Tag Archives: Discrimination Law

Colm O’Cinneide and Kate Malleson: Are quotas for judicial appointments lawful under EU law?


In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

Colm O’Cinneide is a Reader in Law at University College London.

Kate Malleson is Professor of Law at Queen Mary, University of London


Suggested citation: C. O’Cinneide and K. Malleson, ‘Are quotas for judicial appointments lawful under EU law?’ UK Const. L. Blog (12th November 2014) (available at http://ukconstitutionallaw.org)


Filed under European Union, Judiciary

Alan Bogg and Virginia Mantouvalou: Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?

boggav_mantouvalouUnder what circumstances can the illegal work status of a migrant worker bar a statutory tort claim for race discrimination through the common law doctrine of illegality? Such a question is due to be considered later this month by the United Kingdom Supreme Court in an appeal from the Court of Appeal decision in Allen v Hounga. Ms Hounga arrived in the UK from Nigeria in 2007 to work as a domestic worker for Mr and Mrs Allen. Her age was indeterminate but she may have been as young as fourteen when she entered the arrangement. Despite the promise of schooling, Ms Hounga never had an opportunity to get an education, and it was alleged that she suffered serious physical abuse at the hands of Mrs Allen. Eventually, she was ejected from the house and, having slept rough, Ms Hounga was found wandering in a distressed state in a supermarket car park. According to the Court of Appeal, Ms Hounga’s race discrimination claim was ‘inextricably bound up’ with the illegality in question and so to permit her compensation would be to appear to condone her unlawful conduct. In the eyes of many commentators, Hounga marked a new low for common law reasoning in the sphere of statutory employment rights. This was compounded by the context of legally sanctioned exploitation of a particularly vulnerable migrant worker, whose vulnerability had been constructed by the legal order in the first place, a situation that can also be described as ‘legislative precariousness’.

The narrowest approach to the legal issue would be to consider the Court of Appeal’s holding in Hounga with respect to legal authority. Rimer LJ in the Court of Appeal purported to follow the approach to illegality set out in the earlier case of Hall v Woolston Leisure. In Hall the Court of Appeal had insisted on a strict causation test. In Hounga this had been loosened to encompass situations where the illegality was merely ‘linked’ to the discrimination claim. Perhaps a better approach to formulate the question in the way that Lord Hoffmann did in the House of Lords decision in Gray v Thames Trains: ‘Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? …or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?’ If we pose the question in this way on the facts in Hounga, then the gist of the tort – the violation of Ms Hounga’s right not to be discriminated against because of her race – was caused by the tortious act of the defendant. That should be the end of the causation enquiry. And perhaps the Supreme Court might be content to dispose of the case on that narrow basis, ensuring the internal coherence of the common law doctrine of illegality in accordance with the precedents in Hall and Gray. Certainly, there are recent examples of the Employment Appeal Tribunal dealing with the illegality doctrine in a manner that is more sensitive to the various legitimate interests at stake, while reasoning within the four corners of the illegality doctrine.

There is a larger set of perspectives, however, given that Hounga sits at the intersection between labour law, human rights and migration law. Rather than refine the common law doctrine of illegality and ensure its internal coherence, it may be appropriate to consider whether illegality should have any role at all in this regulatory sphere. It might be helpful to consider this from two different vantage points, one that characterizes Hounga as a ‘labour law’ case; the other of which characterizes Hounga as a ‘migration’ case. It might be useful to regard both kinds of approach as based upon an anti-exploitation principle, which would set itself against unfair-advantage taking in the employment context. From a labour law perspective, the unfairness consists in the violation of legal rights that exist for the protection of those engaged in personal work. From a migration law perspective, the unfairness consists in the targeting of an especially vulnerable group within the wider category of personal work relations, viz migrants working illegally. Human rights issues arise in both of these perspectives.

If we take first the ‘labour law’ perspective, there is a respectable argument to be made that there is something special about labour rights, or a subset of labour rights that can be classified as human rights, that means that illegality should be excluded entirely from this regulatory context. At its broadest, it is possible to argue that all labour rights should be insulated from the illegality doctrine. Labour rights, such as the right not to be unfairly dismissed or working time protections, are not simply rights that benefit the individual worker implicated in illegality. These rights are also justified in their contribution to a wider public good, ensuring a culture of respect for workers’ rights in a well-functioning labour market that promotes decent work. Illegality should not be permitted to impede this public good by inculcating an ethic of disregard for employment rights amongst unscrupulous employers. Illegality also adds an extra incentive to employ undocumented migrant workers by ensuring a supply of labour that is cheaper still through the denial of basic employment rights. An intermediate labour law approach might be to focus on those employment rights that are reciprocally bound up with the provision of work, so that denial of the right corresponds to an unjust enrichment for the employer who has already had the benefit of the work. The obvious example here is the provision of back pay or the right to paid annual leave.

The narrowest labour law perspective would focus on a tighter category of fundamental human rights, such as the right not to be discriminated against because of race or sex, the prohibition of forced labour or freedom of association. The fundamentality of these human rights means that any illegality of the claimant should be disregarded. There would be something unconscionable for a legal system to permit the violation of fundamental human rights in circumstances of illegality; it would undermine the “integrity of the legal system” which, after all, is one of the functional concerns of the illegality doctrine itself. In Hall both Peter Gibson L.J. and Mance L.J. identified the sex discrimination claim as vindicating the claimant’s fundamental human right not to be discriminated against on grounds of sex. This fundamental rights dimension was a vital factor in insulating the statutory tort claim from the doctrine of illegality. This labour law perspective, focused on the nature of the legal right, would treat the migration dimension to Hounga as part of the background context, but not especially salient. It might be regarded as an extra attraction of this approach that in avoiding a focus on whether labour was forced or a person was trafficked, it avoids the implicit legitimization of other situations where an employer violates the fundamental human rights of workers (whether or not migrants) behind the protective cloak of illegality.

By contrast, the ‘migration law’ perspective would focus on the distinctive nature of the claimant in Hounga as a member of an especially vulnerable group within the labour market. In respect of their labour rights, undocumented migrant workers are effectively ‘outlaws’. The doctrine of illegality exacerbates their existing vulnerability through the law, and makes them even more prone to exploitation than other migrant workers. This seems difficult to defend even from the perspective of migration policy itself. For just as migration policy is concerned to regulate and restrict migration, it is equally concerned to ameliorate the circumstances of extreme exploitation that can be classified as ‘modern slavery’, which might be thought to characterize the situation of claimants such as Ms Hounga.

In terms of European human rights law, this situation can raise issues under the European Convention on Human Rights (ECHR), which may provide the tools to address workers’ exploitation in certain circumstances. The Convention protects the rights of everyone within the Contracting States’ jurisdiction (article 1 ECHR), without drawing any distinction on the basis of nationality. Article 4 of the ECHR, which is an absolute provision, prohibits slavery, servitude, forced and compulsory labour. The European Court of Human Rights (ECtHR) has previously examined the exploitation of a migrant domestic worker in the case of Siliadin v France, which had similarities with Hounga (but without the element of physical abuse). The ECtHR recognized the applicant’s vulnerability, whose passport had been confiscated, and ruled that she was held in servitude, forced and compulsory labour, which should be criminalized. Even though the focus was on criminalization, the Court did not rule out that other labour protective legislation may be required. In terms of the legal regime that the doctrine of illegality sets up for the undocumented, the case Rantsev v Cyprus and Russia is also important to highlight. In that case, which involved a victim of sex trafficking, the ECtHR held that an immigration regime (that of the ‘artiste visa’ in that case) limited the freedom of Rantseva to such a degree that it violated article 4. The doctrine of illegality may raise similar issues, as it limits the undocumented workers’ freedom to an extreme, leaving them in a legal black hole.

The prohibition of discrimination (article 14 ECHR) taken together with the right to the peaceful enjoyment of one’s possessions (article 1 of Protocol 1 ECHR) may also be at stake in cases of an illegal contract of employment. Should a worker not be awarded her salaries, the Court may view this as discrimination in the enjoyment of her possessions, as salaries have been classified as possessions in the case law. The ECtHR has explored the social rights of a documented migrant in Gaygusuz v Austria, and ruled that for a difference of treatment on the basis of immigration status to be justified, ‘very weighty reasons would have to be put forward before the Court’. The control of immigration may be a legitimate aim, but the means employed to meet the aim may violate the Convention.

The ECtHR has not examined the rights of undocumented workers under the prohibition of discrimination in conjunction with other Convention rights. However, the Inter-American Court of Human Rights addressed the issue in its advisory opinion ‘Juridical Condition and Rights of the Undocumented Migrants’. In this context, the Court referred to the vulnerable status of migrants and emphasised that their human tights should be protected regardless of their legal status. It stated that workers’ rights can only be dependent on the status of someone as a worker, and not on the status of someone as a lawful migrant:

‘Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition […] [T]he migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.’

This opinion suggests that fundamental labour rights found in legislation cannot be made conditional upon immigration status because this violates the prohibition of discrimination. The Inter-American Court accepted that states have a sovereign power to deny employment to undocumented migrants. However, once they are employed, they should be protected equally to other workers. The list of rights that undocumented workers must enjoy, on this analysis, does not only include the ILO’s fundamental rights at work. It also encompasses fair pay, reasonable working hours, health and safety rules and other fundamental labour rights.

Hounga is possibly the most important employment case yet to be considered by the United Kingdom Supreme Court. We hope that it takes the opportunity to step beyond the formalism of a narrow approach to the illegality point, sensitive to the wider human rights issues. Nothing less than the integrity of the English legal system is at stake.

Alan Bogg is Professor of Labour Law; Fellow and Tutor in Law, Hertford College, University of Oxford.

Virginia Mantouvalou is Reader in Human Rights and Labour Law and Co-Director of the Institute of Human Rights, University College London (UCL).

This piece has also been endorsed by Professor Hugh Collins (Oxford), Dr Nicola Countouris (UCL), Dr Cathryn Costello (Oxford), Professor Mark Freedland (Oxford), John Hendy QC (UCL) and Professor Tonia Novitz (Bristol).

Suggested citation: A. Bogg and V. Mantouvalou,’Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?’ U.K. Const. L. Blog (13th March 2014) (available at http://ukconstitutionallaw.org/)


Filed under Human rights, Judiciary

Tarunabh Khaitan: Caste as Race—A Welcome First Step

khaitan_tarunabhMy earliest memory of my encounter with the caste system is that of a ten year old growing up in my small hometown in Bengal. Playing with the neighbourhood kids, I spotted the familiar figure of Lakkhi—squatting over the open drain in the neighbourhood, cleaning it assiduously. Her back was turned to us, and thinking it would be a good idea to surprise her, I snuck close and playfully threw my arms around her. That innocent embrace invited immediate criticism from children not yet in their teens, taunting me for having touched an ‘untouchable’. I remember feeling ashamed of myself for having failed to imbibe the nuances of caste. It would take a good few years for me to realise that the real reason to be ashamed was not thinking about what Lakkhi felt at that time.

But caste is not something that exists only in the cities and villages in the Indian subcontinent. With the diaspora, caste has travelled around the world, the United Kingdom being no exception. Despite activist and academic demands, the then Labour government decided not to prohibit caste discrimination when it enacted the Equality Act 2010. Instead, section 9(5) of the Act permitted a Minister to amend the Act ‘so as to provide for caste to be an aspect of race’—a power that was never exercised. Section 97 of the recently enacted Enterprise and Regulatory Reform Act 2013 now requires the concerned Minister to amend the definition of ‘race’ in section 9(1) of the Equality Act to include ‘caste’. The new legislation also empowers the Minister to review the operation of the amended section 9(5) of the Equality Act and repeal it if necessary. The House of Lords would have preferred a more straightforward and permanent expansion of the definition of ‘race’ by Parliament directly, but compromised to persuade a cautious Commons.

The controversy illuminates a key aspect of the point of discrimination law. Discrimination law does not prohibit all distinctions between classes of persons that are unreasonable, arbitrary, or even wrongful. The Equality Act will not interfere with an employer’s refusal to hire a qualified applicant named Wendy because he disapproves of people whose first names begin with the letter ‘W’. Similarly, (unless a correlation with race can be established) eye-colour is not a protected characteristic on its own right. Nor is football club fandom. In order to be protected, the ground has to have some salience in a given society, a salience conferred upon it by its close connection with relative group disadvantage. Sex is protected because women are significantly more disadvantaged than men, and race is protected because blacks (and some other races) suffer pervasive disadvantage (it will take more than a blog post to explain why it may still be alright to protect men and whites anyway). Wendy is not protected because the letters of people’s names do not define any group that suffers (or is likely to suffer) pervasive and systemic disadvantage. The employer’s refusal to hire her is eccentric, arbitrary and wrong, and may even be illegal under certain circumstances—but not by virtue of discrimination law. It is unlikely that another employer will treat Wendy similarly.

The current controversy is really about whether caste is salient enough in this country to merit the protection of the Equality Act. In other words, the moot question is whether, in the UK, a dalit person—someone at the bottom of the caste hierarchy—is more like a woman or a black person or like Wendy. There has never been any doubt about the salience of caste in India. The first legal response in British India came early in the form of the Caste Disabilities Removal Act 1850. The Constitution of 1950 abolished untouchability, provided for dalit access to temples, prohibited caste discrimination and mandated affirmative action for ‘lower’ castes. Several statutes have been enacted after independence too. Of course, serious concerns over the design, implementation and impact of these measures remain. The point is that caste clearly satisfies the salience requirement in the Indian context, and this has been recognised by Indian law for over a century and a half. The question before the Westminster Parliament was whether it is also salient in the UK.

A government commissioned study reported in late 2010 that caste was a relevant feature in the lives of about 5% of the British population to make them potential victims or perpetrators of caste discrimination. It also found that caste was not specific to a particular religion, but affected all religious groups from the Indian subcontinent. The report identified evidence—mostly qualitative case studies—‘suggesting caste discrimination and harassment of the type covered by the Equality Act 2010’. Individual cases involving allegations of caste-related harassment in schools and workplace, denial of admission to a school, discrimination in recruitment and promotions by employers, and discrimination by health and social care workers were recorded. There were also cases of discriminatory treatment which would probably not be covered by the Equality Act, including segregated places of worship, caste-based voting behaviour and attempts to prevent inter-caste marriages.

The study recognised that although ‘a single case of caste discrimination or harassment proves that it exists … legislation to address a single case is rare. Therefore, if any cases of caste discrimination or harassment were identified, the study needed to provide some indication of whether these were isolated cases or not. Within this study, this could only be done qualitatively, drawing on the evidence in the literature, from discussions with interested parties and experts and from the qualitative interviews. Quantifying the extent of caste discrimination would require a representative survey.’ (11) This methodological limitation also meant that no evidence of indirect caste discrimination could be produced. The absence of concrete quantitative data was perhaps one reason why the government and the Commons dithered over the extension of the protection of Equality Act to caste.

Even the limited qualitative evidence unearthed by the 2010 study, along with plausible surmises based on the salience of caste in the subcontinent, caste’s close connection with cultural identity and the enthusiasm with which some migrant communities seek to preserve cultural distinction, suggest that caste-based discrimination is likely to be a significant phenomenon in certain sections of the South Asian population living in the UK. Furthermore, the web of personal, social and professional interactions and relationships is likely to be denser and stronger within a minority ethnic group living in a multicultural society. Caste discrimination can have a pervasive effect on many significant aspects of the life of a ‘low’ caste person living in a largely South Asian neighbourhood—where the local schools, workplaces, places of worship, shops, restaurants and hotels are likely to have a substantial South Asian presence—even though only 5% of the British population is potentially caste-conscious. To such caste-burdened individuals, it is little solace that the rest of the population is indifferent to caste. The relevant experiences of a dalit girl from Birmingham are far more likely to resonate with that of a black man in inner city London than to that of Wendy, wherever she might be from. The issue of caste discrimination in the UK highlights the need to protect even those characteristics that are salient only within particular sub-groups in a given society.

In the absence of good quantitative evidence, Parliament has done well to be guided by the available qualitative evidence and plausible surmises and prohibit caste discrimination (even if only tentatively and temporarily)—for the cost of inaction is likely to be greater. More concrete and comprehensive data is necessary to determine whether treating caste as an aspect of race is appropriate. It may turn out that our surmises were mistaken and the qualitative data inadequate. On the other hand, future research could buttress our commitment to deal with caste discrimination in the UK and require further action.

It may turn out that caste’s particular impact on the marital and religious lives of people requires a rethink of antiperfectionist liberal assumptions about the necessary distance between the state and certain areas of private life. Caste is likely to intersect with race and religion to a significant degree, and caste discrimination could be compounded by discrimination based on sex, disability and marital status. Although section 14 of the Equality Act recognises discrimination based on a combination of two grounds, it may not be adequate to capture the various ways in which caste interacts with other protected grounds. Given caste’s strong connection with an unprotected ground—vegetarianism—the law may need to consider whether distinctions based on food preference amount to indirect caste discrimination.

Instead of being an outlier among grounds protected by discrimination law, caste (like disability before it) may bring new insights to our understanding of the concept of discrimination—insights that may well benefit groups carrying the burdens of other forms of discrimination too.


Tarun Khaitan is a Fellow in Law, Wadham College, University of Oxford.

Suggested citation: T. Khaitan, ‘Caste as Race—A Welcome First Step’ U.K. Const. L. Blog (10th May 2013) (available at http://ukconstitutionallaw.org).


Filed under UK government, UK Parliament

George Letsas: Redfearn v UK: Even Racists Have the Right to Freedom of Thought

In a liberal democracy, everyone should be treated as an equal and everyone should have the right to freedom of thought. How can anyone disagree? Well, some do. Fascists, racists, bigots, sexists, religious fundamentalists, political extremists – just to name a few- endorse ideologies that are incompatible with the very values of equality and liberty that underlie human rights. These people believe in fewer or no rights for people of different race, religion, sex, sexual orientation or political opinion. They are the people who in the course of human history have often acted on these beliefs, inflicting terrible wrongs on women, Jews, Muslims, ethnic minorities, gays, immigrants, disabled people or communists. They are the reason why liberal democracies introduced anti-discrimination laws, seeking to protect the equal rights of unfavorable groups. They are the people whose expression is in many liberal democracies restricted by hate speech laws, not only for symbolic reasons but also to curb the spread of their bigotry before it materializes into wrongful action. So it is often said that a liberal democracy cannot treat everyone’s beliefs the same: it must reject ideas that are incompatible with its own values. It must show “intolerance towards intolerance”. It cannot be neutral all the way down. But does this mean that racists should have fewer legal rights than the rest of us?

Mr Arthur Redfearn is a white British bus driver who worked for Serco, a private company providing government services in Bradford, an area beset by racial tensions. Mr Redfearn’s job involved transporting people with mental disabilities, the majority of which were of Asian origin. The record of Mr Redfearn as an employee had been impeccable, with no complaints about his work or his conduct. Indeed, he was even nominated, by his British Asian supervisor, for the award of ‘first-class employee’. When a local newspaper identified him as a candidate for the British National Party (BNP), the public sector workers’ trade union (UNISON) expressed concern that his continued employment with Serco posed a significant risk to others: the BNP has an overtly racist ideology and Serco’s customer base, as well as its workforce, was of predominantly Asian origin. Serco on the other hand became concerned that employing publicly known BNP members will harm its reputation and possibly cost them the contract with the local authority. When Mr Redfearn was elected local councilor for the BNP, Serco decided to dismiss him summarily.

Did the dismissal violate Mr Redfearn’s human rights? UK courts never got to pronounce on this question. Under UK employment law, workers do not have a right against unfair dismissal unless they have been in the same job for 12 (now 24) consecutive months (the ‘qualifying period’). Since Mr Redfearn had been with Serco for only 6 months, he had no legal right to challenge the fairness of his dismissal except on some very limited grounds including discrimination because of religion, race or sex. And given that this was a dispute between private individuals, he could not directly invoke the Human Rights Act 1998 (HRA) as the legal basis for an action against his employer. Had he been entitled to challenge the fairness of his dismissal, he would have been able to invoke the HRA and ask the court to interpret what fairness in dismissal requires in the light of his human rights.

The case went to the European Court  as an article 11 ECHR case (freedom of association). Mr Redfearn submitted that the UK had a positive obligation to protect him from dismissal on the ground of his involvement with the BNP, even during the qualifying period. The Strasbourg Court found a violation of article 11 ECHR by the narrowest of margins (4 votes to 3). It held that the UK should either add political beliefs or affiliation to the existing prohibited grounds of discriminatory dismissal (race, sex and religion) during the qualifying period or, alternatively, create a self-standing claim for unlawful discrimination on the basis of one’s political beliefs or affiliation.

 The Court’s judgment should be welcomed as a prime example of what a consistent application of the liberal-egalitarian values underlying human rights demand. It is premised, in my view, on the following two principles: first, a state cannot prohibit discrimination on the ground of religious beliefs but allow discrimination on the ground of political beliefs. Second, beliefs whose content is incompatible with the values of the Convention (such as racism, fascism, sexism etc) are in principle as worthy of protection from discrimination as any other belief. These two principles are not new; they have been previously recognized, albeit not always consistently, by the Court.

Take the first principle. Article 9 ECHR, which protects the right to freedom of thought, protects not only religious beliefs but also any other belief, be it political, philosophical or otherwise. Strasbourg organs have examined under article 9 ECHR a number of complaints involving non-religious beliefs, such as pacifism (Arrowsmith v United Kingdom, 1978), scientology (Church of Scientology Moscow v. Russia, 2007) and veganism (W v United Kingdom, 1993). Though the Court dismissed Mr Redfearn’s complaint under article 9 ECHR, and preferred to examine it under article 11 ECHR, this should be seen as no more than a mere formality. Throughout the judgment the Court referred disjunctively to Mr Redfearn’s political ‘opinion’ or ‘affiliation’. Indeed, it would have made no difference to the Court’s reasoning if Mr Redfearn had been dismissed solely because he was a known BNP enthusiast or sympathizer, but not a formal member. He still would not have been able to challenge his dismissal under UK employment law. But he would have been able to do so if he had been dismissed because of his membership to a particular church or his religious beliefs. This differential treatment between religious beliefs and political opinion (or, if you like, between religious associations and political associations), emphasized by the Court in para 54 of its judgment, is arbitrary and goes against the very core of article 9 ECHR. This is why, contrary to what the dissenting judges (sir Nicholas Bratza, Hirvela and Nicolaou) argued, it is not within the states’ margin of appreciation which grounds of discrimination they may prohibit within employment. If states prohibit religious discrimination (which they arguable ought to) then the Convention requires that they must also prohibit discrimination on the basis of political opinion or association. 

Now consider the second principle that anti-egalitarian opinions (such as racism, fascism or sexism) are as worthy of protection from discrimination as any other opinion. This principle does not mean that we should protect wrongful actions that may be motivated by these despicable views, such as race crimes or other horrible abuses. It simply means that in a democratic society we should respect the right of people to have such thoughts and beliefs. We should not, in other words, be engaged in ‘thought control’, which is what states do when they condition the distribution of vital opportunities or benefits (such as employment) on having particular beliefs. People have a right to have any thoughts they like, including bad thoughts. It is a different issue altogether, falling outside the protective scope of the principle, when racists thugs act in a way that harms or otherwise wrongs some vulnerable group. But merely holding certain beliefs, absent harm or a clear and present risk of harm to others, is no reason to dismiss anyone, including BNP members. The distinction between thought and action is here crucial. This is why the Court, rightly, found the fact that Mr Redfearn was a BNP member irrelevant, repeating its known slogan that the Convention protects not only ideas that are received favorably or with indifference, but also ideas that ‘offend, shock or disturb’ (para 56). In this respect, the Court clearly moves away from the view, mentioned in Campbell and Cosans (1982)and repeated in the explanatory notes to the UK Equality Act 2010, that only beliefs compatible with human dignity are protected by the Convention. As far as freedom of thought goes, this view is not defensible.   

In its third-party intervention against the applicant, the Equality and Human Rights Commission argued that employing known BNP members impacts on the employer’s provision of services regardless of whether or not there are any complaints about the manner in which they do their job. It noted further that the justifiability of dismissing a BNP member could turn on a number of factors, including whether employing him undermines public trust and confidence or harms the employer’s reputation. These are all bad arguments: the mere fact that service users refuse to be served by workers who endorse a particular ideology is no reason to dismiss them. Nor is it relevant that the employer’s business interests will suffer as a result of this refusal. These are not legitimate bases for dismissing people. Just like the employer would be unjustified in firing a communist –or, for that matter, an HIV/AIDS- worker solely because clients do not want to be served by her or him, likewise it would be unjustified to fire BNP members, including those holding civil service jobs, solely because ethnic minorities do not want to be served by them. We shouldn’t, absent any evidence or real risk of wrongful conduct, deprive people of employment simply because they may entertain anti-democratic or inegalitarian thoughts. And in any case, the crucial issue raised in Redfearn v UK was that UK employment tribunals were barred in the first place from pronouncing on whether such dismissals are proportionate to the legitimate aim of preventing a clear and present risk of racial violence.

I should end with a comment on the impact this judgment might have on the Court’s approach to discrimination and religion in general. The Court is currently deliberating on four cases pending against the UK (Ladele, Chaplin, Eweida, Macfarlane) to do with religious discrimination and dismissal. They differ from Redfearn in that they involve indirect discrimination claims: the applicants were dismissed because they refused to comply with an imposed occupational requirement that interfered with their religious convictions (such as to officiate in gay marriages) or the right to manifest their religion (such as to wear a cross). Unlike Redfearn, these cases are not about illegitimate restrictions imposed on an employee solely because others, rightly or wrongly, condemn her opinions and refuse to be served by her. Rather, they are about whether employers have a duty to exempt religious employees from otherwise legitimate occupational requirements. Neither of the principles on which Redfearn was decided helps the applicants in the four pending cases. In fact, the opposite could be claimed: just like Mr Redfearn should have no right to be exempt from having to serve immigrants or ethnic minorities, as incompatible with his political convictions, likewise Christians should have no right to be exempt from having to officiate in gay marriages or to counsel gay couples.

All five cases will most likely end up before the Grand Chamber of the European Court of Human Rights. The Court should be steadfast in upholding the principles underlying Redfearn. In a democratic society, we must treat religious beliefs in the same way we treat any other belief and we must respect the right to have bad thoughts in the same way we respect the right to have any other thought. 

George Letsas is Reader in Philosophy of Law and Human Rights at University College London.

Suggested citation: G. Letsas, ‘Redfearn v UK: Even Racists Have the Right to Freedom of Thought’,  UK Const. L. Blog (13th November 2012) (available at http://ukconstitutionallaw.org)


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Wanjiru Njoya: Equality Law and the Total Constitution

As an immigrant to the UK, I have as much reason as the next person to be worried about the constant stream of poll statistics offering more or less reliable empirical evidence of racism, measured by factors such as the percentage of people who enjoy watching Midsomer Murders. It is therefore with great caution that I agree with one part of Richard Epstein’s well-known argument against equality legislation (Forbidden Grounds: The Case Against Employment Discrimination Laws, Harvard University Press, 1992). It is not his argument that equality law is inefficient which persuades me, but his assertion that ‘Where markets do not have formal barriers to entry, the victims of discrimination have effective strategies of self-protection and powerful allies whose own self-interest will operate on their behalf’ (at 59). This implies that effective and powerful solutions to the problems of inequality and discrimination might lie in the hands of victims of discrimination, supported by those who believe in the ideals of equality and the intrinsic worth of every human being, and also bolstered by those selfish types who don’t care about inequality but do care about hiring the best person for the job in order to turn the greatest profit (i.e. would not consider it rational to refuse to hire the best person because of that person’s race or sex).

This assertion of Epstein’s is compelling; it is attractive because it is optimistic about the potential for finding new solutions to a persistent problem. It implies that abandoning the old-style hard-law approach of legislation from the 1960s and 1970s may indeed be the better way forward. This would be more in keeping with current thinking which advocates greater reliance on self-regulation by market participants. Epstein’s analysis suggests that anti-discrimination law may have adverse unintended effects, disempowering victims of discrimination by stifling the development of their own self-protection strategies and undermining the alliances they might otherwise forge if they could reliably distinguish friend (supports equality or is not bothered one way or the other) from foe (actively hostile to equality) in a free market where there are no artificially imposed constraints on expressing one’s true preferences within the limits of the general law (so, nothing criminal), no matter how irrational or unsavoury others may consider those preferences to be.

Against this approach may be posited the idea of the ‘total constitution’ which holds that in a modern democracy there is no legitimate self-regulatory space in which it is permissible for people to violate core ideals of the liberal constitution such as non-discrimination on grounds of race, sex, and other grounds covered by equality legislation. From this perspective, the framework of constitutional law extends the protection of fundamental human rights into every area of law, life and society (Mattias Kumm, ‘Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341).  In this view there can be no such thing as too much law where fundamental rights are at stake, and there are no boundaries constraining the review jurisdiction of the courts on constitutional issues. There is no exclusive domain for private law as every aspect of the relationship between private individuals, and every legal conflict, becomes ‘constitutionalized.’ There is no ‘safe harbour’ for anyone who wishes to act in ways which denigrate the core values of a liberal society. This depicts a ‘constitutional juristocracy’ which is the natural outcome of a sophisticated modern liberal conception of human rights, democracy and equality. It derives its constitutional legitimacy from a form of deference in which an enlightened and self-restrained judiciary abstains, where appropriate, from interfering needlessly with the autonomy of private individuals.

Kumm writes in the context of the German constitution; Epstein in the context of the United States. But it is easy to see the relevance of these ideas for debates about equality legislation in the UK.  The perception that the constitution functions as ‘a kind of juridical genome that contains the DNA for the development of the whole legal system’ (Kumm, at 344), and acceptance of the idea that no corner of private law lies beyond its reach, explains or at least is consistent with the way equality law has evolved to encompass more grounds and to reduce the scope for justifying discriminatory, or even apparently discriminatory, decisions. The question Epstein raises is then worth exploring further. Are there any ‘effective strategies of self-protection’ for victims of discrimination in a free society and if so, does equality law support and promote these strategies or does it undermine them?

One reason cited by Epstein for allowing all parties to freely reveal their preferences in choosing whom to interact with in the marketplace is that otherwise they simply ‘burrow in deeper so as to keep their true grounds concealed. Memos to the file, far from being candid, will now be phrased in language that tracks the statute’ (at 166). Every employer proclaims itself to value diversity and equality of opportunity. Laws which provide an incentive for employers to fabricate fictitious but justifiable reasons for not hiring people might succeed in creating the superficial impression of a society in which all is well and everybody gets along, but the effect of this on victims of discrimination can be disastrous for a number of reasons.

Suppose a woman’s application for a job is rejected because of her race, and she is given a fabricated reason linked carefully to the qualifications necessary for the job. If she assumes the reasons given to be credible, this suggests to her that there are justifiable reasons why her qualifications are unsuited to this job, and presumably any job of a similar nature. If she assumes the reasons given not to be credible, she may tend thereafter to assume that no decision to reject her is ever justified (she sees a discriminatory motive lurking behind every rejected application) and responds to this by becoming prolifically litigious or by labouring always under the conviction that she cannot trust anything she is told. All these responses are inimical to her fuller, more fulfilling, participation in the labour market. In this example, the truth is empowering  to the victim. It would allow her to identify and develop effective strategies in response, which is a better starting point than the informational black-out created by equality law. Everyone is surely better off if reasons are constructed in such a way as to communicate truthful and reliable information, no matter how unpalatable, instead of reasons constructed in such a way as to avoid legal liability.  Aggregate social welfare is enhanced when there are no legal penalties for revealing true preferences in choosing whom to interact with in the sphere of private law.

To answer Kumm, nobody is afraid of the total constitution; instead the fear seems to be that in the absence of a total constitution liberal democratic values would be at risk and the lessons of history would be lost. Yet the question must be asked whether freedom for every individual irrespective of colour or creed is attributable to and made possible by the existence of equality laws in itself, or whether these laws are merely the legal expression of the enduring values and ideals upheld by free societies. The latter interpretation suggests that the legal framework of equality is far less important than it appears to be in a ‘total constitution’ world view. Instead, within a self-regulatory framework equality law would continue to play an important role in setting aspirational standards and maintaining monitoring procedures to ensure that outcomes do not endanger the public interest, but there would be no role for sanctions that simply force employers to ‘burrow in deeper’ to avoid liability for discriminatory decisions.

Wanjiru Njoya is a fellow of Wadham College, and a lecturer at Oxford University.

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