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Neutral Citation Number: [2004] EWHC 860 (Admin) |
|
|
Case Nos: CO/ 4672/2003
CO/4670/2003
CO/4880/2003
CO/4943/2003
CO/4908/2003
CO/4895/2003
CO/4670/2003
CO/4880/2003
CO/4943/2003
CO/4908/2003
CO/4895/2003 |
IN THE HIGH COURT
OF
JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
26 April 2004 |
B e f o
r
e :
THE HONOURABLE MR JUSTICE RICHARDS
____________________
Between:
|
The Queen on the application of
(1) Amicus MSF Section (2) National Association of Teachers in Further and Higher Education (3) UNISON (4) NASUWT (5) Public & Commercial Services Union (6) National Union of Rail, Maritime and Transport Workers (7) National Union of Teachers
|
Claimants
|
|
- and -
|
|
|
Secretary of State for Trade and Industry -and- (1) Christian Action Research Education (2) Evangelical Alliance (3) Christian Schools Alliance
|
Defendant
Interveners
|
____________________
Mr Rabinder Singh QC and Ms Karon Monaghan (instructed by Thompsons Solicitors and Michael Scott & Co.)
for
the Claimants in cases CO/4670/2003, CO/4880/2003, CO/4943/2003, CO/4908/2003 and CO/4895/2003
Mr Aidan O'Neill QC (Scot.) and Miss Sandhya Drew (instructed by Graham Clayton Solicitors)
for
the Claimant in case CO/4672/2003
Miss Monica Carss-Frisk QC and Miss Dinah Rose (instructed by The Treasury Solicitor)
for
the Defendant in all cases
Mr James Dingemans QC and Mr Paul Diamond (instructed by Coningsby Solicitors)
for
the Interveners in all cases
Hearing dates: 17,18 and 19 March 2004
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr Justice Richards :
- 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:
i) 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).
ii) 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.
iii) 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.
iv) 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.
v
) 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:
i) 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.
ii) 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.
iii) 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.
iv) 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.
v
) 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.
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