Gilham v Ministry of Justice [2017] EWCA Civ 2220

“(1) This subsection applies to the office of district judge. (2) Subject to the following provisions of this section and to subsections (4) to (6) of section 26 of the Judicial Pensions and Retirement Act 1993 (Lord Chancellor's power to authorise continuance in office up to the age of 75), a person who holds an office to which subsection (1) applies shall vacate his office on the day on which he attains the age of 70 years. ... (4) A person appointed to an office to which subsection (1) applies shall hold that office during good behaviour. (5) The power to remove such a person from his office on account of misbehaviour shall be exercisable by the Lord Chancellor, but only with the concurrence of the Lord Chief Justice. (6) The Lord Chancellor may, with the concurrence of the Lord Chief Justice, also remove such a person from his office on account of inability to perform the duties of his office.”

“As President of the Courts of England and Wales [the Lord Chief Justice] is responsible — (a) ... (b) for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales within the resources made available by the Lord Chancellor; (c) for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts.”

“I, CHARLES LESLIE, BARON FALCONER OF THOROTON, Lord High Chancellor of Great Britain, by virtue of Section 6 of the County Courts Act 1984 and Section 100 of the Supreme Court Act 1981 (as amended by Section 74 of the Courts and Legal Services Act 1990) do hereby appoint CLAIRE FRANCES GILHAM You are authorised to sit as a Joint District Judge at the following courts: [the County Court on the Wales and Chester Circuit] and Joint District Judge in the District Registry of the High Court at [the relevant District Registries] with effect from the sixth day of February 2006.”

“No adjustment in a District Judge’s salary is made during any absence by reason of sickness. Although nothing is laid down in statute, no limit is placed on the length of any absence, provided there is a reasonable prospect of an eventual return to duty.” (3) Paras. 43-49 contain provisions for maternity, paternity and adoption leave and career breaks. Salary is payable for such leave periods but not for career breaks. (4) Para. 85 refers to the existence of a protocol setting out a process to be followed where one judge has a complaint against another. We were shown the version issued in October 2013, which is titled “Judicial Grievance Policy”

“Whether there is a contract in a particular case, and if so what is its nature and what are its terms, depends upon an application of familiar general principles. That the appointment in question is or may be described as an 'office' is a matter to be taken into account. The weight of this feature will depend upon all the circumstances. But this feature does not of itself pre-empt the answer to the question whether the holder of the 'office' is an employee. This feature does not necessarily preclude the existence of a parallel contract for carrying out the duties of the office even where they are statutory: see Lord Oliver of Aylmerton in Miles v Wakefield Metropolitan District Council [1987] AC 539, 566-567.”

“Previously, it was a case of defendants seeking to deny an office-holder a right of complaint on the ground that he was party to a ‘pure contract of service’; now it is a question of defendants seeking to deny employees the right not to be unfairly dismissed on the ground that in reality they are not employees but ‘pure office-holders’.”

“The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God's word, as interpreted in the doctrines of their faith, governs all that they practise, preach and teach. This does not mean that they cannot be ‘workers’ or in the ‘employment’ of those who decide how their Ministry should be put to the service of the Church.”

“The distinction in law between an employee, who enters into a contract with an employer, and an office-holder, who has no employer but holds his position subject to rules dealing with such matters as his duties, the term of his office, the circumstances in which he may be removed and his entitlement to remuneration, is well established and understood. One of the oldest offices known to the law is that of constable. It is notorious that a constable has no employer. It required special provision in section 17 of the 1975 Act to bring the office of constable within the terms of the Act and to deem the Chief Constable to be his employer.”

“There was plainly an intention to create legal relations. But those legal relations were not a contract of employment. They were an appointment to a well-recognised office, imposing legal duties and conferring legal rights. The nature of an office inevitably means that the procedures for appointment will closely resemble those attending the engagement of an employee. No doubt similar documentation could be found concerning the appointment of, among many others, judges, rent officers and superintendent registrars of births, deaths and marriages (see Miles v Wakefield Metropolitan District Council [1987] AC 539). But that does not mean that their appointment to these offices created contractual relations.”

“[b]roadly speaking, ... a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution.”

“Lord Nicholls regarded office-holding as an unsatisfactory criterion, at any rate on its own, for deciding whether a person was employed. The concept is clear enough but the boundaries are not, except in the case of holders of a small number of offices which have long been recognised as such by the common law, such as constables and beneficed clergymen of the Church of England. Moreover, offices and employments are not always mutually exclusive categories. A contract of employment is capable of subsisting side by side with many of the characteristics of an office. It followed that the classification of a minister's occupation as an office was no more than one factor in a judgment that depended on all the circumstances.”

“It is clear from the judgments of the majority in Percy that the question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the minister's occupation by type: office or employment, spiritual or secular. ... The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties' intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion.”

“The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and, if so, whether it is a contract of employment. Necessity does not come into it.”

“The question whether an arrangement is a legally binding contract depends on the intentions of the parties. The mere fact that the arrangement includes the payment of a stipend, the provision of accommodation and recognised duties to be performed by the minister, does not without more resolve the issue. The question is whether the parties intended these benefits and burdens of the ministry to be the subject of a legally binding agreement between them.”

“These deal with the right to a stipend …, the right of a Circuit minister to be provided with a manse as a base for the work of ministry as well as a home …, membership of the pension scheme …, parenthood …, including antenatal care, maternity, paternity, adoption and parental leave …. There is a Connexional Allowances Committee which annually recommends stipends to Conference. There is a standard stipend and allowances for extra responsibilities, including those of a superintendent minister.”

“... by accepting office as rector he or she agrees to follow their calling. They do not enter into an agreement to do work for the purposes and benefit of the Church as a commercial transaction. On the facts as found by the employment judge, the Church, personified in these proceedings by the Bishop (in his corporate capacity), provides the institutional structure in which the incumbent can indeed follow his or her calling to be part of the ministry. The office of rector is governed by a regime which is a part of ecclesiastical law. It is not the result of a contractual arrangement.”

“As Bingham LJ put it in The Aramis [1989] 1 Lloyd's Law Reports 213 at 224, it is not sufficient that the conduct relied on for implying a contract was no more consistent with an intention to contract than an intention not to contract. Bingham LJ continued: ‘It must, surely, be necessary to identify conduct referable to the contract contended for or, at the very least, conduct inconsistent with there being no contract made between the parties to the contract to the effect contended for.’” ‘It must, surely, be necessary to identify conduct referable to the contract contended for or, at the very least, conduct inconsistent with there being no contract made between the parties to the contract to the effect contended for.’”

“I agree with the arbitrator that a judge holds office by Royal appointment and not by contract. I think that the correspondence referred to does no more than inform the claimant of the general conditions applicable to the office. It tells him that at the age of 62 he will have to retire and might expect to receive a pension; it does not amount to an agreement that he is to be appointed for a definite period and not at the pleasure of the Crown.”

“We are quite satisfied that a justice of the peace is appointed to hold an office. He is not employed under a contract of service or apprenticeship, nor does he make with the Crown a contract to execute personally any work or labour.”

“The object of Article 119 and the directives is to give protection against inequality and discrimination to those who may be vulnerable to exploitation. The term ‘workers’ should be construed purposively, as the Tribunal held, by reference to the object of the legislation. In the course of the argument before us emphasis was laid on the extent to which the respondents and holders of judicial office in general could be said to be under the direction of another person. We consider that the differences in the formality of expression of the terms and conditions of service and the extent of administrative direction of their patterns of work are not conclusive as criteria, for they reflect only differences in emphasis in the way that the same conditions are expressed. All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the President of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment, as servants of the State, even though as office holders they do not come within the definition of employment in domestic law.”

“These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis.”

“47. There is copious authority to support the proposition that a statutory office holder such as a judge is not employed under a contract (for example, Terrell v Secretary of State for the Colonies [1953] QB 482) and is not ‘in employment’ within the meaning of the Sex Discrimination Act 1975 (Knight v Attorney General [1979] ICR 194). In Shaikh v Independent Tribunal Service (unreported) 16 March 2004, the Employment Appeal Tribunal (Judge Peter Clark presiding) held that part-time chairmen of social security tribunals were office holders rather than employees and were not Crown employees. None of these authorities is dispositive of the present case, but they do illustrate that it would have been ground-breaking if the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were to have departed from their underlying assumption. Regulation 1(2) is in language that inhabits a different terrain from that exemplified by the ‘office holder’ authorities. It defines ‘worker’ in terms of a contract of employment (which a part-time judge does not have), or [limb (b) of the definition is then quoted]. 48. For good and obvious reasons, the purpose of that provision is to ensure that protection is not lost where the relationship is properly classified as one of employer/independent contractor, rather than employer/employee. It does not describe the work of a judge who does not undertake to do or perform personally work or services ‘for another party to the contract’. One asks rhetorically: Which other party? What contract? 49 ... 50. It would be wholly inimical to the independence of the judiciary if any judicial office holder were to be discharging his judicial functions ‘under or for the purposes of a government department or any officer or body exercising … functions’ on behalf of the Crown. As [counsel for the Secretary of State] wryly observes, the Crown is a party to every trial or indictment and is a party to some civil litigation. 51. All this leads me to the clear conclusion that it was not intended that any part-time judicial office holders were to be protected by the Regulations and that regulation 17 was no more than a ‘belt and braces’ provision prompted by the Northern Irish case [i.e. Perceval-Price]. ...”

“47. It must be observed that the fact that judges are subject to terms of service and that they might be regarded as workers within the meaning of Clause 2.1 of the Framework Agreement on part-time work in no way undermines the principle of the independence of the judiciary or the right of the Member States to provide for a particular status governing the judiciary. 48. As the Supreme Court of the United Kingdom observed in paragraph 27 of its order for reference, judges are independent in the exercise of the function of judging as such, within the meaning of the second subparagraph of Article 47 of the Charter of Fundamental Rights of the European Union.”

“57. I distil from these cases the following propositions, which seem to me to be equally applicable to statutory office-holders such as judges, although the nature of a statutory office will be material in assessing the relationship: (a) the question of employment status cannot be answered simply by discerning whether a minister has an office or is in employment: the two are not mutually exclusive (Preston, paragraph 10, and Sharpe, paragraphs 67 and 68) (b) there must be an exercise of contractual interpretation to decide whether, in all the circumstances, there is a contract between the parties; (c) this will involve consideration of the manner of appointment and the way in which the office-holder carries out their duties; (d) it is necessary to ask whether rights and duties arise under contract or are defined by the office held; (e) in the context of statutory employment protection, arrangements (between a minister and a church) should not lightly be taken to have no legal effect (Percy, paragraph 26); (f) if there was no express contract, there will not be any necessity to imply one (Preston, paragraph 12, Sharpe, paragraph 77): it is insufficient that the conduct relied on is no more consistent with an intention to contract than an intention not to contract. 58. In Preston, the primary considerations in deciding whether the individual was employed under a contract of employment included these, which I take from the case headnote: (a) the manner in which the individual was engaged and the character of the rules and terms governing their service; (b) the intentions of the parties, and the fact that the arrangements included the payment of a stipend, the provision of accommodation and the performance of recognised duties did not without more resolve the issue; (c) the constitution and standing orders (of the Methodist Church) which showed that the manner in which the minister was engaged was incapable of analysis in terms of contractual formation; (d) the rights and duties of the minister arose from the constitution of the church and not from contract; (e) the relationship was not terminable at the will of the parties.”

“The relationship is not dependent on the will of the parties: it cannot be terminated by the Secretary of State, except in the limited circumstances of incapacity or misconduct. It is regarded as ‘a lifetime appointment’. The duties are defined by the statutory role of the District Judge, rather than the will of the parties.”

“I see no reason why the existence of judicial independence precludes judges carrying out their functions under contract, it being, in effect, a term of any contract that they have that judicial independence in how they do their work.”

“Fundamentally, however, I can find no intention by the parties to create a relationship of contract. The documents indicate only the appointment to the office of District Judge. The duties are defined by the statutory role of the District Judge. There are no significant duties beyond that role. The rights and responsibilities are defined by the office held. Whilst I accept that the terms of service extend beyond the immediate requirements of the role, they are, it seems to me, incidental to the office held. The Secretary of State or Lord Chancellor is entitled to provide terms of service similar to those accorded to employees without thereby creating a relationship of contract which was not intended. The position of District Judge is not a role which in my view can properly be defined in terms of any contractual relationship, and I do not find any intention by the parties to create any such relationship. I find myself echoing the views expressed by Maurice Kay LJ in O’Brien in the Court of Appeal: it is impossible to analyse the work of judges in terms of a distinction between self-employed and employed status. The answer lies in the absence of any contractual relationship.”

“19. In reaching his conclusions in this case the Employment Judge conducted precisely the analysis identified as required by Lord Sumption [at para. 10 of his judgment in Preston]. Whether there is a contract and if so what is its nature and what are its terms, depends upon the manner in which the individual was engaged and the character of the rules or terms governing her service. Documents dealing with those matters and any other admissible evidence fall to be construed against their factual background. The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and if so, whether it is a contract of employment or for services. The analysis must inevitably take account of the fact that the appointment is described as an office, but that does not preclude a finding that there is a parallel contract even where the duties of the office are statutory. 20. The Employment Judge considered the manner of the Claimant’s appointment as a District Judge to be inconsistent with an intention to enter into a contract. The Claimant’s appointment as a District Judge was by the Queen on the recommendation of the Lord Chancellor pursuant to s.6(1) of the County Courts Act 1984. Although the Claimant’s selection followed a competitive interview process which might have resembled the process for recruiting an employee, she was placed on a reserve list until a vacancy arose. (Her selection as a District Judge occurred before the introduction of the independent body, the Judicial Appointments Commission, now responsible for making recommendations for appointment, with the final decision on whether to accept a recommendation for appointment to the district bench lying with the Lord Chief Justice.) 21. The Claimant’s appointment was effected by an Instrument of Appointment signed by the Lord Chancellor following an exchange of letters in which she was offered terms of appointment and accepted these. The language of these documents is that of office rather than contract. The duties, functions and authority of a district judge are defined by the statutory role of district judge and are prescribed by statute and by rules made under statutory authority. There are no significant duties or functions beyond that role, and they do not derive from any private agreement made between the Claimant and the Ministry of Justice. 22. So far as terms of service or appointment are concerned, these are contained in the Memorandum on conditions of appointment and terms of service. The Employment Judge did not disregard the fact that the Memorandum is a non-statutory document. He expressly recognised that certain terms (for example, in respect of remuneration and pension provision) derive from statute, but that the Memorandum does not. The Employment Judge moreover acknowledged the similarity of certain terms of service to those identified by the Employment Rights Act 1996 as terms to be included in a statutory statement of particulars. However, what is clear (as the Employment Judge found) is that to the extent that the terms of service extend beyond the immediate requirements of the role of district judge, they are incidental to it. Significantly, none of the terms of service or appointment derive from any privately negotiated agreement between the Claimant and the Ministry of Justice. 23. Further, by virtue of s.7 of the Constitutional Reform Act 2005, the Lord Chief Justice (and not the Ministry of Justice or the Lord Chancellor) is responsible for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary and for the deployment of the judiciary and allocation of work within courts. 24. Finally, the relationship is not dependent on the will of the parties. Having been appointed, a district judge holds office until age 70 and cannot be removed save on account of misbehaviour or inability to perform the duties of the office (see s.11 of the County Courts Act 1984). Even then, the power to remove is exercisable by the Lord Chancellor but only with the concurrence of the Lord Chief Justice. The Ministry of Justice is accordingly, powerless to act to remove a district judge unless the Lord Chief Justice also wishes to do so. 25. In my judgment, there are no features of the method of the Claimant’s appointment, the duties and functions of her role, or the means by which she could be removed from it which support the existence of a contract between her and the Ministry of Justice in addition to the office she holds. There is nothing in the manner or express terms of appointment to indicate that the parties intended to enter into an employment contract. While there are some terms and conditions of service and some aspects of the function of district judges that ‘partake of some of the characteristics of employment’ when the incidents of the legal relationship between the Claimant and the Respondent are properly analysed, they lead to the conclusion that she is an office-holder only, and does not also have a contract of employment. The Employment Judge made no error of law in interpreting the documents in this case, and in reaching that conclusion. He did not adopt an unlawfully restrictive approach and nor was he deflected by general policy considerations or any presumption that there is no parallel contract.”

“28. ... There are substantial safeguards in place to maintain and preserve the constitutional independence of the judiciary. These include the guarantee of continued judicial independence provided pursuant to s.3 of the Constitutional Reform Act 2005; the judicial oath; the security of tenure guaranteed to judges; the fact that an independent body exists to investigate complaints of judicial misconduct pursuant to the Judicial Discipline (Prescribed Procedures) Regulations 2014 and the Judicial Conduct (Judicial and other office holders) Rules 2014; and the fact that the separation of powers between the judiciary, executive and legislature is protected by constitutional conventions whereby the legislature abstains from interference with the judicial function and vice versa. None of these safeguards depends on the absence of a contract between judges and the Ministry of Justice. 29. Further, a district judge’s entitlement to pay is governed by statute, and paid ‘out of money provided by Parliament’: s.132 of the County Courts Act 1984. This reinforces the independence of the judiciary. 30. Moreover, there is a distinction between a judge’s independence of decision making without direction from anyone, and the inevitable direction all judges must accept regarding when, where and how that function is to be carried out. This too would not be undermined by the existence of a contractual relationship. Nor do I consider that acknowledging the relationship to be a contractual one (if the documents and circumstances of appointment etc. had justified such a conclusion) would create a perception of bias: the informed, fair-minded observer is assumed to know that a judge is expected to be true to his or her oath (Harb v Aziz [2016] EWCA Civ 556 at [71]).”

“In our judgment the use of the word ‘appointment’ is neutral and certainly does not negative an intention to create legal relations. Many contractual relationships of employer and employee are described as appointments.”

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

“If the Claimant is not entitled to the right under Section 47B, it is impossible to see what protection she has from infringement of her Convention right. She is deprived of any remedy if she believes she is subjected to detriment for whistleblowing. I reject Mr Collins’ contention that she has sufficient protection; in fact she has none.”

“36. … While I accept (of course) that the strong interpretive obligation in s.3 HRA may require a court to read in words which change the meaning of legislation so as to make it Convention compliant, courts cannot adopt a meaning that is inconsistent with a fundamental feature of the legislation being construed. I agree with Mr Collins that a fundamental feature of s.230(3) of the 1996 Act is to define those within the scope of protection by reference to the existence of a contract, whether a contract of service or a contract for services. 37. This conclusion is reinforced by a consideration of the extent to which Parliament has extended the meaning of ‘worker’ (and associated terms) for the purposes of whistleblowing protection beyond that otherwise provided by s.230(3) of the 1996 Act. Section 43(K)(1) extends the meaning of ‘worker’ and ‘employer’. The extended protection afforded is carefully identified and delineated, preserving the general rule that a contractual relationship is required for ‘worker’ status save only in a limited number of circumstances (for example agency and NHS arrangements) where the requirement to have a contract is replaced by a requirement to work for a person in particular circumstances or performing particular services.”

“(a) The ERA specifically prohibits detrimental behaviour in relation for whistleblowing, thus providing effective protection and substantive whistleblowing rights. Such prohibition deters unlawful behaviour, provides an effective remedy and incentivises disclosures made in the public interest. In contrast a s7 claim has no deterrent or incentivising objective or outcome. (b) A successful complainant under the ERA obtains a declaration as well as compensation for injury to feelings and lost earnings. At most a s.7 HRA claim could provide limited damages for breach of the right in question. (c) Success following a s.7 claim only affects the individual; whereas if the wording of s.230 ERA is read in an Article 10 compliant manner, all current and future judges would benefit. (d) It is submitted that a s.7 claim for breach of Article 10 rights of is not in and of itself effective protection for judicial whistle-blowers. In any event such a claim could not be made in the ET (see para. 105 above).”

“Prohibition of discrimination 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.”

“The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each state to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the state has voluntarily decided to provide. This principle is well entrenched in the Court’s case law. It was expressed for the first time in Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252, para. 9, when the Court noted that the right to obtain from the public authorities the creation of a particular kind of educational establishment could not be inferred from Article 2 of Protocol No 1, and continued as follows: ‘Nevertheless, a state which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14.’”

“… It should be recalled in this regards that the general purpose of Article 14 is to ensure that where a state provides for rights falling within the ambit of the Convention which go beyond the minimum guarantees set out therein, those supplementary rights are applied fairly and consistently to all those within its jurisdiction unless a difference of treatment is objectively justified.”

“… In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.”

“… These focus on less favourable treatment rather than a difference in treatment. They also draw a distinction between direct and indirect discrimination. Direct discrimination, for example treating a woman less favourably than a man, or a black person less favourably than a white, cannot be justified. This means that a great deal of attention has to be paid to whether or not the woman and the man, real or hypothetical, with whom she wishes to compare herself are in truly comparable situations. The law requires that their circumstances be the same or not materially different from one another.”

“It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether ‘differences in otherwise similar situations justify a different treatment’. Lord Nicholls put it this way in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, para. 3: ‘The essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’” ‘The essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’”

“… Unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.”

“The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

“The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.”

“… is pre-eminently the function of democratically elected institutions. It is therefore necessary for the Court to give due weight to the considered assessment made by those institutions. Unless manifestly without reasonable foundation, their assessment should be respected.”

“ANALOGOUS SITUATION”

“all law, civil and criminal, has to draw distinctions.”