R (Amicus-MSF Section) v Secretary of State for Trade and Industry (Christian Action Research Education and Others intervening)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,‘Mr Justice Richards’ |
| Judgment Date | 26 April 2004 |
| Neutral Citation | [2004] EWHC 860 (Admin) |
| Docket Number | Case Nos: CO/ 4672/2003 CO/4880/2003 CO/4943/2003 CO/4908/2003 CO/4895/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 April 2004 |
[2004] EWHC 860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case Nos: CO/ 4672/2003
CO/4670/2003
CO/4880/2003
CO/4943/2003
CO/4908/2003
CO/4895/2003
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
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 2In broad terms the NUT case with regard to the impugned exceptions covers the same ground as that of the Amicus claimants, but one of the distinct additional submissions made by Mr O'Neill is that the exceptions are ultra vires in that they have the effect of lowering the pre-existing level of protection in national law as regards discrimination on grounds of sexual orientation.
Miss Monica Carss-Frisk QC and Miss Dinah Rose appear for the Secretary of State for Trade and Industry, the correct defendant in the proceedings. The Secretary of State's position is that the Regulations, including the exceptions to the general prohibition of discrimination on grounds of sexual orientation, properly implement the Directive and are not incompatible with Convention rights or otherwise unlawful.
Pursuant to permission granted by Elias J, there are also three interveners before the court, all represented by Mr James Dingemans QC and Mr Paul Diamond. The interveners are all evangelical Christian organisations: CARE (Christian Action Research Education), the Evangelical Alliance and the Christian Schools Trust. They and their members hold to the biblical teaching that monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons. They support the Secretary of State's position with regard to the validity of the Regulations, submitting in particular that the exceptions in regulation 7 as regards occupational requirements represent an appropriate and lawful balance between the rights and freedoms of followers of organised religions and the right not to be discriminated against on grounds of sexual orientation. Although concentrating on their own factual position, they stress that their submissions are not intended to assist just one religious group.
Between them, the parties submitted “skeleton” arguments of a total length of well over 200 pages (with Mr O'Neill accounting for the major part) and 14 bundles of authorities, only a relatively small proportion of which could be looked at directly in the course of the 3-day hearing. In this judgment I concentrate on what appear to me to be the main issues, without attempting to cover every aspect of the arguments advanced. Even then the judgment is unduly lengthy.
The Directive
The Directive was adopted by the Council pursuant to article 13 (ex article 6a) of the EC Treaty, which in its amended form confers specific powers to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Directive's recitals include:
“(1) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
…
(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.
…
(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty ….
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community ….
(13) This Directive does not apply to social security and social protection schemes whose benefits are not treated as income … nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.
…
(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
…
(22) This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.
(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate ….
(24) The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine,...
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