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The Grand Chamber seems to have regarded it (para 45) simply as a residence condition more easily satisfied by Belgian nationals. Ratio |
I regret that the Grand Chamber did not explain why they disagreed with the Advocate General. Ratio |
She has, if I may respectfully say so, grappled with the real difficulties of this issue, although I do not agree with all her conclusions. Ratio |
She has proposed a general definition of direct discrimination (para 56): I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by appl... |
In my view this is too narrow a definition. Ratio |
As Lord Mance said in R (E) v Governing Body of JFS [2010] 2 AC 728, para 89, approving a submission from Miss Rose QC, an organisation which admitted all men but only women graduates would be engaged in direct discrimination on the grounds of sex. Ratio |
The Advocate Generals proposed test works only if in this example the categories are limited to cohorts of non-graduates (or, in the well-known case of James v Eastleigh Borough Council [1990] 2 AC 751, to cohorts of men and women over 60 years but under 65 years of age). Ratio |
It follows that in my opinion the Court of Appeal were wrong in adopting the reasoning in paras 22 to 24 of the judgment of Moses LJ. Ratio |
He said in para 22: Article 3 [of Council Regulation (EC) No 1408/71] requires the conditions for entitlement to State Pension Credit, under the legislation of the United Kingdom, to be the same for Latvian nationals as for United Kingdom nationals. Ratio |
Accordingly, it is necessary to focus on those conditions as a whole rather than one particular element of those conditions to the exclusion of others. Ratio |
The right to reside condition does not by itself entitle a claimant to the benefit. Ratio |
I do not see why the fact that there is more than one condition makes it necessary to focus on the conditions as a whole, if it is only one condition that produces unequal treatment. Ratio |
The right to reside condition is not a sufficient condition for entitlement, but it is a necessary condition, and it is one that is automatically satisfied by every British national. Ratio |
The fact that there is another cumulative condition (actual or deemed habitual residence) is irrelevant (Gravier v City of Lige (Case 293/83) [1985] ECR 593, para 14). Ratio |
It might be different if there were alternative conditions, because neither condition would then be necessary (although one would be sufficient). Ratio |
Returning to Bressol, I note that Advocate General Sharpston referred to the opinion of Advocate General Jacobs in Schnorbus v Land Hessen (Case C-79/99) [2000] ECR I-10997, para 33: It may be said that discrimination on grounds of sex arises where members of one sex are treated more favourably than the other. Ratio |
The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. Ratio |
It is indirect where some other criterion is applied but a substantially higher proportion of one sex than the other is in fact affected. Ratio |
That is, to my mind, the best guidance that we have. Ratio |
The second category (necessarily linked to a characteristic indissociable from sex) roughly corresponds to Advocate General Sharpstons proposed general definition, but is, I think, a better way of putting it. Ratio |
Schnorbus was a case brought by a female law graduate whose progress to the final part of her professional training had been held up by a shortage of training places. Ratio |
In the allocation of places some categories of applicants were given priority, including those (all male) who had completed a years compulsory national service. Ratio |
This was, Advocate General Jacobs advised, potentially indirect discrimination on the ground of sex, but was justified as one in a list of cases where priority was appropriate (others were disability, adverse social or family circumstances, and being a mature student). Ratio |
Advocate General Sharpston (para 67) sought to distinguish this case from Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJVCentrum) Plus (Case C-177/88) [1990] ECR I-3941 (the well-known case of a female refused a job because she was pregnant) on the ground that not all men actually completed national servi... |
But by the same token not every woman applying for a job is capable of becoming pregnant: her age or medical history may make that impossible. Ratio |
The true distinction was pointed out by Advocate General Jacobs in Schnorbus, that capacity for childbearing is a natural physical characteristic of women, whereas a mans liability to do national service was imposed by legislation (para 40): No amount of legislation can render men capable of bearing children, whereas l... |
The difference depended on a statutory obligation, and was not between men and women as such. Ratio |
Advocate General Jacobs opinion in Schnorbus has other valuable insights. Ratio |
He discussed whether there is some circularity in the rule that provisions potentially amounting to indirect discrimination can be justified only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, a form of words frequently used by the Court of Justice... |
In his opinion in Schnorbus Advocate General Jacobs observed (para 47): The Courts usual formulation may seem circular. Ratio |
To say that there is no discrimination based on sex when a difference in treatment is justified by factors unrelated to discrimination based on sex appears self-evident. Ratio |
In line with the definition in Directive 97/80, however, I take it to mean that (indirect) discrimination is not unlawful when the difference in treatment is justified by objective factors not in themselves (that is to say, not directly) related to sex. Ratio |
(This question of circularity seems to have been also in the mind of the Social Security Commissioner, Mr Rowland, in his decision in this case, para 13). Ratio |
As examples Advocate General Jacobs would, I think, have given those that he had already referred to: pregnancy (Dekker) is in itself related to sex, whereas liability to national service (Schnorbus) is not, although a national legislature may choose sex as a demarcation line. Ratio |
But this test of seeing whether the suspect ground of discrimination is directly (in the sense, as I understand it, of centrally, or intrinsically) involved is more difficult to apply to the abstract juridical concept of nationality. Ratio |
I agree with Lord Hope (para 33) that in Bressol the Grand Chamber must be taken to have regarded the Advocate Generals approach as too analytical. Ratio |
I would like to be able to agree that her approach accords well with our domestic law, but I must say that it seems to me hard to reconcile with the approach of the Court of Appeal in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, the case of Mrs Elias who was British enough to be interned (in Hong Kong ... |
In that case Mummery LJ, who gave the leading judgment, acknowledged (paras 104-113) the strength of the submissions made on behalf of Mrs Elias by Mr Rabinder Singh QC. Ratio |
But he felt bound to reject them (paras 113 and 114): The powerful submissions of Mr Singh raised serious doubts in my mind about the correctness of the judges ruling on this point, which, as Mr Singh pointed out, focused more on the edges of the effects of the criteria than on their central purpose or effect. Ratio |
In a general sense, discrimination with a discriminatory purpose, regardless of the particular form it takes, can be perceived as treating a person less favourably on racial grounds. Ratio |
I am, however, clear that, in the present state of the law, the particular form of discrimination matters, even if there are present in the circumstances of the case a discriminatory purpose and discriminatory effects. Ratio |
The 1976 Act, as amended, makes an important broad distinction between two different forms of discrimination. Ratio |
This distinction is consistent with the [Race Equality] Directive [2000/43/EC] and this Court must observe it. Ratio |
Discriminatory purpose? Ratio |
Mummery LJs observations about discrimination with a discriminatory purpose make it appropriate to mention a point which is not, I think, controversial, but may be worth spelling out. Ratio |
The dividing line between direct and indirect discrimination is emphatically not to be determined by some sort of mens rea on the part of one or more individual discriminators. Ratio |
A discriminatory purpose is not necessary for direct discrimination, nor (as Mummery LJ recognised) is it inconsistent with a finding of indirect discrimination. Ratio |
Where there is an allegation of direct discrimination of a systemic sort (embodied in legislation or rules, or in the settled practices and procedures of a public authority or an employer) it makes no difference whether or not the objectionable feature is in some way deliberately targeted at a particular group. Ratio |
That has been clear since the decisions of the House of Lords in R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751. Ratio |
Conversely, it seems that a discriminatory purpose does not, on the present state of the law, prevent unequal treatment being regarded as no more than indirect discrimination which is capable of justification. Ratio |
It is hard to avoid the suspicion that legislators and government lawyers throughout the EU have become well aware of this. Ratio |
There is an obvious temptation for governments, in the face of understandable popular feeling (in this case, against benefit tourism) to try to draft their way out of direct into indirect discrimination, with a view to avoiding having to distribute large sums out of public funds, or having to make some other commitment... |
Bressol and other cases concerned with the Belgian social security and education systems may be examples of this. Ratio |
In the area of fishing rights Commission of the European Communities v Ireland [1978] ECR 417 seems to be a striking example, since the Irish legislations detailed prescription for exempted vessels coincided with characteristics of vessels used by the Irish fishing fleet and was not justified by the need of conservatio... |
In this country, Elias may be an example; and so may the amendments made in 2004 to the State Pension Credit Regulations 2002. Ratio |
Having said all that, I recognise that this Court must follow the judgment of the Court of Justice of the EU in Bressol, even if some of us do not fully understand its reasoning. Ratio |
This case must be treated as one of indirect discrimination. Ratio |
But the correlation between British nationality and the right to reside in Great Britain is so strong that the issue of justification must in my view be scrutinised with some rigour. Ratio |
Justification Ratio |
The justification advanced in the Secretary of States printed case (para 54, an expanded version of the summary in para 33 of the statement of facts and issues) is that the provisions of regulation 2 (as amended) are indeed objectively justified, as they legitimately seek to identify either economic integration or a su... |
Reference is made to the Secretary of States formal statement under section 174(2) of the Social Security Administration Act 1992 laid before Parliament in April 2004. Ratio |
Reference is also made to Zalewska v Department for Social Development [2008] 1 WLR 2602, 2617. Ratio |
That was a split decision of the House of Lords on an issue as to the proportionality of measures taken in relation to economically active workers from A8 nations, and I find it of no assistance in this appeal. Ratio |
Proportionality is not an issue here. Ratio |
Nor are we concerned with economically active nationals of other EU States. Ratio |
The issue is whether the objective of a sufficient degree of social integration is something for the attainment of which the provisions of regulation 2(2) are an appropriate test, independent of the nationality of the person whose social integration is in question. Ratio |
This Court has had little assistance as to what social integration means in this context, as something separate from economic integration. Ratio |
The Court of Appeal (paras 27 to 40) seem to have addressed only economic integration. Ratio |
But I will assume in favour of the Secretary of State that it is a meaningful concept recognised by EU law, and that its precise content need not be defined. Ratio |
The Secretary of States statutory statement is very largely concerned with the habitual residence test (introduced into social security legislation in 1994). Ratio |
It had the legitimate purpose of discouraging benefit tourism. Ratio |
The statement (para 16) indicates that the decision of the House of Lords in Chief Adjudication Officer v Wolke [1997] 1 WLR 1640 was perceived as creating a major difficulty in relation to economically inactive EU nationals. Ratio |
That is the introduction to the explanation of the new right to reside requirement (para 17 of the statement): The Government believes that it is not unreasonable to expect that, whatever their nationality, people should show that they have a right to reside in the UK before being entitled to benefits funded by the UK ... |
The proposed regulations are thus intended to fill a gap in measures to safeguard the public purse against exploitation by people with no right to reside here, irrespective of nationality. Ratio |
Their purpose is therefore different from the more limited purpose of the habitual residence test. Ratio |
The appellants printed case (para 93) comments that the paragraph quoted above suggests that the Secretary of State may not have understood the effect of his amendment. Ratio |
I have to say that I think this may be too kind: the Secretary of State and his advisers are unlikely to have misunderstood the effect of the amended regulation 2(2). Ratio |
The reference to people with no right to reside here, irrespective of nationality may be regarded as a disingenuous description of a test which every British national passes automatically, by virtue of section 2 of the Immigration Act 1971, but which non-nationals will not pass unless they come within the special categ... |
The appellant, and anyone else in her position, is caught by regulation 2(2), and no amount of effort on her part to achieve social integration (whatever that means) will change the position (apart possibly from future marriage or naturalisation, which may be academic points so far as the appellant is concerned). Ratio |
In the Court of Appeal Moses LJ (para 25) distinguished this case from R (Bidar) v Ealing London Borough Council [2005] QB 812, where the student applicant had to be not only ordinarily resident but also settled, a status which he could not obtain as a student (since students were not given permission to remain indefin... |
But in my view the two cases are indistinguishable. Ratio |
Other EU nationals were in a different position, but Mr Bidar and all other students in his position were excluded. Ratio |
The same is true of the appellant and others in her position. Ratio |
The fact that other EU nationals may be in a better position is irrelevant, for reasons already noted. Ratio |
It is in the end a fairly short point. Ratio |
In my opinion the provisions of regulation 2(2) are probably aimed at discriminating against economically inactive foreign nationals on the grounds of nationality. Ratio |
Whether or not that was the intention of those who framed them, they have that effect. Ratio |
That can, I think, be simply demonstrated. Ratio |
If the appellant (who is now aged 72) had been a British national who had gone to Latvia 50 years ago, but was in all other respects in the same position that is, had come to England in 2000 with no family, friends or other human or financial resources here she would not be excluded, and the only reason for that differ... |
That difference of treatment is something to which the appellants nationality was central, intrinsic or (in the sense in which Advocate General Jacobs used it in Schnorbus) direct. Ratio |
Even though classified as indirect discrimination, it is not capable of justification because the proposed justification, once examined, is founded on nationality. Ratio |
In my view the third issue, raising the Irish element, does not arise. Ratio |
But I am in full agreement with what Lord Hope says on that aspect of the matter. Ratio |
There was a good deal of discussion about Trojani [2004] ECR I-7573, and in particular some general remarks made in the opinion of Advocate General Geelhoed. Ratio |
It raises some difficult and interesting issues but I do not think it would be appropriate for me, in a dissenting judgment, to say more about them. Ratio |
For my part I would allow this appeal. RPC |
Since I differ from the majority only on the issue of justification, which is for the domestic court, a reference to the Court of Justice would not be appropriate. RPC |
This is a difficult case. Ratio |
It is difficult not only because of the mind-numbing complexity of the words used by the legislators but also because of the inherent complexity of the concepts developed in the pursuit of equal treatment. Ratio |
As Lord Walker commented in the course of the argument in this case, the wording of regulation 2 of the State Pension Credit Regulations 2002 (SI 2002/1792) is so obscure that it looks as if it is trying to cover something up. Ratio |
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