Hampson v Department of Education & Science

Court of Appeal (Civil Division)

$ 1990 2 All ER 25, T[1989] IRLR 69, [1989] ICR 179,

HEARING-DATES: 2 December 1988

2 December 1988

CATCHWORDS:
Race relations -- Indirect discrimination -- requirement/condition with which fewer of a racial group can comply -- Indirect discrimination -- whether justifiable -- Exclusions and exceptions -- acts done under statutory authority -- Discrimination by others than employers -- qualifying bodies -- Tribunals -- Rules of Procedure -- Race Relations Act 1976 sections: 1(1)(b)(ii), 12(1), 13(2), 14(2), 15, 16, 17, 18(1), 19(1), 19(4),19(5), 41(1), 75(1), 76, 79(4); Schedule 4 -- Equal Pay Act 1970 section: 1(3) -- Sex Discrimination Act 1975 sections: 1(1)(b)(ii), 51(1) --Employment and Training Act 1973 section: 8 -- Education Act 1944 sections: 8, 24, 68, 99 -- Education Act 1980 sections: 27(1)(a), 27(7),35(1), 35(3), 35(4) -- Education (Teachers) Regulations 1982: Regulations 3, 4, 13(1); Schedule 2, para 6: Schedule 5, paras 1, 2 -- IndustrialTribunals (Rules of Procedure) Regulations 1985: Rules 9(3), 9(5)(a), 17(9)

HEADNOTE:
Mrs Hampson is a Hong Kong Chinese woman who was refused qualified teacher status in England. She claimed that this was the result of theapplication of indirectly discriminatory criteria by the Secretary of State for Education.

Mrs Hampson had taken a two years' initial teacher training course in Hong Kong, qualifying her to teach there. Eight years' later, she took athird year full-time teaching course in Hong Kong. Subsequently, she came to England and sought qualified teacher status.

S 27 of the Education Act 1980 provides that: "The Secretary of State may by regulations make provision . . . for requiring teachers at schools. . . to possess such qualification as may be determined by or under the regulations . . ." Regulation 13(1) of the Education (Teachers)Regulations 1982 provides that "no person shall be employed as a teacher at a school unless he is qualified . . . as mentioned in Schedule 5". Schedule 5 provides for the Secretary of State to determine who is a "qualified teacher" and stipulates that the Secretary of State will approve as a qualified teacher a person who has completed an approved UK course for initial teacher training or a person who has successfully completed a course "approved as comparable" to such a course.

Mrs Hampson's application was turned down on grounds that her training was not "comparable" to that provided in the UK, as required by the 1982 Regulations. This was said to be because, unlike courses in the UK, her initial training was two rather than three years and because the content of courses in Hong Kong did not meet the Department of Education's standards.

An Industrial Tribunal rejected Mrs Hampson's race discrimination complaint. The Tribunal found that the criteria applied by the Secretary of State to determine whether Mrs Hampson's course of training was "comparable" was a "test" or "yardstick" rather than a "requirement or condition".

Alternatively, the Industrial Tribunal held that the requirement to complete a comparable course of training was applied in pursuance of the 1982 Regulations so that s 41 of the Race Relations Act applied. S 41(1) provides that: "Nothing in Parts II to IV shall render unlawful any act of discrimination done -- (a) in pursuance of any enactment or order in Council; or (b) in pursuance of any instrument made under any enactment by a Minister of the Crown".

The EAT [1988] IRLR 87 overruled the Industrial Tribunal's finding that the Secretary of State has not applied a "requirement or condition". However, the EAT upheld the Industrial Tribunal's conclusion that the Secretary of State's decision was protected by s 41(1)(b) by reason of being an act done "in pursuance of any instrument made under any enactment by a Minister of the Crown". The EAT held that "in pursuance of" is a wide phrase covering acts whether done by or under any instrument or enactment by a Minister of the Crown.

The EAT also upheld the Industrial Tribunal's alternative finding that whether a requirement or condition is "justifiable" is to be determined in the light of the decision of the Court of Appeal in Ojutiku v Manpower Services Commission [1982] IRLR 418 and that, accordingly, the respondents had shown that the requirement applied to the appellant was "justifiable". According to the EAT, until it is expressly overruled, the construction of "justifiable" laid down by the Court of Appeal in Ojutiku is binding upon the Appeal Tribunal and upon Industrial Tribunals. The EAT rejected the contention that Ojutiku is no longer binding in light of the equal pay decisions of the European Court of Justice in Bilka-Kaufhaus v Weber von Hartz [1986] IRLR 317 and the House of Lords in Rainey v Greater Glasgow Health Board [1987] IRLR 26.

The EAT also rejected an argument on behalf of the appellant that the Industrial Tribunal had not adequately set out in its decision its reasons for finding that the requirement was justifiable.

The Court of Appeal held:

The Industrial Tribunal and the EAT had correctly concluded that any indirect discrimination against the appellant Hong Kong Chinese-trained teacher by the Secretary of State in refusing to grant her status as a "qualified teacher" in the UK because her training course was not "comparable" to that provided in the UK, as required by Schedule 5 to the Education (Teachers) Regulations 1982, was not unlawful because it was protected by s 41(1)(b) of the Race Relations Act by reason of being an act done "in pursuance of any instrument made under any enactment by a Minister of the Crown".

The words "in pursuance of any instrument" in s 41(1)(b) do not cover any act done in exercise of a power or discretion conferred by the instrument since such a wide construction would cover in effect everything done by a body which owes its existence and powers to an enactment, so long as what was done was intra vires. That would render nugatory other provisions of the Race Relations Act and would offend against the principles enunciated in the House of Lords in Bradford Corporation v Myers.

However, the majority of the court could not accept the narrow construction, contended for by the appellants, that s 41(1)(b) is limited to acts done in necessary performance of an express obligation contained in an instrument. Such a construction equated the words "in pursuance of" in s 41(1)(a) and (b) with the very different words in s 41(1)(c) "in order to comply with any condition or requirement imposed by a Minister of the Crown by virtue of any enactment", but the change in wording must be taken to have been deliberate and to have been intended to have a different result. The narrow construction also equated the word "in pursuance of" with the equally different and specific words "if it was necessary for him to do it in order to comply with a requirement of an Act" used in s 51 of the Sex Discrimination Act 1975 and the difference in wording between s 51 of the 1975 Act and that used in s 41 must also be taken to have been deliberate and intended to produce a different result.

There is no universal test for deciding whether a particular act falls within a statutory provision, such as s 41 of the Race Relations Act, providing special protection in respect of acts done "in pursuance of" an enactment. The Race Relations Act covers a very wide field and s 41 cannot be construed in the abstract. There will be some cases clearly covered by it, some clearly not covered and others near the borderline.

In the present case, the test suggested by Lord Shaw in Bradford Corporation v Myers for determining whether an act was done "in pursuance of a statute", based on the foundation of the relationship between the parties, provided assistance. The appellant had a public right in common with all other applicants to have her application for qualified teacher status dealt with according to the Regulations and the Secretary of State had a public duty to consider her application in common with all other applications and to deal with it in accordance with the Regulations. No private right or private duty was involved. If that test was a guide, the specific act of indirect discrimination committed by the Secretary of State in the present case in the course of carrying out a public duty laid upon him by a statutory instrument was clearly protected.

The suggestion on behalf of the appellant that s 41 did not avail the Secretary of State was based on the proposition that there was an element of discretion involved. That did not assist where, as in the present case, there was a positive duty to exercise the discretion. The Secretary of State was charged with making the decision. To hold that any such decision was outside the protection of s 41, where its consequence was only indirect discrimination, would involve committing to an Industrial Tribunal the power to overrule a decision of the Secretary of State properly made under the Regulations, the power to make which had been committed to him by Parliament.

Per Nourse LJ concurring:

An act done in performance of a specific duty will usually be done in pursuance of the enactment which imposes it.

Per Parker LJ quaere:

It was doubtful whether the Secretary of State was an "authority or body" within the meaning of the definition of a qualifying body in s 12 of the Race Relations Act.

Per Balcombe LJ dissenting:

The words "in pursuance of any instrument" in s 41(1)(b) are confined to acts done in necessary performance of an express obligation contained in the instrument and do not also include acts done in exercise of a power or discretion conferred by the instrument.

There was no construction of s 41 intermediate between the wide and narrow construction and as the wide construction was in direct conflict with the provisions of ss 13, 14, 15, 16, 17 and 18 of the Act, yet s 41 was not made expressly subject to any of these sections, the wide construction should be rejected. Parliament could not have intended that the Secretary of State should be entitled to ignore altogether the racial implications of what he was doing and there were sound policy reasons for the narrow construction. If a Minister imposes a condition or requirement, compliance with which could lead to racial discrimination, he can be made answerable in Parliament for his action. If what is done is not necessary to comply with a statutory requirement, there can be no valid reason why it should not have to be justified before an Industrial Tribunal.

In the present case, as in carrying out his obligation under the 1982 Regulations the Secretary of State had a degree of discretion, the Department was not entitled to s 41 immunity.

The Court of Appeal further held:

In upholding the Industrial Tribunal's finding in the alternative that the respondents had shown that the condition applied to the appellant was "justifiable" within the meaning of s 1(1)(b)(ii) of the Race Relations Act, the EAT had erred in holding that the word "justifiable" must be interpreted according to the judgments of the Court of Appeal in Ojutiku v Manpower Services Commission and that the construction laid down in Ojutiku was not consistent with the interpretation of s 1(3) of the Equal Pay Act set out by the House of Lords in Rainey v Greater Glasgow Health Board.

Although the decision of the Court of Appeal in Ojutiku is binding in so far as it decided the meaning of "justifiable", neither the judgment of Lord Justice Eveleigh nor the judgment of Lord Justice Kerr gave any clear decision as to that meaning. "Justifiable" and "justify" are words which connote a value judgment, but neither lord justice indicated what test should be applied.

Whether a requirement or condition is "justifiable" requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. It is not sufficient for the employer to establish that he considered his reasons adequate. The test to this effect set out by Lord Justice Stephenson in Ojutiku would be adopted. There was no significant difference between Lord Justice Stephenson's test and that adopted in Rainey, in which the House of Lords held, applying the decision of the European Court in Bilka-Kaufhaus v Weber von Hartz, that to justify a material difference under s 1(3), the employer had to show a real need on the part of the undertaking, objectively justified. It is obviously desirable that the tests of justifiability applied in all these closely related fields should be consistent with each other.

The EAT had also erred in holding that the Industrial Tribunal's decision contained an adequate statement of the reasons which led them to rule in the alternative that the Department had made out its case that the requirement or condition was justifiable.

Rule 9(5)(a) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 provides that where the proceedings before the Tribunal involve the determination of an issue arising under (inter alia) the Race Relations Act, the reasons shall be recorded in full in a document signed by the chairman. When an Industrial Tribunal is required to give full reasons for its decision, it should, as Lord Justice Bingham said in Meek v City of Birmingham District Council, give reasons sufficient to explain to the parties why they have won or lost.

In the present case, the reasons given by the Industrial Tribunal for finding justifiability were a wholly inadequate statement of the full reasons required under the Rules of Procedure. The Tribunal's reasons were deficient in that they failed to identify the standards by which they were testing the Department's justification of the conditions applied to the appellant; they left it wholly unclear whether in referring to the "overall duration of the course", they were referring to one course of three consecutive years or to some other course or courses where one of the main issues was whether the appellant's two separate courses, aggregating three years in total, were comparable to the domestic three-year course; and there was no finding on whether the content of the appellant's courses was comparable to that of the domestic course.

CASES-REF-TO:

Pountney v Griffiths (1976) AC 314 HL
Bradford Corporation v Myers (1916) AC 242 HL
General Medical Council v Goba [1988] IRLR 425 EAT
Savjani v Inland Revenue Commissioners (1981) 1 QB 458 CA
Ojutiku v Manpower Services Commission [1982] IRLR 418 CA
In re Norway's Application (No 2) (1988) 3 WLR 603 CA
Rainey v Greater Glasgow Health Board [1987] IRLR 27 HL
Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ
Hadmor Productions Ltd v Hamilton [1982] IRLR 102 HL
Meek v City of Birmingham District Council [1987] IRLR 250 CA
Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 CA
Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482 EAT
Panesar v The Nestle Co Ltd [1980] IRLR 64 CA
Griffiths v Smith (1941) AC 170 HL
Firestone Tyre and Rubber Co (SS) Ltd v Singapore Harbour Board (1952) AC 464 PC

COUNSEL:
For the Appellant: Mr S SEDLEY QC and Mr R ALLEN; For the Respondents: Mr H CARLISLE QC and Mr T HEWITT.

PANEL: Parker, Nourse, Balcombe LJJ

JUDGMENTBY-1: BALCOMBE LJ

JUDGMENT-1:
BALCOMBE LJ. This is an appeal, with the leave of the Employment Appeal Tribunal, from an Order of that Tribunal made on 16.12.87 (reported in [1988] IRLR 87), whereby it dismissed the appellant's appeal from a decision of the London (South) Industrial Tribunal delivered on 25.11.86, dismissing her complaint of unlawful discrimination against the respondent, the Department of Education and Science ('the Department').

The short facts, which I take from the judgment of the Employment Appeal Tribunal, are these. The appellant, Mrs Theresa Lee Ping Li Hampson, who is a Hong Kong Chinese woman, was born in 1950. Between 1968 and 1970 she took a two years' initial teacher training course at Grantham College of Education in Hong Kong. She was therefore qualified to teach in Hong Kong; this she did for a period of eight years. In 1978/79 she took a third year full-time general teaching course, specialising in English, at the Northcote College also in Hong Kong. In July 1980 she was appointed assistant inspector of the Education Department of Hong Kong which post she held until August 1984. It was shortly thereafter that she came to England.

Qualified teacher status is a necessary qualification to teach in state schools in England. Mrs Hampson applied to the Secretary of State for qualified teacher status. He refused her application.

Thereafter there was some correspondence between her and the Department but it was not until 22.10.85 that it was fully made clear to Mrs Hampson the reason why the Department rejected her application. In their letter they wrote:

'As explained in previous correspondence Mrs Hampson's initial course of training is not comparable to our training because it was only two years in length. We cannot regard her subsequent one-year course completed eight years later, as an integral part of the initial training. When assessing overseas teacher training we also look at the content and standard of the course and we find that, apart from the length of the initial course, the content of the courses Mrs Hampson completed in Hong Kong does not meet our requirements either.'

At the hearing before the Industrial Tribunal Mrs Hampson complained of racial discrimination. The complaint was two-fold. First, that there had been direct discrimination and, secondly, that there was indirect discrimination because the Department applied to Mrs Hampson a requirement or condition which it did not apply or would not apply to persons who were not Hong Kong Chinese and that it was a requirement or condition which satisfied the conditions set out in s 1(1)(b) of the Race Relations Act 1976.

The Tribunal, after hearing evidence, rejected the allegation of direct discrimination, although they found Mrs Hampson's belief that there had been direct discrimination unsurprising, in view of the inept way in which the Department had dealt with her application. Against that finding there was no appeal.

The Industrial Tribunal also rejected Mrs Hampson's claim of indirect discrimination. It was against that decision that she appealed to the Employment Appeal Tribunal and now to this court.

S 12(1) of the 1976 Act, which falls within Part II of the Act -- 'Discrimination in the employment field' -- provides that it is unlawful for an authority or body which can confer an authorisation or qualification which is needed for engagement in a particular profession to discriminate against a person:

'(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing . . . his application for it; . . .'

Indirect discrimination is defined by s 1(1)(b) of the 1976 Act as follows:

'A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if:

(a) . . .

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but --

(i) which is such that the proportions of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment off that other because he cannot comply with it.'

It is common ground that if what the Department has done in this case amounts to discrimination against Mrs Hampson then, unless it is exempt under the provisions of s 41 of the 1976 Act, it is in breach of s 12.

In his very helpful skeleton argument Mr Sedley QC, counsel for Mrs Hampson, identified five issues which had arisen before the Industrial Tribunal in relation to her case of indirect discrimination:

(1) What requirement or condition was applied to Mrs Hampson?

(2) Did that requirement or condition have disparate adverse impact on persons of Mrs Hampson's racial origin (Hong Kong Chinese) under s 1(1)(b)(i) of the 1976 Act?

(3) By what test should it be considered whether the requirement or condition was justifiable irrespective of Mrs Hampson's race?

(4) Applying that test, was the requirement or condition justifiable within s 1(1)(b)(iii) of the 1976 Act?

(5) Could the Department claim immunity under s 41(1)(b) of the 1976 Act?

On the first issue the Industrial Tribunal held that the Department's refusal to accept the courses taken by Mrs Hampson in Hong Kong as comparable to an English course was not to apply to her a requirement or condition, but merely to apply a test or yardstick to measure the comparability of her courses. This part of the Industrial Tribunal's decision was overruled by the Employment Appeal Tribunal, and although the point was raised again by the Department in its respondent's notice before us, it was abandoned at the hearing. Further, it has always been accepted by the Department that the requirement or condition has a disparate adverse impact on persons of Mrs

That leaves for determination issues 3, 4 and 5 as listed above, of which it will be convenient to consider issue no 5 (immunity under s 41) first, since if the Department has such immunity the other issues do not arise. Both the Industrial Tribunal and the Employment Appeal Tribunal held that the Department was immune under s 41.

The s 41 defence

S 41 of the 1976 Act bears the side note 'Acts done under statutory authority, etc'. S 41(1) provides as follows:

'Nothing in Parts II to IV render unlawful any act of discrimination done:

(a) in pursuance of any enactment or Order in Council; or

(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or

(c) in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of the enactment.

Reference in this subsection to an enactment, Order in Council or instrument include an enactment, Order in Council or instrument passed or made after the passing of this Act.'

S 27(1)(a) of the Education Act 1980 provides that the Secretary of State may by regulations make provision for requiring teachers at schools and further education establishments to possess such qualifications as may be determined by or under the regulations. S 35(1) of the same Act provides that this power is exercisable by statutory instrument which, under subsection (3), is subject to annulment in pursuance of a resolution of either House of Parliament. Pursuant to this power the Secretary of State for Education and Science made the Education (Teachers) Regulations 1982 (SI 1982 No 106). Regulation 13(1) of these Regulations provides that, subject to certain exceptions not material to the present case, no person shall be employed as a teacher at a school unless he is qualified therefore as mentioned in Schedule 5. Para 1(1)(a) of Schedule 5 provides that a person shall be qualified to be employed as a teacher at a school for the purposes of regulation 13 if, the Secretary of State being satisfied that he is such a person as is mentioned in para 2, on or after 8.4.82 he has been notified in writing, by or on behalf of
the Secretary of State, that he is a qualified teacher. The relevant parts of para 2 of Schedule 5 are as follows:

'In this paragraph the expression "approved" means approved by the Secretary of State for the purposes of the sub-paragraph in which the expression occurs. The persons referred to in paragraph 1(1)(a) are any of the following persons:

(a) a person who has successfully completed a course which --

(i) is for the degree of Bachelor of Education, the Certificate in Education, the Post-graduate Certificate in Education or a comparable academic award of, in each case, either a university in the United Kingdom or of the Council for National Academic Awards, and

(ii) is approved as a course for the initial training of teachers in schools;

(b) a person who --

(i) has successfully completed a course (whether within or outside the United Kingdom) approved as comparable to a course within sub-paragraph (a).'

The Department's argument for immunity under s 41 is short and simple. In refusing to approve the course completed by Mrs Hampson outside the United Kingdom (in Hong Kong) as comparable to a course within sub-paragraph 1(a) of Schedule 5 to the 1980 Regulations, the Secretary of State was acting in pursuance of para 2(b)(i) of this Schedule, ie in pursuance of an instrument (the 1980 Regulations) made under an enactment (the Education Act 1980) by a Minister of the Crown (the Secretary of State for Education and Science), and so precisely within the immunity conferred by s 41(1)(b) of the 1976 Act. This argument, which succeeded below, is incontrovertible if the words 'in pursuance of any instrument' are apt in their context to include, not only acts done in necessary performance of an express obligation contained in the instrument ('the narrow construction'), but also acts done in exercise of a power or discretion conferred by the instrument ('the wide construction'). Both
constructions are possible. Thus in Pountney v Griffiths (1976) AC 314, which concerned immunity from suit 'in respect of any act purporting to be in pursuance of' the Mental Health Act 1959, without the leave of the High Court under s 141(2) of that Act, it was held that the immunity was not confined to the protection of those who signed certificates, made orders for detention and disposed of the property of patients, but also covered acts done by the staff of special hospitals in discharging their day-to-day duties in the control, or the purported control, of the patients. On the other hand, in Bradford Corporation v Myers (1916) AC 242, the House of Lords held that the limitation period of six months provided by s 1 of the Public Authorities Protection Act 1893 in respect of actions 'for any act done in pursuance, or execution, or intended execution of any Act of Parliament' did not apply to an action against a municipal corporation, authorised by Act of Parliament to carry on the undertaking of a gas company, by which they were bound to supply gas to the inhabitants of the district and empowered to sell the coke produced in the manufacture of the gas, for negligence in the manner in which the coke so sold was delivered -- it was shot through the plaintiff's shop window. Lord Atkinson said (at p 260): 'I think that the negligent act complained of here was not done in pursuance or execution or intended execution of any Act of Parliament, since there was no statutory obligation on the appellants to do it' (my emphasis).

While, therefore, both constructions are possible, I accept that the wide construction is the more natural meaning of the words used. I turn, therefore, to consider whether there is anything in the context which leads to an indication that the narrow construction is here correct.

S 41 in terms refers to Parts II to IV of the 1976 Act. Part II ('Discrimination in the employment field') comprises ss 4-16 inclusive. S 13 makes unlawful discrimination by vocational training bodies and by subsection (2) defines those bodies as including industrial training boards established under s 1 of the Industrial Training Act 1964 or (by amendment) s 1 of the Industrial Training Act 1982, the Manpower Services Commission and (originally, although now deleted by amendment) the Employment Service Agency and the Training Services Agency. All these bodies, being statutory bodies, can only act in pursuance of the enactments by which they were created, or other statutory authority whether original or deligated. S 14 is concerned with employment agencies and subsection (2) is in the following terms:

'It is unlawful for a local education authority or an education authority to do any act in the performance of its functions under s 8 of the Employment and Training Act 1973 which constitutes discrimination.'

It is to be noted that the functions of a local education authority under the Employment and Training Act 1973 include certain duties -- eg to provide vocational advice and assistance under s 8 -- even though it will have a discretion as to the manner in which it carries out those duties. S 15 makes it unlawful for the Manpower Services Commission (and originally the other statutory agencies mentioned in s 13(2) to discriminate in the provision of facilities or services under s 2 of the Employment and Training Act 1973. S 16 relates to the police, many of whose acts are done in pursuance of original or delegated legislation.

Part III of the 1976 Act (ss 17-27 inclusive) relates to discrimination in fields other than employment. S 17 is concerned with discrimination by bodies in charge of educational establishments, who will in many cases be acting in pursuance of statutory authority, in the admission and treatment of pupils. S 18(1) makes it unlawful for an education authority, in carrying out such of its functions under the Education Acts 1944 to 1981 as do not fall under s 17, to do any act which constitutes racial discrimination. These functions include the appointment and dismissal of teachers -- see s 24 of the Education Act 1944. Clearly a local education authority has a duty to appoint sufficient teachers to fulfil its primary duty of providing education under s 8 of the 1944 Act: equally clearly the local education authority must have a discretion as to the way in which it performs that duty.

It will be apparent that the wide construction of s 41 is in direct conflict with the provisions of ss 13, 14, 15, 16, 17 and 18 to which I have referred. Yet s 41 is not made expressly subject to any of these sections. In my judgment this leads to the inevitable conclusion that the wide construction of s 41 should be rejected.

Further support for this conclusion is to be derived from the provisions of ss 75 and 75 of the 1976 Act. S 75(1) provides that the Act applies (a) to an act done by or for purposes of a Minister of the Crown or government department; or (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office. S 76 makes it unlawful to discriminate in making government appointments which do not technically constitute employment. The acts to which s 75(1)(b) refers will usually be done under statutory authority, and the same argument applies in this case as in the case of the other sections in Parts II and III already mentioned. Further, acts done by a Minister of the Crown, or on behalf of the Crown, will be done either in exercise of the royal prerogative or pursuant to some statutory authority. It would be remarkable indeed if ss 75 and 76 were intended to apply only to acts done in exercise of the royal prerogative but not to acts done in pursuance of some statutory authority, yet that would be the result of the adoption of the wide construction of s 41.

If, therefore, the wide construction of s 41 is to be rejected, as in my judgment it must, the quesstion remains whether the narrow construction is correct, or whether some other construction, intermediate between the wide and narrow constructions, can be found.

Support for the narrow construction is to be found in the corresponding provision (s 51) of the Sex Discrimination Act 1975, which also bears the side note 'Acts done under statutory authority'. Subsection (1) of that section is in the following terms:

'Nothing in Parts II to IV shall render unlawful any act done by a person if it was necessary for him to do it in order to comply with a requirement:

(a) of an Act passed before this Act; or

(b) of an instrument made or approved (whether before or after the passing of this Act) by or under an Act passed before this Act.'

The intention of the Government in preparing the Sex Discrimination Act 1975 and the Race Relations Act 1976 was 'to harmonise the powers and procedures for dealing with sex and race discrimination so as to secure genuine equality of opportunity in both fields . . . Except for good reason, the two statutes and the procedures for their administration and enforcement will be framed in similar terms'. (See the White Paper, 'Racial Discrimination', Cmnd 6234, paragraphs 48 and 50.) Further, the long title of the Race Relations Act 1976 is "An Act to make fresh provision with respect to discrimination on racial grounds and relations between people of different racial groups; and to make in the Sex Discrimination Act 1975 amendments for bringing provisions in that Act relating to its administration and enforcement into conformity with the corresponding provisions of this Act' (my emphasis).

Of course the wording of s 51 of the 1975 Act is markedly different from that of s 41 of the 1976 Act, but I cannot think of any good reason for this. Why should statutory authority confer a wider licence to discriminate on the grounds of race than on the grounds of sex? I know of no answer to this question and Mr Hugh Carlisle QC, for the Department, did not attempt to suggest one. Indeed, he did not attempt to meet in any detail the arguments on construction considered above. He relied on the wording of s 41 and asserted that the Secretary of State was doing no more than carrying out his duty under the 1982 Regulations in deciding whether or not to approve the courses completed by Mrs Hampson as comparable with the UK courses listed in para 2(a)(i) of Schedule 5. But in my judgment that argument overlooks the point that, in carrying out his obligation, the Secretary of State had a degree of discretion. The real question is: in considering the construction of s 41 in relation to the present case, can Parliament have intended that the Secretary of State should be entitled to ignore altogether the racial implications of what he was doing? Bearing in mind that the wide construction of s 41 for which the Department contended cannot be limited in its operation to the facts of this particular case, I am satisfied that the answer to the question posed above must be 'No'.

I can think of no construction of s 41 intermediate between the wide and the narrow construction which would meet the difficulties considered above, nor was any suggested. Further, there are sound policy reasons for the narrow construction. If an enactment, Order in Council or statutory instrument imposes requirements, compliance with which may lead to racial discrimination, those requirements can be debated in Parliament and their justification considered there. Similarly, if a Minister of the Crown imposes a condition or requirement, compliance with which could lead to racial discrimination (see s 41(1)(c) of the 1976 Act), he can be made answerable in Parliament for his action. If what is done is not necessary to comply with a statutory requirement, then there can be no valid reason why it should not have to be justified before an Industrial Tribunal. (Acts done for the purpose of safeguarding national security are separately and specifically exempt under s 42).

There is a dearth of relevant authority on this point. In only one other case has the point arisen directly for decision. That was the case of General Medical Council v Goba [1988] IRLR 425, a decision of another division of the Employment Appeal Tribunal under the presidency of Mr Justice Wood. That decision, given in the knowledge of the decision of the EAT in the present case, was in favour of the narrow construction of s 41. For my part I find the reasoning given by the learned President for reaching that conclusion wholly convincing.

Savjani v IRC (1981) 1 QB 458 is a decision of this court which implicitly favours the narrow construction of s 41. That case concerned the practice of the Inland Revenue, in considering a claim for tax relief in respect of a dependent child, in requiring the full (as opposed to the short) form of the child's birth certificate in the case of taxpayers who came from the Indian subcontinent. Although they were acting in pursuance of their statutory duties under the Taxes Management Act 1970, the Revenue did not claim immunity under s 41. The Court of Appeal held that the Revenue's practice did constitute unlawful discrimination, but in the course of his judgment Lord Denning MR said (at p 466):

'I can understand the difficulty of the Inland Revenue in dealing with the problem. To what extent should they insist on the production of birth certificates? There is a way out given by s 41(2) of the Race Relations Act 1976:

"Nothing . . . shall render unlawful any act whereby a person discriminates against another . . . if that act is done -- (a) in pursuance of any arrangements made . . . by or with the approval of . . . a Minister of the Crown . . ."

If the appropriate Minister of the Crown should think that arrangements should be made for insisting in certain circumstances on the production of a full birth certificate, that could be made perfectly lawful by an arrangement sanctioned by the Minister under s 41. It seems to me that that would be the right way to do it. The Minister should take responsibility of it. He can be asked questions in Parliament about it. That is the way in which the problem can be solved.'

Lord Justice Templeman concurred with this suggestion (see pp 468-9).

We were referred to a number of other cases -- in particular Ojutiku v Manpower Services Commission [1982] IRLR 418, to which I refer in a different context below -- in which the s 41 defence might have been raised, but was not. These cases afford some slight support for Mr Sedley's submissions in favour of the narrow construction. However, for the reasons which I have given in detail above, in my judgment the Department is not entitled to s 41 immunity in the present case.

The question then arises whether the Department can show that the requirement or condition it imposed was justifiable under s 1(1)(b)(ii) of the 1976 Act. So I turn now to issue 3 as listed above.

The test of justifiability

In Ojutiku v Manpower Services (supra) this court was concerned with the meaning of 'justifiable' where it appears in s 1(1)(b)(ii) of the 1976 Act and of course that decision is binding on us insofar as it decides that meaning. (See In re Norway's Application (No 2) (1988) 3 WLR 603.)
However, I regret that I do not find, in two of the judgments in Ojutiku, any clear decision as to that meaning. The first judgment was that of Lord Justice Eveleigh. He dealt with the question in the following passage (at p 421, para 20):

'Mr Macdonald argued that in order to justify it, the employer, on whom admittedly lies the burden of proof, has to show that the requirement was necessary for the good of the employer's business. He referred the court to the case of Steel v Union of Post Office Workers [1977] IRLR 288. I myself would not accept that it is essential, or at least that it is always essential, for the employer to prove that the requirement is necessary for the good of his business. It may well be that in a particular case that is the argument which is advanced by the employer; it does not follow that that is what the statute demands. I am very hesitant to suggest another expression for that which is used in the statute, for fear that it will be picked up and quoted in other cases and built upon thereafter, with the result that at the end of the day there is a danger of us all departing far from the meaning of the word in the statute. For myself, it would be enough simply to ask myself: is it justifiable? But if I have to give some explanation of my understanding of that word, I would turn to a dictionary definition which says "to adduce adequate grounds for"; and it seems to me that if a person produces reasons for doing something, which would be acceptable to right-thinking people as
sound and tolerable reasons for so doing, then he has justified his conduct.'

Lord Justice Kerr said (at p 421, para 31):

'The applicants submit that "justifiable" in s 1(1)(b)(ii) means "necessary as a matter of business" or "something in the nature of a legitimate business necessity"; and in this connection they rely on an American judgment, Rowe v General Motors Corporation in 1972, a decision of the United States Court of Appeals, reported in 457 Federal Reporter, Second Series at p 348.

They also rely upon certain passages in the decision of the Employment Appeal Tribunal in Steel v Union of Post Office Workers [1977] IRLR 288, in particular at p 291, para 15.

So far as the American case is concerned, it should be borne in mind that the United States legislation appears to have no counterpart to the provision which is crucial in this case, s 1(1)(b)(ii); and it is also to be noted that in that case actual discrimination was established against the employers in question as the result of a prior practice of direct discrimination, which undoubtedly caused coloured employees to suffer by not having been able to get the same experience for the purposes of promotion as their white colleagues.

For myself, I do not see how Rowe v General Motors Corporation could in any event be applied in the context of the English legislation unless the facts were similar, which they are not in this case.

In Steel v Union of Post Office Workers, the point under consideration involved the corresponding provisions, in the same terms, of the Sex Discrimination Act 1975. It seems to me that the Employment Appeal Tribunal in that case put something of a gloss on the word "justifiable" by suggesting that it was equivalent or close to having the same meaning as "necessary". But that gloss was rightly shaded, to put it no higher, by another decision of the Appeal Tribunal in Singh v Rowntree MacKintosh Ltd [1979] IRLR 199 at p 200, in which the approach was in effect that "justifiable" means "reasonably necessary in all the circumstances". In the same way as Eveleigh LJ, I decline to put any gloss on the word "justifiable" which is a perfectly easily understandable ordinary word, except that I would say that it clearly applies a lower standard than the word "necessary". This is also an ordinary word which is often used in legislation, but it has not been used in this case.'

With all due respect to these two learned lords justices, I derive little help from these judgments. 'Justifiable' and 'justify' are words which connote a value judgment, as is evident from the dictionary definition cited by Lord Justice Eveleigh: 'to produce adequate grounds for', but neither lord justice indicates what test should be applied. Lord Justice Kerr says it applies a lower standard than 'necessary', but does not indicate how much lower. It was, however, accepted by Mr Carlisle, and rightly so, that whatever test is to be applied it is an objective one: it is not sufficient for the employer to establish that he considered his reasons adequate.

However, I do derive considerable assistance from the judgment of Lord Justice Stephenson. At p 423 he referred to:

' . . . the comments, which I regard as sound, made by Lord McDonald, giving the judgment of the Employment Appeal Tribunal given by Phillips J in Steel v Union of Post Office Workers to which my Lords have referred.

What Phillips J there said is valuable as rejecting justification by convenience and requiring the party applying the discriminatory condition to prove it to be justifiable in all the circumstances on balancing its discriminatory effect against the discriminator's need for it. But that need is what is reasonably needed by the party who applies the condition; . . .'

In my judgment 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.

This construction is supported by the recent decision of the House of Lords in Rainey v Greater Glasgow Health Board [1987] IRLR 26, a case under the Equal Pay Act 1970, and turning on the provisions of s 1(3) of that Act which at the material time was in the following terms:

'An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material difference (other than the difference of sex) between her case and his.'

The House of Lords held, applying the decision of the European Court in Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317, that to justify a material difference under s 2(3) of the 1970 Act, the employer had to show a real need on the part of the undertaking, objectively justified, although that need was not confined to economic grounds; it might, for instance, include administrative efficiency in a concern not engaged in commerce or business. Clearly it may, as in the present case, be possible to justify by reference to grounds other than economic or administrative efficiency.

At p 31 Lord Keith of Kinkel (who gave the leading speech, with which all the other law lords agreed) said, in reference to an argument based on s 1(1)(b)(ii) of the Sex Discrimination Act 1975, which is identical, mutatis mutandis, to s 1(1)(b)(ii) of the 1976 Act:

'This provision has the effect of prohibiting indirect discrimination between women and men. In my opinion it does not, for present purposes, add anything to s 1(3) of the Act of 1970, since, upon the view which I have taken as to the proper construction of the latter, a difference which demonstrated unjustified indirect discrimination would not discharge the onus placed on the employer. Further, there would not appear to be any material distinction in principle between the need to demonstrate objectively justified grounds of difference for purposes of s 1(3) and the need to justify a requirement or condition under s 1(1)(b)(ii) of the Act of 1975.'

Mr Sedley constructed an elaborate argument designed to show that Ojutiku had been overruled by Rainey. (This argument will be found set out in detail in the judgment of the EAT in [1988] IRLR at pp 93-95. However, I do not find it necessary to consider this argument further here. For my part I can find no significant difference between the test adopted by Lord Justice Stephenson in Ojutiku and that adopted by the House of Lords in Rainey. Since neither Lords Justices Eveleigh nor Kerr in Ojutiku indicated what they considered the test to be -- although Lord Justice Kerr said what it was not -- I am content to adopt Lord Justice Stephenson's test as I have expressed it above, which I consider to be consistent with Rainey. It is obviously desirable that the tests of justifiability applied in all these closely related fields should be consistent with each other.

The Employment Appeal Tribunal, in their consideration of the construction of 'justifiable' in s 1(1)(b)(ii) of the 1976 Act, sought to rely on what happened in relation to this clause when the Bill was passing through Parliament. That was clearly impermissible -- see Hadmore Productions Ltd v Hamilton [1982] IRLR 102 -- and Mr Carlisle did not seek to justify it before us.

I turn finally to issue 4 as listed above.

The finding of justifiability

Procedure in the Industrial Tribunal is governed by the Industrial Tribunals (Rules of Procedure) Regulations 1985 (SI 1985 No 16) which came into force on 1.3.85. The Rules of Procedure are set out in Schedule 1 to the Regulations and rule 9 is concerned with the decision of the Tribunal. Rule 9(3) provides that the Tribunal shall give reasons, which may be in full or in summary form, for its decision. Rule 9(5)(a) provides that where the proceedings before the Tribunal involved the determination of an issue arising under (inter alia) the Race Relations Act, the reasons shall be recorded in full in a document signed by the chairman. Rule 17(9) requires that, in proceedings under the Race Relations Act, a copy of the decision shall be sent to the Commission for Racial Equality. This is because the decision in such proceedings may well have an effect not limited to the parties alone. Thus there are sound policy reasons for the requirement that in such cases the decision shall record the
reasons in full.

In its differentiation between full and summary reasons the 1985 Rules of Procedure amended the previous Rules of Procedure, which only required that the decision of a Tribunal should be recorded in a document which should contain the reasons for the decision. There is no reported decision on the meaning of 'full reasons' under rule 9 of the 1985 Rules, but I derive considerable assistance from the decision of this court in Meek v City of Birmingham District Council [1987] IRLR 250, and in particular from the following passage from the leading judgment of Lord Justice Bingham (with which Sir John Donaldson MR and Lord Justice Ralph Gibson agreed) in relation to the rule in its original form:

'It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises.

In the present case the Industrial Tribunal had found that the s 41 defence was valid and that, even if it had not been, there was no requirement or condition within s 1(1)(b) of the 1976 Act (see my comments on issue 1 above). Their ruling on justifiability was accordingly very much of a 'long stop', and is contained entirely within paragraph 23 of their reasons as follows:

'In order to form a view as to whether a given course is one which the Secretary of State should approve as comparable to a course within sub-paragraph (a), the respondent plainly has to take into account a whole series of matters and we are satisfied on the evidence that these include consideration of the overall duration of the course and whether the whole of it was concerned with initial teacher training. Accordingly, even if, contrary to our view, it could be said that the test was a "requirement" or "condition" and was applied to the applicant, we would find that the respondent had shown it to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the applicant and that, consequently, condition (ii) of s 1(1)(b) of the 1976 Act was not satisfied.'

The Employment Appeal Tribunal held that this was an adequate statement of the Industrial Tribunal's reasons on this issue, relying on a passage from the judgment of Sir John Donaldson MR in Martin v Glynwed Distribution Ltd (1983) ICR 511 at p 520. They did not refer to the later decision of this court in Meek v City of Birmingham District Council (supra).

I regret that on this issue also I find myself unable to agree with the decision of the EAT. When an Industrial Tribunal is required to give full reasons for its decision, it should, as Lord Justice Bingham said in Meek v City of Birmingham District Council (supra), give reasons sufficient to explain to the parties why they have won or lost.

In my judgment the reasons given by the Industrial Tribunal for finding justifiability in paragraph 23 of its reasons are deficient in the following respects:

(1) They fail to identify the standards by which they were testing the Department's justification of the conditions applied to Mrs Hampson. We were told that during the course of the argument before them they indicated that they proposed to follow Ojutiku (supra). Even if they had said this in their reasons -- which they did not -- it would not have enabled this (or any other appellate) court to know what standards they were applying to the Department's justification.

(2) When they refer to the 'overall duration of the course', they leave it wholly unclear whether they are referring to one course of three consecutive years, or to some other course or courses. One of the main issues between the Department and Mrs Hampson was whether her two separate courses, aggregating three years in total, were comparable to the domestic three-year course.

(3) There is no finding on whether the content of Mrs Hampson's courses was comparable to that of the domestic course.

We were told that the hearing of the case before the Industrial Tribunal lasted four days, of which some two and a half days were occupied with the hearing of evidence, largely directed to this issue of justification. Making every allowance for the difficulties with which Industrial Tribunals are faced, I find the matters set out in paragraph 23 a wholly inadequate statement of the full reasons required under the Rules of Procedure to show why the Industrial Tribunal held that the Department had made out its case for justification.

Conclusion

I would allow the appeal and remit the case to a fresh Industrial Tribunal for reconsideration of Mrs Hampson's complaint of indirect racial
discrimination.

JUDGMENTBY-2: NOURSE LJ

JUDGMENT-2:
NOURSE LJ.

The s 41 defence

Reduced to its essentials, the question here is whether the Secretary of State, in declining to approve Mrs Hampson's teacher training course in Hong Kong as comparable to an approved course in the United Kingdom, acted 'in pursuance of the Education (Teachers) Regulations 1982. If he did, his act of indirect discrimination was not unlawful and Mrs Hampson's appeal must fail.

The rival arguments on this question are fully considered in the judgments of Lords Justices Balcombe and Parker, which I have had the advantage of reading in draft. If it can be resolved on an isolated consideration of s 41 of the Race Relations Act 1975, I am in no doubt that the view of Lord Justice Parker is to be preferred. But it has been argued that that view would bring s 41 into conflict with the other provisions of the Race Relations Act to which Lord Justice Balcombe has referred. I will consider the question by those two stages.

In one sense any act done by a body or authority which is the creature of statute can be said to be done 'in pursuance of', that is to say under or by virtue of, statute. Although it is obvious that an immunity provision cannot be construed as widely as that without defeating the object of the statute, it is still the case that in conventional legislative usage the expression 'in pursuance of' is as apt to be related to an act done in exercise of a specific power as it is to one done in performance of a specific duty. And so it is sometimes questionable, as it was in the leading case of Bradford Corporation v Myers (1916) 1 AC 242, whether an act of the first kind is intended to be included amongst those which are done 'in pursuance' of the enactment. That is a question which cannot be answered in general terms, but only by applying the particular enactment to the particular act. What can be said in general terms is that an act done in performance of a specific cuty will usually be done in pursuance of the enactment which imposes it.

It cannot be doubted that his receipt of Mrs Hampson's application for qualified teacher status brought the Secretary of State under a specific duty either to approve or to disapprove her teacher training course within para 2(b)(i) of Schedule 5 to the 1982 Regulations. Accordingly, the question previously supposed would only seem to arise if it can be said that the power to give or withhold approval gave the decision the status of an act done in exercise of a specific power. I do not think that it can. A power to give or withhold approval is not a power to give or withhold a decision. It is a power to choose between two decisions, one of which must be made. In substance it is not a power at all. It is a duty to do one or other of two things. Whichever it is that is done will be an act done in pursuance of the 1982 Regulations.

On this analysis, confining myself to the terms of s 41, I am of the opinion that the disapproval of Mrs Hampson's teacher training course was an act of discrimination done in pursuance of an instrument (the 1982 Regulations) made under an enactment (the Education Act 1980) by a Minister of the Crown within s 41(1)(b) of the Race Relations Act. I also confine myself to the facts of the present case. I do not, for example, express any view as to what the result might have been if the power had in substance been one to give or withhold a decision. Like Lord Justice Parker, I certainly regard it as being neither possible nor desirable to attempt the formulation of a universal test.

Turning to the second stage, I do not think that the effect which is thus given to s 41 on the facts of this case can be said to bring it into any real conflict with the other provisions of the Race Relations Act to which Lord Justice Balcombe has referred. There is still plenty of scope for the operation of these provisions. Nor do I think that any argument of value can be founded on s 51 of the Sex Discrimination Act 1975.

On these short grounds I would hold that the s 41 defence succeeds and I would dismiss this appeal accordingly. However, since the other two outstanding issues have been fully argued and may yet prove to be decisive, I will briefly state my views on them.

The test of justifiability

I agree with Lord Justice Balcombe that the best interpretation which can be put on the authorities, in particular on the decisions of this court in Ojutiku v Manpower Services Commission [1982] IRLR 418 and of the House of Lords in Rainey v Greater Glasgow Health Board [1987] IRLR 26, is that the correct test is one which requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. If, and only if, its discriminatory effect can be objectively justified by those needs will be requirement or condition be 'justifiable' within s 1(1)(b)(ii) of the Race Relations Act.

In Clarke v Eley (IMI) Kynoch Ltd [1983] IRLR 482 Mr Justice Browne-Wilkinson (as he then was), delivering the judgment of the Employment Appeal Tribunal, after stating their view that the approach of this court in Ojutiku was the same as that which had been adopted in Panesar v Nestle Co Ltd [1980] IRLR 60, said at p 487, para 24:

'In case this or some other matter goes to the House of Lords, we would express some apprehension as to the direction in which the decisions of the courts are going on this issue. To decide whether some action is "justifiable" requires a value judgment to be made. On emotive matters such as racial or sex discrimination there is no generally accepted view as to the comparative importance of eliminating discriminatory practices on the one hand as against, for example, the profitability of a business on the other. In these circumstances, to leave the matter effectively within the unfettered decision of the many Industrial Tribunals throughout the country, each reflecting their own approach to the relative importance of these matters, seems to us likely to lead to widely differing decisions being reached. In our view, the law should lay down the degree of importance to be attached to eliminating indirect discrimination (which will very often be unintentional) so that Industrial Tribunals will know how to strike the balance between the discriminatory effect of a requirement on the one hand and the reasons urged as justification for imposing it on the other.'

Although that case was cited in argument in Rainey, there is no indication in the report that their Lordships' attention was drawn to the plea for guidance which had been made by the Employment Appeal Tribunal. The arguments which we have heard in this case have demonstrated that the plea is just as live now as it was then, although admittedly it is easier made than answered. At the least there is a need for an authoritative statement or restatement of the correct test.

The finding of justifiability

I agree with the reasoning and conclusion of Lord Justice Balcombe on this issue, albeit with some hesitation in the light of the contrary conclusion of the Employment Appeal Tribunal.

JUDGMENTBY-3: PARKER LJ

JUDGMENT-3:
PARKER LJ. Regulation 13(1) of the Education (Teachers) Regulation 13(1) of the Education (Teachers) Regulations 1982 (SI 1982 No 106) ('the Regulations'), so far as immediately material, provides:

' . . . no person shall be employed as a teacher at a school unless he is qualified therefor as mentioned in Schedule 5 . . .'

By regulation 3, except where the context otherwise requires, a school is defined as 'a school maintained by a local authority or a special school not so maintained'.

It is thus apparent that the possession of qualified teacher status facilitates engagement in the teaching profession in that it opens a great field of employment which is closed if the qualification is not conferred.

Para 1 of Schedule 5 to the Regulations provides, inter alia, that a person shall be qualified to be employed as a teacher at a school for the purposes of regulation 13 if:

'the Secretary of State being satisfied that he is such a person as is mentioned in para 2, on or after 8.4.82 he has been notified by or on behalf of the Secretary of State, that he is a qualified teacher.'

In order to obtain qualified teacher status a person must therefore (i) satisfy the Secretary of State that he is such a person as is mentioned in para 2, (ii) obtain from the Secretary of State a written notification that he is a qualified teacher.

The Regulations do not expressly so provide but it cannot, I think, be doubted that, on receipt of an application, the Secretary of State is under a statutory duty to consider it, that is to say to reach a conclusion on the question whether he is satisfied that the applicant is such a person as is mentioned in para 2. Unless he is so satisfied he cannot confer qualified teacher status. If he is so satisfied he must, in most if not all cases, confer such status by notifying the applicant in writing to that effect. I use the expression 'most if not all' because there may conceivably be circumstances in which the Secretary of State would be entitled to withhold notification notwithstanding that he was satisfied that the applicant was such a person as is mentioned in para 2. I cannot presently envisage any such circumstances but the point was not considered in argument and I would not, without argument, wish to express the view that notification must inevitably follow upon satisfaction.

It is next necessary to consider what is involved in the duty of the Secretary of State to consider whether he is satisfied that an applicant is such a person as is mentioned in para 2. That paragraph specifies six classes or categories of person. For present purposes it is only necessary to consider the first two. That paragraph begins by defining the expression 'approved' as meaning 'approval by the Secretary of State for the purposes of the sub-paragraph in which the expression occurs'. It then continues:

'The persons referred to in para 1(1)(a) are any of the following persons:

(a) a person who has successfully completed a course which --

(i) is for the degree of Bachelor of Education, the Certificate in Education, the Post-graduate Certificate in Education or a comparable academic award of, in each case, either a university in the United Kingdom or of the Council for National Academic Awards, and

(ii) is approved as a course for the initial training of teachers in schools;

(b) a person who --

(i) has successfully completed a course (whether within or outside the United Kingdom) approved as comparable to a course within sub-paragraph (a), and

(ii) unless he so completed the course before 1.9.84, has attained in mathematics and in English the standard required to attain in the subject in question either a grade C in the examinations for the General Certificate of Education at ordinary level or a grade 1 in the examinations for the Certificate of Secondary Education.'

As to para (a)(i), where the applicant relies upon an academic award of a university or the Council for National Academic Awards, other than the three specified awards, the Secretary of State will, as it seems to me, have to consider whether he is satisfied that such award is comparable to the specified awards or one of them. Apart from this he has to do no more than be satisfied that the applicant has successfully completed the course for the award, which will probably involve no more than satisfying himself that the degree certificate or other documentproduced is genuine.

Under para (a)(ii), however, the course leading to the academic award must also be one which is approved by him as a course for the initial training of teachers in schools. This confers upon him a discretion which he is obliged to exercise one way or another.

Regulation 4 provides that except where the context otherwise requires an approval for the purposes of the Regulations 'may apply generally (subject to such exceptions, if any, as may be specified therein)' or only in a particular case. Para 6 of Schedule 2 to the Regulations provides:

'Any approval given for the purposes of sub-paragraph (a)(i) of regulation 16(2) of the Regulations of 1959 of a course as one for the initial training of teachers, in force immediately before 8.4.82 (the date when the Regulations came into force) shall have effect as if given for the purposes of para 2(a)(ii) of Schedule 5.'

On an application being made under sub-paragraph (a) the Secretary of State will thus, pursuant to sub-paragraph (a)(ii), have to check that the course relied on is one which has already been approved generally under the Regulations or their predecessors. If it is not he will have to decide whether to approve it either for the particular case only or generally.

Since 1960 the Secretary of State has only approved as courses for the initial training of teachers in schools under sub-paragraph (a)(ii) courses of three years' duration.

It is in the light of the foregoing that sub-paragraph (b) of para 2, which is the sub-paragraph with which we are immediately concerned, falls to be considered. Under sub-paragraph (b)(i) the Secretary of State has to consider whether he is satisfied that the applicant has successfully completed a course in or outside the United Kingdom approved as comparable to a course with sub-paragraph (a). Once again there is provision in Schedule 2 for a carry forward of approvals given under the earlier Regulations. On an application being made the Secretary of State has, therefore, to check that the course tendered has been successfully completed. He has also to consider whether it is approved as comparable to a course within sub-paragraph (a). It may already have been approved generally either under the Regulations or their predecessors. If it has, the requirements of sub-paragraph (b)(i) are satisfied. If it has not, he will then have to consider whether or not to approve it as comparable
either generally or for the particular case.

In the present case the appellant sought to bring herself within sub-paragraph (b). Her application was rejected as not comparable (i) because her initial course was two years only and the subsequent one-year course eight years later could not be regarded as an integral part of the initial training and (ii) because the content of the courses which had been completed in Hong Kong did not meet requirements.

It is not suggested that the decision to reject the appellant's application could be successfully attacked by way of judicial review, the remedies by way of order of certiorari, mandamus or prohibition under which are preserved by s 53(2) notwithstanding the provisions of s 53(1).

It is, however, contended that, in rejecting her application, the Secretary of State discriminated against her within the meaning of s 1(1)(b) of the Race Relations Act 1976 ('the Act') and that such discrimination was unlawful by s 12(1)(a) and (b).

Before us it is conceded that in dealing with the appellant's application the Secretary of State did discriminate against her within the meaning of s 1(1)(b) unless he could show that the conditions which he applied to her and which he applied or would apply equally to persons not of her racial group (Hong Kong Chinese) were justifiable irrespective of her colour, race, nationality or ethnic or national origins within the meaning of s 1(1)(b)(ii).

It is further conceded that, if the Secretary of State cannot so show, the discrimination was unlawful by reason of s 12 of the Act unless that section is rendered inapplicable by the provisions of s 41(1)(b).

I shall assume for present purposes that both concessions were rightly made although I have some doubt whether the Secretary of State is an 'authority or body' within the meaning of s 12.

It is contended by the Secretary of State that the conditions which he applied can be shown to be and are justifiable within s 1(1)(b)(ii) of the Act and that even if this is wrong and there was discrimination it is saved from being unlawful by s 41.

I shall deal with this last question first and I shall do so on the assumption that there has been an act or acts of discrimination within s 1(1)(b).

Although we are presently directly concerned only with s 41(1)(b) I set out the whole of the subsection:

'41(1) Nothing in Parts II to IV shall render unlawful any act of discrimination done;

(a) in pursuance of any enactment or Order in Council; or

(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or

(c) in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment.

Reference in this subsection to any enactment, Order in Council or instrument include an enactment, Order in Council or instrument passed or made after the passing of this Act.'

The case for the Secretary of State is simply that what he did was done in pursuance of an instrument (the Regulations) made under an enactment (the Education Act 1980) by a Minister of the Crown (himself). The force of this argument is clearly very great. The Regulations were made in exercise of the powers conferred on him by ss 27 and 35 of the Education Act 1980. The relevant power conferred by s 27 is the power by regulations to make provision:

'for requiring teachers at schools to which this section applies . . . to possess such qualifications as may be determined by or under the Regulations.'

By s 27(7) the section applies to any school maintained by a local education authority and any special school not so maintained, that is to say the very schools to which the Regulations with which we are concerned apply.

By s 35(3) any regulations so made are subject to annulment in pursuance of a resolution by either House of Parliament and by s 35(4) it is provided:

'Regulations . . . may make different provisions for different cases or different circumstances and may contain such incidental supplementary or transitional provisions as the Secretary of State thinks fit.'

It appears to me plain that when the Secretary of State made the Regulations he was acting in pursuance of an enactment within the meaning of s 41(1)(a) notwithstanding that the Act conferred a wide discretion and that there were many options open to him as to the qualifications which he might require teachers to possess. Indeed Mr Sedley conceded that if the Regulations had specified that an initial course must be of three years' duration it would not have been unlawful.

Having made the Regulations which cast upon him the duty to consider applications and in so doing the duty to consider and decide upon certain matters, it is at first sight difficult to see how it could be contended that, when what he did was only to decide the very matters he was obliged to decide, he could be said to have been acting otherwise than in pursuance of the Regulations. It is also at first sight equally difficult to suppose that it was within the intention of Parliament that, having committed to the Secretary of State the power and duty to decide upon the requirements which must be possessed by teachers, Parliament should have intended that his decisions should be subject, in effect, to being overruled by an Industrial Tribunal. It is the more difficult when one finds that by s 19(4) the powers of the Secretary of State under ss 68 and 99 of the Education Act 1944 are to be the only sanction for breach of the general duty not to discriminate imposed by s 19(1) on the bodies mentioned in subsection (5), unless the breach is also a breach of either s 17 or 18. In a large field the Secretary of State is therefore the person responsible for enforcing the Act.

It was, however, submitted by Mr Sedley, and I quote from his skeleton argument, that 'S 41 is limited to acts required to be done by or under statute and does not protect administratively chosen requirements or conditions which represent one of a variety of possible modes of doing those acts. If the chosen mode is the only one reasonably available for the necessary purpose it may be protected by the defence of justifiability not by s 41.' There were, in the course of argument, some variations of this proposition but the substance remains unaltered, namely that the section only protects acts done in necessary performance of an express obligation contained in an enactment or Order in Council in the case of subsection (1)(a) or an instrument in the case of subsection (1)(b).

If this limited construction is not adopted it is submitted that there is no stopping place short of a construction which would cover in effect everything done by a body which owes its existence and powers to an enactment so long as what was done was intra vires and such a construction must be rejected both because it would render nugatory other provisions of the Act and because it would offend against the principles enunciated in the House of Lords in Bradford Corporation v Myers (1916) 1 AC 242.

I have no hesitation in accepting the submission that the construction mentioned above, referred to by Lord Justice Balcombe in his judgment, which I have had the opportunity to read in draft, as 'the wide construction' must be rejected. I agree that it is untenable on both the grounds mentioned above. The question which needs to be answered is therefore whether rejection of the wide construction compels acceptance of the very limited construction contended for.

Such a narrow construction presents immediately two difficulties. In the first place, it equates the words 'in pursuance of' in s 41(1)(a) and (b) with the very different words in s 41(1)(c) 'in order to comply with any condition or requirement imposed by a Minister of the Crown by virtue of any enactment.' In the second place, it equates such words with the equally different and specific words 'if it was necessary for him to do it in order to comply with a requirement of an Act . . .' used in s 51 of the Sex Discrimination Act 1975.

The change of wording in s 41(1)(c) from that used in s 41(1)(a) and (b) must in my judgment be taken to have been deliberate and to have been intended to have a different result. The difference in wording between s 51 of the 1975 Act to that used in s 41 must also in my judgment be taken to have been deliberate and intended to produce a different result. The two Acts are of course separate but, (a) the long title to the Act includes the following:

to make in the Sex Discrimination Act 1975 amendments for bringing provisions in that Act relating to its administration and enforcement into conformity with the corresponding provisions of this Act.'

(b) S 79(4) of the later Act provides that the earlier shall have effect subject to the amendments specified in Schedule 4, 'being amendments for bringing provisions in [the earlier Act] relating to its administration and enforcement into conformity with the corresponding provisions in this Act.'

(c) The amendments so specified do not relate to that part of either Act dealing with general exceptions into which ss 41 and 51 respectively fall.

In these circumstances one cannot in my view infer that, with regard to exceptions, there was any intention to harmonise or that the parliamentary intention or understanding was that the words of s 41(1)(a) and (b) should or did have the same effect as those of s 51 of the earlier Act. Such inference as there is must surely be that there was no intention to harmonise such provisions. It may also be inferred that, when Parliament had the earlier Act before it and the amendment of that Act under consideration yet used such different words in s 41 from the words used in s 51, it did so with intent to produce different results. I cannot therefore accept that s 41(1)(a) and (b) must be given the same meaning as s 41(1)(c) or s 51 of the earlier Act.

This being so, what meaning can one give to the words? That the problem is a difficult one is well illustrated by the speeches in the House of Lords in Bradford Corporation v Myers (1916) 1 AC 242 and by the very large number of cases both before and since that decision in which the courts have had to decide whether a particular act did or did not fail within an exception provisions of a statute or a provision according some special protection in respect of acts done 'in pursuance of', or 'in execution or intended execution of', or 'in pursuance or purported pursuance of' a statute or enactment.

I find it unnecessary to refer to such cases many of which appear to me to be inconsistent with each other and some of which contain judgments which are inconsistent within themselves. I do, however, derive considerable assistance in the solution of the present case from the speeches in Bradford v Myers. In that case the Corporation had an obligation to supply gas to occupiers of houses within their area and power to sell coke. They agreed to sell coke to a purchaser and in the course of delivering it to him negligently shot it through his shop window. He commenced an action outside the limitation period provided by the Public Authorities Protection Act 1893 in respect of any act done 'in pursuance, or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority.'

The Corporation claimed the benefit of the section and succeeded in the County Court. On appeal to the Divisional Court, the two judges of that court disagreed, with the result that the appeal was dismissed. On further appeal to the Court of Appeal it was unanimously held that the Act did not apply on the ground that the act complained of was done in the execution of a voluntary contract and not of any public duty or authority. The Corporation appealed to the House of Lords who dismissed the appeal without calling on the respondent. Lord Buckmaster at pp 247-8 said

' . . . the words of the section limit the class of action and show that it was not intended to cover every act which a local authority had power to perform.

In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority . . .

The act complained of arose because one of the servants of the appellants, acting in the course of an errand on which they had power to send him, but on which they were not bound in the execution of any act or in the discharge of any public duty or authority to send him, in breach of his common law duty to his fellow citizens, caused damage by his personal negligence.'

Lord Buckmaster then referred to a number of authorities in terms which show that he recognised that, albeit the act complained of might be one done under a power rather than an express obligation, it might nevertheless be regarded as being done in execution of a statutory duty.

This is clearly shown from the passage at pp 249-50:

'In the case of Fielding v Morley Corporation the Corporation had obtained power to add to their waterworks, and it was in the course of executing these powers that the damage arose. In other words, it was in the direct execution of an Act of Parliament that they caused the damage which was the subject of complaint.

In that case in the Court of Appeal counsel argued that there was a distinction between it and the case of Harrop v Mayor of Ossett because in the latter case the Ossett Corporation were bound to provide the small-pox hospital, while in the Morley case the water supply was not a positive duty; but this distinction was rejected by Chitty LJ, who obviously regarded the supply of water as just as serious a positive public duty as the supply of the small-pox hospital.'

Lord Buckmaster concluded his speech with these words:

'The difficulty is to draw a line between the class of cases that are within and those that are without the statute, and I am conscious that this opinion does not establish as clear and distinct a line as I should like to see. But the statute itself is so framed that such distinction is not easy, and there may well be cases about which greater doubt may arise and more uncertainty be felt than about the present, which to my mind lies clearly outside the area of statutory protection.

My Lords, my noble and learned friend, Lord Dunedin, desires me to state that with this opinion he is in entire agreement.'

Viscount Haldane began his speech with words which echoed with elaboration the difficulty and uncertainty expressed by Lord Buckmaster in the passage I have just quoted. He said (pp 250-1):

'My Lords, there is an assumption which is sometimes made in construing the language of documents. It is that it must be possible to discover some clear principle or purpose, express or implied, in the words. But it is one thing to say that it is the duty of a court of construction to endeavour to give a meaning to every word used in the document, and quite another to say that this can always be determined by exegesis. It is often obvious from the words he has employed that the draftsman has had instructions which have been too vague and insufficient to admit of the expression of a comprehensive principle with exactness, or at all. In such a case the court can only take the particular facts in the case before it, and decide as best it can whether they come within the words, or whether they fall altogether outside them. The essentially negative method of the second alternative often renders it, where it applies, the easist and the safest one to use, and sometimes it admits of a principle of exclusion being laid down where no principle can be formulated affirmatively with any confidence in its legitimacy.'

Again at p 251:

'I think that the words used must not have more read into them than they express or of necessity imply, and I do not think that they can be properly extended so as to embrace an act which is not done in direct pursuance of the provisions of the statute or in the direct execution of the duty or authority. What causes of action fall within these categories it may be very difficult to say abstractly or exhaustively. It is hardly easier to define a priori the meaning of being done directly than it is to define the number of grains that will make a heap. But just as it is not difficult to tell a heap when it is seen, so it may be easy at least to say of certain acts that they are not the immediate and necessary outcome of duty or authority in a particular case.'

And at p 252:

'It seems to me that the language of s 1 does not extend to an act which is done merely incidentally and in the sense that it is the direct result, not of the public duty or authority as such, but of some contract which it may be that such duty of authority put it into the power of a public body to make, but which it need not have made at all . . .

More than I have now said I do not propose to say, for I do not think that an exhaustive attempt at any abstract interpretation of the words would be safe.'

Lord Atkinson reviewed the authorities in greater length. There are some sentences in his speech which might appear to suggest that he was of the view that an act complained of must itself be one which the Corporation was specifically obliged to do. This, however, is clearly not so. In my judgment his view was that had the Corporation not only been empowered but obliged to sell and deliver coke a negligent action in the course of delivery would have been protected. This view appears to me to be in accordance with that of Viscount Maugham in Griffiths v Smith (1941) AC 170 where at p 183 he observed that Lord Atkinson had, in the later case of Harnett v Fisher, cited the material passages from Lord Buckmaster's speech with obvious approval.

Finally, I come to the speech of Lord Shaw of Dunfermline. At p 262 he said:

'The Act seems to say: there are many things which a public authority, clothed, say, with statutory power, may do, which the limitation will not cover; but when the act or neglect had reference to the execution of their public duty or authority -- something founded truly on their statutory powers or their public position -- to that, and that only, will the limitation apply. I gather that this is the view taken by my noble and learned friend on the woolsack, and while I concur in his views as a whole, I express my pointed agreement with him on this head.'

He then developed a test based on the foundation of the relationship between the parties and at p 264 said:

'Where the right of the individual cannot be correlated with a statutory or public duty to the individual, the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. And an action on either side founded on the performance or non-performance of that contract is one to which the Protection Act does not apply because the appeal, which is made to a court of law, does not rest on statutory or public duty, but merely on a private and individual bargain.

The same principle applies whether the act complained of arose through breach of contract or through tort . . .

But where a person not under contract with a corporation -- say a neighbour of the respondent to whose premises damage was done by the neglect of the carriers -- when such a person suffers damage by the act of the local authority, the question at once arises, what was the kind of duty in which the corporation was engaged: was it a public duty or a private duty owing to some individual, and that exactly in the sense already explained? If the former, the Act applies; if the latter, it does not.'

If this test be taken as a guide, as Lord Porter considered it should (see Griffiths v Smith at pp 208-9) the Secretary of State would in my view be protected here. No private right or private duty is involved. The appellant had a right in common with all other applicants to apply for qualified teacher status, ie a public right to have her application dealt with according to the Regulations. That right stemmed wholly from the Regulations. The Secretary of State had a public duty to consider her application in common with all other applications and to deal with it in accordance with the Regulations. The suggestion that s 41 does not avail the Minister is based solely on the proposition that there was an element of discretion involved. This does not in my view assist, at all events where, as here, there is a positive duty to exercise the discretion.

The arguments here advanced are indeed similar to those advanced in Griffiths v Smith and were there dealt with briefly by Lord Porter at p 207 where he said:

'It was argued on behalf of the appellants that the duty neglected was not a public duty because the managers need not have provided the school at all or might have withdrawn it at any time under s 40, subsection (2), of the Act of 1921, and that therefore their act in providing the school was voluntary and not in pursuance of any public duty. I do not think this argument sound, and it is contrary to a long series of authorities. It does not matter that the public duty is one which the defendants need not undertake: it is enough if they have adopted a course of action which imposes upon them the performance of a public duty at the material time, and if the matter of which complaint is made is a default in carrying it out: Fielding v Morley Corporation; Jeremiah Ambler and Sons v Bradford Corporation; Lyles v Southend-on-Sea Corporation are examples of this principle.

But, say the appellants, even if this be true, the managers were under no duty to carry out their work in the way they chose -- there was no need to hold a display or invite parents to attend it. Again, I think this immaterial. As Scrutton LJ said in Edwards v Metropolitan Water Board: "Nor does it matter that the duty could have been carried out in another way", a proposition in support of which he cited Edwards v St Mary Islington Vestry. If the argument were sound the Public Authorities Protection Act would be of little use, since, I imagine, in most cases there are at least two ways of performing a duty and it might be said that the alternative to that actually chosen could have been adopted.'

To the like effect is Lord Wright at p 192. Here, the Secretary of State could doubtless have decided that a two-year course in Hong Kong was comparable to a three-year course here, or that a two-year course coupled with a one-year course after an interval was comparable. It is he and no one else who is charged by the Regulations with making the decision. Such a decision could of course be attacked in appropriate circumstances by way of judicial review but I cannot accept that any such decision was, at all events where its consequence was only indirect discrimination, outwith the protection of s 41. So to hold would, as it seems to me, involve committing to an Industrial Tribunal the power to overrule a decision of the Secretary of State properly made under the Regulations, the power to make which had been committed to him by Parliament and which themselves had the tacit approval of Parliament. In my judgment the Industrial Tribunal and the Employment Appeal Tribunal were correct in holding that the s 41 defence was made out.

It will be apparent that in the foregoing I have not attempted to define a universal test, although I have adopted or at any rate derived assistance from Lord Shaw's suggested test. This is because I do not consider it to be possible or desirable to do so. In this connection, in addition to the difficulties expressed by their Lordships in Bradford v Myers, I would refer also to the following observations:

(1) 'My Lord, both Lord Buckmaster and Lord Haldane pointed out that the Act was so framed that it did not seem possible to draw a clear line between cases which fail within the Act and those which did not, or to lay down any exact principle; and this view has, I think, been accepted in all subsequent decisions.'

See Viscount Maugham in Griffiths v Smith.

(2) 'Some principles have been and can be laid down which may assist in the application of the Act, but like Lord Haldane in the former case I doubt whether it ever will be possible to lay down some general principle by which all cases can be tested. At any rate it is unnecessary to make the attempt in the present insistance. Enough has been said to show your Lordships why I agree with the courts below in thinking the action fails and the appeal should be dismissed.'

See Lord Porter ibid at p 211.

(3) 'When the construction of these words again came before the House of Lords in 1941 in Griffiths v Smith, the noble Lords who took part in that case again emphasised the difficulty of giving any precise or exhaustive definition, and none of them attempted so to do. Lord Porter saying: 'I doubt whether it ever will be possible to lay down some general principle by which all cases can be tested.

In this state of affairs it will not perhaps cause surprise if their Lordships do not attempt to accomplish what the noble Lords referred to above found well nigh impossible, but content themselves with examining the two cases cited with a view to extracting therefrom certain matters and considerations that are relevant to, though not necessarily always decisive of, this issue.'

See Lord Tucker giving the advice of the Privy Council in Firestone Tire and Rubber Co (SS) Ltd v Singapore Harbour Board (1952) AC at p 464.

These observations were made in relation to s 1 of the Public Authorities Protection Act 1893 but they are in my view equally applicable here. The Race Relations Act covers a very wide field and I do not think that s 41 can be construed in the abstract. There will be some cases clearly covered by it, some clearly not covered and others near the borderline. In the case of Goba v the GMC [1988] IRLR 425 the EAT decline to hold, in the abstract, that the section afforded a defence to the General Medical Council in respect of acts of direct discrimination, however heinous. They were clearly right in so doing but the decision is of no assistance to the appellant in this case. Here we are dealing with a specific act of indirect discrimination committed by the Secretary of State in the course of carrying out a public duty laid upon him by a statutory instrument. This in my view is clearly protected.

With regard to the meaning of justifiable and the adequacy of the Tribunal's reasons I agree with Lord Justice Balcombe and have nothing to add.

Finally, whilst it has not been necessary to explore it in this case, I repeat that I have considerable doubt as to the correctness of the concession that s 12 applies to the Secretary of State at all. It is clear that, if he is 'an authority or body' within the meaning of the section, it does apply, but it appears to me not to be at all clear that he is.

I would dismiss this appeal.

DISPOSITION:
Appeal dismissed. Leave given to appeal to the House of Lords.

SOLICITORS:
Hodge Jones & Allen; Treasury Solicitor.