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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) (26 April 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/860.html Cite as: [2007] ICR 1176, [2004] Pens LR 261, [2004] ELR 311, [2004] IRLR 430, [2004] EWHC 860 (Admin) |
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CO/4670/2003 CO/4880/2003 CO/4943/2003 CO/4908/2003 CO/4895/2003 CO/4670/2003 CO/4880/2003 CO/4943/2003 CO/4908/2003 CO/4895/2003 |
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| The Queen on the application of (1) Amicus MSF Section (2) National Association of Teachers in Further and Higher Education (3) UNISON (4) NASUWT (5) Public & Commercial Services Union (6) National Union of Rail, Maritime and Transport Workers (7) National Union of Teachers |
Claimants |
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| - and - |
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| Secretary of State for Trade and Industry -and- (1) Christian Action Research Education (2) Evangelical Alliance (3) Christian Schools Alliance |
Defendant Interveners |
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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
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Crown Copyright ©
Mr Justice Richards :
The Directive
"(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 "
"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 ."
The Regulations
"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 ."
"7.(1) In relation to discrimination falling within regulation 3 (discrimination on grounds of sexual orientation)
(a) regulation 6(1)(a) or (c) does not apply to any employment;
(b) regulation 6(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and
(c) regulation 6(2)(d) does not apply to dismissal from employment,
where paragraph (2) or (3) applies.
(2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out
(a) being of a particular sexual orientation is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either
(i) the person to whom that requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it,
and this paragraph applies whether or not the employment is for purposes of an organised religion.
(3) This paragraph applies where
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either
(i) the person to whom the requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
"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 ."
"25. Nothing in Part II or III shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status."
Issues
The fundamental rights in issue
"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 ."
"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 ."
" [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."
"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.
"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.
"(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."
"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 ."
"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 ."
Implementation of directives: general principles
"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."
"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).
"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.
"Subject to Schedule 2 to this Act, at any time after its passing any designated Minister may by regulations, make provision
(a) for the purpose of implementing any Community obligation of the United Kingdom ; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation ."
"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."
"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.
"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.
"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"
"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."
Regulation 7(2): compatibility with the Directive
"This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out
(a) being of a particular sexual orientation is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either
(i) the person to whom that requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it,
and this paragraph applies whether or not the employment is for purposes of an organised religion."
"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."
Regulation 7(3): compatibility with the Directive
"This paragraph applies where
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either
(i) the person to whom the requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
" 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."
"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 ."
"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'."
"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."
"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."
Regulation 20(3): compatibility with the Directive
Regulation 25: compatibility with the Directive
"5. Marriage is, without dispute, one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society's approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual's sense of self-worth and dignity.
6. The ability to marry, and to thereby participate in this fundamental societal institution, is something that most Canadians take for granted. Same-sex couples do not; they are denied access to this institution simply on the basis of their sexual orientation.
107. Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships. In doing so, it offends the dignity of persons in same-sex relationships.
108. Based on the foregoing analysis, it is our view that the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage. Accordingly, we conclude that the common-law definition of marriage as 'the voluntary union for life of one man and one woman to the exclusion of all others' violates s.15(1) of the Charter. The next step is to determine whether the violation can be justified under s.1 of the the Charter.
142. [W]e conclude that the violation of the couples' equality rights under s.15(1) of the Charter is not justified under s.1 of the Charter. The AGC [Attorney General of Canada] has not demonstrated that the objectives of excluding same-sex couples from marriage are pressing and substantial. The AGC has also failed to show that the means chosen to achieve its objectives are reasonable and justified in a free and democratic society."
"16. Same-sex partners cannot be lumped together with unmarried heterosexual partners without further ado. The latter have chosen to stay as cohabiting partners for a variety of reasons, which are unnecessary to traverse here, without marrying although generally there is no legal obstacle to their doing so. The former cannot enter into a valid marriage .
21. [I]t becomes clear that the denial of benefits to same-sex partners while affording them to married judges is, in effect, a differentiation on the grounds of sexual orientation which is a listed ground in section 9. That denial accordingly amounts to discrimination which is presumed, in terms of section 9(5), to be unfair unless the contrary is shown. It was not suggested by the respondent that this discrimination is not unfair.
22. The benefits accorded to spouses of judges by the legislation are accorded to them because of the importance of marriage in our society and because judges owe a legal duty of support to their spouses. In terms of our common law, marriage creates a physical, moral and spiritual community of law which imposes reciprocal duties of cohabitation and support. The formation of such relationships is a matter of profound importance to the parties, and indeed to their families and is of great social value and significance. However, as I have indicated above, historically our law has only recognised marriages between heterosexual spouses. This narrowness of focus has excluded many relationships which create similar obligations and have a similar social value.
23. Inasmuch as the provisions in question afford benefits to spouses but not to same-sex partners who have established a permanent life relationship similar in other respects to marriage, including accepting the duty to support one another, such provisions constitute unfair discrimination ."
"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."
"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."
"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).
"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."
"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."
"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."
"71. It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.
72. It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy in question by other means, whether such an aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to its achievement, is capable of achieving that aim.
73. In that connection, the United Kingdom Government maintains that a member state should merely have to show that it was reasonably entitled to consider that the measure would advance a social policy aim. It relies to that end on Nolte v. Landesversicherungsanstalt Hanover (Case C-317/93) [1995] ECR I-4625.
74. It is true that in the Nolte case, at p.4660, para 33, the court observed that, in choosing the measures capable of achieving the aims of social policy, the member states have a broad margin of discretion.
75. However, although social policy is essentially a matter for the member states under Community law as it stands, the fact remains that the broad margin of discretion available to the member states in that connection cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women.
76. Accordingly the answer to the fifth question must be that it is for the member state, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim."
i) The Government's policy is to support marriage, a social institution the importance of which is recognised by article 12 of the Convention (and it is noted that the Strasbourg Court held in Shackell, above, that the promotion of marriage by way of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the Government).
ii) It is unrealistic to suggest, as the claimants do, that the only issue is whether benefits should also be payable to same-sex couples. If benefits were payable to unmarried homosexual couples, it would be discriminatory to deny them to unmarried heterosexual couples. Not all unmarried heterosexual couples are free to marry; and why should heterosexuals be compelled to marry in order to gain access to benefits when homosexual couples do not have to? Ghaidan v. Godin-Mendoza (see below in the context of article 14 of the Convention) illustrates how discrimination may arise if unmarried homosexual couples are treated differently from unmarried heterosexual couples. In the context of objective justification, the State is entitled to take the view that if benefits were extended to same-sex couples, fairness would require an extension to unmarried heterosexual couples. It would otherwise leave employers open to challenge.
iii) The practical consequences of requiring employers to extend, to unmarried employees and their partners, benefits currently limited to married couples would be considerable. It would be necessary to set workable criteria to define the class of beneficiaries and to build in safeguards to prevent false claims.
iv) It would also lead to a very great increase in costs. Mr Andrew Johnston of the Government Actuary's Department has produced cost estimates showing an annual cost of the order of £300 million and potentially as high as £1.8 billion or more.
v) A Bill to provide for a civil partnership scheme for same-sex couples was announced in the Queen's Speech in November 2003. The Bill itself was published after the conclusion of the hearing in this case. It includes provision for the legal rights and responsibilities of those who enter into civil partnerships to include equivalent treatment to married couples for a range of employment-related benefits. The intention is that if this is enacted, the Regulations will be amended accordingly. It is submitted on behalf of the Secretary of State that it would be wholly disproportionate to require employers to extend employment benefits to all unmarried couples because of a disparate impact on homosexual couples that will shortly be eliminated by appropriate legislation. Even where a State has decided that a change in the law is necessary to comply with the Convention (which is not the case here), it has been recognised that the State is entitled to such time as is reasonable to make the necessary change: R (Hooper) v. Secretary of State for Work and Pensions [2003] EWCA Civ 813 at paragraphs 70-78 of the judgment, citing relevant Strasbourg case-law.
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.
Lowering of existing standards of protection
Compatibility with the Convention: article 8
"(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."
"[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."
"87. Given the matters at issue in the present case, the Court would underline the link between the notion of 'necessity' and that of a 'democratic society', the hallmarks of the latter including pluralism, tolerance and broadmindedness.
88. A margin of appreciation is left open to Contracting States in the context of this assessment, which varies according to the nature of the activities restricted and of the aims pursued by the restrictions.
89. Accordingly, when the relevant restrictions concern 'a most intimate part of the individual's private life', there must exist 'particularly serious reasons' before such interferences can satisfy the requirements of Article 8(2) of the Convention."
"[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.
Compatibility with the Convention: article 14
"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."
Compatibility with the principle of legality
Conclusion