Gender Discrimination in UK Law

This is because, as I see it, cases of direct discrimination under section 1(1)( a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex?

To identify a social group, one must first identify the society of which it forms a part. Within that society, it seems to me that women form a social group of the kind contemplated by the Convention. Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect.

What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the State to do anything to protect them. The evidence was that the State would not assist them because they were women.

Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.

In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 501, para 78; Schmidt v Germany (1994) 18 EHRR 513, 527, para 24; Van Raalte v Netherlands (1997) 24 EHRR 503, 518-519, para 39.

It cannot be the case that every Act of Parliament which impinges in any way upon the rights protected in sections 4 and 5 of the Constitution is for that reason alone unconstitutional. Legislation frequently affects rights such as freedom of thought and expression and the enjoyment of property. These are both qualified rights which may be limited, either by general legislation or in the particular case, provided that the limitation pursues a legitimate aim and is proportionate to it.

Whilst I accept Mr Pointer's submission that the judge has a duty to assess each and every one of the section 25(2) criteria that bear on outcome and equally that judges of the Family Division have great expertise in making value judgments, I do not accept that the duty requires a detailed critical appraisal of the performance of each of the parties during the marriage.