Westlaw Delivery Summary Report For LEEVY-MALCOLM, TA 5204288

Westlaw Delivery Summary Report for LEEVY-MALCOLM,TA 5204288
Date/Time of Request: Thursday, August 7, 2008 18:32 Central

Client Identifier: TWEN-CLIENT
Database: LAW-RPTS
Citation Text: [1995] 1 A.C. 1
Lines: 1880
Documents: 1
Images: 0
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West
and their affiliates.
[1995] 1 A.C. 1 FOR EDUCATIONAL USE ONLY Page 1
1994 WL 1060630 (HL), [1995] 1 A.C. 1, [1994] 1 All E.R. 910, [1995] 1 C.M.L.R. 391, [1994] C.O.D. 301, [1994]
I.C.R. 317, [1994] I.R.L.R. 176, 92 L.G.R. 360, (1994) 138 S.J.L.B. 84, [1994] 2 W.L.R. 409, (1994) 91(18) L.S.G.
43, (1994) 144 N.L.J. 358, 3-04-1994 Times 1060,630, 3-09-1994 Independent 1060,630, 3-07-1994 Guardian
1060,630
(Cite as: [1995] 1 A.C. 1)
against women because considerably more women

*1 Regina v. Secretary of State for Employment Ex than men worked part-time. The commission wrote to
parte Equal Opportunities the Secretary of State asking that he reconsider the
Commission and Another legislation as it indirectly discriminated against
[1994] 2 W.L.R. 409 women and was in conflict with Community law. The
Secretary of State replied by letter dated 23 April
House of Lords 1990 that the statutory thresholds were justifiable.
The commission applied for judicial review, and the
HL applicant D. was joined as a party. She had been
employed part-time by a health authority until she
Lord Keith of Kinkel, Lord Jauncey of Tullichettle, was made redundant, but, because she had only
Lord Lowry, Lord Browne- worked 11 hours a week for a period of less than five
Wilkinson and Lord Slynn of Hadley years, she had not qualified for a redundancy
payment.
1993 Oct. 25, 26, 27, 28; Nov. 1; 1994 March 3
FN1 Sex Discrimination Act 1975, s. 53(1): see post,
Discrimination, Sex--Employment--Less favourable p. 32E.
treatment--Qualifying thresholds for unfair dismissal
compensation and redundancy payments for part-- FN2 E.E.C. Treaty, art 119: see post, pp. 21H-22B.
time workers--Equal Opportunities Commission
maintaining that thresholds in breach of Community The Divisional Court held, inter alia, that the
law--Secretary of State's letter defending United Secretary of State's letter was susceptible to judicial
Kingdom legislation--Whether susceptible to judicial review; that both the commission and D. had locus
review--Whether commission having locus standi-- standi and should be allowed to proceed with their
Whether thresholds objectively justified--Sex claims in the Divisional Court; but that the court
Discrimination Act 1975 (c. 65), s. 53(1)--Supreme would not direct the Secretary of State to introduce
Court Act 1981 (c. 54), s. 31(3)--E.E.C. Treaty legislation or declare that the United Kingdom was in
(Cmnd. 5179--II), art. 119--R.S.C., Ord. 53, rr. 1(2), breach of its obligations under the E.E.C. Treaty; and
3(7) that, though the thresholds for compensation for
unfair dismissal and redundancy payments were
Employment--Unfair dismissal--Excluded classes-- discriminatory and would contravene article 119 of
Period of employ--ment-- Part--time employees the E.E.C. Treaty unless objectively justified, the
excluded from compensation for unfair dismissal and Secretary of State had objectively justified them. The
redundancy payments--Whether redundant employee application was accordingly dismissed. On appeal,
having locus standi for judicial review against the Court of Appeal affirmed the decision of the
Secretary of State--Whether compensation "pay "-- Divisional Court unanimously in the case of D., and
E.E.C. Treaty, art. 119 by a majority in the case of the commission, holding
that the Secretary of State's letter did not alter the
[FN1] [FN2] The Equal Opportunities Commission rights or obligations of any person and was not
considered that provisions of the Employment susceptible of judicial review, and that it was for the
Protection (Consolidation) Act 1978 that limited the European Commission to bring proceedings for
rights of employees not to be unfairly dismissed and failure to meet E.E.C. Treaty obligations.
to redundancy pay to those employees working
continuously for a specified number of years and On appeal by the commission and D.:-
hours a week and excluded *2 altogether those
working less than eight hours a week discriminated
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

1060,630
(Cite as: [1995] 1 A.C. 1)
Held: an increase in the availability of part-time work could

be regarded as a beneficial and necessary aim of
(1) dismissing D.'s appeal, that, assuming that the social policy and thus an objective justification of the
discriminatory measures in the Employment threshold provisions, as contended by the Secretary
Protection (Consolidation) Act 1978 were not of State; but that, on the evidence before the
objectively justified, D.'s claim to redundancy pay Divisional Court, the threshold provisions had not
under applicable Community law should been shown to result in greater availability of part-
appropriately be brought against her employers in the time work than would otherwise have been the case
industrial tribunal, not against the Secretary of State and, therefore, had not been shown, by reference to
in proceedings for judicial review in the Divisional objective factors, to be suitable and requisite for
Court (post, pp. 25D-E, 34A, C, 37D). achieving the aim in question; and that declarations
(2) (Lord Jauncey of Tullichettle dissenting) that, should be made that they were incompatible with
having regard to the duty of the commission under article 119 of the Treaty and the relevant Council
section 53(1) of the Sex Discrimination Act 1975 to Directives (post, pp. 28C, 29G-30C, 31B, G-32A,
work towards the elimination of discrimination, it 34A, C, 37C-D).
had had a sufficient interest in the proceedings within Bilka-Kaufhausn G.m.b.H. v. Weber von Hartz
section 31(3) of the Supreme Court Act 1981 and (Case 170/84) [1987] I.C.R. 110, E.C.J. and Rinner-
R.S.C., Ord. 53, r. 3(7) to give it the necessary locus Kuhn v. F.W.W. Spezial-Gebäudereinigung G.m.b.H.
standi to bring them; that (per Lord Keith of Kinkel, & Co. K.G. (Case 171/88) [1989] E.C.R. 2743, E.C.J.
Lord Browne-Wilkinson and Lord Slynn of Hadley) applied.
the Secretary of State's letter of 23 April 1990 had not Quaere. Whether compensation for unfair
constituted a "decision;" but that under R.S.C., Ord. dismissal is "pay" within the meaning of article 119
53, r. 1(2) the Divisional Court had jurisdiction to and Council Directive (75/117/E.E.C.) (post, p. 31E-
declare that primary legislation, viz. the threshold F)
provisions of the Act of 1978, was incompatible with Decision of the Court of Appeal [1993] 1 W.L.R.
Community law notwithstanding that there was no 872; [1993] I.C.R. 251; [1993] 1 All E.R. 1022
decision in respect of which one of the prerogative reversed.
orders would be available under Ord. 53, r. 1(1); and
that the Divisional Court had been an appropriate The following cases are referred to in their
forum for determination of the substantive issues Lordships' opinions:
raised by the appeal (post, pp. 26A-B, D-E, G, 27F,
28B-C, 34A, C, 37D). Anisminic Ltd. v. Foreign Compensation
Reg. v. Secretary of State for Transport, Ex parte Commission [1969] 2 A.C. 147; [1969] 2 W.L.R.
Factortame Ltd. [1989] 2 C.M.L.R. 353, D.C.; [1990] 163; [1969] 1 All E.R. 208, H.L.(E.).
2 A.C. 85, H.L.(E.); *3 Reg. v. Secretary of State for
Transport, Ex parte Factortame Ltd. (No. 2) [1991] 1 Arbeiterwohlfahrt der Stadt Berlin e.V. v. Bötel (Case
A.C. 603, H.L.(E.) and Reg. v. Secretary of State for C-360/90) [1992] I.R.L.R. 423, E.C.J..
Transport, Ex parte Factortame Ltd. (No. 3) (Case C-
221/89) [1992] Q.B. 680, E.C.J. applied.
(3) Allowing the commission's appeal (per Lord Barber v. Guardian Royal Exchange Assurance
Keith of Kinkel, Lord Lowry, Lord Browne- Group (Case C-262/88) [1991] 1 Q.B. 344; [1991] 2
Wilkinson and Lord Slynn of Hadley), that the onus W.L.R. 72; [1990] I.C.R. 616; [1990] 2 All E.R. 660,
of showing that the indirect discrimination against E.C.J..
women involved in the threshold provisions of the
Act of 1978 was objectively justified and thus not an Bilka-Kaufhaus G.m.b.H. v. Weber von Hartz (Case
infringement of article 119 of the E.E.C. Treaty was 170/84) [1987] I.C.R. 110; [1986] E.C.R. 1607,
on the Secretary of State; that the bringing about of E.C.J..

1060,630
(Cite as: [1995] 1 A.C. 1)
A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70,

Dyson v. Attorney-General [1911] 1 K.B. 410, C.A.. E.C.J. and H.L.(E.).
Francovich v. Italian Republic (Cases C-6/90, C- Reg. v. Secretary of State for Transport, Ex parte
9/90) [1991] E.C.R. I-5357, E.C.J.. Factortame Ltd. (No. 3) (Case C-221/89) [1992] Q.B.
680; [1992] 3 W.L.R. 288; [1991] 3 All E.R. 769,
Gouriet v. Union of Post Office Workers [1978] A.C. E.C.J..
435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.
(E.). Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R.
935; [1963] 2 All E.R. 66, H.L.(E.).
Jenkins v. Kingsgate (Clothing Productions) Ltd.
[1981] 1 W.L.R. 1485; [1981] I.C.R. 715, E.A.T.. Rinner-Kuhn v. F.W.W. Spezial-Gebäudereinigung
G.m.b.H. & Co. K.G. (Case 171/88) [1989] E.C.R.
Marshall v. Southampton and South West Hampshire 2743, E.C.J..
Area Health Authority (Teaching) (Case 152/84)
[1986] Q.B. 401; [1986] 2 W.L.R. 780; [1986] I.C.R. Roy v. Kensington and Chelsea and Westminster
335; [1986] 2 All E.R. 584, E.C.J.. Family Practitioner Committee [1992] 1 A.C. 624;
[1992] 2 W.L.R. 239; [1992] 1 All E.R. 705, H.L.
O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 (E.).
W.L.R. 1096; [1982] 3 All E.R. 1124, H.L.(E.).
Royal College of Nursing of the United Kingdom v.
Reg. v. Birmingham City Council, Ex parte Equal Department of Health and Social Security [1981]
Opportunities Commission [1989] A.C. 1155; A.C. 800; [1981] 2 W.L.R. 279; [1981] 1 All E.R.
[1989] 2 W.L.R. 520; [1989] 1 All E.R. 769, H.L.(E.). 545, H.L.(E.).
*4 Reg v. Inland Revenue Commissioners, Ex parte The following additional cases were cited in
National Federation of Self-Employed and Small argument:
Businesses Ltd. [1982] A.C. 617 ; [1981] 2 W.L.R.
722; [1981] 2 All E.R. 93, H.L.(E.). Clymo v. Wandsworth London Borough Council
[1989] I.C.R. 250. E.A.T..
Reg. v. Secretary of State for Defence, Ex parte Equal
Opportunities Commission (unreported), 20 Coenen v. Sociaal-Economische Raad (Case 39/75)
December 1991, D.C. [1976] I.C.R. 104; [1975] E.C.R. 1547, E.C.J..
Reg. v. Secretary of State for Social Security, Ex Commission of the European Communities v.
parte Equal Opportunities Commission (Case C-9/91) Kingdom of Belgium (Case 155/82) [1983] E.C.R.
[1992] I.C.R. 782; [1992] 3 All E.R. 577, E.C.J.. 531, E.C.J..
Reg. v. Secretary of State for Transport, Ex parte Cotter v. Minister for Social Welfare (Case C-377/89)
Factortame Ltd. [1989] 2 C.M.L.R. 353, D.C.; [1990] [1991] E.C.R. I-1155, E.C.J..
2 A.C. 85; [1989] 2 W.L.R. 997; [1989] 2 All E.R.
692, H.L.(E.). Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 ;
[1976] E.C.R. 455; [1981] 1 All E.R. 122n, E.C.J..
Reg. v. Secretary of State for Transport, Ex parte
Factortame Ltd. (No. 2) (Case C-213/89) [1991] 1 Enderby v. Frenchay Health Authority (Case C-

1060,630
(Cite as: [1995] 1 A.C. 1)
127/92) [1994] I.C.R. 112; [1994] 1 All E.R. 495, Rainey v. Greater Glasgow Health Board [1987] A.C.
E.C.J.. 224; [1986] 3 W.L.R. 1017; [1987] I.C.R. 129;
[1987] 1 All E.R. 65, H.L.(Sc.).
Gillick v. West Norfolk and Wisbech Area Health
Authority [1986] A.C. 112; [1985] 3 W.L.R. 830; Reg. v. Attorney-General, Ex parte Imperial
[1985] 3 All E.R. 402, H.L.(E.). Chemical Industries Plc. [1985] 1 C.M.L.R. 588;
(1986) 60 T.C. 1, Woolf J. and C.A..
Johnston v. Chief Constable of the Royal Ulster
Constabulary (Case 222/84) [1987] Q.B. 129; [1986] Reg. v. East Berkshire Health Authority, Ex parte
3 W.L.R. 1038; [1987] I.C.R. 83; [1986] 3 All E.R. Walsh [1985] Q.B. 152; [1984] 3 W.L.R. 818; [1984]
135, E.C.J.. I.C.R. 743; [1984] 3 All E.R. 425, C.A..
Kowalska v. Freie und Hansestadt Hamburg (Case Reg. v. Felixstowe Justices, Ex parte Leigh [1987]
C33/89)[1992] I.C.R. 29; [1990] E.C.R. I-2591, Q.B. 582; [1987] 2 W.L.R. 380; [1987] 1 All E.R.
E.C.J.. 551, D.C..
Levin v. Secretary of State for Justice (Case 53/81) Reg. v. Her Majesty's Treasury, Ex parte Smedley
[1982] E.C.R. 1035, E.C.J.. [1985] Q.B. 657; [1985] 2 W.L.R. 576; [1985] 1 All
E.R. 589, C.A..
Macarthys Ltd. v. Smith [1979] 1 W.L.R. 1189;
[1979] I.C.R. 785; [1979] 3 All E.R. 325, C.A.. Reg. v. Independent Television Commission, Ex
parte T.S.W. Broadcasting Ltd., The Times, 30 March
Marshall v. Southampton and South West Hampshire 1992, H.L.(E.).
Area Health Authority (Teaching) (No. 2) (Case C-
271/91) [1994] Q.B. 126; [1993] 3 W.L.R. 1054; Reg. v. Inspectorate of Pollution, Ex parte
[1993] I.C.R. 893; [1993] 4 All E.R. 586, E.C.J.. Greenpeace Ltd. (No. 2) [1994] 4 All E.R. 329
*5 N.V. Algemene Transport- en Expeditie Reg. v. Minister of Agriculture, Fisheries and Food,
Onderneming van Gend en Loos v. Nederlandse Ex parte Bell Lines Ltd. [1984] 2 C.M.L.R. 502
Administratie der Belastingen (Case 26/62) [1963]
E.C.R. 1, E.C.J. . Reg. v. Secretary of State for Education, Ex parte
Schaffter [1987] I.R.L.R. 53
National Union of Public Employees v. Lord
Advocate, The Times, 5 May 1993, Lord Cameron of Reg. v. Secretary of State for Social Services, Ex
Lochbroom parte Child Poverty Action Group [1990] 2 Q.B.
540; [1989] 3 W.L.R. 1116; [1989] 1 All E.R. 1047 ,
Nimz v. Freie und Hansestadt Hamburg (Case C- C.A..
184/89) [1991] E.C.R. I-297, E.C.J..
Reg. v. Secretary of State for Social Services, Ex
Organon Laboratories Ltd. v. Department of Health parte Clarke [1988] I.R.L.R. 22, D.C..
and Social Security [1990] 2 C.M.L.R. 49, C.A..
Reg. v. Secretary of State for the Environment, Ex
Orphanos v. Queen Mary College [1985] A.C. 761; parte Rose Theatre Trust Co. [1990] 1 Q.B. 504;
[1985] 2 W.L.R. 703; [1985] 2 All E.R. 233, H.L.(E.). [1990] 2 W.L.R. 186; [1990] 1 All E.R. 754

1060,630
(Cite as: [1995] 1 A.C. 1)
Shield v. E. Coomes (Holdings) Ltd. [1978] 1 W.L.R. post, p. 24C-E) are not necessary. The following
1408; [1978] I.C.R. 1159; [1979] 1 All E.R. 456, amended relief is suggested. (1) A declaration that, by
C.A.. virtue of article 119 of the E.E.C. Treaty, Council
Directive (75/117/E.E.C.) ("the Equal Pay Directive")
Sunday Times, The v. United Kingdom (1979) 2 and section 2 of the European Communities Act
E.H.R.R. 245 1972, employees who work for fewer than 16 hours
per week are subject to the same conditions for
Thomas v. Chief Adjudication Officer [1991] 2 Q.B. redundancy pay, pursuant to the Employment
164; [1991] 2 W.L.R. 886; [1991] 3 All E.R. 315, Protection (Consolidation) Act 1978, as employees
C.A.; (Case C 328/91 ) [1993] Q.B. 747; [1993] 3 who work for 16 hours per week or more. (2) A
W.L.R. 581; [1993] I.C.R. 673, E.C.J.. declaration that, by virtue of article 119 of the E.E.C.
Treaty, the Equal Pay Directive and section 2 of the
Act of 1972, employees who work for fewer than 16
Webb v. Emo Air Cargo (U.K.) Ltd. [1993] 1 W.L.R. hours per week are subject to the same conditions for
49; [1993] I.C.R. 175; [1992] 4 All E.R. 929, H.L. the right not to be unfairly dismissed and for
(E.). entitlement to compensation for unfair dismissal,
pursuant to the Act of 1978, as employees who work
APPEAL from the Court of Appeal. for 16 hours per week or more. (3) A declaration that,
by virtue of Council Directive (76/207/E.E.C.) ("the
This was an appeal by the applicants, the Equal Equal Treatment Directive") and section 2 of the Act
Opportunities Commission and Mrs. Patricia of 1972, employees who work for fewer than 16
Elizabeth Day, by leave of the House of Lords from hours per week for public authorities within the
the decision of the Court of Appeal (Dillon, Kennedy United Kingdom are subject to the same conditions
and Hirst L.JJ.) [1993] 1 W.L.R. 872 given on 6 for the right not to be unfairly dismissed and for
November 1992 affirming by a majority (Dillon L.J. entitlement to compensation for unfair dismissal,
dissenting) in the case of the commission and pursuant to the Act of 1978, as employees who work
unanimously in the case of Mrs. Day the decision of for 16 hours per week or more. (4) A declaration
the Divisional Court of the Queen's Bench Division ("Factortame " declaration (Reg. v Secretary of State
(Nolan L.J. and Judge J.) [1992] I.C.R. 341 given on for Transport, Ex parte Factortame Ltd. [1990] 2 A.C.
10 October in respect of the first of two applications 85) (as precondition of "Francovich" claims
for *6 judicial review directed to the respondent, the (Francovich v. Italian Republic (Cases C-6/90, C-
Secretary of State for Employment. 9/90) [1991] E.C.R. I-5357))) that the Secretary of
State is in breach of the obligations imposed on the
The Court of Appeal refused the applicants leave to United Kingdom by articles 1(1), 2(1), 3(2)(a), 5 and
appeal from their decision, but on 25 February 1993 6 of the Equal Treatment Directive and section 2 of
the Appeal Committee of the House of Lords (Lord the Act of 1972 by failing to introduce the necessary
Templeman, Lord Jauncey of Tullichettle and Lord legislation to amend the Act of 1978 to ensure that
Woolf) [1993] 1 W.L.R. 872, 908 allowed a petition employees who work for private employers for fewer
by them in respect of the first application for leave to than 16 hours per week are subject to the same
appeal. conditions for the right not to be unfairly dismissed
and for entitlement to compensation for unfair
The facts are stated in the opinion of Lord Keith of dismissal, pursuant to the Act of 1978, as employees
Kinkel. who work for 16 hours per week or more.
(Declaration (3) would relate to Mrs. Day while
declaration (4) would relate to a hypothetical Mrs.
Lord Lester of Herne Hill Q.C. and Monica Carss-
Night, a private sector employee.)
Frisk for the applicants. Declarations 1 and 2
previously asked for (see per Lord Keith of Kinkel,

1060,630
(Cite as: [1995] 1 A.C. 1)
The Divisional Court had jurisdiction to review against the public employer (or, indeed, against the
whether the Secretary of State had exercised his private employer). 4. Francovich v. Italian Republic
discretionary powers in accordance with directly (Cases C-6/90, C-9/90) [1991] E.C.R. I-5357
effective Community law and whether the indirectly establishes that the Secretary of State owes a duty to
discriminatory provisions of the Act of 1978 were an employee of a private employer to implement a
compatible with the directly effective provisions of directive correctly and that he will be liable for
article 119 of the E.E.C. Treaty and of the Directives breach of that duty where the employee suffers
and to grant the declarations sought. Article 119 and damage as a direct consequence of the state's failure
the Directives create directly *7 enforceable public to transpose the directive correctly into domestic law.
law rights and obligations as well as directly 5. Section 2 of the Act of 1972 ensures that the
enforceable private law rights and obligations. The Secretary of State's Francovich duties and Mrs.
Divisional Court was wrong to hold that it did not Night's correlative rights under Community law are
have jurisdiction to declare that it was the duty of the incorporated into domestic law and that her
Secretary of State to introduce legislation to amend Francovich rights are fully available and enforceable
or repeal the Act of 1978. So long as the United in the national courts, if they are not so already. 6.
Kingdom remains bound by the Treaty and so long as Accordingly, the Divisional Court has jurisdiction to
the Act of 1972 remains in force, the Secretary of grant a Francovich declaration of the kind formulated
State is under a public law duty to take steps to in (4) to enable a Francovich claim to be made.
ensure that provisions in the Act of 1978 that are [Reference was also made to Marshall v.
incompatible with Community law are removed. In Southampton and South West Hampshire Area Health
any event, it would plainly have been open to the Authority (Teaching) (Case 152/84) [1986] Q.B. 401;
Divisional Court to grant declaratory relief to the Marshall v. Southampton and South West Hampshire
effect that employees who work for fewer than 16 Area Health Authority (Teaching) (No. 2) (Case C-
hours a week for eight hours per week or more are 271/91) [1994] Q.B. 126; Reg. v. Secretary of State
subject to the same conditions as employees who for Transport, Ex parte Factortame Ltd. (No. 2) (Case
work for 16 or more hours a week as regards the right C-213/89) [1991] 1 A.C. 603; Nimz v. Freie und
not to be unfairly dismissed, the right to Hansestadt Hamburg (Case C-184/89) [1991] E.C.R.
compensation for unfair dismissal and the right to I-297; Cotter v. Minister for Social Welfare (Case C-
redundancy pay. 377/89) [1991] E.C.R. I-1155; Kowalska v. Freie und
Hansestadt Hamburg (Case C-33/89) [1992] I.C.R.
As to Mrs. Night's claim (amended declaration (4)), 29; Reg. v. Secretary of State for Defence, Ex parte
the following points are relevant. 1. Reg. v. Secretary Equal Opportunities Commission (unreported), 20
of State for Transport, Ex parte Factortame Ltd. December 1991; Reg. v. Minister of Agriculture,
[1990] 2 A.C. 85 shows that the court has jurisdiction Fisheries and Food, Ex parte Bell Lines Ltd. [1984] 2
to grant a declaration against a minister in respect of C.M.L.R. 502 *8 ; N.V. Algemene Transport- en
legislation that is inconsistent with Community law. Expeditie Onderneming van Gend en Loos v.
In any event, if it can grant an injunction against the Nederlandse Administratie der Belastingen (Case
Crown, a fortiori it can grant a declaration. 2. 26/62) [1963] E.C.R. 1; Macarthys Ltd. v. Smith
Factortame also shows that it is proper to treat [1979] 1 W.L.R. 1189; the European Communities
legislation and its continuance in force as a reflection (Designation) (No. 3) Order 1982 (S.I. 1982 No.
of a continuing ministerial decision. 3. Johnston v. 1675) and the Industrial Tribunals (Rules of
Chief Constable of the Royal Ulster Constabulary Procedure) Regulations 1985 (S.I. 1985 No. 16), Sch.
(Case 222/84) [1987] Q.B. 129 shows that article 6 of 1, r. 14.]
the Equal Treatment Directive can be relied on
directly by an employee in the public sector as The Divisional Court was fully entitled, in the
against the Secretary of State to displace his exercise of its discretion, to decide that it was the
certificate blocking access to a judicial remedy appropriate forum for the determination of the

1060,630
(Cite as: [1995] 1 A.C. 1)
substantive issues. The claim necessarily involves a Discrimination Act 1975 to work towards the
challenge to the legislative policy and practice of the elimination of direct and indirect sex discrimination
public authorities of the United Kingdom in in Great Britain. It also has a duty under section 53(1)
maintaining in force indirectly discriminatory (b) to promote equality of opportunity between men
provisions of the Act of 1978. The issue of objective and women generally and a duty under section 53(1)
justification of the statutory provisions is central, (c) to keep the working of the Act under review. It
which is why the Secretary of State is being enjoys such powers as are necessary and expedient to
proceeded against in his ministerial capacity. The the performance of those duties. It plainly has the
Divisional Court, rather than an industrial tribunal, capacity to apply for judicial review under R.S.C.,
was the appropriate and convenient forum to Ord. 53 in its own name. While Mrs. Day was joined
determine issues of legislative and governmental in the application in order to safeguard against the
policy, applying the Bilka test (Bilka-Kaufhaus possibility that the Divisional Court might rule
G.m.b.H. v. Weber von Hartz (Case 170/84) [1987] against the commission on this issue, it would be
I.C.R. 110) to the "legislative facts." To require the unnecessary and formalistic for the court to require
issues to be determined by an industrial tribunal *9 the involvement of an individual person in these
would be to authorise inconsistency in the applications, given that the issues before the court are
interpretation and application of the Bilka test of clearly defined, concern "legislative facts" and are
objective justification, since different industrial not affected in any way by the particular
tribunals could reach inconsistent factual conclusions "adjudicative facts" of any individual case. It would
as to the justifiability or otherwise of the indirectly be contrary to decided authority, principle and
discriminatory statutory provisions. It was essential common sense, if it were to be the position that the
to the claims that the Secretary of State (as distinct commission lacked the capacity or standing to seek
from the individual employer) was called on to seek judicial review of the Secretary of State's decisions.
to justify the indirectly discriminatory statutory [Reference was also made to section 75 of the Act of
provisions and that the claimant was able to 1975.]
challenge the Secretary of State's evidence
effectively. However, there is no power to join the Schiemann J.'s decision in Reg. v. Secretary of State
Secretary of State as a party to the proceedings in an for the Environment, Ex parte Rose Theatre Trust Co.
industrial tribunal. The issues arising in this case are [1990] 1 Q.B. 504 is out of line: see Reg. v. Inland
strictly public law issues that can be effectively Revenue Commissioners, Ex parte National
determined by the judicial review court and for which Federation of Self-Employed and Small Businesses
the industrial tribunal is not best qualified: cf. Reg. v. Ltd. [1982] A.C. 617; Reg. v. Inspectorate of
Minister of Agriculture, Fisheries and Food, Ex parte Pollution, Ex parte Greenpeace Ltd. (No. 2) [1994] 4
Bell Lines Ltd. [1984] 2 C.M.L.R. 502, 509-511, All E.R. 329; Reg. v. Her Majesty's Treasury, Ex
paras. 18-21. The commission made the application parte Smedley [1985] Q.B. 657; Reg. v. Felixstowe
so as to obtain legal certainty and orderly Justices, Ex parte Leigh [1987] Q.B. 582; Reg. v.
determination of the matters in issue without undue Secretary of State for Social Services, Ex parte Child
public expenditure on legal costs and without undue Poverty Action Group [1990] 2 Q.B. 540 and Reg. v.
delay. For the commission there is no forum other Attorney-General, Ex parte Imperial Chemical
than the Divisional Court in which it is able to carry Industries Plc. [1985] 1 C.M.L.R. 588. Amongst
out its statutory functions by challenging scholars, it is universally regarded as adopting a too
discriminatory legislation that is contrary to narrow approach: see Lewis, Judicial Remedies in
Community law. Public Law (1992), pp. 268- 280; Sir Konrad
Schiemann, "Locus Standi" Public Law (1990), p.
The commission is a public authority performing 342; Clive Lewis, "No Standing in the Theatre:
important public functions. It has a wide general duty, Unreviewable Decision" [1990] C.L.J. 189; Wade,
pursuant to section 53(1)(a) of the Sex Administrative Law, 6th ed. (1988), pp. 700-709;

1060,630
(Cite as: [1995] 1 A.C. 1)
Craig, Administrative Law, 2nd ed. (1989), pp. 378- 1 Q.B. 344, 400, "the worker is entitled to receive the
380; Law Commission Consultation Paper No. 126, benefit in question from his employer by reason of
"Administrative Law: Judicial Review and Statutory the existence of the employment relationship"
Appeals, " paragraphs 9.3, 9.12, 9.14-18, 9.26-28; (paragraph 18). [Reference was also made to
and Reg. v. Secretary of State for Social Security, Kowalska v. Freie und Hansestadt Hamburg (Case C-
Ex parte Equal Opportunities Commission (Case C- 33/89) [1992] I.C.R. 29 and Rinner-Kuhn v. F.W.W.
9/91) [1992] I.C.R. 782. Another case against the Spezial-Gebäudereinigung G.m.b.H. & Co. K.G.
applicants is Reg. v. Secretary of State for Defence, (Case 171/88) [1989] E.C.R. 2743.] In this respect,
Ex parte Equal Opportunities Commission there is no material distinction between statutory
(unreported), 20 December 1991. The matter was redundancy payments (which constitute "pay") and
very hurriedly argued and the decision is wrong. unfair dismissal compensation. Compensation for
unfair dismissal, therefore, like redundancy pay,
It is plain from the correspondence that there has plainly falls within the concept of "pay" in article 119
been a considered decision by the Secretary of State, and the Equal Pay Directive.
on the Government's behalf, to decline to accept that
the United Kingdom is in breach of its obligations The Secretary of State has failed to demonstrate that
under Community law, including a refusal to exercise the level of part-time employment would be likely to
the powers conferred on him to introduce the decrease to any significant extent if part-timers were
measures necessary to ensure that the relevant granted proportionate employment protection rights
provisions of the Act of 1978 that contravene in relation to redundancy payments and unfair
Community law are abolished. There is no doubt that dismissal compensation. The Secretary of State has,
he took an official and considered decision (in the therefore, failed to establish any objective
ordinary sense of making up his mind and justification for the discriminatory qualifying
communicating his considered view as the relevant thresholds in issue within the meaning of the Bilka
minister of the Crown), at the request of the test (Bilka-Kaufhaus G.m.b.H. v. Weber von Hartz
commission, that it was not necessary, as a matter of (Case 170/84) [1987] I.C.R. 110). To permit the state
the proper construction and application of or an employer to defend a claim of sex
Community law, to exercise his powers by discrimination in pay, whether direct or indirect, on
introducing amendments to the Act of 1978. That is a the basis that giving equal pay would increase labour
decision pre-eminently susceptible of judicial review. costs would be tantamount to permitting "social
Alternatively, if it constituted merely a view dumping" on the basis that employers cannot afford
expressed by the Secretary of State, the expression of or will not pay the mainly female group (i.e., part-
such views would be susceptible of judicial review timers) the same pro rata as the mainly male group
on the basis of the principles in Gillick v. West (i.e., full-timers) for doing work of equal value. That
Norfolk and Wisbech Area Health Authority [1986] would be to frustrate the double aim of article 119 of
A.C. 112, 193F-H. [Reference was also made to Reg. the E.E.C. Treaty, namely, social progress and the
v. Secretary of State for Transport, Ex parte avoidance of unfair competition through "social
Factortame Ltd. [1990] 2 A.C. 85 and Reg. v. dumping," i.e., taking advantage of the vulnerability
Secretary of State for Education, Ex parte Schaffter of women in the labour market. [Reference was made
[1987] I.R.L.R. 53.] to Defrenne v. Sabena (Case 43/75) [1976] E.C.R.
455, 485; Shield v. E. Coomes (Holdings) Ltd. [1978]
*10 Article 119 of the E.E.C. Treaty defines "pay" as, 1 W.L.R. 1408; Jenkins v. Kingsgate (Clothing
inter alia, "consideration . . . which the worker Productions) Ltd. (Case 96/80) [1981] 1 W.L.R.
receives, directly or indirectly, in respect of his 1485; Rainey v. Greater Glasgow Health Board
employment . . ." The question is whether, as the [1987] A.C. 224; Reg. v. Birmingham City Council,
European Court put it in Barber v. Guardian Royal Ex parte Equal Opportunities Commission [1989]
Exchange Assurance Group (Case C-262/88) [1991] A.C. 1155; Coenen v. Sociaal-Economische Raad

1060,630
(Cite as: [1995] 1 A.C. 1)
(Case 39/75) [1976] I.C.R. 104; Commission of the tribunal could, with membership including persons of
European Communities v. Kingdom of Belgium industrial experience, determine the justifiability or
(Case 155/82) [1983] E.C.R. 531; Thomas v. Chief otherwise of the qualifying limits. If compensation
Adjudication Officer [1991] 2 Q.B. 164 (Case C- for unfair dismissal is not pay, Mrs. Night could bring
328/91) [1993] Q.B. 747; Enderby v. Frenchay a Francovich claim (Francovich v. Italian Republic
Health Authority (Case C-127/92) [1994] I.C.R. 112; (Cases C-6/90, C-9/90) [1991] E.C.R. I-5357) before
Levin v. Secretary of State for Justice (Case 53/81) the county court for compensation for the failure of
[1982] E.C.R. 1035; Reg. v. Independent Television the United Kingdom to introduce the Equal
Commission, Ex parte T.S.W. Broadcasting Ltd., The Treatment Directive into domestic law. Points of law
Times, 30 March 1992; Arbeiterwohlfahrt der Stadt could be taken to the Employment Appeal Tribunal,
Berlin e.V. v. Bötel (Case C-360/90) [1992] I.R.L.R. the Court of Appeal and the House of Lords and, if
423 and Halsbury's Laws of England, 4th ed., vol. 51 need be, referred to the European Court under article
(1986), pp. 363-364, para. 2.296.] 177 of the E.E.C. Treaty. It is quite possible to bring
test cases within the existing procedure. To deform or
Michael Beloff Q.C. and Stephen Richards for the avoid unnecessarily appropriate procedure would set
Secretary of State. It is a matter of concern that even undesirable precedents for the future without any
at the level of the House of Lords the applicants seem corresponding gain: it would undermine the
unclear as to precisely what it is that they seek. legislative scheme for the disposal of employment
Asking for such relief as the House of Lords issues, place unwarranted burdens on the system of
considers appropriate is an judicial review, erase the distinction between
Community laws with direct effect and those without
*11 impermissible way to approach the matter. Only it and, indeed, collapse the boundaries between
by careful consideration of the relief sought can the municipal and international law. [Reference was
true issues be identified and determined. In the made to section 31 of the Supreme Court Act 1981
applicants' suggested amended relief there is still and R.S.C., Ord. 53.]
some flexibility in the approach. The problems in
drafting are the product of the inaptness of the There are three valid and subsisting methods of
procedure adopted. challenging the compatibility of domestic legislation
with Community law and alleged failures by the
The relief that the applicants seek is either United Kingdom to comply with its Community
unavailable or unnecessary. In particular, the courts obligations. (1) Individuals enjoying directly
should not be lured into a position where they purport effective rights under Community law can enforce
to dictate to government what legislation should be those rights in the appropriate court or tribunal,
introduced, or, accordingly, to advise the legislature which must disapply the domestic legislation if and
to the same effect. in so far as it is inconsistent with those rights.
[Reference was made to Nimz v. Freie und
Hansestadt Hamburg (Case C-184/89) [1991] E.C.R.
The issues of substantive Community law are I-297.] One cannot disapply legislation except at the
capable of being raised and resolved in proceedings suit of a person with directly effective rights. (2)
other than those before the House. Mrs. Day herself Individuals not enjoying directly effective rights
has brought, and another similarly circumstanced under Community law but who have suffered loss as
lady could bring, claims before an industrial tribunal a result of the failure of the United Kingdom to
that would enjoy jurisdiction to apply Community implement a Community directive can bring an
law and disapply inconsistent domestic legislation to action in damages against the Crown if all the
give effect to any directly effective rights. The conditions laid down in Francovich are met, though it
commission could provide the necessary funds remains to be seen whether, and, if so, on what
pursuant to its statutory powers, in the absence of conditions, damages can be recovered for
legal aid, and, no doubt, legal expertise too. The

1060,630
(Cite as: [1995] 1 A.C. 1)
infringements of Community *12 law other than under the Treaty, i.e., its obligations to comply with
those considered in Francovich itself. (3) The article 119 and the Directives. Those obligations are
Commission of the European Communities and other not owed to or enforceable by an individual. They
member states can invoke the machinery laid down are, by their very nature, international treaty
by the E.E.C. Treaty, notably in articles 169 and 170, obligations governed by public international law.
for bringing a member state before the European The Treaty contains its own mechanism for securing
Court of Justice for failure to fulfil its obligations their enforcement, namely the procedures referred to
under the Treaty, i.e., under public international law. above whereby the Commission and member states
The present applications do not fall within any such can bring before the European Court, pursuant to
category, and by treating the Secretary of State's letter articles 169 and 170 respectively, the alleged failure
as forming the proper subject of an application for of a member state to fulfil a Treaty obligation.
judicial review the applicants seek in effect to create
a new (and impermissible and/or inappropriate) Thus, there is no warrant in Community law for the
method of making such a challenge. present applications. The obligation under article 6 of
the Equal Treatment Directive is satisfied by the
Mrs. Day enjoys directly effective rights both under ability of those claiming directly effective rights to
article 119 and, because her employer is a public pursue their claims in the industrial tribunal and
authority, under the Directives. They are private cannot have the effect for which the applicants have
rights that, by virtue of section 2 of the Act of 1972, contended. All the cases cited by the applicants dealt
she can assert in the national courts. That means that with directly effective rights; they had nothing to do
she can claim whatever entitlement is conferred on with this novel procedure.
her by article 119 or the Directives. The commission
by contrast enjoys no such directly effective rights. As to the analogy sought to be drawn by the
[Reference was made to Macarthys Ltd. v. Smith applicants with Factortame (Reg. v. Secretary of State
[1979] I.C.R. 785 , 788-789.] Mrs. Day's appropriate for Transport, Ex parte Factortame Ltd. [1989] 2
course is to make such a claim against her employer, C.M.L.R. 353; [1990] 2 A.C. 85; *13 Reg. v.
since it is against the employer that any such Secretary of State for Transport, Ex parte Factortame
entitlement exists: her claim arises out of the Ltd. (No. 2) (Case C-213/89) [1991] 1 A.C. 603; Reg.
employment relationship and relates to her pay and v. Secretary of State for Transport, Ex parte
conditions of employment. The appropriate forum for Factortame Ltd. (No. 3) (Case C-221/89) [1992] Q.B.
such a claim is the industrial tribunal, where indeed 680), there are two points to make. (i) The Secretary
she has already commenced proceedings against her of State was the proper target of the application. It
employer. The industrial tribunal has jurisdiction to was not a contrived application, as is the present.
consider her claim and to disapply any provisions of There was nobody else who could register or
national law that stand in her way, such as the withdraw from the register. (ii) Judicial review was
qualifying conditions here in issue. [Reference was the proper procedure. There is a direct analogy with
made to Organon Laboratories Ltd. v. Department of Reg. v. Secretary of State for Education, Ex parte
Health and Social Security [1990] 2 C.M.L.R. 49, 69- Schaffter [1987] I.R.L.R. 53, where the challenge
70.] was to the decision of the Secretary of State to apply
the relevant regulations and not to make a payment to
The present applications, however, are different in the applicant. The case concerned a directly effective
kind from an individual employee's assertion of his or right regarding regulations that the Secretary of State
her directly effective private rights or any Francovich had made himself. The compatibility of the statutory
rights. The relief sought by Mrs. Day and the conditions with the E.E.C. Treaty was, of course, the
commission, whether by way of mandamus or by central legal issue in Factortame, and the European
way of declarations, is aimed at securing the Court analysed the matter in those terms. But that
enforcement of the United Kingdom's obligations issue was not an end in itself; it was simply a means

1060,630
(Cite as: [1995] 1 A.C. 1)
to determining whether the Secretary of State could substantive issues raised by the applications: it was
lawfully withhold or refuse registration. Accordingly, not a matter for the discretion of the Divisional Court
Factortame does not support the proposition that the stricto sensu. So far as Mrs. Day was concerned, any
maintenance in force of legislation can be regarded in directly effective rights that she might enjoy could be
itself as a reviewable decision. In any event, an Act asserted more appropriately by the continuation of
of Parliament cannot be said to incorporate a decision the *14 proceedings that she had already commenced
of the Secretary of State, and its maintenance in force in the industrial tribunal. The Secretary of State can
cannot be described as a decision of the Secretary of be heard in such proceedings qua witness: see the
State. Even where a minister himself makes Industrial Tribunals (Rules of Procedure) Regulations
regulations, it is their making that constitutes his 1985, Sch. 1, rr. 4(1)(b)(iii) and 8 and Reg. v.
decision; it would be an undue artifice to say that Secretary of State for Social Services, Ex parte
there was a continuing decision to keep them in Clarke [1988] I.R.L.R. 22, 26- 27, para. 29. The
force. Accordingly, there is no basis in Factortame for tribunal is capable of and experienced in dealing with
a naked attack by way of judicial review on an Act of issues of fact, and problems of inconsistent findings
Parliament. between different tribunals and limitations on the
power of appeal therefrom are of little real
A suggestion that it would be on all fours with significance. [Reference was made to Reg. v. East
Factortame if the applicants were to seek relief to Berkshire Health Authority, Ex parte Walsh [1985]
disapply the relevant statutory provisions is Q.B. 152.] There are many examples of individual
misconceived. In the present case the Secretary of cases before the tribunals resolving, through the
State is not discharging any functions that require or appeals process and article 177 references, issues of
entitle him to "disapply" the statutory provisions; he general importance in the field of discrimination. The
has nothing to disapply as he did in Factortame. If the absence of a power in the tribunals to make
statutory provisions are to be disapplied, it is the declarations is immaterial; what matters is the
industrial tribunal that must disapply them; only the substance of any entitlement to equal pay or equal
tribunal has the power to decide on entitlement to treatment. In that area, the tribunals are superior to
redundancy pay, etc., and in deciding that issue it the Divisional Court. The absence of legal aid before
must disapply any conditions of national law that are the tribunals creates no greater problem in the present
inconsistent with the directly effective rights of an case than in any other, and it is open to the
applicant for such pay. Indeed, since the tribunal is commission to fund such an application in lieu of
the only body that can give Mrs. Day any redundancy applications of the present kind: section 75 of the Act
pay, etc., to which she is entitled by virtue of the of 1975. The availability of an alternative remedy in
national provisions coupled with the E.E.C. Treaty the form of proceedings against the employer in the
and Directives, it may be that the High Court not industrial tribunal, such as Mrs. Day has already
merely is not the appropriate forum for her claim but commenced, means that the Divisional Court should
does not even have jurisdiction to declare her rights. have declined to entertain her application for judicial
For the Secretary of State or the court to "disapply" review. [Reference was made to National Union of
the statutory provisions in the abstract would be to Public Employees v. Lord Advocate, The Times, 5
adopt a radically different course from that in May 1993 .]
Factortame (where the relief was limited to the
applicants) and to use judicial review as a means of It was inappropriate for proceedings for judicial
securing generalised declarations as to private law review to be brought by the commission in
rights. circumstances where it was not asserting any directly
effective rights of its own and was seeking, in effect,
On the question of forum, the Court of Appeal was to use the machinery of judicial review as a means of
correct in finding that proceedings for judicial review enforcing the alleged obligations of the United
were an inappropriate means of determining the Kingdom under the E.E.C. Treaty, i.e., under public

1060,630
(Cite as: [1995] 1 A.C. 1)
international law. not taking a decision in any relevant sense. The letter
does not become a "decision" merely because the
As regards locus, the applicants lacked a "sufficient commission invites a decision and the Secretary of
interest in the matter to which the application relates" State indicates that he does not intend to introduce
within the meaning of R.S.C., Ord. 53, r. 3(7) to bring amending legislation, primary or delegated. For the
the applications for judicial review, save in so far as, purposes of judicial review, "decision" is used in a
in the case of Mrs. Day, she was claiming to assert specific sense as meaning a decision that involves
directly effective rights enjoyed by her personally abuse of legal power or default of legal duty arising
under Community law. What Lord Fraser of under either legislation or the prerogative and having
Tullybelton said in Reg. v. Inland Revenue legal effect. [Reference was made to Professor Sir
Commissioners, Ex parte National Federation of Self- William Wade Q.C., "Administrative Decisions,
Employed and Small Businesses Ltd. [1982] A.C. Powers and Remedies" (1983) 99 L.Q.R. 171 and
617, 646G-647C is a discouragement rather than "Judicial Review of Ministerial Guidance " (1986)
encouragement to applicants whose interest is no 102 L.Q.R. 173.] The letter cannot in principle
different from that of other members of the public. amount to a refusal by the Secretary of State to carry
How can it be said that Mrs. Day had any interest in out a relevant duty. The applicants allege in fact, if
the matters in declarations (1) to (4) save as not in form, a failure by the United Kingdom to
applicable to her case? As to the commission, there comply with its Community obligations. Under the
are two interrelated questions, capacity and locus. As British constitution, any relevant duty and breach of
to capacity, the commission's duties quoad the duty are to be imputed to Parliament, not the
Secretary of State under the Act of 1975 are, by Secretary of State. In the absence of a relevant, or
section 53(1)(c) of the Act of 1975, to advise on the any, duty on the part of the Secretary of State, an
working of the Act of 1975 and the Equal Pay Act application for judicial review cannot be founded on
1970; it is a great leap from advising on those statutes an alleged refusal to carry out such duty. The
to challenging the compatibility of an altogether Secretary of State has a power, not a duty.
different statute with Community law. As to locus,
although the courts have given a wide meaning to the It is only in exceptional circumstances (see Gillick v.
concept of sufficiency of interest, they have not West Norfolk and Wisbech Area Health Authority
reached the position where any person is entitled to [1986] A.C. 112, 193B-194B) that it can be
bring proceedings for judicial review of an allegedly appropriate to review the expression by a public
invalid decision. *15 The outer limits were indicated authority of its view of the law. [Reference was made
in Reg. v. Inland Revenue Commissioners, Ex parte to Zamir & Woolf, The Declaratory Judgment, 2nd
National Federation of Self-Employed and Small ed. (1993), pp. 8-9, 33, 42-43, paras. 1.15, 2.47,
Businesses Ltd., at pp. 636C-F, 641A-C and 644B-G; 3.007-3.008]. Under section 31 of the Act of 1981
see also p. 631B. The position of the commission in declaratory relief is unavailable where a prerogative
the present proceedings falls outside those limits. As order would not be granted: Reg. v. Inland Revenue
a statutory corporation, it has no personal interest in Commissioners, Ex parte National Federation of Self-
the issues raised. It has no right, interest, privilege or Employed and Small Businesses Ltd. [1982] A.C.
legitimate expectation at stake in relation to those 617 , per Lord Scarman, at p. 648.
issues. It has suffered no damage from the alleged
lack of synchronisation of domestic and Community The Divisional Court and the majority of the Court
law. Nothing in the Act of 1975 expressly gives it of Appeal were right to hold that, if the applicants
locus in a matter of this kind. [Reference was made to were to succeed on the substantive issues, the court's
Orphanos v. Queen Mary College [1985] A.C. 761.] jurisdiction to grant relief would be limited to the
making of declarations as to the directly effective
To describe the Secretary of State's letter of 23 April rights of part-time workers. Even if it be right that the
1990 as a "decision " is an abuse of language; he was Divisional Court would have such jurisdiction, such

1060,630
(Cite as: [1995] 1 A.C. 1)
relief should be refused in any event as a matter of that would still be a declaration of right, comparable
discretion, on the grounds that (a) Mrs. Day, to the with a declaration as to the existence of directly
extent that she enjoys directly effective rights, has an effective rights. It would be different in kind from a
appropriate alternative remedy by way of declaration that the United Kingdom was in breach of
proceedings in the industrial tribunal and (b) the its E.E.C. Treaty obligations. Francovich is about
commission enjoys no directly effective rights and it compensation, not declarations. It does not require a
would be inappropriate to grant a declaration precedent declaration, merely a finding by the court
regarding private rights at the suit of a stranger to of a relevant non-implementation of the Directive.
such rights. As to the absence of jurisdiction to grant
the other forms of relief claimed by the *16 In any event, Francovich cannot help the applicants.
applicants, if any, the Secretary of State relies on the (a) The commission cannot claim to have suffered or
reasoning of the Divisional Court and the majority of to be liable to suffer any loss as a result of incorrect
the Court of Appeal and, mutatis mutandis, on the implementation of the directives or infringement of
submissions made in relation to the decision issue, article 119 of the Treaty. It has no possible
the locus issue and the forum issue. In particular, his Francovich claim. (b) Mrs. Day has directly effective
power to introduce legislation before Parliament rights that she can assert by way of her industrial
and/or to promulgate an order under section 2(2) of tribunal claim against her employer. She does not
the Act of 1972 cannot be turned into a duty by need to rely on a Francovich claim against the state:
reference to the obligations of the United Kingdom in her case, indeed, any inadequacy in
under the E.E.C. Treaty, i.e., on the plane of public implementation of the Directive can have given rise
international law. Compliance by the United to no loss.
Kingdom with its obligations under the Treaty is a
matter for Parliament and cannot be the subject of J. Rinze, "The Role of the European Court of Justice
enforcement proceedings in the national courts. as a Federal Constitutional Court" [1993] P.L. 426,
[Reference was made to Reg. v. Birmingham City 432, 435, 436, is a useful recent summary of what the
Council, Ex parte Equal Opportunities Commission court does.
[1989] A.C. 1155 .]
The Divisional Court and the Court of Appeal erred
Francovich v. Italian Republic (Cases C-6/90, C- in finding that compensation for unfair dismissal was
9/90) [1991] E.C.R. I-5357 is concerned only with a also "pay" within the meaning of article 119 of the
right to compensation under Community law for loss E.E.C. Treaty and the Equal Pay Directive. Although
actually suffered as a result of a state's previous the definition of "pay" in article 119 has been broadly
failure to implement a directive. There is no interpreted (see Barber v. Guardian Royal Exchange
suggestion in the judgment that Community law Assurance Group (Case C-262/88) [1991] 1 Q.B.
confers on individuals a right to require a state to 344), it does not extend to compensation for unfair
implement a directive in order to prevent future loss, dismissal. Such compensation is not "consideration . .
i.e., in order to secure for themselves the rights that . in respect of [the worker's] *17 employment" but a
they are intended to enjoy under the directive. On the remedy available in an industrial tribunal for
contrary, in considering the question of compensation infringement of the worker's statutory right not to be
the court proceeds on the premise that, in the absence unfairly dismissed. It is different in kind from the
of direct effect, individuals have no means of payments hitherto held to constitute "pay" and does
enforcing the Directive in the national courts. not meet the test laid down in cases such as Barber
and Arbeiterwohlfahrt der Stadt Berlin e.V. v. Bötel
An individual with a right to compensation under (Case C-360/90) [1992] I.R.L.R. 423. Unlike, e.g., a
Francovich principles might (artificially) be entitled redundancy payment on redundancy, compensation
to a declaration to that effect, e.g., by way of a for unfair dismissal does not accrue automatically to
finding of liability, with damages to be assessed. But the employee: see the Act of 1978, ss. 54 et seq.

1060,630
(Cite as: [1995] 1 A.C. 1)
Court adopted the stricter test for which the

As to the appropriate criteria to be applied for the applicants contend, namely, that it is for the Secretary
purpose of determining whether the defence of of State to show that the measures in question
objective justification is made out, the true test laid correspond to a real need and are appropriate and
down by the European Court is simply whether there necessary to achieve the objective pursued. Even on
is or is not "an objective justification" for the that test, the Divisional Court rightly concluded that
provision sought to be impeached. No wholly the defence of objective justification was made out
consistent formula has been used in the case law of on the facts.
the court, but the applicants' contention that the test
requires that the provision be "necessary" to achieve Whichever is the correct test, the Divisional Court
the objective pursued exaggerates the burden on the (with whom Hirst L.J. [1993] 1 W.L.R. 872, 904G
Secretary of State: see Bilka-Kaufhaus G.m.b.H. v. expressed general agreement) was plainly right to
Weber von Hartz (Case 170/84) [1987] I.C.R. 110. hold that the application of the test in relation to a
The English case law shows that a "broad balancing national statute may properly involve consideration
exercise" (Clymo v. Wandsworth London Borough of broader issues of policy than would arise in the
Council [1989] I.C.R. 250, 271C-272A) needs to be case of an ordinary employer. Whilst Community *18
carried out in determining the issue of objective law imposes on the national courts the duty to find
justification in relation to the present application. The whether there is a non-sex-based justification for
broad balancing exercise is not to be equated with the what would otherwise be indirect discrimination
acceptance of vague generalisations. It is simply that against part-time female workers, the issue of
the specific considerations relied on do not have to be whether part-time workers should enjoy parity of
examined with the "necessary and appropriate" treatment in the relevant areas with full-time workers
straitjacket that the commission seeks to impose. The is intensely political. The House of Lords would be
exclusion of generalised statements does not, slow (unless required to do so) to align itself with one
however, mean that broader issues of policy must be political viewpoint or another, and it is not equipped
excluded from consideration. To have regard to to determine matters of this kind, which are properly
broader issues of policy in a case involving national the province of the legislature. It can, however, avoid
legislation does not involve a different test but an this position either by declining to rule on the issue as
appropriate application of the same test to a different raised in inappropriately constructed proceedings
subject matter. [Reference was made to Rainey v. and/or by according the Secretary of State a margin
Greater Glasgow Health Board [1987] A.C. 224; of appreciation: see The Sunday Times v. United
Webb v. Emo Air Cargo (U.K.) Ltd. [1993] 1 W.L.R. Kingdom (1979) 2 E.H.R.R. 245, 275-276.
49; and Enderby v. Frenchay Health Authority (Case
C-127/92)[1994] I.C.R. 112.] As to whether objective justification is made out on
the facts, the Secretary of State relies on the reasons
Dicta in Bilka-Kaufhaus and Rinner-Kuhn v. F.W.W. and conclusions of the Divisional Court, at pp. 362C-
Spezial-Gebäudereinigung G.m.b.H. & Co. K.G. 367H, and Hirst L.J., at pp. 904H-905D. The
(Case 171/88) [1989] E.C.R. 2743 relied on by the Government's policy is that as many people as wish
applicants constitute guidance to the national court in to be so should be economically active, including
performing the broad balancing exercise but do not those who, for whatever reason, wish to do part-time
constitute definitive and exhaustive rules for work rather than full-time work. It is not a question
determining the issue of objective justification. In of "cheap labour" or "social dumping." This is a
any event, it is plain from the passages from Bilka legitimate aim for the purposes of objective
and Rinner-Kuhn cited by the Divisional Court justification. The qualifying conditions for
[1992] I.C.R. 341, 361C-H, and from the redundancy payments and compensation for unfair
conclusions, at p. 372B, in relation to the second dismissal are among the means by which the
application (no longer pursued), that the Divisional Government seeks to achieve this aim. It takes the

1060,630
(Cite as: [1995] 1 A.C. 1)
view that regulatory burdens tend to inhibit the Once the principle of thresholds is accepted, the
creation of employment opportunities, and it precise threshold is a matter which falls properly
therefore seeks to impose as light a regulatory within the margin of appreciation of the legislature.
framework as reasonably possible. In particular, it At the same time, the Divisional Court and Hirst L.J.
considers that the application of the same qualifying were right, for the reasons given by them, to conclude
conditions for part-time workers who work less than that the experience in other member states could not
16 hours a week as for full-time workers would form the basis of satisfactory comparisons or lead to
discourage employers from providing part-time work. the conclusion that an alteration or removal of
qualifying thresholds would have no significant
Considerations of increased labour costs and a adverse effect on opportunities for women in the
resulting decrease in the number of jobs available are United Kingdom to work part-time.
capable in principle of constituting objective
justification: see the report with draft Directives As to an article 177 reference, the House of Lords
prepared by the Social Affairs Commissioner of the cannot decide the substantive issues of Community
European Commission in 1990 (COM(90) 228 final- law without a reference. There are three issues that
SYN 280 and SYN 281, Brussels, 29 June 1990; warrant consideration: (1) whether compensation for
Official Journal 1990 No. C 224). The commission unfair dismissal is "pay;" (2) what precisely is the test
seeks to argue that its proposals were introduced for of "objective justification:" the full Bilka test (Bilka-
political reasons and should therefore be ignored, but Kaufhaus G.m.b.H. v. Weber von Hartz (Case
it is inconceivable that it would, for political reasons 170/84) [1987] I.C.R. 110) or the broader approach
put forward proposals that it considered incompatible for which the Secretary of State contends; and (3)
with basic principles of Community law. It has thus whether it is open to a member state in principle to
acknowledged the need to strike a balance in an rely on "disproportionate administrative costs" by
exercise of this sort and clearly considers it to be way of objective justification. As to (1), the point is
entirely consistent with the requirements of not acte clair against the Secretary of State. The way
Community law to take into account the cost burdens in which the applicants' amended relief is now
borne by business. There is nothing in the decisions expressed shows that this issue must be decided. As
of the European Court or the domestic courts to to (2), the rather generalised references to "objective
support the contrary argument. justification" and the use of inconsistent formulae in
some of the European Court cases suggests that the
As to the substance of the matter, it is indisputable matter should be referred. As to (3), the fact that the
that the application of the same qualifying conditions commission itself has relied on "disproportionate
to all part-timers as to full-timers would increase the administrative costs " in the formulation of its own
costs and administrative burdens imposed on proposals in this area suggests that there should be a
businesses. It must also be bordering on the self- reference rather than the matter being decided against
evident, and is a view widely held, that such the Secretary of State by the House of Lords alone.
increases in costs and administrative burdens would Overall, if the House of Lords is against the Secretary
act as a disincentive to the creation of opportunities of State on the jurisdictional arguments, it should
for part-time work. The Divisional Court rightly refer questions to the European Court before deciding
relied on the undisputed facts concerning the the substantive issues.
employment record of the United Kingdom as
compared with that of *19 other member states. The Lord Lester Q.C. in reply. As regards applications for
United Kingdom has the 16-hour threshold and a judicial review generally, Parliament expressly
good employment record and it is reasonable to contemplated, by section 62(2) of the Act of 1975,
conclude that some causal relationship exists. The that discriminatory acts or deliberate omissions (see
Divisional Court was also right to rely on the section 82(1)) by public authorities would be subject
European Commission's own proposals in this area. to judicial review. It therefore expressly contemplated

1060,630
(Cite as: [1995] 1 A.C. 1)
(even before the 1977 reforms and the Act of 1981) situated part-timers is that it establishes the first of
that anyone with capacity and a sufficient interest the necessary conditions of liability under the
would be able to apply for judicial review under what Francovich doctrine, the second being already well
was to become, in 1977, R.S.C., Ord. 53. The cases established. Mrs. Night could herself have applied for
already referred to show that the courts' approach to judicial review of the Secretary of State's breach of
standing is a generous and realistic approach, in duty as part of her Francovich claim and sought
which in reality the issue of standing collapses into damages for breach of that duty. In effect, the
the wider question of substantive merit. Zamir & commission is doing so on her behalf and on behalf
Woolf, The Declaratory Judgment, p. 233, para. 5.73, of all part-time employees adversely affected by the
correctly summarises the modern position. Even if discriminatory qualifying thresholds. It is only if
the narrowly restrictive test of standing applied by Francovich was intended to impose strict liability in
Schiemann J. in Reg. v. Secretary of State for the damages simply on proof of invalidity of the
Environment, Ex parte Rose Theatre Trust Co. [1990] inconsistent statutory provisions that declaration (4)
1 Q.B. 504 were correct and were applied in the would be unnecessary. The grant of a declaration that
present case, the commission would plainly satisfy the Secretary of State's decision, refusing or
that test, given its statutory functions as set out, inter deliberately omitting to introduce amending
alia, in section 53 of the Act of 1975. In the most legislation, was in breach of his Community law
recent case dealing with the question of standing, duties does not depend on the existence of any
Reg. v. Inspectorate of Pollution, Ex parte particular facts personal to Mrs. Night, other than that
Greenpeace Ltd. (No. 2) [1994] 4 All E.R. 329 *20 , she has worked for fewer than 16 hours a week for a
Otton J. correctly adopted a generous approach. private employer and has been denied unfair
dismissal compensation solely because of the
In the light of Reg. v. Secretary of State for statutory qualifying threshold.
Transport, Ex parte Factortame Ltd. [1990] 2 A.C. 85
there can be no doubt that the Divisional Court had As for the precise wording of the declaratory relief
jurisdiction to grant declaratory relief of the kind that the House of Lords may grant, the suggested
sought by the commission. In Zamir & Woolf, The orders are in substance equivalent to the interlocutory
Declaratory Judgment, pp. 97-98, para. 3.114, it was and final orders made in Factortame, although, unlike
correctly stated that, in the light of Factortame, the the interlocutory order made in Factortame, there is
courts have the power to quash both primary and no express reference to the legislation "being
subordinate legislation if it fails to comply with disapplied."
Community law. There is no doubt that, by virtue of
the Francovich doctrine (Francovich v. Italian The Secretary of State has placed reliance on section
Republic (Cases C-6/90, C-9/90) [1991] E.C.R. I- 31 of the Act of 1981 to suggest that declaratory
5357), the Secretary of State owes a duty to Mrs. relief of the kind sought by the commission could not
Night to implement the Equality Directives correctly be granted where no prerogative order could be
by removing indirectly discriminatory provisions sought. There is, however, nothing in the language of
from the Act of 1978 that prevent her from obtaining section 31 to suggest such a novel and narrowly
redundancy pay and unfair dismissal compensation, restrictive limitation on the court's important powers
and that, in appropriate circumstances, the state is to grant declaratory relief: see Zamir & Woolf, The
liable in damages for failure to implement the Declaratory Judgment, p. 41, para. 3.005, which
Directives correctly, provided that the three correctly describes the width of the court's powers to
conditions laid down by the European Court in grant declaratory relief; see also pp. 42-43, 55, paras.
Francovich (p. I-5415, para. 49) are satisfied. 3.007, 3.028.
The practical value of the declaratory relief sought *21 The commission's application involves a
by the commission for Mrs. Night and other similarly challenge to the Government's policy of deliberately

1060,630
(Cite as: [1995] 1 A.C. 1)
maintaining the discriminatory statutory provisions in of Lords is satisfied that it has jurisdiction to grant
force notwithstanding Community legal obligations, declaration (4), on the assumption that compensation
so as to secure effective remedies for all part-time for unfair dismissal is not pay, then the pay issue is
employees excluded by the qualifying thresholds and academic. There is no need to determine it and no
wronged by the Secretary of State's failure to abolish need to refer it. Nor is there any need to refer
the thresholds. It is common ground that the anything about Bilka-Kaufhaus G.m.b.H. v. Weber
commission would not be able to make such a claim von Hartz (Case 170/84) [1987] I.C.R. 110 if it is
on behalf of all part-time workers (or women) in an found that the Secretary of State has not discharged
industrial tribunal or by supporting Mrs. Day's case in the burden of proving that the means employed are
the tribunal. If the House of Lords were to hold that necessary to achieve the stated aims. Otherwise, the
the only domestic tribunal that had jurisdiction to question is whether a failure to provide equal pay to
deal with the substantive issues of Community law part-time workers, who are mainly women, on the
raised in this appeal, or the only convenient tribunal, basis that that would increase labour costs, could
was the industrial tribunal, the commission would be constitute appropriate means to achieve the
deprived of any forum in which to take action on legislative aim of maximising employment within the
behalf of women (and men) generally in order to Bilka test of objective justification.
clarify the law and render it effective for the benefit
of part-timers in the private as well as the public Their Lordships took time for consideration. 3 March
sector of employment. Although the industrial 1994. LORD KEITH OF KINKEL.
tribunal has valuable expertise in industrial relations,
it has no such special expertise to evaluate My Lords, article 119 of the E.E.C. Treaty (Cmnd.
governmental or legislative policy in introducing or 5179-II) provides:
maintaining indirectly discriminatory statutory rules. "Each member state shall during the first stage
ensure and subsequently maintain the application of
The fact that the Secretary of State is not a party in the principle that men and *22 women should receive
the tribunal would create serious difficulties with equal pay for equal work. For the purpose of this
regard to so-called test cases in relation to the article, 'pay' means the ordinary basic or minimum
qualifying thresholds. Costs are not generally wage or salary and any other consideration, whether
awarded to a successful party in an industrial in cash or in kind, which the worker receives, directly
tribunal, or in the Employment Appeal Tribunal. This or indirectly, in respect of his employment from his
has the consequence that, even assuming that suitable employer. Equal pay without discrimination based on
test cases could otherwise be found, the commission sex means: (a) that pay for the same work at piece
would not be able to recover, for public funds, any of rates shall be calculated on the basis of the same unit
the costs incurred by it in these tribunals should it of measurement; (b) that pay for work at time rates
turn out that its view of the law and its application shall be the same for the same job."
was right. [Reference was made to Reg. v. Secretary
of State for Social Services, Ex parte Clarke [1988] The Council Directive of 10 February 1975
I.R.L.R. 22.] (75/117/E.E.C.) ("the Equal Pay Directive") spells
out the right to equal pay in greater detail. Article
There is no need for a reference to the European 2(1) of the Council Directive of 9 February 1976
Court. There is no issue on Community law as to (76/207/E.E.C.) ("the Equal Treatment Directive")
whether redundancy payments are "pay," and provides:
accordingly no issue on the first three declarations "For the purposes of the following provisions, the
sought. As to declaration (4), the European Court principle of equal treatment shall mean that there
made it clear in Francovich (pp. I-5415-5416, para. shall be no discrimination whatsoever on grounds of
42) that designation of the competent courts was a sex either directly or indirectly by reference in
matter for national, not Community, law. If the House particular to marital or family status."

1060,630
(Cite as: [1995] 1 A.C. 1)
conditions (if any) as may be specified by the Order

Article 5(1) and (2) provides: in Council. . . . (4) The provision that may be made
"1. Application of the principle of equal treatment under subsection (2) above includes . . . any such
with regard to working conditions, including the provision (of any such extent) as might be made by
conditions governing dismissal, means that men and Act of Parliament, and any enactment passed or to be
women shall be guaranteed the same conditions passed, other than one contained in this Part of this
without discrimination on grounds of sex. 2. To this Act, shall be construed and have effect subject to the
end, member states shall take the measures necessary foregoing provisions of this section; . . ."
to ensure that: (a) any laws, regulations and
administrative provisions contrary to the principle of By the European Communities (Designation) (No. 3)
equal treatment shall be abolished; . . ." Order 1982 (S.I. 1982 No. 1675) the Secretary of
State for Employment was designated for purposes of
Section 2 of the European Communities Act 1972, so section 2(2) of the Act of 1972 in relation to
far as material for present purposes, provides: measures to prevent discrimination between men and
"(1) All such rights, powers, liabilities, obligations women as regards terms and conditions of
and restrictions from time to time created or arising employment.
by or under the Treaties [see section 1(2)], and all
such remedies and procedures from time to time The United Kingdom legislation aimed at preventing
provided for by or under the Treaties, as in such discrimination is to be found in the Equal Pay
accordance with the Treaties are without further Act 1970 and the Sex Discrimination Act 1975, but
enactment to be given legal effect or used in the nothing in the present case turns on any provision of
United Kingdom shall be recognised and available in either of these Acts. What is in issue is those
law, and be enforced, allowed and followed provisions of the Employment Protection
accordingly; and the expression ' enforceable (Consolidation) Act 1978 which set out the
Community right' and similar expressions shall be conditions which govern the right not to be unfairly
read as referring to one to which this subsection dismissed, the right to compensation for unfair
applies. (2) . . . at any time after its passing Her dismissal and the right to statutory redundancy pay.
Majesty may by Order in Council, and any These conditions require that an employee should
designated minister or department may by have worked a specified number of hours a week
regulations, make provision - (a) for the purpose of during a specified period of continuous employment.
implementing any Community obligation of the In general, the qualifying periods for entitlement to
United Kingdom, or enabling any such obligation to each of the rights in question are (a) two years of
be implemented . . . or (b) for the purpose of dealing continuous employment for employees who work for
with matters arising out of or related to any such 16 or more hours per week, and (b) five years of
obligation or rights . . . or the operation from time to continuous employment for employees who work
time, of subsection (1) above; and in the exercise of between eight and 16 hours per week. Employees
any statutory power or duty, including any power to who work for fewer than eight hours per week do not
give directions or to legislate by means of orders, qualify for any of the rights in question. The
rules, regulations or other subordinate instrument, the provisions of the Act which set out these conditions
person entrusted with the power or duty may have are to be found in sections 54, 64, 68, 71, 81 and 151
regard to the objects of the Communities and to any and Schedule 13, which need not be referred to in
such obligation or rights as aforesaid. In this detail. It is common ground that the great majority of
subsection 'designated *23 minister or department' employees who work for more than 16 hours a week
means such minister of the Crown or government are men, and that the great majority of those who
department as may from time to time be designated work for less than 16 hours a week are women, so
by Order in Council in relation to any matter or for that the provisions in question result in an indirect
any purpose, but subject to such restrictions or discrimination against women.

1060,630
(Cite as: [1995] 1 A.C. 1)
women) than of full-time workers (most of whom are

On 21 March 1990 the chief executive of the men) in relation to the conditions for receipt of
appellant Equal Opportunities Commission statutory redundancy pay and compensation for
("E.O.C.") wrote to the Secretary of State for unfair dismissal. 2. A declaration that the United
Employment referring to the provisions of the Act of Kingdom is in breach of its obligations under [the
1978 concerning redundancy pay and compensation Equal Treatment] Directive (76/207/E.E.C.) by
for unfair dismissal and expressing the view that providing less favourable treatment of part-time
these constituted indirect discrimination against workers (most of whom are women) than of full-time
women employees, contrary to Community law. The workers (most of whom are men) in relation to the
Secretary of State was asked to give urgent conditions for receipt of statutory redundancy pay
consideration to that matter and to inform the E.O.C. and compensation for unfair dismissal."
whether the Government would be willing to
introduce the necessary legislation to remove the At a later stage the application was amended so as to
discrimination inherent in the Act of 1978, giving bring in as second applicant Mrs. Day, who had been
reasons for his decision if the reply was in the employed by Hertfordshire County Council as a
negative. The Secretary of State replied by letter cleaner for just under five years working 11 hours a
dated 23 April 1990, stating, inter alia: week and had been made redundant, and so as to seek
"[We do not accept that] statutory redundancy pay certain further declarations and also mandamus to
and statutory compensation for unfair dismissal compel the Secretary of State to introduce legislation
constitute 'pay' within the meaning *24 of article to abolish the discriminatory provisions of the Act of
119 . . . or . . .that they fall within the Equal 1978.
Treatment Directive . . . we believe that our current
statutory thresholds are entirely justifiable. These The application was heard by a Divisional Court
thresholds have existed in one form or another ever consisting of Nolan L.J. and Judge J. [1992] I.C.R.
since employment protection legislation was first 341 who on 10 October 1991 dismissed it. On appeal
introduced. Their purpose is to ensure that a fair by the E.O.C. and Mrs. Day to the Court of Appeal
balance is struck between the interests of employers [1993] 1 W.L.R. 872 the decision of the Divisional
and employees. We have no plans to change the Court was by a majority affirmed (Kennedy and Hirst
thresholds." L.JJ., Dillon L.J. dissenting). The E.O.C. and Mrs.
On 6 June 1990 the E.O.C. obtained leave to move Day now appeal to your Lordships' House.
for judicial review, the matter in respect of which
relief was sought being stated as: The principal issue of substance raised by the
"The decision of the Secretary of State for proceedings is whether the indirect discrimination
Employment dated 23 April 1990 declining to accept against women involved in the relevant provisions of
that the United Kingdom is in breach of its the Act of 1978 has been shown to be based upon
obligations under Community law by providing less objectively justified grounds, that being the test
favourable treatment of part-time workers than of propounded by the European Court of Justice in
full-time workers in relation to the conditions for Bilka-Kaufhaus G.m.b.H. v. Weber von Hartz (Case
receipt of statutory redundancy pay and 170/84) [1987] I.C.R. 110 for determining whether or
compensation for unfair dismissal." not measures involving indirect discrimination
The substantive relief sought was expressed in these constitute an infringement of article 119 of the *25
terms: E.E.C. Treaty. A number of procedural points were,
"1. A declaration that the United Kingdom is in however, argued in the courts below and before this
breach of its obligations under article 119 of the House.
[E.E.C. Treaty] and [the Equal Pay] Directive
(75/117/E.E.C.) by providing less favourable
treatment of part-time workers (most of whom are It is convenient first to consider whether Mrs. Day is
properly joined in the present proceedings against the

1060,630
(Cite as: [1995] 1 A.C. 1)
Secretary of State. Redundancy pay is "pay " within not involve any decision or justiciable issue
the meaning of article 119 of the Treaty: Barber v. susceptible of judicial review, (3) that the Divisional
Guardian Royal Exchange Assurance Group (Case C- Court had no jurisdiction to declare that the United
262/88) [1991] 1 Q.B. 344. If the discriminatory Kingdom or the Secretary of State was in breach of
measures in the Act of 1978 are not objectively any obligations under European Community law, and
justified, Mrs. Day has a good claim for redundancy (4) that the Divisional Court was not the appropriate
pay against her employers, the Hertfordshire Area forum to determine the substantive issues raised by
Health Authority, under article 119, which by virtue the application.
of section 2(1) of the Act of 1972 prevails over the
discriminatory provisions of the Act of 1978. She Dealing first with the question of locus standi,
would also have a good claim under the Equal Pay R.S.C., Ord. 53, r. 3(7) provides that the court shall
Directive and the Equal Treatment Directive, which not grant leave to apply for judicial review "unless it
are directly applicable against her employers as being considers that the applicant has a sufficient interest in
an emanation of the state: Marshall v. Southampton the matter to which the application relates." Section
and South West Hampshire Area Health Authority 31(3) of the Supreme Court Act 1981 contains a
(Teaching) (Case 152/84) [1986] Q.B. 401. Mrs. provision in the same terms. The matter to which the
Day's claim against her employers is a private law E.O.C.'s application relates is essentially whether the
claim, and indeed she has already started proceedings relevant provisions of the Act of 1978 are compatible
to enforce it in the appropriate industrial tribunal, with European Community law regarding equal pay
these having been adjourned to await the outcome of and equal treatment. Has the E.O.C. a sufficient
the present case. The industrial tribunal has interest in that matter? Under section 53(1) of the Act
jurisdiction to decide questions as to objective of 1975 the duties *26 of the E.O.C. include: "(a) to
justification for discriminatory measures, and has work towards the elimination of discrimination, (b) to
done so on many occasions, in particular in the promote equality of opportunity between men and
Marshall case. I see no good reason why a purely women generally . . ." If the admittedly
private law claim should be advanced in the discriminatory provisions of the Act of 1978 as
Divisional Court against the Secretary of State, who regards redundancy pay and compensation for unfair
is not the claimant's employer and is not liable to dismissal are not objectively justified, then steps
meet the claim, if sound. The determination of such taken by the E.O.C. towards securing that these
claims has been entrusted by statute to the industrial provisions are changed may very reasonably be
tribunal, which is fully competent to deal with them. regarded as taken in the course of working towards
It is suggested that different industrial tribunals might the elimination of discrimination. The present
reach different decisions on the facts in relation to proceedings are clearly such a step. In a number of
objective justification, but a suitable test case upon cases the E.O.C. has been the initiating party to
the question of principle, supported by the E.O.C. proceedings designed to secure the elimination of
under the power conferred upon it by section 75 of discrimination. The prime example is Reg. v.
the Act of 1975, would be capable of settling the Birmingham City Council, Ex parte Equal
question definitively. I conclude that the Divisional Opportunities Commission [1989] A.C. 1155, where
Court was not the appropriate forum to adjudicate the E.O.C. successfully challenged the policy of the
upon what so far as Mrs. Day is concerned is her council as regards the relative availability of
private law claim, and would dismiss her appeal, but grammar school places for girls and for boys, in
without costs. proceedings which reached this House and in which
it was not suggested at any stage that the E.O.C.
Turning now to the position of the E.O.C., the lacked locus standi. In Reg. v. Secretary of State for
procedural points taken by the Secretary of State are Defence, Ex parte Equal Opportunities Commission
(1) that the E.O.C. has no locus standi to bring the (unreported), 20 December 1991, it was common
present proceedings, (2) that the E.O.C.'s case does ground that the E.O.C. had locus standi. Another

1060,630
(Cite as: [1995] 1 A.C. 1)
instance is Reg. v. Secretary of State for Social Ex parte Factortame Ltd. [1990] 2 A.C. 85; Reg. v.
Security, Ex parte Equal Opportunities Commission Secretary of State for Transport, Ex parte Factortame
(Case C-9/91) [1992] I.C.R. 782, which went to the Ltd. (No. 2) (Case C-213/89) [1991] 1 A.C. 603; Reg.
European Court of Justice. In my opinion it would be v. Secretary of State for Transport, Ex parte
a very retrograde step now to hold that the E.O.C. has Factortame Ltd. (No. 3) (Case C-221/89) [1992] Q.B.
no locus standi to agitate in judicial review 680) the applicants for judicial review sought a
proceedings questions related to sex discrimination declaration that the provisions of Part II of the
which are of public importance and affect a large Merchant Shipping Act 1988 should not apply to
section of the population. The determination of this them on the ground that such application would be
issue turns essentially upon a consideration of the contrary to Community law, in particular articles 7
statutory duties and public law role of the E.O.C. as and 52 of the E.E.C. Treaty (principle of non-
regards which no helpful guidance is to be gathered discrimination on the ground of nationality and right
from decided cases. I would hold that the E.O.C. has of establishment). The applicants were companies
sufficient interest to bring these proceedings and incorporated in England which were controlled by
hence the necessary locus standi. Spanish nationals and owned fishing vessels which
on account of such control were denied registration in
The next question is whether there exists any the register of British vessels by virtue of the
decision or justiciable issue susceptible of judicial restrictive conditions contained in Part II of the Act
review. The E.O.C.'s application sets out the of 1988. The Divisional Court (Reg. v. Secretary of
Secretary of State's letter of 23 April 1990 as being State for Transport, Ex parte Factortame Ltd. [1989]
the reviewable decision. In my opinion that letter 2 C.M.L.R. 353), under article 177 of the Treaty,
does not constitute a decision. It does no more than referred to the European Court of Justice a number of
state the Secretary of State's view that the threshold questions, including the question whether these
provisions of the Act of 1978 regarding redundancy restrictive conditions were compatible with articles 7
pay and compensation for unfair dismissal are and 52 of the Treaty. The European Court [1992]
justifiable and in conformity with European Q.B. 680 answered that question in the negative, and,
Community law. The real object of the E.O.C.'s although the final result is not reported, no doubt the
attack is these provisions themselves. The question is Divisional Court in due course granted a declaration
whether judicial review is available for the purpose accordingly. The effect was that certain provisions of
of securing a declaration that certain United Kingdom United Kingdom primary legislation were held to be
primary legislation is incompatible with European invalid in their purported application to nationals of
Community law. It is argued for the Secretary of member states of the European Economic
State that Ord. 53, r. 1(2), which gives the court Community, but without any prerogative order being
power to make declarations in judicial review available to strike down the legislation in question,
proceedings, is only applicable where one of the which of course remained valid as regards nationals
prerogative orders would be available under rule of non-member states. At no stage in the course of the
1(1), and that if there is no decision in respect of litigation, which included two visits to this House,
which one of these writs might be issued a was it suggested that judicial review was not
declaration cannot be made. I consider that to be too available for the purpose of obtaining an adjudication
narrow an interpretation of the court's powers. It upon the validity of the legislation in so far as it
would mean that while a declaration that a statutory affected the applicants.
instrument is incompatible with European
Community law could be made, since such an The Factortame case is thus a precedent in favour of
instrument is capable of being set aside by certiorari, the E.O.C.'s recourse to judicial review for the
no such declaration could be made as regards primary purpose of challenging as incompatible with
legislation. However, in the Factortame series of European Community law the relevant provisions of
cases ( *27 Reg. v. Secretary of State for Transport, the Act of 1978. It also provides an answer to the

1060,630
(Cite as: [1995] 1 A.C. 1)
third procedural point taken by the Secretary of State, appeal, which is whether or not the threshold
which maintains that the Divisional Court had no provisions in the Act of 1978 have been shown to be
jurisdiction to declare that the United Kingdom or the objectively justified, the onus of doing so being one
Secretary of State is in breach of obligation under which rests on the Secretary of State.
Community law. There is no need for any such
declaration. A declaration that the threshold In Bilka-Kaufhaus G.m.b.H. v. Weber von Hartz, the
provisions of the Act of 1978 are incompatible with European Court of Justice said, at p. 126:
Community law would suffice for the purposes "36. It is for the national court, which has sole
sought to be achieved by the E.O.C. and is capable of jurisdiction to make findings of fact, to determine
being granted consistently with the precedent whether and to what extent the grounds put forward
afforded by Factortame . This does not involve, as by an employer to explain the adoption of a pay
contended for the Secretary of State, any attempt by practice which applies independently of a worker's
the E.O.C. to enforce the international treaty sex but in fact affects more women than men may be
obligations of the United Kingdom. The E.O.C. is regarded as objectively justified economic grounds. If
concerned simply to obtain a ruling which reflects the the national court finds that the measures chosen by
primacy of European Community law enshrined in Bilka correspond to a real need on the part of the
section 2 of the Act of 1972 and determines whether undertaking, are appropriate with a view to achieving
the relevant United Kingdom law is compatible with the objectives pursued and are necessary to that end,
the Equal Pay Directive and the Equal Treatment the fact that the measures affect a far greater number
Directive. of women than men is not sufficient to show that they
constitute an infringement of article 119."
Similar considerations provide the answer to the Somewhat broader considerations apply where the
Secretary of State's fourth procedural point by which discriminatory provisions are to be found in national
it is maintained that the Divisional *28 Court is not legislation. In Rinner-Kuhn v. F.W.W. Spezial-
the appropriate forum to decide the substantive issues Gebäudereinigung G.m.b.H. & Co. K.G. (Case
at stake. The issues at stake are similar in character to 171/88) [1989] E.C.R. 2743, the question at issue
those which were raised in Factortame . The was whether German legislation which permitted
Divisional Court is the only English forum in which restrictions on the right of part time workers to sick
the E.O.C., having the capacity and sufficient interest pay contravened article 119 of the E.E.C. Treaty,
to do so, is in a position to secure the result which it considering that a great majority of part-time workers
desires. It is said that the incompatibility issue could were women. The court said, at pp. 2760-2761:
be tested in proceedings before the European Court "12. In such a situation, it must be concluded that
of Justice instituted by the European Commission a provision such as that in question results in
against the United Kingdom under article 169 of the discrimination against female workers in relation to
E.E.C. Treaty. That may be true, but it affords no male workers and must, in principle, be regarded as
reason for concluding that the Divisional Court is an contrary to the aim of article 119 of the Treaty. The
inappropriate forum for the application by the E.O.C. position would be different only if the distinction
designed towards a similar end and, indeed, there are between the two categories of employees were
grounds for the view that the Divisional Court is the justified by objective factors unrelated to any
more appropriate forum, since the European Court of discrimination on grounds of sex (see the judgment
Justice has said that it is for the national court to of 13 May 1986 in Bilka-Kaufhaus G.m.b.H. v.
determine whether an indirectly discriminatory pay Weber von Hartz (Case 170/84) [1987] I.C.R. 110
practice is founded on objectively justified economic *29 ). 13. In the course of the procedure, the German
grounds: see Bilka-Kaufhaus G.m.b.H. v. Weber von Government stated, in response to a question put by
Hartz (Case 170/84) [1987] I.C.R. 110, 126. the court, that workers whose period of work
amounted to less than 10 hours a week or 45 hours a
I turn now to the important substantive issue in the month were not as integrated in, or as dependent on,

1060,630
(Cite as: [1995] 1 A.C. 1)
the undertaking employing them as other workers. than 8 hours a week or between 8 and 16 hours a
14. It should, however, be stated that those week for under five years. It is contended that if
considerations, in so far as they are only employers were under that liability they would be
generalisations about certain categories of workers, inclined to employ less part-time workers and more
do not enable criteria which are both objective and full-time workers, to the disadvantage of the former.
unrelated to any discrimination on grounds of sex to
be identified. However, if the member state can show The bringing about of an increase in the availability
that the means chosen meet a necessary aim of its of part-time work is properly to be regarded as a
social policy and that they are suitable and requisite beneficial social policy aim and it cannot be said that
for attaining that aim, the mere fact that the provision it is not a necessary aim. The question is whether the
affects a much greater number of female workers threshold provisions of the Act of 1978 have been
than male workers cannot be regarded as constituting shown, by reference to objective factors, to be
an infringement of article 119. 15. It is for the suitable and requisite for achieving that aim. As
national court, which has sole jurisdiction to assess regards suitability for achieving the aim in question,
the facts and interpret the national legislation, to it is to be noted that the purpose of the thresholds is
determine whether and to what extent a legislative said to be to reduce the costs to employers *30 of
provision, which, though applying independently of employing part-time workers. The same result,
the sex of the worker, actually affects a greater however, would follow from a situation where the
number of women than men, is justified by reasons basic rate of pay for part time workers was less than
which are objective and unrelated to any the basic rate for full-time workers. No distinction in
discrimination on grounds of sex. 16. The reply to the principle can properly be made between direct and
question referred by the national court must therefore indirect labour costs. While in certain circumstances
be that article 119 of the E.E.C. Treaty must be an employer might be justified in paying full-time
interpreted as precluding national legislation which workers a higher rate than part-time workers in order
permits employers to exclude employees whose to secure the more efficient use of his machinery (see
normal working hours do not exceed 10 hours a week Jenkins v. Kingsgate (Clothing Productions) Ltd.
or 45 hours a month from the continued payment of [1981] 1 W.L.R. 1485) that would be a special and
wages in the event of illness, if that measure affects a limited state of affairs. Legislation which permitted a
far greater number of women than men, unless the differential of that kind nationwide would present a
member state shows that the legislation concerned is very different aspect and considering that the great
justified by objective factors unrelated to any majority of part-time workers are women would
discrimination on grounds of sex." surely constitute a gross breach of the principle of
equal pay and could not possibly be regarded as a
The original reason for the threshold provisions of suitable means of achieving an increase in part-time
the Act of 1978 appears to have been the view that employment. Similar considerations apply to
part-time workers were less committed than full-time legislation which reduces the indirect cost of
workers to the undertaking which employed them. In employing part-time labour. Then as to the threshold
his letter of 23 April 1990 the Secretary of State provisions being requisite to achieve the stated aim,
stated that their purpose was to ensure that a fair the question is whether on the evidence before the
balance was struck between the interests of Divisional Court they have been proved actually to
employers and employees. These grounds are not result in greater availability of part-time work than
now founded on as objective justification for the would be the case without them. In my opinion that
thresholds. It is now claimed that the thresholds have question must be answered in the negative. The
the effect that more part-time employment is evidence for the Secretary of State consisted
available than would be the case if employers were principally of an affidavit by an official in the
liable for redundancy pay and compensation for Department of Employment which set out the views
unfair dismissal to employees who worked for less of the Department but did not contain anything

1060,630
(Cite as: [1995] 1 A.C. 1)
capable of being regarded as factual evidence means of ascertaining whether these explanations
demonstrating the correctness of these views. One of have any validity. The fact is, however, that the
the exhibits to the affidavit was a report with draft proportion of part-time employees in the national
Directives prepared by the Social Affairs workforce is much less than the proportion of full-
Commissioner of the European Commission in 1990 time employees, their weekly remuneration is
(COM(90) 228 final - SYN 280 and SYN 281, necessarily much lower, and the number of them
Brussels, 13 August 1990; Official Journal 1990 No. made redundant or unfairly dismissed in any year is
C 224, pp. 4-8). This covered a wide range of not likely to be unduly large. The conclusion must be
employment benefits and advantages, including that no objective justification for the thresholds in the
redundancy pay and compensation for unfair Act of 1978 has been established.
dismissal, but proposed a qualifying threshold for
those benefits of eight hours of work per week. The A subsidiary issue of substance in the appeal is
basis for that was stated to be the elimination of whether or not compensation for unfair dismissal is
disproportionate administrative costs and regard to "pay" within the meaning of article 119 of the Treaty
employers' economic needs. These are not the and the Equal Pay Directive. The definition of "pay"
grounds of justification relied on by the Secretary of in article 119 has been set out above. In
State. The evidence put in by the E.O.C. consisted in Arbeiterwohlfahrt der Stadt Berlin e.V. v. Bötel (Case
large measure in a report of the House of Commons C-360/90) [1992] I.R.L.R. 423, 425, the European
Employment Committee, "Part-Time Work," vol. 1, Court of Justice said:
in 1990 (H.C. 122-I, 10 January 1990) and a report of "12. According to the case law of the court . . . the
the House of Lords Select Committee on the concept of 'pay' within the meaning of article 119 of
European Communities, "Part-Time and Temporary the Treaty comprises any consideration whether in
Employment," in 1990 (H.L. 7, 4 December 1990). cash or in kind, whether immediate or future,
These revealed a diversity of views upon the effect of provided that the employee receives it, albeit
the threshold provisions on part-time work, indirectly, in respect of his employment from his
employers' organisations being of the opinion that employer, whether under a contract of employment,
their removal would reduce the amount available legislative provisions or made ex gratia by the
with trade union representatives and some employers employer."
and academics in the industrial relations field taking In Barber v. Guardian Royal Exchange Assurance
the opposite view. It also appeared that no other Group (Case C-262/88) [1991] 1 Q.B. 344 the court
member state of the European Community, apart held that redundancy pay was pay within the meaning
from the Republic of Ireland, had legislation of article 119 on the ground (paragraph 18 of the
providing for similar thresholds. The Republic of judgment, at p. 400) that receipt of it arose "by reason
Ireland, where statute at one time provided for an 18- of the existence of the employment relationship. "
hour-per-week threshold, had recently introduced There is much to be said in favour of the view that
legislation reducing this to 8 hours. In the compensation for unfair dismissal is of a comparable
Netherlands the proportion of the workforce in part- nature, but the European Court of Justice has not yet
time employment was in 1988 29.4 per cent. and in pronounced upon this issue, and there may be a
Denmark 25.5 per cent., neither country having any question whether the answer to it can properly be
thresholds similar to those in the Act of 1978. In held to be acte clair, or whether resolution of it would
France *31 legislation was introduced in 1982 require a reference to the European Court under
providing for part-time workers to have the same article 177 of the Treaty.
rights as full-time, yet between 1983 and 1988 part-
time work in that country increased by 36.6 per cent., Such a reference is in any event, however,
compared with an increase of 26.1 per cent. over the unnecessary for the disposal of the present appeal.
same period in the United Kingdom. While various Discrimination as regards the right to compensation
explanations were suggested on behalf of the for unfair dismissal, if not objectively justified, is
Secretary of State for these statistics, there is no

1060,630
(Cite as: [1995] 1 A.C. 1)
clearly in contravention of the Equal Treatment arise in the present appeal.

Directive.
LORD JUNCEY OF TULLICHETTLE.
In the light of the foregoing I am of the opinion that
the appeal by the E.O.C. should be allowed and that My Lords, the Equal Opportunities Commission was
declarations should be made in the following terms: established by the provisions of Part VI of the Sex
(1) that the provisions of the Employment Protection Discrimination Act 1975. Section 53(1) of the Act
(Consolidation) Act 1978 whereby employees who provides that it should have the following duties:
work for fewer than 16 hours per week are subject to "(a) to work towards the elimination of
different conditions in respect of qualification for discrimination, (b) to promote equality of opportunity
redundancy pay from those which apply to between men and women generally, and (c) to keep
employees who work for 16 hours per week or more under review the working of this Act and the Equal
are incompatible with article 119 of the E.E.C. Treaty Pay Act 1970 and, when they are so required by the
and the Council Directive of 10 February 1975 Secretary of State or otherwise think it necessary,
(75/117/E.E.C.); (2) that the provisions of the draw up and submit to the Secretary of State
Employment Protection (Consolidation) Act 1978 proposals for amending them."
*32 whereby employees who work for fewer than 16 Section 55 requires the commission to keep under
hours per week are subject to different conditions in review the discriminatory aspects of provisions in
respect of the right to compensation for unfair health and safety legislation and to report to the
dismissal from those which apply to employees who Secretary of State on any matter specified by him.
work for 16 hours per week or more are incompatible Section 56 requires the commission to make an
with the Council Directive of 9 February 1976 annual report to the Secretary of State on its
(76/207/E.E.C.). activities. Section 57(1) provides:
"Without prejudice to their general power to do
It remains to note that the E.O.C. proposed that the anything requisite for the performance of their duties
House should grant a declaration to the effect that the under section 53(1), the commission may if they
Secretary of State is in breach of those provisions of think fit, and shall if required by the Secretary of
the Equal Treatment Directive which require member State, conduct a formal investigation for any purpose
states to introduce measures to abolish any laws connected with the carrying out of those duties."
contrary to the principle of equal treatment. The Section 60(1) provides:
purpose of such a declaration was said to be to enable "If in the light of any of their findings in a formal
part-time workers who were employed otherwise investigation it appears to the commission necessary
than by the state or an emanation of the state, and or expedient, whether during the course of the
who had been deprived of the right to obtain investigation or after its conclusion . . . (b) to make to
compensation for unfair dismissal by the restrictive the Secretary of State any recommendations, whether
thresholds in the Act of 1978, to take proceedings for changes in *33 the law or otherwise, the
against the United Kingdom for compensation, commission shall make those recommendations
founding upon the decision of the European Court of accordingly."
Justice in Francovich v. Italian Republic (Cases C- The commission is also empowered by section 75 to
6/90, C-9/90) [1991] E.C.R. I-5357. In my opinion it provide assistance to claimants in proceedings under
would be quite inappropriate to make any such the Act.
declaration. If there is any individual who believes
that he or she has a good claim to compensation In pursuance of its statutory duties the commission
under the Francovich principle, it is the Attorney- has in the past initiated judicial review proceedings
General who would be defendant in any proceedings without challenge to its capacity so to do. This House
directed to enforcing it, and the issues raised would upheld its right to obtain a declaration that a
not necessarily be identical with any of those which provision by a local education authority of selected

1060,630
(Cite as: [1995] 1 A.C. 1)
secondary education was unlawful: Reg. v. While reluctant to disagree with your Lordships I am
Birmingham City Council, Ex parte Equal driven to the conclusion, in agreement with Kennedy
Opportunities Commission [1989] A.C. 1155. In a L.J. in the Court of Appeal, that the commission does
Divisional Court hearing in December 1991 (Reg. v. not have the capacity to pursue these proceedings. I
Secretary of State for Defence, Ex parte Equal would therefore dismiss the appeal. I should only add
Opportunities Commission (unreported), 20 that if I had reached a different conclusion in relation
December 1991) on an application for judicial review to this preliminary matter I should have been in entire
of a decision made on behalf of the Secretary of State agreement with the reasons given by my noble and
for Defence in relation to pregnant servicewomen it learned friends Lord Keith of Kinkel and Lord
was accepted by the Crown that the commission had Browne-Wilkinson for allowing the appeal.
legal standing. However, the fact that the commission
may properly initiate judicial review proceedings in *34 LORD LOWRY.
pursuance of their duties against local authorities or
other ministers is not, in my view, conclusive of its My Lords, I have had the advantage of reading in
ability so to do in relation to the Secretary of State. draft the speech prepared by my noble and learned
friend, Lord Keith of Kinkel. I agree with it and for
The provisions of the Act to which I have referred the reasons which he gives I, too, would allow the
envisage the commission performing its duties on its appeal and make the declarations which he proposes.
own initiative or, in certain cases, as required by the
Secretary of State. Section 53(1)(c) empowers or Accepting as I do the analysis of my noble and
requires the commission to submit proposals to the learned friend, I do not find it necessary to consider
Secretary of State and section 60(1) similarly the question (which I think is arguable) whether the
empowers or requires the commission to make Secretary of State's letter of 23 April 1990 was a
recommendations to the Secretary of State. The Act "decision" for the purposes of judicial review. I
neither requires the Secretary of State to implement would, however, take the opportunity of expressing
these proposals or recommendations nor confers my respectful and complete agreement with the
power on the commission to have them implemented. observations on procedure which are about to be
Thus, vis-nbsp-vis the Secretary of State, the role of delivered by my noble and learned friend, Lord
the commission is advisory and it is no part of its Browne-Wilkinson.
duties to initiate proceedings against him in matters
relating to sex discrimination. The broad words of
section 53(1)(a) which might be thought habile to I feel bound, however, to add (as can perhaps be
cover any steps taken by the commission against inferred from my speech in Roy v. Kensington and
anybody towards the specified end must, so far as the Chelsea and Westminster Family Practitioner
Secretary of State is concerned, be read in the context Committee [1992] 1 A.C. 624) that I have never been
of the particular relationship which has been created entirely happy with the wide procedural restriction
between him and the commission. The Act makes the for which O'Reilly v. Mackman [1983] 2 A.C. 237 is
commission answerable to the Secretary of State and an authority, and I hope that that case will one day be
not vice versa. If Parliament had intended that the the subject of your Lordships' further consideration.
commission should be empowered to challenge
decisions of the Secretary of State and impose its will LORD BROWNE-WILKINSON.
upon him it is quite remarkable that Part VI of the
Act which sets out in some detail the powers and My Lords, I agree with the speech of my noble and
duties of the commission, both at large and in relation learned friend, Lord Keith of Kinkel but wish to add
to the Secretary of State, should have remained a few words on the procedural question whether the
totally silent upon this particular matter. court can make a declaration on an application for
judicial review even though in the circumstances of

1060,630
(Cite as: [1995] 1 A.C. 1)
the case the court could not grant one of the Judgment, 2nd ed. (1993), pp. 29-31.
prerogative orders.
The ability to obtain a declaration of public rights in
The question arises in this way. It being established civil proceedings was restricted by the need to show
(for the reasons given by my noble and learned sufficient locus standi. Although the plaintiff did not
friend, Lord Keith of Kinkel) that the Equal have to show an actual or threatened infringement of
Opportunities Commission has locus standi to bring his private rights, he did have to show that any actual
proceedings for judicial review but has not or threatened infringement of public rights would
demonstrated that there is any "decision" by the cause him special damage: Gouriet v. Union of Post
Secretary of State which can be quashed, has the Office Workers [1978] A.C. 435. However, questions
court got jurisdiction to make a declaration that the of locus standi are not what I am now considering.
domestic law of the United Kingdom is not in
conformity with European law? In 1977 the new Order 53 was introduced, laying
down the modern procedure for judicial review. Ord.
Before 1977, there were two routes whereby relief 53, r. 1(2) expressly provides that an application for a
could be sought from the courts in the field of what is declaration can be made in judicial review
now known as public law. The first was by proceedings and gives the Divisional Court power to
application to the Queen's Bench Divisional Court for make a declaration if it considers it just and
one of the prerogative orders. The second was by way convenient
of a civil action in the High Court for a declaration. "having regard to - (a) the nature of the matters in
This procedure in a civil action for a declaration was respect of which relief may be granted by way of an
under what is now R.S.C., Ord. 15, r. 16, which order of mandamus, prohibition or certiorari, (b) the
provides: nature of the persons and bodies against whom relief
"No action or other proceeding shall be open to may be granted by way of such an order, and (c) all
objection on the ground that a merely declaratory the circumstances of the case . . ."
judgment or order is sought thereby, and the court This rule was given statutory confirmation by section
may make binding declarations of right whether or 31 of the Supreme Court Act 1981.
not any consequential relief is or could be claimed."
In the period between the introduction of the new
As early as 1911 it was established that, in a civil Order 53 and the decision in O'Reilly v. Mackman
action brought by a competent plaintiff, the court [1983] 2 A.C. 237 there were therefore two routes
could grant declaratory relief against the Crown as to whereby a declaration of public rights could be
the legality of actions which the Crown proposed to obtained. The first was in judicial review proceedings
take: Dyson v. Attorney-General [1911] 1 K.B. 410. under Order 53; the second was by civil proceedings
Of course, in such civil proceedings in the High for declaratory relief under Ord. 15, r. 16. As to the
Court there could be no question of the plaintiff being latter, the position remained as it was before 1977.
entitled to any of the prerogative orders, which could During this period, civil proceedings for a declaration
only be made in proceedings on the Crown side. as to public rights continued to be brought. Thus, in
Royal College of Nursing of the United Kingdom v.
Civil proceedings for a declaration as to public rights Department of Health and Social Security [1981]
were a widely adopted method down to 1977. Indeed, A.C. 800 civil proceedings were brought in the
many of the most recent *35 developments in public Queen's Bench Division for a declaration as to the
law were made in such civil actions brought to obtain correctness in law of a circular from the D.H.S.S.
declaratory relief only: see, for example, Ridge v. purporting to explain to the medical profession the
Baldwin [1964] A.C. 40 and Anisminic Ltd. v. effect of the Abortion Act 1967. No one contended
Foreign Compensation Commission [1969] 2 A.C. that such a declaration could not be made even
147; see also Zamir & Woolf, The Declaratory though, as in the present case, none of the prerogative

1060,630
(Cite as: [1995] 1 A.C. 1)
orders could have been made even if the proceedings though there was no decision which could be the
had been brought under Order 53. This House subject of a prerogative order) from bringing any
restored a declaration as to the legality of the circular proceedings for such a declaration. No statutory
which had been made by the trial judge. provision has ever removed the right to seek such a
declaration which right has been established and
Accordingly, right down to the decision of this exercised from 1911. Ord. 53, r. 1(2) does not say
House in O'Reilly v. Mackman [1983] 2 A.C. 237 the that a declaration is only to be made in lieu of a
two procedures for obtaining declaratory relief, the prerogative order. All it requires is that the court
one by way of civil proceedings in the High Court, should have regard to "the nature of the matters in
the other by way of judicial review in the Divisional respect of which" prerogative orders can be made. In
Court, continued. In O'Reilly v. Mackman itself this the second Factortame case, Reg. v. Secretary of
House was considering the propriety of four civil State for Transport, Ex parte Factortame Ltd. (No. 2)
actions brought in the High Court for declarations as (Case C-213/89) [1991] 1 A.C. 603, this House,
to matters of public law. This House held that in such admittedly without argument to the contrary, plainly
public law cases it is an abuse of process to proceed envisaged that a declaration as to public rights could
by way of civil action and that such proceedings must be made, even though on the facts of that case none
*36 be brought by way of judicial review. In so of the prerogative orders could have been made.
deciding, Lord Diplock reviewed the law affecting
declaratory judgments in both civil proceedings and Finally, the terms of Ord. 15, r. 16 itself indicate the
judicial review proceedings. He said, at p. 283: same result. Judicial review proceedings under Order
"Nevertheless, there may still be cases where it 53 are "proceedings." Therefore the effect of Ord. 15,
turns out in the course of proceedings to challenge a r. 16 is that the court in judicial review proceedings
decision of a statutory authority that a declaration of for a declaration can make a declaratory order
rights rather than certiorari is the appropriate remedy. "whether or not any consequential relief . . . could be
Pyx Granite Co. Ltd. v. Ministry of Housing and claimed."
Local Government [1960] A.C. 260 provides an
example of such a case. So Order 53 since 1977 has I have sought to demonstrate that the history of
provided a procedure by which every type of remedy declaratory relief, authority and the terms of Ord. 15,
for infringement of rights of individuals that are r. 16 all point to the court having power to make a
entitled to protection in public law can be obtained in declaratory judgment in judicial review proceedings
one and the same proceeding by way of an brought by a plaintiff who has locus standi, whether
application for judicial review, and whichever or not the court could also make a prerogative order.
remedy is found to be the most appropriate in the The only indications to the contrary are certain dicta
light of what has emerged upon the hearing of the in Reg. v. Inland Revenue Commissioners, Ex parte
application can be granted to him." National Federation of Self-Employed and Small
Businesses Ltd. [1982] A.C. 617. The only matter at
In my judgment, this passage makes it clear that issue in that case was locus standi to bring
under Order 53 any declaration as to public rights proceedings under Order 53. It was suggested in
which could formerly be obtained in civil argument that Lord Diplock had indicated, obiter, that
proceedings in the High Court can now also be a declaration was only available as an *37 alternative
obtained in judicial review proceedings. If this were to mandamus. I do not so read his speech and, in the
not so, the effect of the purely procedural decision in light of the passage I have quoted from his speech in
O'Reilly v. Mackman, requiring all public law cases O'Reilly v. Mackman [1983] 2 A.C. 237 a year later,
to be brought by way of judicial review, would have it would be surprising if he meant so to indicate. Lord
had the effect of thenceforward preventing a plaintiff Scarman [1982] A.C. 617, 648, clearly expressed the
who previously had locus standi to bring civil view that a declaration could be granted in judicial
proceedings for a declaration as to public rights (even review proceedings

1060,630
(Cite as: [1995] 1 A.C. 1)
"only in circumstances in which one or other of

the prerogative orders can issue. I so interpret R.S.C., My Lords, for the reasons given by my noble and
Ord. 53, r. 1(2) because to do otherwise would be to learned friend, Lord Keith of Kinkel, I, too, would
condemn the rule as ultra vires." allow this appeal and make the declarations he
There was no examination of the history of the proposes.
declaratory judgment in that case and the reason
given by Lord Scarman (that otherwise Ord. 53, r. Representation
1(2) would be ultra vires) ceased to have any force
when shortly thereafter section 31 of the Act of 1981
was enacted and gave the provision statutory force. Solicitors: Pattinson & Brewer for Solicitor, Equal
Therefore, in my judgment this obiter dictum should Opportunities Commission, Manchester; Treasury
not lead your Lordships to reach a conclusion Solicitor.
different from that indicated by the other arguments I
have mentioned. Appeal of Equal Opportunities Commission allowed
with costs. Declarations accordingly. Appeal of Mrs.
For these reasons and the reasons given by my noble Patricia Elizabeth Day dismissed. No order as to
and learned friend, Lord Keith of Kinkel, I would costs. (M. G. )
allow the appeal and make the declarations that are
proposed. (c) Incorporated Council of Law Reporting For
England & Wales
LORD SLYNN OF HADLEY.
END OF DOCUMENT

Westlaw Delivery Summary Report For LEEVY-MALCOLM, TA 5204288

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Westlaw Delivery Summary Report For LEEVY-MALCOLM, TA 5204288

Uploaded by

Copyright:

Available Formats

Westlaw Delivery Summary Report for LEEVY-MALCOLM,TA 5204288

Date/Time of Request: Thursday, August 7, 2008 18:32 Central

against women because considerably more women

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

Held: an increase in the availability of part-time work could

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70,

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

Court adopted the stricter test for which the

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

conditions (if any) as may be specified by the Order

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

women) than of full-time workers (most of whom are

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

clearly in contravention of the Equal Treatment arise in the present appeal.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

"only in circumstances in which one or other of

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

You might also like