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On 16 August 2010 Supreme Court Justice Lord Walker of Gestingthorpe gave a speech at the University of Otago, New Zealand, on the subject of discrimination law. The title of the speech was “Treating like cases alike and unlike cases differently: some problems of anti-discrimination law”. In it, Lord Walker stated that the question “‘what is a valid reason for differential treatment?’” may be answered by “intuition and common sense … in clear cases” but that that these “cannot by themselves provide the answer in marginal cases” including those “on the margin of direct and indirect discrimination”. He went on to suggest that the distinction between these forms of discrimination was not as significant in the jurisprudence of the ECtHR as is in domestic, US and EU jurisprudence.

In his speech Lord Walker set out and considered the classic analysis of Article 14 jurisprudence (the Michalak questions “which have in the course of the last decade been successively articulated, refined, and then rather down-graded by our appeal courts. But they are at the least a useful check list as to some of the complexities”). He defended the approach taken by the House of Lords in Carson v Secretary of State for Work and Pensions [2006] 1 AC 173 from some of its critics (including the writer of this blog). He went on draw a rather odd distinction between grounds of sex and sexual orientation, on the one hand, and race, on the other. Whereas, classically, race discrimination is regarded as perhaps the most odious form, Lord Walker stated that:

“Discrimination on grounds of gender and (to a more limited degree) sexual orientation is straightforward in the sense that the distinction between men and women (and to a lesser extent between heterosexuals and homosexuals) is basic and immutable. Every human being is male or female, except for the very small minority who are of doubtful gender, or are transsexual. By contrast ‘racial grounds’ are defined in the UK Race Relations Act 1976 as grounds of ‘colour, race, nationality or ethnic or national origins’. There is no simple either/or choice here. Most people will fall into several different groups encompassed by this definition. A person may be black, Afro-Caribbean, of British nationality and of debateable ethnic or national origins, depending on how you understand ‘origins’ and how many generations you go back. Mrs Elias, the claimant in an instructive recent case [R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213], was in her own words ‘British enough to be interned’ (in Hong Kong from 1941 to 1945) but ‘not British enough to be compensated’. Her parents (also British subjects) were Iraqi Jews permanently resident in Hong Kong, where Mrs Elias was born in 1924. So her ethnic and national origins were very much open to debate”.

As a reflection on the socially constructed nature of race this is unproblematic, though there is perhaps a shadow of an implication that the (assumed) “immutability” of sex or sexual orientation makes their protection from discrimination less open to contest than is the case for race. Such a reading of Lord Walker’s comments could be regarded as unfair were it not for what he went on to say about the decisions of the House of Lords in the Roma Rights and Gillan cases (R (European Roma Rights) v Immigration Officer at Prague Airport [2005] 2 AC 1, R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307).

In the Roma Rights case the House of Lords overturned a majority decision of the Court of Appeal which had rejected a challenge to the legality of racial profiling in the context of immigration. Lord Justice Simon Brown, as he then was, had suggested in the Court of Appeal that the differential treatment by immigration officers of Roma than of non-Roma would-be entrants to the UK Could not “realistically be regarded as less favourable treatment of Roma qua Roma” ([2004] QB 811, para 81). The House of Lords preferred the dissenting judgment of Laws LJ, ruling that the application of differential treatment flowing from stereotyping (accurate or otherwise) breached the prohibition on direct discrimination. This served to do no more than to reinstate the well-established position that direct discrimination did not require malign motivation. The following year, however, in Gillan (which concerned the use of stop-and-search powers under section 44 of the Terrorism Act 2000[1]), Lord Brown, as he had by then become, took the opportunity to revisit the Roma case. Having (unnecessarily on the facts of Gillan) referred to the disproportionate use of section 44 powers against Asians, Lord Brown suggested:

1.  (para 80) that it was “inevitable … that so long as the principal terrorist risk against which use of the s 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items”;

2.  that this was (para 81) neither “inimical to convention jurisprudence or, indeed, inconsistent with domestic discrimination law”; and

3.  that (para 81) “Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination”.

Recognising the apparently irreconcilable nature of these conclusions with the decision of the House of Lords in the Roma Rights case Lord Brown continued:

“[90] The only basis I can see for a distinction (and I do not pretend to find it entirely satisfactory) is if one assumes that in [Roma Rights] the immigration officers had not sufficiently had regard to each Roma applicant as an individual, rather merely than as a stereotypical member of the group (see [74] of Lady Hale’s speech). It would, of course, have been wrong for immigration officers to have treated every Roma applicant identically irrespective of how his answers to questions put to him affected the interviewing officer’s view as to the genuineness of his particular application. But that surely, so far from according with common sense, would have been not merely wrong but also silly. Nevertheless the House appears to have concluded that this was indeed the immigration officers’ approach and on that basis struck down the scheme.”

In his speech in New Zealand Lord Walker referred to Lord Brown’s comments in Gillan as “measured observations [which] show, I think, that this is an area where the sharp distinctions between direct and indirect discrimination become unrealistic and almost unmanageable”. Although his Lordship did not elaborate further, it is difficult to escape the conclusion that what he intended to suggest was that the time had come to recognise the possibility of justification in the case of direct race discrimination. Any such approach would, it must be pointed out, be inconsistent not only with the Convention on the Elimination of All Forms of Race Discrimination (see, for example, the CERD Committee’s General Recommendation Nos 30 (Non-Citizens), para 10 and 31, (on the Administration of the Criminal Justice System), para 20) but also with Article 26 of the International Covenant on Civil and Political Rights (see the decision of the Human Rights Committee in Williams v Spain (Communication No. 1493/2006 UN Doc CCPR/C/96/D/1493/2006, 30 July 2009)) and with Article 14 of the European Convention on Human Rights (see, for example, Timishev v Russia (2005) 44 EHRR 776).

[1] These use of these powers has since been suspended as a result of the decision of the ECtHR in Gillan & Anor  v United Kingdom (2010) 28 BHRC 420 that they breached the Convention (the challenge did not turn on discrimination).