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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Marshall & Ors v Deputy Governor of Bermuda & Ors (Bermuda) [2010] UKPC 9 (24 May 2010) URL: https://www.bailii.org/uk/cases/UKPC/2010/9.html Cite as: [2010] UKPC 9 |
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[2010] UKPC 9
Privy Council Appeal No 0074 of 2009
JUDGMENT
Larry Winslow Marshall and Others v The Deputy Governor of Bermuda and Others
From the Court of Appeal of Bermuda
before
Lord Phillips
Lord Saville
Lady Hale
Lord Brown
Lord Mance
JUDGMENT DELIVERED BY
Lord Phillips
ON
24 May 2010
Heard on 22 and 23 February 2010
Appellant Jonathan Crow QC Delroy Duncan (Instructed by Dorsey & Whitney (Europe) LLP ) |
Respondent Rabinder Singh QC Howard Stevens Huw Shepheard (Instructed by Charles Russell LLP ) |
LORD PHILLIPS:
Introduction
i) Conscription of men but not women constitutes unlawful discrimination contrary to article 6(1) of theHuman Rights Act
1981 (the discrimination argument).
ii) Conscription is only lawful if the number of volunteers is inadequate to make up the strength of the Regiment. This means that conscription is only lawful if:
a) The Governor has kept the size of the Regiment under periodic review.
b) The Governor has taken all reasonable steps to recruit volunteers.
The burden lies on the Governor of proving that he has satisfied these preconditions. He has failed to discharge this burden ("the precondition argument").
iii) The Governor has proceeded under an error of law in that he believed that he had no duty to attempt to recruit volunteers before resorting to conscription ("the error of law argument").
iv) The Governor has resorted to conscription without giving consideration to a material matter, namely the possibility of establishing a quota of women in the Regiment ("the quota argument").
v) The call-up notices issued under section 17(1) of the Defence Act were invalid ("the invalidity argument").
The Defence Act 1965
"Raising of Regiment
3. Subject to and in accordance with this Act, there shall be raised and maintained in Bermuda one military force to be called the Bermuda Regiment, consisting of such number of officers and men as may from time to time be determined by the Governor after consultation with the Minister of Finance; and such military force is in this Act referred to as the regiment.
Voluntary enlistment supplemented by compulsory military service
4. The regiment shall be raised and maintained by means of voluntary enlistment, and also, in case voluntary enlistment proves inadequate for the raising or maintenance of the regiment, by means of compulsory military service, in the manner hereinafter in this Act provided."
Facts in the public domain
i) The demands likely to be placed on the Bermuda Regiment over the period 2006 to 2011;
ii) The Regiment's desirable future mission, structure and training;
iii) Based on present manning, structure and training, whether or not the Regiment could meet these demands or desires.
i) Providing unarmed assistance to the Civil Authority by, inter alia, providing support in responding to crises and by providing Ceremonial Guards and a Regimental Band;
ii) Providing armed assistance to the Civil Power in the case of a breakdown of normal civil order;
iii) Providing assistance to Bermudian society;
iv) Providing assistance to the international community.
"that the existing Regimental policy of accepting and encouraging all suitable male and females as volunteers should continue; and that there should be an increased emphasis on attracting volunteers."
The Defence Board found that remedial action was required in relation to pay, plant, infrastructure and military equipment in order to ensure that service in the Regiment was recognised as being valuable and meaningful. It identified a need to improve retention of soldiers who had completed the initial three years of service.
The discrimination argument
"(2) For the purposes of this Act a person shall be deemed to discriminate against another person—
(a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because—
. . .
(ii) of his sex;"
It is common ground that conscription constitutes discrimination against men within this definition. The issue is whether other provisions of the HRA renders this discrimination unlawful.
"Employers not to discriminate
6 (1) Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2(2) by—
(a) refusing to refer or to recruit any person or class of persons (as defined in section 2) for employment;
. . .
(e) establishing or maintaining any employment classification or category that by its description or operation excludes any person or class of persons (as defined in section 2) from employment or continued employment;
. . .
(g) providing in respect of any employee any special term or condition of employment …"
The precondition argument
i) Did the Governor address the size of the Regiment in a reasonable manner?
ii) Were all reasonable steps taken to recruit volunteers?
"This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration … The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why … Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands."
"A declaration that any calling up notice purportedly issued in relation to the applicant is unlawful on the grounds that:
(a) the Governor has failed to keep under review at reasonably regular intervals the exercise of his discretion under s.3 of the Defence Act 1965 with regard to determining the number of officers and men required for the proper discharge of the Regiment's function; and/or
(b) the Governor has not made any reasonable efforts to recruit sufficient volunteers before resorting to conscription"
The error of law argument
The quota argument
The invalidity argument
"Reporting for medical examination; calling up
17(1) The Deputy Governor shall prior to the issue of any notices under subsection (2) publish notices in the Gazette and in a newspaper containing lists of persons selected for military service under section 16 requiring such persons to present themselves at such time and place as shall be specified in the notices for medical examination by the medical board and for enlistment.
(2) The Governor shall cause to be served on each person selected for military service under section 16 a notice requiring him to present himself at the time and place specified in the notices published under subsection (1) for medical examination by the medical board and for enlistment."
The only notice published under section 17(1) that has been put in evidence was exhibited to an affidavit sworn by Mr Eve. It was a notice published in the Bermuda Sun. The notice set out a list of men selected for military service. The list included the name of Mr Eve and of at least two other appellants, Mr James Famous and Mr Seth Ming. That notice purported to have been published by Mr Burchall, the Administrator of the Defence Department. Mr Crow submits that it should be assumed that the same was true of the notices that related to the other appellants. He further submits either that the Deputy Governor had no power to delegate the publication of these notices to Mr Burchall or, alternatively, that there is no evidence that he did delegate that function.
"I accept the submission on behalf of the Respondent that the 'Carltona principle' is potentially applicable beyond the narrow confines of statutory powers conferred on Government ministers. It follows that an implied power to sub-delegate based on administrative necessity may potentially be found in respect of purely administrative aspects of the powers delegated by the Governor to the Permanent Secretary, depending on the applicable facts."
The Court of Appeal in the present case endorsed this statement of principle. So does the Board.
"In the ordinary run of the mill it is sufficient if the official exercising the power or fulfilling the duty holds an appropriate office to which the general responsibility for such matters has been entrusted."
He added that he read Mr Burchall's affidavit as saying that the administrative tasks relating to the Regiment and recruitment had been conferred on him and that it was "not necessary to go behind that". The Board agrees. Precisely how Mr Burchall's duties were conferred on him was never in issue and there is no basis for alleging that he was not properly authorised to undertake them. Accordingly the Board dismisses the invalidity argument.
LADY HALE