EQUALITY

[6.46] The principle of equality exists as one aspect of substantive review and is premised on the understanding that public decision-makers should treat like situations alike and different situations differently, unless there is good reason for them not to do so.^[1350] At common law, the principle gives rise to a basic tension between, on the one hand, the judicial desire to safeguard substantive fairness towards individuals and, on the other hand, the need for courts to avoid undue interference with lawful discre­tionary choices.

[6.47] Outside the common law, the principle of equality also takes form in a number of statutory provisions that pursue the elimination of unlawful discrimination.^[1353] The significance of some of these is returned to below ([6.52]-[6.53]), but two points of overarching importance for the workings of judicial review can be made here. The first is that, where a statute provides for an effective alternative remedy, the courts will require an individual to exhaust that remedy notwithstanding that the matter in question is one of public law. Although the requirement is not at the same time regarded as absolute, the courts have emphasised that a statutory scheme should ordinarily be used, as this is consonant with the doctrine of legislative supremacy. The courts have also emphasised that statute may, in any event, provide for superior procedures and remedies given the nature of the dispute.^[1354]

[6.48] The second point concerns the intensity of review in situations that are not governed by statutory remedies and which may therefore give rise to judicial review proceedings. Should those review proceedings come under, most notably, the European Communities Act 1972 and/or the Human Rights Act 1998, the courts are obliged to give effect to the proportionality principle that exists as a general principle of EU law and which also informs the Article 14 ECHR non-discrimination case law of the ECtHR. While this may suggest that �closer look’ review will be inevitable, judicial perception of the context of a case may nevertheless result in review that is character­ised by a greater or lesser degree of self-restraint. However, rather than use the language of Wednesbury in such instances, the courts may invoke the �margin of appreciation’ doctrine in EU law cases, and the �discretionary area of judgment’ doctrine in cases under the Human Rights Act 1998 (see [6.15]-[6.16] and [6.25]-[6.26] respectively).

[6.49] It should finally be noted that the principle of equality has long also been used in a formal, as opposed to a substantive, sense in UK constitutional law.

[6.50] The relative strength of any argument founded upon the common law principle of equality will depend on whether a decision-maker has (a) chosen not to resolve a matter before it in the light of its existing policy on such matters or (b) made a dis­cretionary choice in an area that is not, in fact, covered by any policy. In scenario (a) arguments about equality may be at their most persuasive precisely because policies are meant to engender certainty and consistency in the decision-making process.^[1358] Should an authority depart from its existing policy in a particular case, the affected individual may therefore argue that they had a legitimate expectation of being treated in accord­ance with the policy^[1359] and that the frustration of that expectation must be justified (on legitimate expectations see [6.29]-[6.45]).

[6.51] The corresponding threshold for judicial intervention in substantive equality disputes that do not involve EU law and/or the ECHR remains Wednesbury unreasona­bleness.^{[1361] [1362] The leading authority on the point in Northern Ireland is Re McCallions Application,157 which concerned challenges to various decisions taken by the Secretary of State in the administration of the criminal injuries compensation scheme. In finding that there had been a breach of the requirement of equal treatment insofar as the Secretary of State had failed to enquire whether there were grounds for distinguishing between two cases that were prima facie the same, the Court of Appeal stated that the equality principle is best analysed as part of the �irrationality equation’. This clearly links the common law principle of equality to a presumption in favour of judicial self-restraint, and an applicant who relies upon the principle must be able to establish that the decision under challenge is unreasonable within either the umbrella or substan­tive meanings of Wednesbury (on which see [6.05]-[6.08]). Any scope for �closer look’ review would, on this basis, appear to be limited to judicial use of modified Wednesbury and/or the proportionality principle that has becoming increasingly influential in common law reasoning (see [6.09]-[6.11] and [6.27]-[6.28]).}

Statute Law and Equality

[6.52] There are many legislative schemes that have been enacted for the reason of preventing discrimination and/or facilitating equality of opportunity for specific groups in society.^[1363] Some of these schemes have historically been introduced to give domestic effect to aspects of EU law (on which see [6.14]-[6.17] ^[1364]), while others have been intro­duced in the face of discrimination that is a UK-wide problem^[1365] or, in some instances, more particular to Northern Ireland.^[1366] Other schemes have sought to address the problem of underrepresentation in some areas of public service by, in effect, providing for positive discrimination.^{[1367] [1368]}

[6.53] A key question in respect of legislation is whether it, or some related scheme, provides for remedies in the event of discrimination, as the courts will generally require an individual to avail himself or herself of those remedies in preference to judicial review proceedings (see [6.47]). For instance, in Re Neill’s Application¹⁶³ the legality of the Antisocial Behaviour (Northern Ireland) Order 2004 was challenged on the ground that it had been made in breach of the Northern Ireland Office’s equality obligations under section 75 of the Northern Ireland Act 1998.^[1369] The central issue for the Court of Appeal was whether judicial review was available for purposes of enforcing the obligations or whether the argued breaches were to be remedied under Schedule 9 to the Northern Ireland Act 1998 (which gives the Equality Commission an enforcement role in respect of non-observance of obligations).

EU Law and Equality

[6.54] The principle of equality exists at a number of levels in EU law. First, it exists in various Articles of the TFEU, which have effect in UK law under the terms of the European Communities Act 1972 and European Union Act 2011^[1372] and which may be enforced in domestic courts where they satisfy the EU law requirements for direct effect.^[1373] For instance, the Treaty contains a general prohibition on discrimination on grounds of nationality^[1374] that is further developed in Articles on the free movement of capital, goods, persons, and services (discrimination here—whether direct or indirect— may be justified only where it pursues a legitimate objective and conforms to the proportionality principle^[1375]). Discrimination in the workplace on grounds of gender too is generally prohibited by the TFEU,^[1376] which additionally provides that the EU institu­tions may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation.^[1377] Also relevant is the Charter of Fundamental Rights of the European Union, which includes an equality chapter that not only reaffirms the EU’s competence in respect of sex, race, ethnicity, and so on, but also contains provisions on, among others, children’s rights and the rights of the elderly. While it was initially thought that the Charter could not be enforced in UK courts because of Protocol 30 to the Treaty of Lisbon,^[1378] the CJEU has since ruled, on a reference from the Court of Appeal in England and Wales, that the Charter is enforceable in the UK courts save, it seems, for those Articles of it that fall under the heading of �solidarity’.^[1379] This thus potentially positions the Charter, which enjoys the status of Treaty law, at the heart of equality cases arising under the European Communities Act 1972.^[1380]

[6.55] The equality principle can be found, secondly, in a range of EU legislative acts. These acts will have been adopted on the basis of Treaty Articles and, where the acts are in the form of Directives, the UK must adopt measures that will fully implement the Directives in national law^[1381] (measures may include Acts of Parliament,^[1382] Acts of the Northern Ireland Assembly,^[1383] or regulations made under section 2(2) of the European Communities Act 1972^[1384]). In the event that a Directive is not fully imple­mented in domestic law an individual can invoke the provisions of a directly effective Directive in proceedings.^[1385] In the converse circumstance that a Directive has been fully implemented in domestic law, any corresponding role for judicial review will then depend on whether a dispute sounds in public law and, if so, on whether the wider statutory framework that gives effect to the Directive provides for a system of reme- dies.^[1386] If it does provide for a system of remedies, the courts will typically require that an individual exhaust those in preference to judicial review (see [6.47]).

[6.56] Equality finally exists as a general principle of EU law.^[1387] This means that, where a national decision-maker is making a decision within the realm of EU law (for example, in the context of the workings of the common fisheries policy^[1388]), it must treat like cases alike unless there is an objective justification for not doing so.^[1389] This is true not just where the decision in question has an impact on an individual from another Member State (the TFEU would in any event here require equality of treatment), but also where a decision is taken �within’ a Member State in the absence of any cross-national impact.^[1390] Moreover, should an authority treat differently two cases that are prima facie the same, it must be able to justify its choice with reference to a legitimate objective and in the light of the proportionality principle.^[1391] This may therefore involve UK courts in �closer look’ review, although the intensity of review may at the same time be moderated by use of EU law’s margin of appreciation doctrine (see [6.14]-[6.16]).

Article 14 ECHR and the Prohibition of Discrimination

[6.57] Article 14 ECHR states that:

the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Although the Article does not thereby enshrine a free-standing prohibition of discrimi- nation^[1392] (viz its reference to �the enjoyment of the rights and freedoms in the Convention’^[1393]), the case law of the ECtHR has established that there need not be a breach of one of the other rights and freedoms for there to be a breach of Article 14 ECHR.^[1394] It is, instead, sufficient for the decision or other measure under challenge to come �within the ambit’ of one of the other Articles, at which stage a court may determine whether there has been a violation of Article 14 ECHR.^[1395] While the domestic courts have since observed that it can be difficult to determine whether a matter actually falls �within the ambit’ of another Article,^[1396] it has been argued that the term should be given a wide reading so that Article 14 ECHR may be engaged.^[1397] Article 14 ECHR can, in that way, be given fuller effect.

[6.58] Where an applicant argues that he or she has been discriminated against contrary to Article 14 ECHR as read with one of the other rights and freedoms, he or she must be able to identify a comparator who has, or would have, been treated more favourably.^[1398] The reviewing court must at that stage decide whether the comparison made is valid and, if it is, whether the less favourable treatment of the applicant can be justified.^[1399] Justification here requires the public authority to identify a legitimate objective that the less favourable treatment pursues and to satisfy the court that the treatment is proportionate in all the circumstances.^[1400] Should the court conclude that no legitimate objective has been pursued and/or that there has been a lack of propor­tion, a violation of Article 14 ECHR will be made out and a remedy should be granted.^[1401] On the other hand, the courts will also take account of the overall context to a dispute, including the nature of the individual characteristic at issue,^[1402] and may exercise more or less restraint in the face of the decision-maker’s choice. In the event that courts exercise restraint, they will likely emphasise that the impugned decision or other measure falls within the decision-maker’s �discretionary area of judgment’ (see [6.25]-[6.26]).^[1403]

[6.59] It should finally be noted that, while Article 14 ECHR has historically been concerned with the prohibition of direct discrimination, it now also prohibits indirect discrimination.^[1404] This thus means that it is possible to challenge decisions and so on that are neutral on their face but which have a negative impact upon an individual by reason of one or more of his or her characteristics (race, gender, language, and so on). Where a court considers that indirect discrimination has occurred, the public authority will again be required to justify the less favourable treatment with reference to a legiti­mate objective and the need for any discrimination to be proportionate. On the question of proportionality, the court here too will be guided by the context to the dispute and whether there is a need for more or less judicial restraint.^[1405]

CONCLUSION

[6.60] There are five points that can be made about substantive review:

i. Substantive review has historically been synonymous with judicial self-restraint. This has meant that the courts have sought to avoid �merits’ review and have emphasised that judicial review is concerned solely with the legality of a decision. However, while the courts still point to the need for restraint, the emergence of new doctrines and principles has increased the potential for �closer look’ review. This is notably true of the doctrine of legitimate expectation and the proportionality principle.

ii. Self-restraint takes form most readily in the principle of Wednesbury unreasona­bleness. While the principle may no longer be the dominant reference point in administrative law, it is still referred to by the courts in cases outside the European Communities Act 1972 and the Human Rights Act 1998 (under which Acts the courts are obliged to give effect to the proportionality principle). It thus remains as an important principle, albeit of diminishing influence (see [6.05]-[6.11] and [6.27]-[6.28]).

iii. The proportionality principle can involve the courts in �closer look’ review in any case in which the principle applies. However, the courts are also aware of the need for self-restraint when using the principle, and they have linked its emergence to a �margin of appreciation’ doctrine in cases under the European Communities Act 1972 and a �discretionary area of judgment’ doctrine in cases under the Human Rights Act 1998. Use of these doctrines is at its most pronounced when the legislative choices of the Westminster Parliament are at issue in proceedings (see [6.12]-[6.28]).

iv. The doctrine of legitimate expectation has evolved to involve the courts (potentially) in �closer look’ review of discretionary choices. Such review will be apparent where a public authority has made a clear and unambiguous representation to an indi­vidual that the authority will act in particular way. On the other hand, the courts acknowledge that they should not seek to substitute their opinions on a substantive matter for those of the original decision-maker. Closer look review will therefore occur only where the representation in question is made to �one or a few people giving the promise or representation the character of a contract’. Even then, the decision-maker may be able to resile from the representation for reasons of public interest (see [6.33]-[6.40]).

v. The principle of equality exists in the common law, in EU law (in the Treaties, and related acts, and as a general principle), and in Article 14 ECHR. Where proceed­ings are governed by the common law principle of equality, the test for judicial intervention remains that set by Wednesbury unreasonableness. Where arguments are made under the European Communities Act 1972 and/or the Human Rights Act 1998, this can involve the courts in the �closer look’ review associated with the proportionality principle. Such closer look review may, however, be moderated by judicial reliance on the margin of appreciation and discretionary area of judgment doctrines in cases under the 1972 and 1998 Acts respectively (see [6.15]-[6.16] and [6.25]-[6.26]).