Watt (formerly Carter) v Ahsan
| Jurisdiction | England & Wales |
| Judge | LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD HOFFMANN,LORD WALKER OF GESTINGTHORPE,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 21 November 2007 |
| Neutral Citation | [2007] UKHL 51 |
| Date | 21 November 2007 |
| Court | House of Lords |
HOUSE OF LORDS
Appellate Committee
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
Lord Brown of Eaton-under-Heywood
Appellants:
Robin Allen QC
Akua Reindorf
(Instructed by Commission for Racial Equality)
Respondents:
Gavin Millar QC
Michael Ford
(Instructed by Thompsons)
My Lords,
Between 1991 and 1998 Mr Raghib Ahsan was a Labour Party councillor for the Sparkhill Ward of Birmingham. The ward has a large Pakistani population and he is from Pakistan. When the 1998 local government elections were approaching, he hoped to be readopted as the Labour candidate. Ordinarily, the candidate would have been chosen by the Sparkhill branch of the party. But when the selection process was due to take place, late in 1997, the Sparkhill branch had been suspended for nearly three years. The reason was that, early in 1995, articles had appeared in the Observer and the Daily Mail in which it was alleged that local councillors of Pakistani origin or associated with the Pakistani community were helping Pakistani residents to jump the queue for housing grants. The journalists made free with words like "sleaze" and "scandal". One of the councillors named in this connection was Mr Ahsan, who was known to be an aspirant for adoption as prospective parliamentary candidate for the Sparkbrook constitutency, which included the Sparkhill ward. The newspapers linked the housing grant story to another story that large numbers of Pakistanis, real or imaginary, had suddenly joined the Birmingham Labour party. The implication was that Mr Ahsan was recruiting or inventing countrymen to support his parliamentary ambitions.
The reaction of the Labour Party national executive was immediately to suspend four constituency parties and their branches, including Sparkhill. These were mainly the wards with the highest concentration of ethnic minority groups. In the event, after inquiry by the party, no evidence was found of any impropriety in connection with housing grants on the part of Mr Ahsan or the other Pakistani councillors. They appear to have been doing no more than advising or encouraging their constituents to exercise their statutory rights. The executive's concerns about new members were addressed by requiring all members to attend in person at the Labour Party office to verify their membership. Again, no evidence of any abuse involving Mr Ahsan was found. Nevertheless eight branches remained suspended throughout the 1997 general election campaign and they remained suspended when it came to the selection of candidates for the council at the end of 1997. The suspended wards included (with one exception) all the wards with a significant Pakistani population.
As the branches were suspended, the National Executive Committee of the Labour Party decided that the candidates would be selected by a panel from the Regional Executive Committee. On 19 December 1997 Mr Ahsan and others were interviewed by the panel, consisting of five members. He was not chosen. The candidate chosen for the Sparkhill ward was a white man from the Fox Hollies branch, a Mr Ian Jamieson.
On 26 February 1998 Mr Ahsan made a complaint to an employment tribunal, alleging that the Labour Party had discriminated against him on racial grounds, contrary to section 12(1) of the Race Relations Act 1976:
"It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person—
(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or
(b) by refusing, or deliberately omitting to grant, his application for it; or
(c) by withdrawing it from him or varying the terms on which he holds it."
By section 3, "discriminate" means to discriminate on racial grounds and by section 78(1), "profession" is defined to include "any vocation or occupation". Mr Ahsan says that being a councillor is a profession, or at any rate an occupation, and that the Labour Party is able to confer its authorisation to stand as a Labour candidate, which he needs to be elected or which will facilitate his election.
The Labour Party objected that section 12 did not apply to them. They said they did not confer authorisations or qualifications within the meaning of the Act. Section 12 is headed "Qualifying bodies" and appears in Part II of the Act, which is headed "Discrimination in the Employment Field." It is, they said, concerned with vocational or professional qualifications and not with politics.
The employment tribunal decided that they would decide the question of whether section 12 was applicable as a preliminary point. While that question was pending before the tribunal in July 1998, the secretary of the Birmingham Labour Party's Local Government Committee circulated to branches a draft list of approved candidates for selection by ward parties. Notwithstanding that Mr Ahsan was an approved candidate, his name had been taken off the list on the ground that he had brought proceedings against the Labour Party. This incident formed the subject of a second complaint to the employment tribunal on 22 September 1998, this time alleging victimisation contrary to section 2(1) of the 1976 Act:
A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—
(a) brought proceedings against the discriminator or any other person under this Act…
On 25 August 1998 the tribunal found against the Labour Party on the preliminary point. The Labour Party said that they would appeal and the tribunal therefore adjourned the second complaint to await the outcome of the appeal.
On 14 July 1999 the Employment Appeal Tribunal (Lindsay J presiding) dismissed the Labour Party's appeal: see Sawyer v Ahsan [2000] ICR 1. The tribunal gave the Labour Party leave to appeal to the Court of Appeal and ordered that, if they did not appeal, the case should be relisted for hearing on the merits.
On 26 May 2000 Mr Ahsan made another complaint of racial discrimination, again under section 12, in connection with the selection of candidates in that year and his candidature for the National Executive Committee. That made three complaints in all.
The Labour Party did not exercise their right to appeal against the decision of the EAT. In accordance with the tribunal's direction, the first case was therefore heard on the merits and by agreement the other two complaints were heard at the same time, over 15 days between June and September 2001.
Meanwhile, the Labour Party had argued the same preliminary point on section 12 in another entirely unconnected case in the Reading Employment Tribunal, also concerning alleged discrimination in the selection of a candidate for council elections. The Employment Tribunal followed Sawyer v Ahsan [2000] ICR 1 and rejected the Labour Party's objection. An appeal to the EAT (Lindsay J again presiding) was dismissed on the same ground. Again leave to appeal was granted. But this time the Labour Party took it up and pursued the appeal.
On 7 February 2002 the Court of Appeal gave judgment. The appeal succeeded: see Ali v McDonagh [2002] ICR 1026. Peter Gibson LJ, who gave the judgment of the court, said (at p 1040) that the Labour Party was "not the type of qualifying body to which the section is intended to apply."
At the time of the judgment in Ali v McDonagh, the judgment of the tribunal in Mr Ahsan's case was still reserved. The Labour Party asked to make further submissions on the effect of the Court of Appeal's decision and did so on 10 July 2003. It invited the tribunal to dismiss the applications on the ground that, following the decision of the Court of Appeal, the tribunal was now bound to hold that the Labour Party was not a "qualifying body" under section 12. It therefore had no jurisdiction to proceed with the case. But the tribunal decided that, as between the parties, it was still bound by the unappealed decision in Sawyer v Ahsan [2000] ICR 1. On the merits, it found for Mr Ahsan on all three complaints.
The Labour Party appealed to the EAT (Burton P presiding) [2004] ICR 938 on the preliminary point alone. The EAT dismissed the appeal in respect of the first complaint but allowed it in respect of the other two. The ground for distinction was that the EAT in Sawyer v Ahsan had directed a hearing on the merits of the first complaint but said nothing about the other two, of which it was not at the time seised. There followed an appeal to the EAT (Silber J presiding) against the employment tribunal's decision on the merits of the first complaint. The EAT held that the tribunal had made no error of law and dismissed the appeal.
The Labour Party then appealed against the decision of the EAT presided over by Burton P which had dismissed their appeal on the preliminary point. The Court of Appeal (Buxton LJ and Rimer J, Sedley LJ dissenting) [2005] ICR 1817 allowed the appeal, primarily on the ground that the earlier decision of the Court of Appeal had established that the employment tribunal had no jurisdiction to hear a complaint against the Labour Party under section 12. The majority were also of the opinion that Mr Ahsan's case should have failed on the merits because he had not been discriminated against on racial grounds.
Mr Ahsan appeals to your...
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