment of 25 July
2002). The applicant, a judge,
was involved in "an intimate, committed, exclusive and permanent
relationship" with a same sex partner. They were not permitted
to enter into a valid marriage
but lived in every respect as
a married couple. The question was whether legislative provisions
restricting
benefits to spouses and not affording
them to same-sex life partners
was inconsistent with the Constitution. In the course of his judgment
Madala J, with whom the rest
of the court concurred, made
the following observations which are
pertinent to the way in which
the claimants put their case here:
"16.
Same-sex
partners cannot be lumped together with unmarried heterosexual
partners without further ado. The latter
have chosen to stay as cohabiting
partners
for a variety of reasons, which are unnecessary to traverse
here, without marrying although
generally there is no legal obstacle
to their
doing so. The former cannot enter into a valid marriage ….
21. … [I]t becomes clear that the denial of benefits
to same-sex partners while affording them to married judges is, in
effect, a differentiation on the grounds of sexual orientation which
is a listed ground in section 9. That denial accordingly amounts
to discrimination which is presumed, in terms of section 9(5), to
be unfair unless the contrary is shown. It was not suggested by the
respondent that this discrimination is not unfair.
22. The benefits accorded to spouses of judges by the
legislation are accorded to them because of the importance of marriage
in our society and because judges owe a legal duty of support to
their spouses. In terms of our common law, marriage creates a physical,
moral and spiritual community of law which imposes reciprocal duties
of cohabitation and support. The formation of such relationships
is a matter of profound importance to the parties, and indeed to
their families and is of great social value and significance. However,
as I have indicated above, historically our law has only recognised
marriages between heterosexual spouses. This narrowness of focus
has excluded many relationships which create similar obligations
and have a similar social value.
23.
Inasmuch
as the provisions in question afford benefits to spouses but
not to same-sex partners who have established a permanent
life relationship similar in
other
respects to marriage, including accepting the duty to support
one another,
such provisions constitute unfair discrimination
…."
- A more directly relevant recent authority, and one upon which both
sides have placed substantial reliance, is the judgment of the ECJ
in KB v. National Health Service Pensions Agency (Case C-117/01,
judgment of 7 January 2004). In that case the claimant, KB, complained
of a violation of the principle of equal pay under article 141 EC
because she was unable to nominate her transsexual partner as a beneficiary
of a survivor’s pension under the NHS pension scheme: only spouses
could be nominated under the scheme. The question referred was whether
the exclusion of the female-to-male transsexual partner of a female
member of the scheme, which limited the material dependant’s benefit
to her widower, constituted sex discrimination in contravention of
article 141 EC and directive 75/117. In its judgment, accepting the
Commission’s submissions on this issue, the ECJ took as its starting-point
what had been said in D and Sweden v. Council, stating:
"28.
The decision
to restrict certain benefits to married couples while excluding
all persons who live together
without being married is either
a matter
for the legislature to decide or a matter for the national
courts as to the interpretation of domestic
legal rules, and individuals
cannot
claim that there is discrimination on grounds of sex, prohibited
by Community law (see, as regards the
powers of the Community legislature, D v. Council, paragraphs
37 and 38).
29. In this instance, such a requirement cannot be regarded per
se as discriminatory on grounds of sex and, accordingly,
as contrary
to Article
141 EC or Directive 75/117, since for the purposes of awarding
the survivor’s pension it is irrelevant
whether
the claimant
is a man or a woman."
- The ECJ went on, however, to indicate that the fact that a couple such
as KR and partner lacked the capacity to marry could nevertheless
give rise to an unlawful inequality of treatment:
"30.
However,
in a situation such as that before the national court, there
is inequality of treatment which, although
it does not directly undermine
enjoyment
of a right protected by Community law, affects one of the conditions
for the grant of that
right. As the Advocate General
noted
in point 74 of his Opinion, the inequality of treatment does
not relate to the award of a widower’s
pension but to a necessary precondition
for the grant of such a pension:
namely, the capacity to marry.
31. In the United Kingdom, by comparison with a heterosexual
couple where neither partner’s identity is the result of gender reassignment
surgery and the couple are therefore able to marry and, as the case
may be, have the benefit of a survivor’s pension which forms part
of the pay of one of them, a couple such as KB and R are quite unable
to satisfy the marriage requirement, as laid down by the NHS Pension
Scheme for the purpose of the award of a survivor’s pension.
32. The fact that it is impossible for them to marry
is due to [the relevant provisions of national law] ….
33. The European Court of Human Rights has held that
the fact that it is impossible for a transsexual to marry a person
of the sex to which he or she belonged prior to gender reassignment
surgery … was a breach of their right to marry under Article 12 of
the ECHR ….
34. Legislation, such as that at issue in the main proceedings,
which, in breach of the ECHR, prevents a couple such as KB and R
from fulfilling the marriage requirement which must be met for one
of them to be able to benefit from part of the pay of the other must
be regarded as being, in principle, incompatible with the requirements
of Article 141 EC.
35.
Since
it is for the Member States to determine the conditions under
which legal recognition is given to the change of
gender of a person in R’s situation
… it
is for the national court to determine whether in a case such
as that in the main proceedings
a person in KB’s situation can
rely
on Article 141 EC in order to gain recognition of her right
to nominate her partner as the beneficiary
of a survivor’s pension."
- Mr Singh submits that the reasoning in paragraphs 30 ff. of that judgment
applies equally to this case. There is no material distinction between
the complainants in KB and the position of the gay and lesbian
couples who are likewise denied benefits because it is not possible
for them to marry. Mr Singh explains that it is no part of the claimants’
case to suggest that all unmarried partners should be entitled to
the same benefits as married couples. They contend only that denial
of benefits to same-sex couples who, unlike heterosexual couples,
are unable to comply with the condition as to marriage is unlawful
discrimination.
- For the Secretary of State, Miss Carss-Frisk seeks to meet the claimants’
case in two main ways. First she submits that access to benefits
paid by reference to marital status falls outside the scope of the
Directive and indeed outside the scope of Community competence. Secondly,
and alternatively, she submits that regulation 25 is not contrary
to the principle of equal treatment, in that the difference of treatment
is based on marriage, not sexual orientation; is not indirectly discriminatory,
since married and unmarried couples are not in a materially similar
situation; and in any event is objectively justified. I propose to
follow that structure when examining the detailed issues concerning
regulation 25.
- In support
of the contention that access to benefits by reference to marital
status
falls outside the scope of the Directive and of Community
competence, Miss Carss-Frisk
relies
first on recital (22) of the Directive itself, which states
that "[t]his Directive is without
prejudice to national laws on marital status and the benefits dependent
thereon". She submits that this gives the clearest possible
indication of the position. Its
purpose is to confirm the exclusion
from the scope of the Directive of national laws on marital status
(which in most Member States
do not allow marriages between
homosexual couples) and of any benefits,
whether provided by an employer
or the State, that are dependent
on marital status. Unlike recital
(13), which states that the Directive does not apply to certain State
benefits,
recital (22) is entirely general
in its terms. Its construction
is clear. Had it been intended to limit the exclusion to State benefits
dependent on marital status,
it would have said so in terms.
In any event State benefits are excluded
separately by recital (13) and
article 3(3), so that recital
(22) must be intended to be wider
in ambit.
- Reliance is also placed on a further passage in the evidence of Mme
Quintin, the Acting Deputy Director General, to the House of Lords
Select Committee on the European Union:
"The second element is that we do not cover areas
which are very sensitive for beliefs in this context, such as related
to civil law, for example. You rightly mention the marriage issue
which is a very difficult issue in a number of Member States. That
is not covered by the Directive. We only cover the employment area
on that. I do not think in this area it is a highly controversial
issue to think that the right to have different sexual inclinations
is not something which should impair employment prospects. That is
why we have decided not to leave this area out of our proposals and
at the same time we did not go extremely far in the material scope
of non-discrimination and confine ourselves to employment related
areas" (Ninth Report, page 1281).
- The first part of that passage does appear to give some support for
the Secretary of State’s position as to the scope of the Directive,
but the remainder of the passage introduces very considerable uncertainty
as to Mme Quintin’s overall meaning. In my view the passage does
not advance matters one way or the other and I do not propose to
refer to it further.
- Miss Carss-Frisk
submits
next that the limitation on the scope of the Directive contained
in recital (22) is reflected in article 3(1)
of the Directive, which provides
that
the Directive shall apply "[w]ithin
the limits of the areas of competence conferred on the Community".
This engages the additional submission
that access to benefits by reference
to marital status is not within Community competence at
all. It is said that this was
recognised by Advocate General
Elmer in Case C-249/96, Grant v. South-West Trains Ltd [1998] ECR
I-621. Grant concerned employment conditions which made travel
concessions available to a "common law spouse" but not
to a same sex partner. At paragraphs
27-34 of his Opinion, the Advocate
General considered and rejected an argument that the matter was a
family law issue which did not
fall under the EC Treaty. He
said in particular, at paragraph 28:
"Had
[the
discriminatory condition] specified, as the determinant criterion,
that the employee and the cohabitee
must have contracted marriage,
that
would, in my opinion, have been a restriction on the travel
concessions
which was not contrary to Community law, because it would
be by
reference to a family law concept, the content of which is
laid down by the Member States."
- The ECJ did not pronounce in terms on that issue. It pointed out that
the Community had not yet adopted rules relating to sexual orientation
and that most Member States did not treat cohabitation by two persons
of the same sex as equivalent to marriage. It concluded:
"35.
It follows
that, in the present state of the law within the Community,
stable relationships between two persons
of the same sex are not regarded
as equivalent
to marriages or stable relationships outside marriage between
persons of opposite sex. Consequently,
an employer is not required by
Community
law to treat the situation of a person who has a stable relationship
with a partner of the same
sex as equivalent to that of
a person
who is married to or has a stable relationship outside marriage
with a partner of the opposite
sex.
36.
In those
circumstances, it is for the legislature alone to adopt, if
appropriate, measures which may affect the position."
- The lack of comparability between marriage and other forms of relationship
was affirmed in Case C-122/99, D and Sweden v. Council [2001]
ECR I-3419. That case concerned
an application by an EC official
in a registered same-sex partnership for an employment benefit available
under the Staff Regulations only
to married couples. The ECJ held
that, although an increasing number
of Member States had introduced,
alongside marriage, statutory
arrangements granting legal recognition
to various forms of union between partners of the same sex or of
the opposite sex, such arrangements
were regarded as being distinct
from marriage; and that "[i]n such circumstances the Community
judicature cannot interpret the Staff Regulations in such a way that
legal situations distinct from marriage are treated in the same way
as marriage" (para 37). Only the legislature could, where appropriate,
adopt measures to alter that
situation, e.g. by amending the
Staff Regulations (para 38). Further, there was no infringement of
the
principle of equal treatment
since the situations were not
comparable:
"50.
The existing
situation in the Member States of the Community as regards
recognition of partnerships between persons
of the same sex or of the opposite
sex reflects
a great diversity of laws and the absence of any general assimilation
of marriage and
other forms of statutory union
…
51.
In those
circumstances, the situation of an official who has registered
a partnership in Sweden cannot be held to be comparable,
for the purposes of applying
the Staff
Regulations, to that of a married official."
- Miss Carss-Frisk submits that the approach of the ECJ in that regard
is consistent with that of the European Court of Human Rights, which
has held that the position of married couples is not comparable with
the position of unmarried couples, so that differences in treatment
between them do not amount to discrimination within the meaning of
article 14 of the conventions: see Lindsay v. United Kingdom (1986)
9 EHRR 513, and Shackell v. United Kingdom (decision on admissibility,
dated 27 April 2000, in application no.45851/99). It is submitted
that the decision of the Court of Appeal in Ghaidan v. Godin-Mendoza [2003]
Ch 380, which I shall examine in the context of the issues under
article 14 of the Convention, is not inconsistent with the approach
of the Luxembourg and Strasbourg Courts concerning the non-comparability
of marriage and other forms of relationship, since Ghaidan was
concerned with a comparison between unmarried heterosexual
couples and homosexual couples.
- Miss Carss-Frisk also seeks to derive support from the decision of
the ECJ in KB v. National Health Service Pensions Agency,
which I have already cited. She submits that the reasoning in paragraphs
30 ff. of the judgment is restricted to transsexuals and the separate
question of compatibility with article 141 of a rule preventing someone
being married. It relies on the Convention case-law concerning transsexuals.
By contrast, there is no authority in the case-law for the proposition
that it is a breach of the Convention for same-sex couples not to
be able to marry, and KB is not concerned with that issue.
The case confirms in paragraph 28 that it is not in itself in breach
of the principle of equal treatment to make benefits dependent on
marriage. The full implications of KB remain to be worked
out, but they do not affect the present case.
- For the
claimants, Mr Singh submits that recital (22) is not a substantive
provision
of the
Directive and cannot limit the scope of the Directive in the
way contended for by the
Secretary
of State. It does not provide a legal basis for enacting the
exception
contained in regulation 25. By virtue of article
3(1)(c)
the Directive applies to occupational benefits and similar
benefits.
By virtue
of article 3(3) it does not apply to "payments of any kind made by state schemes or
similar, including social security or social protection schemes".
That exception reflects recitals
(13) and (22). It covers State
benefits but does not exclude occupational pension schemes and similar
benefits
provided by employers pursuant
to, and as a benefit of, the
employment relationship. Accordingly the Directive contains no general
exclusion
concerning access to benefits
by reference to marital status.
In relation to occupational pension schemes and like benefits falling
within the scope of the Directive,
any discrimination based on marital
status has to be justified by
an employer in the normal way.
- It is further submitted that the Secretary of State’s arguments based
on recital (22) simply evade the point. The Directive regulates discrimination
on grounds of sexual orientation. Benefits which are dependent on
marital status are discriminatory as against gay and lesbian people
because they cannot marry their same sex partners as a matter
of law. The situation of unmarried opposite sex couples is not comparable
to that of gay and lesbian couples because opposite sex couples are
entitled to marry. The reasoning of the ECJ in paragraphs 30 ff of
the judgment in KB applies. The decision in Grant,
by contrast, is of only historical interest because at that time
the Community principle of equal treatment had not been extended
to sexual orientation, whereas by the Directive the Community has
now legislated to include sexual orientation within it.
- Mr Singh
submits further that the Secretary of State’s contention that
distinctions
between
the rights of married and unmarried people are outside the
scope of Community
competence,
on the basis that marriage is a family law concept which is
regulated by the laws of the Member
States, is untenable. Both the
Equal
Treatment Directive 76/207 and the revised Equal Treatment
Directive 2002/73 state in terms that "the
principle of equal treatment shall mean that there shall be no discrimination
whatsoever on grounds of sex either directly or indirectly by reference
in particular to marital status". In any event a claim under
the Regulations based on a failure
to permit a gay or lesbian person
access to a benefit by reason of his or lack of marital status would
be a claim of indirect or direct sexual orientation discrimination,
not marital status discrimination. This is illustrated by
the reasoning of the Constitutional Court of South Africa in Satchwell,
cited above.
- I have not found this issue as easy to resolve as at first blush, in
the light of recital (22) of the Directive, it appeared that it might
be.
- Miss Carss-Frisk's argument that access to benefits by reference to
marital status falls outside Community competence has very little
support in the authorities that she cites. The high-point is the
observation in paragraph 28 of the Advocate General's Opinion in Grant,
but that observation was not picked up in the judgment of the Court.
On the contrary, in paragraph 36 of its judgment the Court seemed
to contemplate that it would be open to the legislature - by which
I understand it to have been referring to the Community legislature
- to adopt measures that might render unlawful restrictions of the
kind in issue in Grant itself, i.e. restrictions on benefits
by reference to marital status. A similar point was made in paragraph
38 of the Court's judgment in D and Sweden v. Council, in
the context of the Community's own Staff Regulations. It was made
again in paragraph 28 of the judgment in KB. Whatever the
precise significance to be attached to the further reasoning of the
Court in paragraphs 30 ff. of the same judgment, it certainly shows
that Community law may have something to say about discrimination
by reference to marital status. That all tells against this part
of Miss Carss-Frisk's submissions. It seems to me that, although
family law concepts such as the institution of marriage itself fall
outside Community competence, it simply does not follow that issues
of discrimination by reference to marital status also fall outside
Community competence. In any event I think it right to proceed for
present purposes on the basis that it is within the powers of the
Community legislature to prohibit discrimination by reference to
marital status.
- The next, and central, question is whether the Community legislature
has prohibited discrimination to which the exception in regulation
25 applies. In applying the principle of equal treatment to sexual
orientation, the Directive represents an important legislative step
forward as compared with the position that obtained at the time of Grant and D
and Sweden v. Council. But whether it extends as far as the claimants
contend depends on the meaning
and effect of recital (22). The
recital states in terms that the Directive "is without prejudice to national
laws on marital status and the benefits dependent thereon". I accept
Miss Carss-Frisk's submissions
as to the proper interpretation
of the recital. In my judgment it is of general application, covering
all benefits that are dependent
on marital status, including
benefits such as surviving spouses'
benefits under occupational pension
schemes. It is not limited to State benefits,
which are dealt with separately
in recital (13) and article 3(3). On the face of it, therefore, recital
(22) evinces a clear intention
to limit the scope of the Directive
in a way with which regulation
25 corresponds.
- The troubling feature about recital (22) is that it is only a recital
and (if I am right that it is not limited to State benefits to which
article 3(3) applies, and that it does not reflect a limitation on
Community competence to which article 3(1) refers) it has no parallel
in the substantive provisions of the Directive. Although it is common
ground that recitals can assist in the interpretation of the substantive
provisions of a directive, it is a different matter to rely on a
recital alone as establishing an important limitation on the scope
of a directive. I was not directed to any authority that assists
on this point. Nor was I invited to consider making a reference to
the ECJ under article 234 of the EC Treaty for a preliminary ruling
on the general issue or on the specific question of the scope of
the Directive. Those are matters that may need to be looked at further
if the case goes higher. For the present, however, I take the view
that I should decide the point as best I can.
- The conclusion I have reached is that the Secretary of State's submissions
concerning the scope of the Directive should prevail. To hold otherwise
would be to frustrate the legislative intention as it appears in
recital (22). What makes me particularly cautious in that respect
is that this is an area of considerable sensitivity in social and
financial terms, as explained below when considering the alternative
submissions on objective justification (though my conclusion that
regulation 25 would in any event be lawful on that alternative basis
may be thought to weaken the force of this consideration).
- On the basis that regulation 25 reflects a limitation in the scope
of the Directive itself, I reject Mr Singh's attempt to circumvent
that limitation by reference to the reasoning of the ECJ in the later
part of its judgment in KB. The reasoning in that passage
relates specifically to transsexuals and to rules on marriage that
have been held to be in breach the Convention. It cannot be applied
automatically to the position of homosexuals even though they, too,
are unable to marry. In any event I am not satisfied that it can
be applied across to a situation that the Community legislature has, ex
hypothesi, decided to exclude from the scope of the Directive.
- My conclusion on the first main issue means that it is not strictly
necessary to consider Miss Carss-Frisk's alternative submissions.
Nevertheless it may be helpful for me to summarise the arguments
and to indicate briefly my conclusions on them.
- The first limb of the alternative submission for the Secretary of State
is that, if access to benefits by reference to marital status is
within the scope of the Directive, the exclusion is nonetheless compatible
with the Directive since it is not discriminatory. There is no direct
discrimination since the ground of the difference in treatment is
marriage, not sexual orientation; and the difference in treatment
between married and unmarried couples does not amount to indirect
discrimination since married and unmarried couples are not in a materially
similar situation. Reliance is placed on the same strand of case-law
as has been considered above in the context of the submissions on
Community competence, namely Grant, D and Sweden and KB.
- Mr Singh, on the other hand, submits that where benefits are dependent
on marital status they are directly discriminatory because they are
dependent upon a condition with which only opposite sex partners
can comply: cf. KB (benefits based on marital status directly discriminatory
against employee in a relationship with a transsexual). At the very
least such a provision is indirectly discriminatory unless objectively
justified.
- I am inclined to agree with the submissions for the Secretary of State
both as to the absence of direct discrimination and as to the absence
of indirect discrimination. The consistent approach of the ECJ, up
to and including paragraphs 28-29 of KB, has been to hold
that married partners are not in a comparable position to same-sex
partners. It is true that until the Directive came into force there
was no prohibition of discrimination on grounds of sexual orientation
in Community law. There is also some force in Mr Singh’s submission
that the application of a condition with which same-sex partners
are unable to comply because they are precluded from marrying is
discriminatory. I am not persuaded, however, that those considerations
or the later passage in KB, upon which I have already commented,
justify the conclusion that the previous statements of the ECJ as
to the lack of comparability between marriage and other relationships
no longer hold good.
- The second limb of the alternative submission for the Secretary of
State is that the maintenance of a difference of treatment between
married and unmarried couples with regard to access to benefits is
objectively justified and therefore does not give rise to any unlawful
discrimination. Attention is drawn to cases in which the ECJ has
stated that Member States have a broad margin of discretion in relation
to national legislation in the field of social policy. In Case C-167/97, R
v. Secretary of State for Employment, ex parte Seymour-Smith [1990]2
AC 554, in which the issue was whether a qualifying period of two
years’ continuous employment for the right not to be unfairly dismissed
amounted to unlawful discrimination against women, the fifth question
referred by the national court concerned the legal conditions for
establishing objective justification for the purposes of indirect
discrimination. The ECJ held (at page 599):
"71.
It cannot
be disputed that the encouragement of recruitment constitutes
a legitimate aim of social policy.
72. It must also be ascertained, in the light of all
the relevant factors and taking into account the possibility of achieving
the social policy in question by other means, whether such an aim
appears to be unrelated to any discrimination based on sex and whether
the disputed rule, as a means to its achievement, is capable of achieving
that aim.
73. In that connection, the United Kingdom Government
maintains that a member state should merely have to show that it
was reasonably entitled to consider that the measure would advance
a social policy aim. It relies to that end on Nolte v. Landesversicherungsanstalt
Hanover (Case C-317/93) [1995] ECR I-4625.
74. It is true that in the Nolte case, at p.4660,
para 33, the court observed that, in choosing the measures capable
of achieving the aims of social policy, the member states have a
broad margin of discretion.
75. However, although social policy is essentially a
matter for the member states under Community law as it stands, the
fact remains that the broad margin of discretion available to the
member states in that connection cannot have the effect of frustrating
the implementation of a fundamental principle of Community law such
as that of equal pay for men and women.
…
76.
Accordingly
the answer to the fifth question must be that … it is for the
member state, as the author of the allegedly
discriminatory rule, to show
that
the said rule reflects a legitimate aim of its social policy,
that that aim is unrelated to any discrimination
based on sex, and that it could
reasonably
consider that the means chosen were suitable for attaining
that aim."
- It is submitted that the exclusion of benefits payable by reference
to marital status is justified on the following grounds:
- The Government’s policy is to support marriage, a social institution
the importance of which is recognised by article 12 of the
Convention (and it is noted that the Strasbourg Court held
in Shackell, above, that the promotion of marriage by
way of limited benefits for surviving spouses could not be
said to exceed the margin of appreciation afforded to the Government).
- It is unrealistic to suggest, as the claimants do, that the only
issue is whether benefits should also be payable to same-sex
couples. If benefits were payable to unmarried homosexual couples,
it would be discriminatory to deny them to unmarried heterosexual
couples. Not all unmarried heterosexual couples are free to
marry; and why should heterosexuals be compelled to marry in
order to gain access to benefits when homosexual couples do
not have to? Ghaidan v. Godin-Mendoza (see below in
the context of article 14 of the Convention) illustrates how
discrimination may arise if unmarried homosexual couples are
treated differently from unmarried heterosexual couples. In
the context of objective justification, the State is entitled
to take the view that if benefits were extended to same-sex
couples, fairness would require an extension to unmarried heterosexual
couples. It would otherwise leave employers open to challenge.
- The practical consequences of requiring employers to extend,
to unmarried employees and their partners, benefits currently
limited to married couples would be considerable. It would
be necessary to set workable criteria to define the class of
beneficiaries and to build in safeguards to prevent false claims.
- It
would also lead to a very great increase in costs. Mr
Andrew Johnston
of the Government Actuary’s Department has produced
cost
estimates showing an annual cost of the order of £300
million and potentially as high as £1.8 billion or more.
- A Bill to provide for a civil partnership scheme for same-sex
couples was announced in the Queen’s Speech in November 2003.
The Bill itself was published after the conclusion of the hearing
in this case. It includes provision for the legal rights and
responsibilities of those who enter into civil partnerships
to include equivalent treatment to married couples for a range
of employment-related benefits. The intention is that if this
is enacted, the Regulations will be amended accordingly. It
is submitted on behalf of the Secretary of State that it would
be wholly disproportionate to require employers to extend employment
benefits to all unmarried couples because of a disparate impact
on homosexual couples that will shortly be eliminated by appropriate
legislation. Even where a State has decided that a change in
the law is necessary to comply with the Convention (which is
not the case here), it has been recognised that the State is
entitled to such time as is reasonable to make the necessary
change: R (Hooper) v. Secretary of State for Work and Pensions [2003]
EWCA Civ 813 at paragraphs 70-78 of the judgment, citing relevant
Strasbourg case-law.
- Mr Singh’s response on the issue of objective justification is, first,
that it is not open to the Secretary of State to rely on any general
justification for regulation 25. There is no provision of the Directive
allowing for an exemption based on a State-wide general justification
(as compared e.g. with discrimination on grounds of age, in relation
to which general provisions of this nature are permitted by Article
6). Thus there can be no general exclusion; any objective justification
must depend upon proof by an employer in an individual case.
- Mr Singh makes the further submission that the matters relied upon
by the Secretary of State would not in any case justify the exception
in regulation 25. Discrimination on grounds of sexual orientation
requires particularly serious reasons if justification is to be made
out. Modern human rights jurisprudence acknowledges the importance
of recognising and valuing same-sex relationships equally with opposite
sex relationships. As to each of the Secretary of State’s assertions
on justification, the claimants respond as follows:
- A policy to support opposite sex marriage and thus to decline
to confer the same dignity and status on same-sex relationships
cannot now be regarded as a legitimate aim.
- The particular basis upon which the challenge is made, by reference
to the imposition of a condition as to marriage with which
same-sex couples are unable to comply, is emphasised. If the
claims succeeded, it does not follow that benefits would have
to be given to unmarried heterosexual couples. That would be
a matter for the Government to consider, but would not be the
necessary outcome of the case.
- There is no evidence that practical difficulties would be caused
by extending benefits to same-sex couples. Workable criteria
for entitlement to benefits could be adopted, e.g. by requiring
the nomination of a specific partner. In any event a discriminatory
criterion can hardly be justified by simplicity alone.
- There
is no compelling evidence as to cost. The Government’s
estimates
depend on the assumption that, if benefits were not
limited
by reference to marital status, they would apply to
all unmarried partners. The claimants’ case, however,
is
based on discrimination
between married couples and same-sex couples. The claimants’
expert evidence, in the form of a report by Mr Bryn
Davies, a consulting actuary, is that if any extension
were
limited to same-sex couples, the overall cost would
be very
much lower, lying between £200 million and £400 million
(around
0.5% of the ongoing cost of occupational pension schemes,
or 0.1%
of total pensionable payroll). Additional evidence
filed by the claimants includes a report commissioned
by the
Local
Government Employers’ Association which suggests that
an extension
to cover financially dependent same-sex partners ought
not to result in an increase in the current level of
employer
contribution rates.
- The introduction of a Civil Partnership bill cannot on any reckoning
provide justification for present discrimination.
- In the circumstances I do not think it necessary to set out detailed
conclusions on the issue of objective justification. In brief, I
take the view, first, that it is permissible for an exception of
this kind to be contained in general legislation, based on an objective
justification at the national level, rather than requiring individual
employers to justify derogations on a case by case basis. Such an
approach falls within the discretion of a Member State as to the
manner of implementation, even in the absence of express provision
to that effect in the Directive. As to the particular exception,
the considerations put forward by the Secretary of State are compelling
and include aims of social policy in respect of which a broad margin
of discretion is enjoyed by the Member State. The exception in this
one area cannot be said to have the effect of frustrating the implementation
of the fundamental principle of equal treatment. In my judgement
an objective justification for regulation 25 is made out.
- The Bill to provide for civil partnerships between same-sex couples
does not in my view have any material effect on the analysis, but
it does make the challenge to regulation 25 of much less significance
than would otherwise be the case. Given the way in which the claimants’
case is put, the proposed legislation, coupled with the intended
amendment to the Regulations, should meet the claimants’ main concerns
on this issue.
- In conclusion, the challenge to regulation 25 fails to get over the
first hurdle; but even if it did get beyond that point, it would
fail on each of the alternative bases that I have considered.
Lowering of existing standards of protection
- The NUT contends that regulation 7 and the regulations incorporating
the exceptions in it are ultra vires because they represent
a lowering of the standards of
protection that applied to employees
who suffered discrimination on grounds of sexual orientation before
the Regulations came into force.
This is said to be contrary to
article 8(2) of the Directive, which
provides that "the implementation
of this Directive shall under no circumstances constitute grounds
for a reduction in the level of protection against discrimination
already afforded by Member States in the field covered by this Directive".
It is also stated in recital (28) that the implementation of the
Directive "should not serve to justify any regression in relation
to the situation which already prevails in each Member State".
- Mr O’Neill’s
argument runs essentially as follows. Discrimination on grounds
of sexual
orientation
can amount to interference with an employee’s or prospective
employee’
rights
under article 8(1) of the Convention. Where such discrimination
is by
a public authority employer, it has been possible
to bring
a claim under s.6 of the Human Rights Act 1998 since the coming
into force of that Act in
October 2000. Between that time
and the
coming into force of the Regulations, it was not possible to
justify any such interference
under article 8(2) because the
interference
was not "in accordance
with the law": there was no provision of national law permitting
an exception from the general protection conferred by article 8(1).
The effect of the Regulations, however, is to provide the possibility
of justification in cases to which the exceptions in regulation 7
and related regulations apply. The public authority can point to
those provisions as meeting the "in accordance with the law" requirement
of article 8(2) of the Convention
and, subject to the principle
of proportionality, as justifying the discrimination. Thus the effect
of the regulations is to turn
what was previously an absolute
right not to be discriminated against
into a qualified right. The previous
level of protection is therefore
cut down, in breach of article
8(2) of the Directive.
- Miss Carss-Frisk’s response is that nothing in the Regulations reduces
existing protection or purports to do so. The Regulations provide
further and better rights. The exceptions challenged in these proceedings
do not cut down existing rights but specify the circumstances in
which the new prohibitions contained in the Regulations do not apply.
There is no express or implied amendment of earlier legislation.
Thus, if and to the extent that any employees had pre-existing rights
under domestic law (e.g. under the Human Rights Act 1998 where the
employer is a public authority) in respect of discrimination on the
grounds of sexual orientation, such rights are unaffected by the
Regulations.
- I accept Miss Carss-Frisk’s submissions. To treat the Regulations as
reducing the pre-existing level of protection seems to me to require
a distorted view of their effect. They add to existing rights, albeit
that the exceptions limit the additional rights that they confer.
Even if, in a claim under article 8 of the Convention, the exceptions
could now be relied on in the context of justification, as contemplated
by Mr O’Neill’s submissions, I do not consider that they could properly
be said thereby to give rise to a reduction in the level of protection.
They would at most affect the detailed application of article 8 of
the Convention rather than affecting the level of protection afforded
by that article. In any event I think it plain that this is not the
kind of point at which article 8(2) of the Directive is directed.
I therefore reject this separate ground of challenge.
Compatibility with the Convention: article 8
- The Amicus claimants contend that the impugned regulations are incompatible
with the Convention and cannot be read and given effect to in a way
that renders them compatible (see s.3(1) of the Human Rights Act
1998). The making of subordinate legislation incompatible with Convention
rights is unlawful under s.6 of the 1998 Act. There is no question
in this case of any incompatibility being unavoidable by reason of
the provisions of primary legislation. Accordingly the incompatibility
with the Convention is a separate ground for quashing the regulations.
- This distinct argument of breach of s.6 of the 1998 Act is not advanced
by the NUT. To the extent that the NUT relies on the Convention,
it is in the context of (i) the relevant principles of Community
law and (ii) the contention that the Regulations reduce the level
of existing protection under national law. I have dealt sufficiently
with both those topics.
- Mr Singh places reliance first on article 8, which provides that:
"(1)
Everyone
has the right to respect for his private and family life, his
home and his correspondence.
(2)
There
shall be no interference by a public authority with the exercise
of this right except such as is in accordance with
the law and s necessary in a
democratic
society in the interests of national security, public
safety
or the economic well-being of the country, for the prevention
of disorder
or crime, for the protection of health or morals, or for the
protection of the rights and
freedoms of others."
- It is submitted that discrimination based on sexual orientation in
the employment context will violate an employee’s article 8(1) rights
unless justified under article 8(2): see Smith and Grady v. United
Kingdom (2000) 29 EHRR 493. A legislative provision that permits
such discrimination will likewise
be in breach of article 8 unless
justified. The provisions in this case are not justified, because
they are not "in accordance with the law" and they are
not "necessary in a democratic society".
- The provisions
are said not to be "in accordance with the law" because
they are ultra vires for the reasons already given; and, in
the case of regulations 7(3) and 20(3) in particular, because they
lack legal certainty: it is impossible for a reasonable person to
know from a reading of the legislation in what circumstances discrimination
will be lawful. In relation to the requirement of legal certainty,
reference is made to the judgment of the Strasbourg Court in The
Sunday Times v. United Kingdom (1979) 2 EHRR 245 at page 271,
para 49:
"[A]
norm
cannot be regarded as a ‘law’ unless it is formulated with
sufficient precision to enable the citizen
to regulate his conduct: he must
be able
– if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances,
the consequences which a given
action
may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows
this to be unattainable. Again,
whilst
certainty is highly desirable, it may bring in its train excessive
rigidity and the law must be
able to keep pace with changing
circumstances.
Accordingly, many laws are inevitably couched in terms which,
to a greater or lesser
extent, are vague and whose interpretation
and application are questions
of practice."
- As to the
submission that the provisions are not "necessary in
a democratic society", the claimants point to the requirement
of very weighty reasons if a
justification is to be made out.
For example, the Strasbourg Court said in the context of sexual orientation
in Smith and Grady (pages 529-530):
"87.
… Given
the matters at issue in the present case, the Court would underline
the link between the notion of ‘necessity’
and that of a ‘democratic society’,
the hallmarks
of the latter including pluralism, tolerance and broadmindedness.
88. … A margin of appreciation is left open to Contracting
States in the context of this assessment, which varies according
to the nature of the activities restricted and of the aims pursued
by the restrictions.
89.
Accordingly,
when the relevant restrictions concern ‘a most intimate part
of the individual’s private life’, there must
exist ‘particularly serious reasons’
before
such interferences can satisfy the requirements of Article
8(2) of the Convention."
- The claimants contend that, whilst the right to manifest religious
beliefs might constitute a legitimate aim for the purposes of article
8(2), it does not provide a sufficiently weighty justification for
the interference permitted by regulation 7(3) in particular. In my
general discussion of the fundamental rights in issue in this case
I have referred already to article 9 of the Convention and to what
the claimants say about it. It is submitted that, making due allowance
for the article 9 rights of others, regulation 7(3), in particular,
involves a disproportionate interference with the right not to be
discriminated against on grounds of sexual orientation. A fair balance
is maintained by regulation 7(2); regulation 7(3) goes too far.
- Mr Singh also submits that justification has to be considered in the
context of the particular case. The Strasbourg Court stated in The
Sunday Times v. United Kingdom (above) at page 281, para 65:
"[T]he
Court’s
supervision under Article 10 covers not only the basic legislation
but also the decision applying it.
It is not sufficient that the
interference
involved belongs to that class of the exceptions listed in
Article 10(2) which has been invoked;
neither is it sufficient that
the interference
was imposed because its subject-matter fell within a particular
category or was caught
by a legal rule formulated in
general
or absolute terms: the Court has to be satisfied that the interference
was necessary having regard
to the facts and circumstances
prevailing in the specific case
before it."
Regulation 7(3), submits Mr Singh, precludes full consideration
of the facts and circumstances of a specific case. The legislative
approach does not enable issues of proportionality to be determined
properly.
- For the Secretary of State, Miss Carss-Frisk submits that the essential
object of article 8 is to protect individuals against arbitrary interference
by public authorities, but that it may also give rise to positive
obligations: see the summary at paragraph 16 of the judgment of the
Court of Appeal in Anufrijeva v. London Borough of Southwark [2003]
EWCA Civ 1406. The Regulations do not interfere with any article
8 rights. They afford a specific form of statutory remedy to individuals
who suffer discrimination on grounds of sexual orientation in the
employment field. The fact that there are limits to their scope and
that they do not cover all cases of such discrimination does not
mean that they interfere with article 8 rights. Any right or remedy
previously available under article 8 remains available (see the separate
argument about lowering of standards of protection).
- On a proper analysis, submits Miss Carss-Frisk, the claimants’ case
amounts to an assertion (though this is not the way that the claimants
express it) that there is a positive obligation on
the State to provide additional protection. But it cannot be said
that article 8 positively requires such action in circumstances where, ex
hypothesi, it is not required by the Directive, which represents
the EU consensus as to what is required in this field. In any event,
if there is a failure to fulfil a positive obligation, that does
not render the Regulations ultra vires. They implement the
Directive. If additional legislation is required, that is a separate
matter; and it cannot be raised in these proceedings since, by virtue
of s.6(6) of the 1998 Act, an omission to legislate cannot amount
to an unlawful act under s.6(1).
- It is further
submitted that, if there is an interference with article 8(1)
rights,
it is
justified under article 8(2). The exceptions in the impugned
regulations are
in accordance
with the law. They are contained in a statutory instrument
approved by Parliament and the
contention that they lack legal
certainty
is incorrect for reasons already covered. As to their being
necessary in a democratic society,
they exist in order to protect
the rights
and freedoms of employers and, in the case of regulation 7(3),
of followers of organised religions.
They have a legitimate aim. The
rights
of others under article 9 are relied on. But even if article
9 is not engaged, the reference
in article 8(2) to "the rights and freedoms of others" is
not confined to rights arising
under other specific provisions
of the Convention: see Olsson v. Sweden (1988) 11 EHRR 259 at
page 285, para 65, and Bowman v. United Kingdom (1998) 26
EHRR 1 at page 17, para 38. So too a State can take into account
religious sensitivities without express reliance on article 9: see Otto-Preminger
Institute v. Austria (1994) 19 EHRR 34 at page 57, para 48, and Wingrove
v. United Kingdom (1996) 24 EHRR 1 at page 28, para 48. Both
of those were cases involving the striking of a balance between freedom
of expression and religious feelings. They were not, as Mr O’Neill
sought to contend in another context, aimed fundamentally at the
protection of public order. In both cases it was recognised that
in such an area the State has a wide margin of appreciation (see Otto-Preminger at
page 58, para 50; Wingrove at page 30, para 58). Thus it was
entirely proper in the present case for the State to seek to balance
the rights of homosexuals against those of followers of organised
religions. The strength of feelings on both sides is amply demonstrated
by the claims and interventions in these proceedings. The balance
struck is proportionate.
- It seems to me that the issue of justification under article 8(2) of
the Convention, if it arises at all, involves very much the same
issues as have already been considered in the context of the challenge
to the compatibility of the regulations with the Directive. For the
reasons given in that context I consider that the requirements of
article 8(2) are also met. In my view the regulations meet a legitimate
aim and are proportionate. They also meet the requirement of legal
certainty. The additional points made by Miss Carss-Frisk here are
not only relevant to the case under article 8(2) but also help to
reinforce the conclusions I have already expressed in connection
with compatibility with the Directive.
- I also reject Mr Singh’s submission that the legislative approach in
regulation 7(3) is impermissible because justification has to be
considered by reference to the facts and circumstances of a particular
case. Again the point is really the same as that covered in connection
with compatibility with the Directive; but there is nothing in article
8 of the Convention to preclude the adoption of a general legislative
measure such as regulation 7(3).
- In my judgment, however, the claimants’ case does not get as far as
article 8(2). I accept the submissions for the Secretary of State
that the Regulations do not interfere with rights under article 8(1)
at all. They add to existing rights. The exceptions of which complaint
is made limit the scope of what is added, but do not interfere with
any rights. The point is essentially the same as that already considered
in relation to Mr O’Neill’s argument that the exceptions reduce the
existing level of protection in national law.
- The claimants’ case is not put in terms of a failure to fulfil a positive
obligation under article 8; and, for the reasons advanced by Miss
Carss-Frisk, a case could not be sustained in those terms.
- For all those reasons the case under article 8 of the Convention fails.
Compatibility with the Convention: article 14
- The other provision of the Convention with which the regulations are
alleged to be incompatible is article 14, which reads:
"The
enjoyment
of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any
ground such as sex, race, colour,
language,
religion, political or other opinion, national or social origin,
association with a national
minority, property, birth or
other status."
- It was held by the Court of Appeal in Ghaidan v. Godin-Mendoza [2003]
Ch 380 that sexual orientation is now clearly recognised as an impermissible
ground of discrimination, on the same level as the examples specifically
set out in the text of article 14 (see also, for a decision of the
Strasbourg court, Salgueiro da Silva Mouta v. Portugal (2001)
31 EHRR 47 at paras 28 and 36). The issue in Ghaidan was whether
it amounted to unlawful discrimination
on grounds of sexual orientation
under article 14 to afford a statutory tenancy to the survivor of
a heterosexual relationship (whether
a surviving spouse or "a
person who was living with the original tenant as his or her wife
or husband") when the survivor of an equivalent homosexual relationship
was limited to a less beneficial
assured tenancy. The court held
that this was a breach of article 14 and that, in order to remedy
the breach, the relevant statutory
provision could and should be
interpreted in such a way as to confer
the same protection on same-sex
partnerships as on heterosexual
partnerships.
- The court in Ghaidan applied the fourfold test laid down in Wandsworth
London Borough Council v. Michalak [2003] 1 WLR 617: (i)
do the
facts
fall within the ambit of one or more of the substantive Convention
provisions?
(ii) if so, was there different treatment as respects
that
right between the complainant on the one hand and other
persons
put forward for comparison ("the chosen
comparators") on the other? (iii) were the chosen comparators
in an
analogous
situation to the complainant’s situation? (iv) if so, did the
difference have an objective and reasonable
justification:
in other
words, did it pursue a legitimate aim and did the differential
treatment bear a reasonable relationship
of proportionality
to the
aim sought to be achieved? The submissions on behalf of the
claimants did not follow that structure but
can usefully
be considered
by reference to it.
- As to (i), in order for article 14 to be engaged, it is not necessary
to show a breach of a substantive provision of the Convention. It
is sufficient that the facts fall within the ambit of one of the
substantive provisions. In this case they are said to fall within
the ambit of article 8 of the Convention, which I have already considered,
and of articles 1 and 2 of the First Protocol. Article 1 of the First
Protocol concerns peaceful enjoyment of possessions and is potentially
relevant to the article 14 challenge to regulation 25 (access to
benefits by reference to marital status). Article 2 of the First
Protocol concerns the right to education and is potentially relevant
to the article 14 challenge to regulation 20(3).
- As to (ii) and (iii), Mr Singh did not spell out the difference in
treatment relied upon beyond the general point that in areas covered
by the exceptions the Regulations do not prohibit discrimination
on grounds of sexual orientation; nor the identity of the chosen
comparators, save perhaps in relation to regulation 25 where the
comparison is made between same-sex couples and married couples.
- As to (iv), Mr Singh emphasises that it is the discrimination that
has to be justified. This is important as regards the Secretary of
State’s reliance on social policy and margin of discretion. An argument
that the discrimination in Ghaidan fell within the legitimate
ambit of the state’s discretion or judgment met short shrift: see
per Buxton LJ at page 391, para 19, and per Keene LJ at page 397,
para 44. For reasons already given elsewhere, it is submitted that
any discrimination in the impugned regulations is not justified.
- Miss Carss-Frisk’s submissions on article 14 are robust and to the
point. She says that the claimants have failed to identify how the
regulations discriminate against any class of persons in the enjoyment
of their Convention rights or, if so, on what ground. The regulations
are about granting rights, not taking anything away; they provide
rights and do not interfere with them.
- I agree with Miss Carss-Frisk. The Regulations do not
produce any difference of treatment in the enjoyment of rights falling
within the ambit of the Convention; they simply confer certain rights
not to be discriminated against. In any event, to the extent that
a comparison is made between same-sex couples and married couples,
the fact is that, as discussed when considering the compatibility
of regulation 25 with the Directive, same-sex couples and married
couples are not in an analogous situation. Those matters are sufficient
to dispose of the claim under article 14, and in the circumstances
I think it unnecessary to say anything further about it
Compatibility with the principle of legality
- The Amicus claimants have a separate argument, as ground 2 of their
claim, that the impugned regulations are in breach of the common
law principle of legality. The argument runs along the lines that
the courts will presume that Parliament did not intend a statutory
power to be used so as to interfere unjustifiably with a fundamental
right; and if subordinate legislation cannot be construed in a way
that makes it compatible with fundamental rights, it will be declared ultra
vires (see e.g. R v. Lord Chancellor, ex parte Witham [1998]
QB 575). The matters relied on as establishing such incompatibility
with fundamental rights are the same as those considered above in
the context of the Convention.
- It appears
that this line of argument was developed in order to meet any
possible
submission
on behalf of the Secretary of State or interested parties that
for present purposes
the claimants
are not themselves "victims" within
s.7(1) of the Human Rights Act
1998
are therefore unable to rely on s.6 of the Act and the provisions
of the Convention engaged by
that section. In the event no
such
submission has been made. It is therefore unnecessary for me
to consider the alternative line of
argument any further.
Conclusion
- I have found against the claimants on each of the grounds of challenge
that they have pursued. Accordingly all the claims will be dismissed.