MRS C ARTHUR v THE ATTORNEY-GENERAL & OTHERS [1999] UKEAT 578_98_0103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 578_98_0103

Case No Appeal No. EAT/578/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS C ARTHURAPPELLANT

THE ATTORNEY-GENERAL & OTHERSRESPONDENT

Before

Mr Justice Morison

Date 1 March 1999

[1]APPEARANCES For the Appellant MR N GRIFFIN (of Counsel) Mary Ward Legal Centre 26-27 Boswell Street London WC1N 3JZ For the Respondents MR D BARR (of Counsel) The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE MORISON (PRESIDENT): Background Mrs Arthur is of West African ethnic origin, and is black. She would like to be appointed a lay magistrate, or justice of the peace. Appointments to the Lay Magistracy are made by the Lord Chancellor on behalf of the Crown. To enable him to carry out this duty, the Lord Chancellor has appointed a number of local advisory panels who interview candidates and then make recommendations as to their suitability for appointment. Mrs Arthur was interviewed by the 'Middlesex Area Advisory Committee on Justices of the Peace', but was not recommended for appointment, and, thus, was not appointed. As a result of the manner of her interview, she was of the view that the Committee's failure to recommend her was tainted by direct racial discrimination. She brought a complaint against the Committee under section 12 of the Race Relations Act 1976 [the Act]. The Industrial Tribunal held that it did not have jurisdiction to hear the complaint because the Committee was not a body which fell within the section. Section 12, in part II of the Act, is headed "Qualifying Bodies" and its relevant provisions are:

"(1) 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 ... (b) by refusing or deliberately omitting to grant his application for it." "

Profession" is defined by the Act to include "occupation" or "vocation" and "trade" to include the carrying on of a "business". The essence of the Industrial Tribunal's reasoning is contained in paragraph 6 of the Decision. They were of the view that appointment to the office of a Justice of the Peace could not be said to be the pursuit of a profession or trade "since both these expressions mean the carrying on of some sort of business". Mrs Arthur appeals the Decision, and the Respondent cross appeals, relying upon section 75 of the Act, as excluding the Industrial Tribunal's jurisdiction. Section 75 is headed "Applications to Crown etc" and it reads:

"(1) This Act applies- (a) to an act done by or for purposes of a Minister of the Crown or government department, or (b) to an act done on behalf of the Crown by a statutory body or a person holding a statutory office, as it applies to an act done by a private person. (2) Parts II and IV apply to- (a) service for purposes of a Minister of the Crown or Government Department, other than service of a person holding a statutory office; or (b) service on behalf of the Crown for purposes of a person holdng a statutory office or purposes of a statutory body; or (c) service in the armed forces, as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service."

Counsel's Submissions Mr Barr for the Respondent to the appeal submits that because, as was common ground, a JP is the holder of a statutory office, Part II of the Act has no application to her complaint. This submission is based upon a decision of the EAT in Knight v Attorney General

[1979] ICR 194

. In that case, a prospective Magistrate complained to an Industrial Tribunal that she had been discriminated against on the grounds of her sex by the Lord Chancellor, following an interview with the relevant advisory committee. It is to be noted that in that case no claim was made against the Committee itself and nor was it suggested that it was a Qualifying Body within the meaning of the statutory provision in the Sex Discrimination Act [section 13] equivalent to section 12 of the Race Relations Act. We are grateful to both counsel for their helpful written and oral arguments. In a sustained argument of conspicuous ability, Mr Giffin on the appellant's behalf made, and we summarise them, the following points: The Industrial Tribunal's reasoning could not be correct since the word "trade" included business in any form and, therefore, the word "profession" was deprived of any meaning. In any event, there is a clear distinction, as a matter of language, between the doing of business and the undertaking of a profession.

[2]The scope of the statute must be construed purposively, with a bias towards a construction which 'includes' rather than excludes its coverage and operation. A dictum of Lord Templeman in Savjani v IRC

[1981] QB 458

epitomises this approach:

"... the Act was brought in to remedy a very great evil. It is expressed in very wide terms and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."

And there are other dicta to a similar effect.

[3]A broad interpretation of section 12 is consistent with the expressed purpose of the legislation that it should be comprehensive in its scope: see the White Papers preceding the Sex Discrimination Act and the Act: Cmnd 5724 and 6234. The Government of the day intended that the law should be comprehensive in its scope and that the two Acts should be regarded as part of a piece. Although counsel referred to an exchange during a Parliamentary debate which might be said to support a view that "occupation" meant any activity occupying ones time, the strands of the argument are too weak to lead to any conclusion. Reference was also made to the United Kingdom's ratification, in 1969, of the International Convention on the Elimination of all forms of Racial Discrimination. The Convention commits States Parties to undertake to prohibit and eliminate racial discrimination "notably in the enjoyment of the following rights "Political rights, in particular the rights ... to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service" Mr Giffin submitted that the right to take part in public affairs and public service was apt to include the right to become a magistrate. The Equal Treatment Directive provides that:

"Application of the principle of equal treatment means that there shall be no discrimination whatsoever on the grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy."

The office of Lay Magistrate would aptly be embraced by the word 'post' and it would, therefore, be unlawful to discriminate on grounds of sex against a woman. Section 13 of the Sex Discrimination Act 1975 must be construed so as to give effect to the Directive (which would have direct effect). If Mrs Arthur had been discriminated against on grounds of her sex, she would have had a competent claim. It would be contrary to Parliament's express intention were the Act of 1976 to be construed more narrowly than the 1975 Act. Thus, section 12 of the 1976 Act should be construed so as to cover the process of appointment of a person to the Lay Magistracy. Further, direct discrimination on grounds of race is humiliating and degrading for the victim. Such treatment is contrary to

Article 3 of the European Convention on Human Rights

. Although its provisions are not yet incorporated into our law, in the case of ambiguity in the interpretation of national legislation, the Court should, where possible, give it an interpretation which is consonant with the Convention. Article 13 stipulates that there must be an effective remedy for breach of any Convention provision. Although judicial review might be an available remedy it could not be described as effective in the context of this type of case. Broadly speaking, jurisdiction to deal with race discrimination has been conferred upon Employment Tribunals, who have particular knowledge and experience of dealing with them, and upon selected Circuit Court Judges. The statutory questionnaire procedure which is often the most important evidential tool in a 'non selection' case would be unavailable in the Crown Office, and the Order 53 procedure is ill suited to the analysis of conflicts of fact and the drawing of inferences. Discrimination will almost invariably be denied and it can only be established after a painstaking analysis of conflicting oral evidence and contemporaneous documents.

[4]The natural and ordinary meaning of the words in the section are that the Committee was a 'body' whose recommendations are 'approvals' [see section 12(2)(a)]. Effectively, without such approval an appointment will not be made. Thus, Mrs Arthur needed the approval of the Committee before she could take up the profession, vocation or occupation of a Lay Magistrate. If there is doubt about the construction, then the 'inclusive' approach should be adopted, and the EAT should follow the lead of two industrial tribunals. In the first, section 13 of the 1975 Act was held to include the selection process of a prospective Parliamentary candidate, because being an MP was a means of earning a living. In the second, the office of a local authority councillor was held to be a "profession" so that section 12 of the Act applied to the selection process adopted by the political party concerned.

[5]Section 75 of the Act was irrelevant. Section 75(1) simply makes clear that liabilities under the Act will fall upon the Crown or Government department. Subsection (2) is designed to ensure that Crown or Government service is to be treated as employment whether or not there was a contract of employment. In other words, the provision is directed to potential claimants; whereas subsection (1) is looking at the position from the defendant's perspective. For the Attorney General, Mr Barr, made these admirably succinct submissions:

"I consider that the section has to be read as a whole and not construed piecemeal. The kind of bodies referred to re those similar to authorities which are empowered to grant qualifications or recognition for the purposes of practising a profession, calling trade or activity.....I consider that section 12 of the Act ... referring as it does to an authority or body which the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession exercise or calling or take part in some other activity."

Section 12 makes no reference to 'recommendation' or 'selection' which are both words apt to describe the fulfilment of the functions of the Committee. "(1) This section applies to any appointment by a Minister of the Crown or government department to an office or post where section 4 does not apply in relation to the appointment. (2) In making the appointment, and in making arrangements for determining who should be offered the office or post, the Minister of the Crown or government Department shall not do an act which would be unlawful under section 4 if the Crown were the employer for the purposes of this Act." If, as appears to be the case, the appointment to the office of JP is made by the Lord Chancellor under what might be loosely called a 'binding authority' from the Crown to do so on her behalf, then it would appear that the appointment process of a JP fell outside the Act. However unfortunate, it was a defect which Parliament and not the Courts should put right. Decision This is not an easy case. It is, as a matter of policy, desirable that judicial appointments should be made in a manner which excludes, so far as is practicable, the possibility of bias against any person based on his race, sex or disability. It is well known that the visible minorities, women and those with disabilities are under-represented in the judiciary, at every level. It is also well known that members of selection panels require proper training to enable them to carry out their task with an appropriate level of awareness of the risks of conscious or unconscious discrimination. To hold that the Industrial Tribunal has no jurisdiction to inquire into the circumstances under which Mrs Arthur was not recommended for appointment will leave open the possibility that a stereotype of a person who would make a good magistrate will perpetuate an under-representation of sections of the community. On the other hand, what makes a person suitable for a judicial appointment is difficult to define and there may be policy considerations which suggest that public scrutiny of the process in an adversarial context would or might impair its effectiveness. Thus, although we approach this case, as Mr Giffin suggested, with a mind towards construing the Act on an 'inclusive' rather than an 'exclusive 'approach, we are inclined to accept Mr Barr's submission that any loopholes or defects in the legislation are best left to Parliament to deal with. It is not clear to us that the European Court of Justice would interpret the Equal Treatment Directive so as to make it applicable to the appointment of Judges, and we are not able to accede to what was called in argument the European Law point. If the ECJ were to rule that discrimination against a woman on grounds of her sex during the appointment process to the judiciary, at any level, was unlawful then the interpretation of section 12 would require further analysis. It seems to us that, for the reasons given by the EAT in Knight , the appointment of a magistrate does not fall within section 75(2)(a) or (b). However, the fact that a magistrate is an office holder does not of itself determine the answer to the question whether the Advisory Committee is a qualifying body. On that issue, it does not seem to us that Knight is of any assistance because the arguments presented to the EAT, which are not adopted by Mr Giffin in this case, were obviously misconceived since they appeared to ignore the structure of the section. The real and only question at issue is the proper extent of section 12. The point is a short one. Is the Advisory Committee a Qualifying Body within the meaning of the Act? On this question we found the guidance given by the Court of Appeal in Tattari of particular assistance. By picking on some of the words of the section and seeking to fit the case into them will distort its true meaning and purpose. It could be said that being a magistrate was a vocation or profession and that the approval of the Committee was a necessary condition for appointment. To describe everything that a person does as an occupation within the Act would include people's hobbies and leisure activities. We reject the suggestion made by one Tribunal that 'occupation' can be so read. Further, there is, as it seems to us, a distinction between a group, committee or panel which is sifting job applications on the one hand, and a qualifying body conferring an approval, on the other. In one sense, both are engaged in a filtering process: ensuring that only the suitable may go forward. But, looking at the section overall, it is clear, we think, that performing a filter function is not enough. Section 12 requires more. It is directed to circumstances in which A confers on B a qualification which will entitle B to render services for C. Where A and C are the same entity, the section would appear to be inapplicable, otherwise it would apply to every selection panel. There is no policy reason to give it a more extended reason simply to fill the gap which has been identified in this case. Because the Committee is acting in an advisory role for the 'employer' the real target of these proceedings should have been the Lord Chancellor who may be sued in his capacity as head of a Department of State. Where there is doubt about the proper defendant when the State is involved as a defendant, the Attorney General may be the properly identified defendant, as here. Whether the proceedings should have been brought against the Committee rather than the Attorney General is a point of no substance, having regard to our conclusions. How Judicial appointments are made raises constitutional issues. If our judgment is correct, there is a lacuna in the Act. It remains for Parliament to decide whether it would be appropriate for Industrial Tribunals to be given jurisdiction over appointments to the Lay Magistracy. There is much to be said for that course. Judicial review is not a convenient form for an action in a discrimination case for the reasons advanced by Mr Giffin. Indeed, we would be inclined to think that such procedure was not an effective remedy for the wrong complained of by Mrs Arthur. We agree with the Industrial Tribunal's conclusion, although we have reached our decision by a slightly different route. The appeal will be dismissed, but because the point at issue is of general importance we give leave to appeal to the Court of Appeal. It would be appropriate for the Lord Chancellor's Department to consider most carefully whether it would now be right for Mrs Arthur's rejection to be formally reviewed. Members of the visible minorities must be encouraged to apply for the Lay Magistracy and given proper support.