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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McClintock v Department of Constitutional Affairs [2007] UKEAT 0223_07_3110 (31 October 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0223_07_3110.html Cite as: [2008] IRLR 29, [2007] UKEAT 0223_07_3110, [2007] UKEAT 223_7_3110 |
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At the Tribunal | |
On 22 October 2007 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR B R GIBBS
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR PAUL DIAMOND (of Counsel) Appearing under the Bar Direct Access Scheme |
For the Respondent | MR ADRIAN LYNCH (One of Her Majesty's Counsel) Instructed by: The Treasury Solicitor One Kemble Street LONDON WC2B 4TS |
SUMMARY
Religion or belief
The appellant was a Justice of the Peace. He sat on the Family Panel which, inter alia, places children for adoption. He objected to the possibility that he might be required to place a child with a same sex couple. The reason he gave was that he considered that there was insufficient evidence that this was in the child's best interests and he felt that children should not be treated like guinea pigs in the name of politically correct legislation.
He asked to be relieved from hearing cases which might raise these issues. Representatives of the respondent refused to allow this and he resigned from the Family Panel. He complained that this was both direct and indirect discrimination and harassment, contrary to the Employment Equality (Religion or Belief) Regulations 2003.
The Tribunal found that on the facts there was no unlawful conduct of any kind. He had not indicated that his objections were rooted in any religious or philosophical belief. There was in fact no direct or indirect discrimination for religious or philosophical reasons, nor any evidence of harassment. Even if there were a criterion adversely impacting on the appellant, the respondent was justified in requiring him to carry out the full duties of the office in accordance with his judicial oath.
The EAT rejected the appeal. The case was dismissed largely on the facts, but in addition the Tribunal was fully entitled to find that any indirect discrimination was justified.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background.
"12.1 Mr McClintock has served as a Justice of the Peace in Sheffield since 1988. He took the Judicial Oath on 20 April of that year. He has an unblemished record and is well regarded by fellow magistrates and by the Respondent.
12.2 He has served as a member of the Family Panel on the Bench in Sheffield since 1991. During this time the Appellant has dealt with cases wherein he had to help decide whether and where children should be placed in care, fostered or adopted.
12.3 The Appellant had never once recused himself from sitting on any case on the Family Panel.
12.4 The Appellant continued to sit on the Family Panel after first raising his concerns in March 2004 up to the time of his resignation in February 2006.
12.5 Since 1927 single persons of whatever sexual orientation have, in addition to married heterosexual couples, been able to adopt children. The Appellant had been unaware of that.
12.6 Following the passing of the Children and Adoption Act 2002 same sex couples have been added to the pool of persons eligible to adopt.
12.7 The Judicial Oath applies to all Judges (a term we shall use to include Justices of the Peace) of whatever religion, creed or persuasion.
12.8 As at February 2006 the Appellant's strongly held view was that the question of allowing same sex couples to adopt children had not been sufficiently researched and tested and that by making it possible for same sex couples to adopt children were effectively being used as "guinea pigs" in a "social experiment".
12.9 At the meeting with the Respondent on 2 February 2006 the Appellant made no mention or suggestion that his views were based on religious grounds or because he held any particular philosophical belief.
12.10 At the meeting on 2 February 2006 the Appellant made clear that he wished to be excused from having to adjudicate on any case which might lead to the adoption of a child by a same sex couple and stated that were he not to be granted such dispensation he would resign as a member of the Family Panel as he would be unwilling to continue to serve as member of it.
12.11 At no stage before during or after that meeting was any pressure put on the Appellant to resign, either as a member of the Family Panel or from his office as a Justice of the Peace. He chose to resign of his own volition. He was in no way forced or even encouraged to do so.
12.12 At the meeting on 2 February 2006 the Appellant was told that there could be no general exemption from sitting and he was reminded that he was duty-bound and obliged by the terms of the Judicial Oath that he had taken to adjudicate on any case which came before him and to decide it in accordance with his Oath and on its merits.
12.13 Had the Appellant agreed to sit on any case on the basis set out at 12.12 above, he could and would readily have been allowed to retain his position as a member of the Family Panel.
12.14 The Appellant's views at the meeting on 2 February 2006 were listened to carefully and courteously. The Respondent's representatives explained the position as they saw it and dealt with the obligations and duties of JPs in relation to their Judicial Oaths, work and status.
12.15 All dealings whether in correspondence or in person were mutually respectful and cordial.
12.16 Dr Byrd, the Appellant's expert witness, had little or no knowledge of the duties of a Justice of the Peace, the scope of the Judicial Oath or of the Respondent's responsibilities for the administration of justice.
12.17 Expert opinion is divided as to whether or not it is in the child's best interests to be placed into the care of or adopted by same sex couples."
"I swear by Almighty God that I will well and truly serve our sovereign lady Queen Elizabeth the second in the office of Justice of the Peace for South Yorkshire and I will do right to all manner of People, after the laws and usage of this realm, without fear or favour, affection or ill-will. So help me God".
7. Mr McClintock first wrote to the Court Manager on 18 March 2004 when what was to be the Civil Partnerships Act was still in the form of a Bill. He raised what he said "is a matter that could concern members of the Family Panel, if certain political developments have their way. It could be either a matter of conscience for individual JPs, or an issue that the Panel as a whole wish to discuss." Later in this letter he said this:
"It is possible to argue that a child is likely to thrive in same sex households. What is much more difficult to argue, however, is that, in the present state of knowledge, such a placement is anything other than experimental. There is no quantity of research that can say "this arrangement has been tried, and found to prepare the child for adulthood as well as an upbringing in a household that is single parent or traditionally heterosexual."
Accordingly, and irrespective of our views of the arrangement in itself, the question arises:
Is not a placement of that kind an experiment in social science?
Is it possible to accept the statutory obligation to remove a child from one kind of harm, and then to place that child where the emotional atmosphere has unproven consequences and where the risk of being teased at school (for having two daddies) could easily be harmful?"
"Two linked principles are relevant. The first is that we as JPs answer to the law and not to the policy of any particular Government, it is given emphasis by the second that we have chosen, as lay volunteers to reflect the values of the community. It is therefore entirely proper for JPs with these concerns to voice them. If the concern resonates with a number of Family Panel members, then a collective response to it is for consideration."
"I think some factual information from Social Services would help answer the question, whether the issue is for individual conscience or collective response."
"I find myself in this position: since, not just in the Christian West but throughout the world, children have always been brought up in two-sex households, I believe that to send a child to a same sex household is to make him/her the subject of an experiment in social science. That disposal I see as in conflict with our statutory obligation to provide for the welfare of the child. Accordingly I am unwilling to officiate in a case where such an order is in prospect. This is no way a gesture of dissatisfaction with the Bench as such; and I would be very happy to remain a member, if it is not administratively complicated to allow for my stance."
10. After summarising the facts, the Tribunal then considered three situations where it was alleged that judges had been allowed to recuse themselves from a general class of case because of hostility towards, or conscientious objection to applying, particular laws. Lord Scott had indicated that he would recuse himself from sitting on any case involving the Hunting Act but the Tribunal noted that this was not simply because of opposition to the Act but because he had spoken in debates on the Bill in the House of Lords and expressed strong opposition to the legislation. Certain JPs in South Yorkshire had apparently been relieved from sitting in cases arising out of the miners' strike, but the Tribunal found that this was not the result of a general exemption, but were either recusals because of an appearance of bias or for administrative reasons. Finally, Mr Christmas Humphreys, a Buddhist, had some fifty years ago been exempted in advance of being appointed as a criminal judge in the Old Bailey from hearing cases where he might have to impose the death penalty. The Tribunal found that this was in fact the only genuine exception to the notion that those taking the judicial oath should sit on any case allocated to them (save, of course, where there are proper grounds for recusal in any particular case.)
The law
"For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if:- (a) on the grounds of religion or belief, A treats B less favourably than he treats or would treat other persons."
Regulation 3(3):
A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, and not materially different, in the other".
"A discriminates against B if
A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but
(i) Which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) Which puts B at that disadvantage, and
(iii)Which A cannot show to be a proportionate means of achieving a legitimate aim."
13. Regulation 2, the definition provision, provided at the material time that "religion or belief" means "any religion, religious belief, or similar philosophical belief" (emphasis added). In fact the word "similar" has since been repealed by section 77(1) of the Equality Act 2007, apparently in order to bring the Regulations into line with the Directive which they seek to implement.
"5 Harassment on grounds of religion or belief
(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose of effect of
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
15. The appellant alleges that the act of discrimination is either removal from office, or alternatively his treatment constituted a "detriment", both of which are covered by regulation 10 (3) which states:
"It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this Regulation applies, to discriminate against him
(c) By terminating the appointment; or
(d) By subjecting him to any other detriment in relation to the appointment."
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes ... 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 limitation 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."
The hearing before the Tribunal.
The Tribunal's conclusions.
"45. For our part, on the facts of this case, we feel bound to conclude, notwithstanding the fact that Mr McClintock may be a man of Christian beliefs, even strong ones, that the way he expressed his concerns to those whose task it was to deal with them was based on doubts resulting from a lack of research into adoption by same sex couples. He viewed the possible placement of children with same sex couples as being a 'social experiment', with children being used as 'guinea pigs'. He considered it to be 'political correctness' on the part of the government. Those are views many might share, even on a rational basis, irrespective of whether that view is underscored by religious or other similar beliefs. Whilst we can appreciate that people with strong religious convictions or beliefs may not shout them from the rooftops or need to do so, in this case Mr McClintock presented his case on the basis of the matter which concerned him being under researched. We believe that Mr McClintock's case falls at the first hurdle. Mr Diamond, citing the judgment of Rix LJ in Williamson, said that whether or not Mr McClintock expressed himself in religious or philosophical terms mattered not. It was still plain that his views were underscored by his religious beliefs and convictions. In our view Mr McClintock was seeking to convince the respondent that more research was needed into the question. Why else, as Mr Diamond suggested was the case, would he require more 'information'. Again, when giving his evidence before us, Mr McClintock admitted that he had not at the time realised that it was likely to be anything more than an administrative matter. Now that he had come to realize it was something more than that, he might, he said, be prepared to sit on the Family Panel even though he might have some difficulties in doing so. We, for our part, agree with Mr Lynch, i.e. that the regulations are not therefore engaged in the first place. At the time he was seeking to put his case over to the respondent between March 2004 and February 2006, it was based on his assertion that the whole thing was experimental and under researched."
"In no way whatsoever could it be said that he had had his dignity violated or that he had been harassed in any way .To say otherwise would in our view turn the English language on its head."
"In so far as the claim of indirect discrimination is concerned the Appellant was of course in no different and certainly no worse a position than anyone else who took the judicial oath. That was the only group or pool of people he could compare himself with and anyone within it, bar none, would have been treated and dealt with in exactly the same way as himself, i.e. irrespective of what their religions were or what they may have believed. It follows therefore that Mr McClintock cannot in our view succeed on either of his claims for discrimination under Section 3(1)(a) or (b)."
29. In any event, even if there had been a prima facie case of indirect discrimination, the Tribunal concluded that this was manifestly a situation where the defence of justification applied. They said this:
" To have allowed the Appellant, or anyone else for that matter, to opt out of cases where they disapproved or were less than enamoured with the law because of their views on a particular matter or because their conscience would not allow them to consider doing something, would have been abdication of the responsibilities of those whose task it is to uphold the administration of justice in this country. Even if a Judge personally has particular views on any subject, he or she must put those views to the back of his or her mind when applying the law of the land impartially as their judicial oaths of office require them to do. It is the only way the public can place any trust in the law. To allow Judges with a particular point of view the ability to avoid cases which come before them because they feel it will likely cause them embarrassment or difficulty could, apart from anything else, impose greater burdens on others or lead to a situation whereby another pool of Judges with views in another direction might have to sit and adjudicate on such cases. The Respondent's stance was therefore wholly proportionate and wholly justified and, in our view, wholly necessary. In a country where there is such a diverse range of opinions and beliefs held and expounded by people from many religions and walks of life, it would be invidious were judges to pick and choose which cases they were prepared to sit on. It would undermine the basis of our judicial system, one that 'warts and all' has served people well for a very long time."
The grounds of appeal.
Indirect discrimination.
"The deed does not have to express the belief in proclaiming it. A Muslim or Jew who adheres to his religious dietary laws does not proclaim it (unless perchance there is any need for request or explanation): he does it. To all outward appearances he is like any other person eating a meal: but he is manifesting his religious belief and duty." (Italics added.)
Two other objections.
51. We do not accept that any of these grounds constitutes a reason for concluding that the Tribunal has erred in law in its approach to justification. No doubt it is desirable that JPs should be widely recruited. But there is no evidence that requiring adherence to the judicial oath prevents this, and in any event it is a matter for the Department what weight it gives to that factor. As the Tribunal pointed out, the issue is whether a judge should be allowed a blanket objection not to have to hear cases which involve a consideration of laws to which they have a principled or conscientious objection. It does not of course mean that he or she will have to hear particular cases where, because of their activities or public pronouncements, their hearing the case might give the appearance of bias.
52. As to the second issue, the Tribunal considered this but did not think that they were truly analogous, save perhaps for the situation of Judge Christmas Humphreys. In his case he had effectively negotiated an exception before he took office. In any event, even if it were the case that administrative exceptions have been made in the past with respect to particular cases, this would not in our view begin to demonstrate that there was a legal obligation to make an exception in all cases to cater for religious or other philosophical beliefs. No doubt in this case an administrative exception could have been made, but it does not follow that there was a duty to make it.
53. Mr Diamond made the perfectly cogent point that it seems to be something of a paradox if a magistrate can properly recuse himself from a particular case on the grounds that his public actions or words have created the appearance of bias (as was the basis for Lord Scott's proposed recusal with respect to any Hunting Act appeals) and yet will not be permitted to do so where the objection to the law may be for entirely the same reasons but have been only privately expressed. We recognise the force of that. However, the apparent paradox dissolves once the purpose of the rules is appreciated. Recusal for apparent bias occurs where the parties have a reasonable suspicion arising from some particular factor, such as the fact that the judge has a financial interest, or exceptionally because he or she has expressed strong views on an issue, that the judge may not be able to conduct the trial fairly and impartially. This is different from a situation where the judge is refusing to apply the law because he has moral objections to it, or thinks that it has been introduced prematurely or has been insufficiently considered. He is then expected to put his personal views to one side - which judges frequently have to do - and there is no reason why the parties should not trust him to be able to do that.
54. Mr Diamond placed significant emphasis on the third feature, namely that Mr McClintock had adopted a rational position, supported by a host of experts, (although in fact the Tribunal found that expert opinion was divided.) He complained that the Tribunal had not paid proper regard to this fact. In our judgment this submission is misconceived. It was not for the Tribunal to question the wisdom of Parliament, which must be taken to have assumed that there was no inherent conflict in the legal position which it had created. It could not conceivably be the function of an employment tribunal to express a view that JPs could or should ignore a law passed by Parliament on the grounds that it was apparently inconsistent with other statutory provisions.
55. In any event, the issue was not whether Mr McClintock could provide a rational basis for adopting the stance he did; no doubt the wisdom of many laws can be questioned on perfectly rational grounds. Indeed, if his objection was religious or philosophical, it could in principle be relied upon whether it was rational or irrational, sensible or misguided. Furthermore, in the context of proportionality, the issue was whether the Department was entitled to take the view that they could require those who had taken the judicial oath to honour it and subordinate their own particular personal views about the merits of the law. The rationality of those objections may be relevant to the desirability of passing the law in the first place, but it is quite irrelevant to the issue of justification.
56. Nor do we accept that Mr McClintock can properly contend that he is willing to obey the law and is unable to perform his legal duties. Mr Diamond accepted in the course of argument that on a true analysis Mr McClintock was not willing to apply the law involving placing children with same sex parents unless and until satisfied that the duties which he perceived to be conflicting could be reconciled. It is also fanciful and wrong to describe this case as an example of the Executive interfering with the independence of the judiciary. It was the legislature - Parliament - which passed the Civil Partnership Act, not the Executive, and Mr McClintock's duty, as reflected in the judicial oath, is to give effect to the laws which Parliament enacts. The principle of the independence of the judiciary does not mean that they have the right to pick and choose which laws they will apply.
Human Rights.
Conclusions.