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||Neutral Citation Number:  EWHC 860 (Admin)
||Case Nos: CO/ 4672/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
||26 April 2004
B e f o r e :
THE HONOURABLE MR JUSTICE RICHARDS
|| The Queen on the application of
(1) Amicus MSF Section
(2) National Association of Teachers in Further and Higher Education
(5) Public & Commercial Services Union
(6) National Union of Rail, Maritime and Transport Workers
(7) National Union of Teachers
||- and -
||Secretary of State for Trade and Industry
(1) Christian Action Research Education
(2) Evangelical Alliance
(3) Christian Schools Alliance
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 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.
- 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
(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
(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.
- 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  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  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  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  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
(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  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.  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  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  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  ECR I-3541, Commission v. Italy  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  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  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  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)  UKHL 40,  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
(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  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
(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  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  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.
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.
[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
[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  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  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  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 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)  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  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):
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.
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  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  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  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  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.
- 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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