Hottak & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs & Anor

By a judicial review claim form issued on 2 May 2013, Mohammed Hottak, AL and AP, all Afghan nationals, sought judicial review of a ‘failure’ by the Secretaries of State for Foreign and Commonwealth Affairs and for Defence ‘to extend to the claimants and similarly placed Afghan LES [locally employed staff] a scheme of assistance similar to or comparable with the Iraq LES scheme.’ They asserted that the scheme put in place for Afghan LES was unlawfully discriminatory because of their nationality. AP’s claim was settled following his institution of private proceedings and no further reference need be made to him. AL is the subject of anonymity orders and so I shall refer to him only by initials.

The claim was heard by the Divisional Court (Burnett LJ and Irwin J) in May 2015. The court’s reserved judgment followed on 8 July 2015, Burnett LJ delivering the lead judgment with which Irwin J agreed: [2015] EWHC 1953 (Admin). The result was an order by which the court granted declaratory relief in respect of the defendants’ failure when formulating the Afghan scheme to have regard to the provisions of section 149(1)(b) and (c) of the Equality Act 2010 (which concern the public sector equality duty, or ‘PSED’) but otherwise dismissed the claim and ordered the claimants to pay half the defendants’ costs. The court gave the claimants permission to appeal on grounds other than that relating to the PSED issues, on which it refused permission. On the PSED issues the claimants wished to argue that substantive rather than merely declaratory relief should have been granted and, on a renewed application, Underhill LJ gave them permission to do so.

Burnett LJ’s judgment provided a succinct explanation of the background and I have gratefully drawn upon it, in part verbatim. The claimants served as interpreters with the British Forces in Afghanistan. Afghan nationals who worked as LES for the British Government were or might be entitled to benefit from one or both of two policies put in place by the Government: the ‘Intimidation Policy’ and the ‘Redundancy Policy’ (also known as the ‘Ex Gratia Policy’). They were together known as the Afghan Scheme. The Scheme offered financial benefits and relocation opportunities, including, in limited circumstances, to the United Kingdom (‘the UK’) to those qualifying under it.

The proceedings were brought because the claimants regarded the Afghan Scheme as less generous than the Iraq Scheme that had been put in place by the British Government for the benefit and protection of LES during the engagement of British Forces in Iraq. They asserted that: (i) the Afghan Scheme’s shortcoming in that respect amounted to direct discrimination against the Afghan LES because of their nationality, alternatively to indirect discrimination, and so was contrary to section 39(2) of the Equality Act 2010 (‘the 2010 Act’), which prohibits discrimination in relation to employee benefits; alternatively (ii) that such discrimination was contrary to section 29(6) of the 2010 Act, which prohibits discrimination in the exercise of public functions; alternatively (iii) that such discrimination was contrary to the common law. They also asserted that, in formulating the Afghan Scheme, the defendants had failed to comply with the section 149 PSED.

Burnett LJ explained that the challenge to the lawfulness of the Afghan Scheme was broadly advanced and did not depend on the details of the claimants’ employment, as to which there was some controversy. There was much evidence about the nature and degree of risk of retaliation from the Taliban to which LES were exposed as a result of having worked for the British Government, with the claimants’ evidence suggesting that there had been more attacks on LES than the defendants accepted. There was, however, no cross-examination on the matters of difference, which Burnett LJ considered did not bear upon the legal issues.

Burnett LJ explained that there was also much common ground between the parties. The British Forces in Afghanistan could not have operated without LES, including interpreters. Those engaged by the British Government, as well as those engaged by the other coalition forces in Afghanistan, exposed themselves to considerable personal risk, and the Taliban had exacted revenge on some of those it saw as having collaborated with the occupying forces. LES, including interpreters, had been intimidated, attacked and killed, although there is a dispute about numbers and whether there have been recent such incidents. The risks extended to the families of LES. Burnett LJ said that;

Of the two claimants, Mr Hottak was engaged by the British Government as an interpreter in 2006. He was injured in 2007 whilst on patrol in Helmand Province, after which he undertook different work. In 2009 he reported that he had been the subject of intimidation, including death threats. He resigned from his employment with effect from 6 November 2009. He was subject to further intimidation and left Fort Hunter in the spring of 2011. He and his family continued to receive threats. He fled to the UK where he was granted asylum.

AL worked first as an interpreter for the Americans, and then for the British Forces between 2006 and June 2009. Like Mr Hottak, he did front-line duties and was also employed at Fort Hunter. Both he and his family have been subjected to threats. He resigned from his Fort Hunter employment in 2012 in order to protect his family. The Intimidation Policy was applied to him in 2013 after he raised his concerns about threats. He is dissatisfied with the assessment of the risks he faces. He remains in Afghanistan.

Burnett LJ described the Afghan and Iraqi Schemes, and the differences between them, clearly and succinctly. I can do no better than to quote him;

As the claim is founded on alleged discriminatory treatment by the defendants in relation to the claimants’ working conditions as LES in Afghanistan, the first question for the Divisional Court was whether the court had jurisdiction to entertain it. The primary basis for the claim was the 2010 Act and so the court had to decide whether the reach of its relevant provisions extended to claims by LES engaged and working in Afghanistan. The court held that it did not, which marked the end of the statutory claims, but the claimants have challenged that conclusion. The first head of their claim is based on their status as employees and I shall consider the foundation for that claim first.

The claimants’ employment based claim

The 2010 Act’s preamble sets out the broad nature of its objectives, which include the reform and harmonisation of equality law and the restatement of the enactments relating to discrimination. Part 2 of the 2010 Act is headed ‘Equality: Key Concepts’ and Chapter I introduces the so-called ‘protected characteristics’, the importance of which is that the 2010 Act is directed at prohibiting discrimination because of, or in relation to, any such characteristic. Section 4 lists the characteristics, of which the relevant one is ‘race’ and which section 9 defines as including ‘nationality’ and ‘ethnic or national origins’.

Chapter 2 of Part 2 is headed ‘Prohibited Conduct’ and sub-headed ‘Discrimination’. The only provisions in it to which I need to refer are the material parts of the definitions of ‘Direct discrimination’ in section 13 and of ‘Indirect discrimination’ in section 19, and section 23.

Section 13 provides:

Section 19 provides:

Under the sub-heading ‘Discrimination: supplementary’, section 23, headed ‘Comparison by reference to circumstances’, provides materially:

The function of the provisions just referred to is to identify the different ways in which discrimination may take place. They do not explain the contexts in which it will be unlawful. One such context is explained in Part 5 of the 2010 Act, headed ‘Work’. Chapter 1, ‘Employment, etc’, provides materially in section 39:

The claimants’ primary case is that the Afghan Scheme subjected them to unlawful discriminatory detriment in breach of section 39(2) by failing to provide them with the benefit of relocation terms as generous as those of the Iraq Scheme. They say that Part 5 of the 2010 Act therefore entitles them to bring a work-related discrimination claim in England. Ordinarily, any such claim must be brought in an employment tribunal (see sections 113(1) and 120) but section 113(3)(a) provides that section 113(1) does not prevent the bringing of a claim for judicial review, which is what the claimants have done.

The first question, therefore, is whether the work-related provisions in Part 5 of the 2010 Act extend extra-territorially to discrimination claims brought by workers like the claimants who were engaged as LES in Afghanistan. The claimants assert that they do. They say that: (i) they were employed by Her Majesty’s Government in Afghanistan, where they worked in UK military bases; (ii) the prohibition in section 39(2) outlawed the allegedly discriminatory terms of the Afghan Scheme; and (iii) the closeness of their employment with the UK and British labour law is such that they are entitled to pursue their section 39(2) complaint in England. The Divisional Court disagreed, holding it had no jurisdiction to entertain the claim. Was it correct?

Section 217 of the 2010 Act, ‘Extent’, explains that the Act forms part of the law of England and Wales, that with some exceptions it also forms part of the law of Scotland and that certain of its provisions extend to Northern Ireland. What, as regards its provisions relating to ‘work’, it does not explain is whether, and if so in what circumstances, they apply to an employment carried on outside the jurisdiction. Paragraph 15 of the Explanatory Notes to the 2010 Act has this to say on the subject:

That statement reflects that prior to the enactment of the 2010 Act, the courts had been presented with, and had answered, questions as to the circumstances in which employees working overseas will be entitled to bring unfair dismissal claims in employment tribunals in England and Wales (and, in one case, Scotland) under section 94(1) of the Employment Rights Act 1996, which provides that ‘An employee has the right not to be unfairly dismissed by his employer.’ Such questions arose because the 1996 Act is similarly silent as to the extent to which it has any extra-territorial application. Subject to a special point advanced by the claimants based on the fact that their work-related claims are for alleged discrimination rather than for unfair dismissal, it is agreed that the principles explained in those decisions in relation to section 94(1) of the 1996 Act apply equally to the claimants’ work-related claims under section 39 of the 2010 Act. Whereas, however, the claimants assert that the correct application of those principles points to the English court having jurisdiction to entertain their claim, the defendants assert the contrary.

The authorities to which we were referred all deal with claims for unfair dismissal, that is for breach of the right conferred by section 94(1) of the 1996 Act. The leading case is the decision of the House of Lords in Lawson v. Serco Ltd [2006] ICR 250, the name of the first of three similar appeals before the House. Lord Hoffmann gave the only substantive speech, with which Lord Woolf, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed.

Lord Hoffmann explained that the 1996 Act contained no geographic limitation but that it was inconceivable that Parliament intended it to confer rights upon employees working abroad and having no connection with Great Britain. The general principle of construction is that legislation is prima facie territorial and the parties to the appeals agreed that some territorial limitations in the reach of the 1996 Act must be implied. What was more difficult was to identify them. The paradigm case for the application of section 94(1) is that where the employee is working in Great Britain, and so the circumstances in which British labour law will apply to an employee working and based abroad would have to be unusual. Lord Hoffmann considered, however, that there would be some cases in which it will so apply and he said, at [36], that one should try to identify the characteristics which such exceptional cases will ordinarily have.

In elaboration, Lord Hoffmann said, at [37], that it would be unlikely that someone working abroad would be within the scope of section 94 unless he was working for an employer based in Great Britain. But by itself that would not be enough:

Lord Hoffmann then explained, in [38], that ‘something more’ may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. Such an employee will be working as a representative of a business conducted at home, and Lord Hoffmann gave as an example a foreign correspondent on the staff of a British newspaper posted to Rome or Peking and who may remain for years living in Italy or China. He concluded the material part of his judgment as follows:

Of the three appeals before the House, the Lawson appeal concerned a British national employed by a company registered in England as a security supervisor at an RAF base on Ascension Island. The Botham appeal concerned a British national employed by the Ministry of Defence as a youth worker at various military bases in Germany. As part of the ‘civil component’ of the British Forces in Germany, he was treated as a resident of the United Kingdom and paid UK tax and national insurance contributions. The Crofts appeal concerned rather different circumstances: Mr Crofts was a pilot employed by a subsidiary of a Hong Kong airline but was based at Heathrow under the airline’s ‘permanent basings policy’. The House held that section 94(1) extended also to the case of peripatetic employees who might spend much of their time outside Great Britain but who were nevertheless based here: see Lord Hoffmann’s speech, at [31].

The Bryant case, which Lord Hoffmann held was correctly decided, was a decision of the Employment Appeal Tribunal (Burton J, the President, Miss C. Holroyd and Ms G. Mills), 10 March 2003, Appeal No EAT/174/02/RN, in which the EAT held that section 94(1) of the 1996 Act did not extend extra-territorially to a British national employed locally in Italy to work in the British Embassy in Rome. The employment tribunal’s findings in relation to her employment, as summarised by Burton J in his judgment for the EAT, were that:

Lawson v. Serco Ltd has been applied in subsequent cases, including twice in the Supreme Court, which has clarified its underlying principles. In Duncombe v. Secretary of State for Children Schools and Families (No 2) [2011] UKSC 36; [2011] ICR 1312, the judgment of the court was delivered by Lady Hale (who was also a party to the decisions in Lawson). The appeal related to an unfair dismissal claim brought by a teacher appointed by the Secretary of State at a school in Germany that was one of a group of European schools for children of parents working in European institutions, and the Supreme Court’s judgment dealt with the status of such teachers generally. Lady Hale said it was agreed that the teachers’ employment did not fall within either of Lord Hoffmann’s specific examples in Lawson of people employed by British employers to work outside Great Britain who would be protected by section 94(1) of the 1996 Act from unfair dismissal. The question was whether there were other examples of the principle, of which the case under appeal was one. After summarising the decision in Lawson, Lady Hale continued:

The court upheld the appellant teacher’s claim. Lady Hale explained why as follows:

Duncombe therefore turned on a ‘very special combination of factors’, including in particular that the contracts were governed by English law and that the teachers were employed in ‘international enclaves, having no particular connection with the countries in which they were situated …’, being facts which distinguished the cases from those like Mrs Bryant’s.

The other Supreme Court decision to apply Lawson v. Serco Ltd is Ravat v. Halliburton Manufacturing & Services Ltd [2012] UKSC 1; [2012] 2 All ER 905. The appeal was from the Court of Session and raised the question of whether section 94(1) of the 1996 Act extended to an employee who was a British national, was resident in Great Britain and was employed by a British company but who travelled overseas in order to work for short periods there, usually for 28 days at a time. At the time of his dismissal, he was working in Libya. Was he entitled to claim under the 1996 Act for unfair dismissal?

The judgment of the court was delivered by Lord Hope of Craighead. After referring to Lord Hoffmann’s speech in Lawson, he said it would be difficult to fit Mr Ravat’s case into any of Lord Hoffmann’s examples: he was not a peripatetic employee, he was not working abroad as an expatriate in a political or social British enclave, nor had he been posted abroad to work for a business conducted in Great Britain. Lord Hope cited [9] of Lady Hale’s judgment in Duncombe and explained the careful examination he had made of Lord Hoffmann’s speech in order to identify the statements of general principle that Lord Hoffmann was enunciating. Lord Hope then summarised as follows the principles as to when section 94(1) will apply to a particular case, notwithstanding its foreign elements:

The court’s decision was that the employment tribunal, the primary fact-finder, had arrived at a conclusion that was not, as a whole, open to criticism, namely that s.94(1) must be regarded as applying to the employment, although Lord Hope said it would have been better if the tribunal had asked itself whether the connection with Great Britain was sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim; in that context, he referred to what he had said in [28] (quoted above).

The only other decision in this line of authority to which we were referred was that of this court in Dhunna v. CreditSights Ltd [2014] EWCA Civ 1238; [2015] ICR 105, in which the court allowed an appeal against a decision of the Employment Appeal Tribunal and so re-established the decision of the employment tribunal that the circumstances of the employment in Dubai of an employee of a British subsidiary of an international company based in New York did not show a sufficiently strong connection with Great Britain and British employment law to justify a presumption that Parliament had intended section 94(1) to apply to his employment. The court applied the principles found in Lawson, Duncombe and Ravat. It also referred to the decision of this court in Bates van Winkelhof v. Clyde & Co LLP [2013] ICR 883, at [90], in which Elias LJ (with whom Richards and Lloyd LJJ agreed) noted that Duncombe emphasised the broader principle underlying the concept of jurisdiction and that Lord Hoffmann’s examples in Lawson were just that, namely practical examples. Elias LJ also said that Ravat marked a similar distancing from too rigorous an emphasis on the specific examples given by Lord Hoffmann in favour of the adoption of a broader test. In Dhunna, this court also rejected the employee’s submission that part of the ‘sufficiently strong connection’ inquiry required a comparison between the system of employment legislation in Great Britain and that available in the jurisdiction where the employee was working at the time of his dismissal, with a view to determining which was the better system of law: see [40] of Rimer LJ’s judgment, with which Floyd and Macur LJJ agreed.

Burnett LJ referred to paragraph 15 of the Explanatory Notes to the 2010 Act (the relevant part is cited at [19] above) and to the decisions in Lawson, Duncombe and Ravat. He summarised what Lord Hoffmann had explained in [37] to [40] of his speech in Lawson; cited [9], [16] and [17] of Lady Hale’s judgment in Duncombe and [27] to [29] of Lord Hope’s judgment in Ravat. He then considered whether the circumstances of the claimants’ employment in Afghanistan brought them within another exceptional case entitling them to the benefit of British employment law rights.

As to that, Burnett LJ noted that the claimants’ contracts of employment contained no suggestion that they were subject to English law, nor did they support any suggestion that domestic employment law might apply to them. He said no suggestion had been made that the contracts were governed other than by Afghan law. He noted the claimants’ points that they were exempt from local income tax, that their employer was the British Forces engaged in a counter-insurgency exercise, that they were line managed by British personnel, that they worked alongside British forces, that they were provided for security purposes with clothing making them indistinguishable from soldiers and that, whilst working, they were based in Camp Bastion and the British Embassy in Kabul. He then gave his reasons for rejecting the submission that the claimants’ case was of the exceptional nature sufficient to justify the conclusion that the reach of section 39(2) of the 2010 Act extended to their employment. He said:

Burnett LJ then said that, if the reach of section 39(2) of the Act was the same as that of the 1996 Act, it did not apply to the claimants’ circumstances. He rejected a submission that, because the 2010 Act was concerned with outlawing discrimination, there was a basis for attributing to Parliament an intention that its territorial reach should be wider than that of the provisions relating to unfair dismissal in the 1996 Act. He said that, on the contrary, there was much to be said for jurisdictional symmetry between claims under the 1996 Act and under Part 5 of the 2010 Act, given that claims of both types fall within the jurisdiction of employment tribunals and are often brought together. He said the court had had no argument that the reach of section 39(2) of the latter Act should be narrower but that he was content to proceed on the basis that it was not, albeit with some hesitation, the reasons for which he explained. Their kernel was that:

We were shown a copy of Mr Hottak’s employment contract. The employer is ‘British Forces Afghanistan’. Clause 4 provides that the monthly pay of $600 will ‘Initially … be paid in US Dollars but the Employer reserves the right to pay your monthly salary in the local currency, at the exchange rate directed by the Ministry of Defence. … Initially you will receive pay free of National Taxes. This is subject to change.’ Clause 5 deals with working hours, clause 7 with leave entitlement, clauses 8 and 9 with absence for sickness and clause 10 provides for a 42-day probationary period. Clause 11 provides that, after the probationary period, one month’s notice from either party is required to terminate the employment, save that the employer is entitled to determine it immediately for disciplinary reasons or sub-standard work. Clause 14 requires the employee to submit to security checks. Clause 16 reserves a right to the employer to change the contractual terms at any time. The contract includes a ‘Loyalty Declaration’ by way of a promise of exclusive fidelity to the British forces. The contract includes no choice of law or jurisdiction clause.

Mr Jaffey identified in his written argument for the appellants a number of features of their employment relationship that he said collectively made their case sufficiently exceptional to come within the reach of section 39 of the 2010 Act.

First, British compounds in Afghanistan where the claimants worked were under the full and exclusive control of the UK. They were thus employed within ‘what amounts for practical purposes to an extra-territorial British enclave in a foreign country’ (see Lawson, per Lord Hoffmann, at [39]). Whether or not the Divisional Court was correct to conclude that this provided no analogy with the RAF base on Ascension Island, where Mr Lawson had worked, it did provide an analogy with the UK military base in Germany, where Mr Botham had worked, and he was one of the appellants in Lawson whose appeal was allowed. Mr Jaffey submitted that the point was even stronger in relation to the claimants’ workplaces in Afghanistan, where the UK military bases were subject to strict security perimeters directed at ensuring their physical separation from the local community.

Second, although the Divisional Court had held that the claimants’ connection with Great Britain was limited to the identity of their employer, the UK Government, this overlooked the importance attached to the identity of such employer by Lady Hale in Duncombe, where at [16] she said that:

The importance in the present case of the identity of the employer was said to lie in the fact that, unlike most employees, the UK Government’s staff cannot vindicate their rights in a foreign court, including the Afghan courts, since any claim would automatically fail by reason of the state immunity that the UK Government would be entitled to plead. As compared with Afghan employees of other employers, the claimants would therefore face a serious disadvantage.

Third, various factors relating to the claimants’ employment contracts evinced an intention to link their employment to the UK and to exclude it from Afghan law and ordinary Afghan structures. They were that: (i) the claimants were recruited and line managed by UK military personnel and civil servants; (ii) their contracts were drawn up and signed by British military personnel, with matters relating to the claimants’ employment, dismissal and pay being expressly reserved to UK personnel; (iii) their employment was preceded by UK security screening and an express requirement that the LES promise their ‘undivided allegiance’ and loyalty to the service of the British armed forces (for a citizen of a foreign state in a state of civil war, this was said to be a significant pledge of loyalty and further manifested a close link with the UK); (iv) they were paid by the UK Government and were exempt from Afghan income tax; (v) they were paid in US dollars, but at an exchange rate directed by the British Ministry of Defence (I believe this to be inaccurate: their contractual pay was stated to be US dollars and such direction only applied if they were instead to be paid in local currency); (vi) the defendants’ policy relating to the employment of LES required that they be protected to the same health and safety standards as they would have been had they been working in the UK (see paragraph 60 of the policy); and (vi) all policy and guidance issues regarding their employment were resolved in the UK.

Fourth, Mr Jaffey referred to provisions in other employment related legislation providing expressly that they were to have effect only within the UK (he referred to legislation relating to the national minimum wage, the Working Time Regulations, statutory sick pay and pensions auto-enrolment). His submission was that the contrasting silence in Part 5 of the 2010 Act as to any territorial limitation in its operation was no accident and he invited us to conclude that it was implicitly intended to have a broader territorial reach, so reflecting the importance of a general prohibition of discrimination.

In his oral argument, Mr Jaffey repeated and developed these points save that referred to in the preceding paragraph, as to which he merely again emphasised that the claimants’ case is based on the statutory tort of discrimination. He pointed out that Camp Bastion, where the claimants worked, was territory to which the European Convention for the Protection of Human Rights and Fundamental Freedoms applied; that when the claimants were taking part in military activity outside the secure locations, the defendants’ policy relating to LES required them to wear UK pattern military clothing in order to prevent them from being identified and specifically targeted (see paragraph 61 of the policy). He placed emphasis upon the exemption of the claimants from local taxation, although the employment contract indicated that such exemption might be removed.

Overall, and taking account of all these factors, Mr Jaffey submitted that they added up to an exceptionally close relationship between the Afghan LES and the UK and British labour law that was sufficient to entitle the court to conclude that the reach of Part 5 of the 2010 Act extended to the claimants. He said the Divisional Court was wrong to conclude otherwise.

Mr Jaffey advanced the claimants’ appeal on the Part 5 jurisdiction point with clarity and force but he did not persuade me that the claimants’ case is one that shows a sufficiently strong connection between Great Britain and the claimants’ employment relationship to justify a presumption that Parliament must have intended Part 5 of the 2010 Act to apply to the Afghan LES (see Lord Hope’s summary of the applicable principle in Ravat, at [28]).

First, it is said that, because Part 5 of the 2010 Act is directed at outlawing discrimination and so concerns matters viewed by this jurisdiction as going to the very essence of man’s humanity to man, Part 5 should be regarded as having a wider territorial reach than domestic legislation directed merely at outlawing the unfair dismissal of an employee. I would reject that submission. If the proposition goes to the length of suggesting that Parliament must be assumed to have intended its anti-discrimination provisions in Part 5 of the 2010 Act to operate on a world-wide basis, I regard it as wrong. Had that been Parliament’s intention, it would have said so. If the proposition amounts to no more than a submission that an overseas employee’s complaint of work-related discrimination should and will have an easier territorial passage through the eye of the needle than his complaint of unfair dismissal (a complaint that might also be brought in the same proceedings), it amounts to reading into Parliament’s silence on the question of territoriality a subtly nuanced variance of legislative intention as between the two types of case. There is no warrant for that. Parliament’s silence has made the application of the law quite difficult enough. The most recent word from the Supreme Court on the topic is that it is a matter of ‘fact and degree’ as to whether an overseas employment will have a sufficient connection with Great Britain to entitle the employee to the benefit of section 94(1) of the 1996 Act. To impute to Parliament an intention to engraft on to that test an unidentified qualification to the effect that a more generous standard is to be applied when the relevant inquiry is the availability of the discrimination provisions in Part 5 of the 2010 Act is a course I would regard as artificial, unjustified and unwise. I would decline to do it.

I would, therefore, reject the submission that, because these are discrimination claims, the court should look upon the territoriality problems with greater sympathy than if they were unfair dismissal claims. I would uphold the Divisional Court’s decision on this part of the claimants’ case. In my view, the principles applicable to claims for unfair dismissal by employees engaged abroad, as explained in the authorities I have referred to, provide the relevant guidance. I turn to whether it enables the claimants to overcome the jurisdictional difficulties in which their overseas employment prima facie lands them.

In advancing the claimants’ case to this end, Mr Jaffey emphasised that the claimants’ employer was the UK Government and he pointed to Lady Hale’s observation in Duncombe, at [16], that the employer in that case too

These claimants did of course have a British-based employer. It is, however, clear from the authorities that, by itself, that does not manifest a sufficient connection with Great Britain and British employment law to justify an inference that Parliament intended to extend the reach of section 94(1) of the 1996 Act (or, therefore, of Part 5 of the 2010 Act) to foreigners employed overseas. As Lord Hoffmann said in [37] of Lawson, ‘something more is necessary’ before such an inference may be drawn; and that ‘more’ will not (for example) be provided either by the fact that the employee was recruited in Great Britain or that he/she is British, neither of which applies in this case. Lord Hoffmann accepted, in [38], that it may be provided by the fact that the employee is engaged abroad for the purposes (and thus to act as a representative) of a business carried on in Great Britain. But that is also not this case.

The cases in which section 94(1) (and therefore Part 5) will extend to the employment contract of the foreign based employee are therefore truly exceptional. Lord Hoffmann’s other example in which it may so extend, which he explained in [38], is that of ‘an expatriate employee of a British employer who is operating within what amounts for practical purposes to an extra-territorial enclave in a foreign country.’ Mr Botham was in that class. He was a British subject working at various Ministry of Defence establishments in Germany, where:

The essence of these exceptional types of case is that each concerned a British citizen, recruited in Great Britain by a British employer to work in a British enclave or outpost. In one case, the employee was regarded by the terms of a NATO agreement as resident in the United Kingdom rather than in Germany. In the other, weaker case, whilst there was a local system of law in Ascension Island, there was no indigenous community and so overall the employment had a greater connection with Great Britain than with the place of employment.

Lord Hope pointed out in Ravat, at [29], that the question whether, on given facts, a case falls within (on that case) section 94(1) of the 1996 Act is a question of law, but that it is also a question of degree, and he repeated the latter point at [35]. In his consideration of the expatriate examples to which Lord Hoffmann had referred, he pointed out, at [28], that Lord Hoffmann had referred to these as ‘exceptional cases’ (see Lawson, at [36]). Lord Hope said that this was because, as Lord Hoffmann had said:

The Ravat appeal did not concern a truly expatriate employee and so Mr Ravat’s burden of showing a sufficient connection with Great Britain and British employment law was less onerous than that to which the truly expatriate employee was subject. By contrast, the present appellants were and are subject to the heaviest burden. They are not British citizens: they are Afghan nationals. They lived in Afghanistan. They were recruited in Afghanistan. Their employment contracts were governed by Afghan law. They worked exclusively in Afghanistan and there was no UK, international or peripatetic element to their employment. There was no provision either in their contracts or in any inter-state agreement that they were to be treated as resident in the UK for any purpose. Their contracts provided that, at least initially, their pay was to be exempt from local taxes, the result of a concession by the Afghan government. Their contracts did not provide for their pay to be subject to UK taxation. Their contracts included express statements of undivided loyalty to their employer, but there is nothing materially special about that for present purposes: employees ordinarily owe duties of fidelity to their employers. Whilst they worked at what may be regarded as British enclaves in Afghanistan, they were also part of an indigenous Afghan community, where Afghan law applied; and they could and would return to their Afghan homes when on leave. They were not employed on the same footing as British staff or British Service Personnel and various material differences as to the nature of their employment were explained by Jonathan Iremonger, an Assistant Chief of Staff in a division whose responsibility included the implementation of the Afghan Scheme, in paragraphs 12 to 19 of his witness statement of 20 March 2015. There is no need to detail them, but since Mr Jaffey highlighted the provision to LES whilst operating outside secure locations of UK military pattern clothing, I add that Mr Iremonger points out that this was to stop them being readily identifiable as civilians, that the equipment which they were provided was not identical to that of the soldiers, and that, except when on such patrol, they were required to wear either Afghan civilian clothing or the blue overalls provided as an LES uniform.

As for the point that any claim the LES might bring against the UK Government in local courts would be likely to be met with a plea of state immunity, Mr Swift QC, for the defendants, submitted that this will always be the case for employees engaged abroad locally by the UK Government but that it is not a factor which, without more, can bring their employment contracts within the exceptional type of case to which section 94(1) of the 1996 Act, or Part 5 of the 2010 Act, can be assumed to be intended to apply. He said that the same consideration would also have applied to Mrs Bryant. I agree.

Overall, I consider that the case of these appellants is not materially different from the Bryant case, which Lord Hoffmann held was rightly decided. That is what the Divisional Court concluded and I consider it was correct to do so. As Lord Hope explained, whilst it is a question of law as to whether Part 5 of the 2010 Act does or does not apply to the claimants’ contracts, it is also a question of fact and degree as to whether the connection with Great Britain and British employment law is sufficiently strong to overcome the general rule that the place of employment is decisive. The assessment of this factual inquiry was a matter for the Divisional Court and, unless it can be said that that court materially misdirected itself in carrying it out, I would have doubts as to whether it is open to this court simply to decide the matter afresh. We were not in fact addressed with any arguments to this effect, no doubt because the essence of Mr Jaffey’s submission was that the Divisional Court’s analysis was flawed from beginning to end. I disagree with that submission. I consider that the court’s analysis correctly identified the principles, correctly assessed the relevant facts, was soundly based and arrived at a conclusion that was not only open to it on the evidence, but was one that I consider was correct.

I would uphold the Divisional Court’s decision that the court had no jurisdiction to entertain the claimants’ claim insofar as it sought to invoke the employment-related discrimination provisions in Part 5 of the 2010 Act.

The claimants’ ‘public functions’ based claim

Part 3 of the 2010 Act is headed ‘Services and Public Functions’. Section 29, ‘Provision of Services, etc.’, provides materially:

Section 31, ‘Interpretation and exceptions’, applies for the purposes of Part 3. Section 31(4) provides that ‘A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.’ Section 31(10) provides that ‘Schedule 3 (exceptions) has effect.’ The most relevant of the many exceptions in Schedule 3 is in paragraph 17, which disapplies section 29 in relation to discrimination on the grounds of nationality or ethnic or national origins in the course of the application by a ‘relevant person’ of provisions of the Immigration Acts and Rules.

The claimants’ section 29 case is an alternative to their case under Part 5. If they succeed under Part 5 (which in my view they do not), they do not need Part 3. If they fail under Part 5, they rely in the alternative on Part 3. There are, however, difficulties as to whether Part 3 can lend them any succour. A limitation on their bid to invoke it is introduced by section 28, headed ‘Application of this Part’, ie Part 3. Section 28(2) provides:

As Burnett LJ correctly said in the Divisional Court, section 28 shows that the scheme of the 2010 Act contemplates that a person should not be able to rely upon Part 3 if he can rely upon the other Parts, or would have been able to do so but for an exception found within the applicable Part. He then rejected the claimants’ alternative case under Part 3 for the following reasons:

In his written argument, Mr Jaffey criticised the first sentence of [49] of Burnett LJ’s judgment. It is said that there is no reason in principle why the jurisdictional reaches of Parts 5 and 3 should be identical; and that ‘where a UK public body (such as HM Government) discriminates on the basis of a protected characteristic in the carrying out of a public function, there is strong reason for supposing that Parliament would not permit that.’

It is also said that the conclusion in [49] is inconsistent with the Divisional Court’s analysis of the jurisdictional limits relating to the PSED. The point there is built on Burnett LJ’s conclusion in [60] and [61]:

In his oral argument, Mr Jaffey developed this submission by saying that the Divisional Court had failed to identify the relationship between the PSED and the substantive cause of action under section 29(6). He said that the point of the PSED is to avoid the infringement of section 29(6) in the exercise of a public function. His response to Burnett LJ’s point in [49] based on the exceptions to Part 5 contained in Schedule 9 was that, whilst the existence of different exceptions in relation to Parts 3 and 5 respectively was a fact, it was not one that provided an answer.

Mr Swift’s responsive written argument for the defendants was to the effect that the Divisional Court’s conclusion on the territorial range of the section 149 duty (in Part II of the 2010 Act) provides no assistance to the claimants’ case on the territorial range of Part 3. I shall come later to the PSED issue more fully, but the essence of Mr Swift’s point is that the Divisional Court gave full reasons for concluding that, in contrast to the territorial limitations that it had found applied to the reach of Parts 3 and 5 of the Act, there were no like territorial limitations in relation to the discharge by the defendants of the procedural duties imposed upon them by section 149(1)(b) and (c), a conclusion informed by the fact that section 150(3) provides that ‘A public authority in Schedule 19 is subject to the duty imposed by section 149(1) in relation to the exercise of all of its functions unless subsection (4) applies’ (my emphasis). There is no cross-appeal against the Divisional Court’s conclusion in that respect but Mr Swift submits that there is anyway no internal inconsistency in the court’s interpretation of the respective territorial limits of Parts 3 and 5 on the one hand (which create substantive causes of action) and of section 149 on the other (which creates only a procedural ‘due regard’ duty).

Mr Swift also submitted that to interpret section 29(6) as giving a cause of action in discrimination to individuals in foreign states in respect of the full range of public functions that might have impacts abroad would be surprising. Direct discrimination is ordinarily incapable of being justified. It would, he said, be extraordinary if the exercise of public functions abroad could give rise to discrimination claims: for example, the grant of foreign aid to one state rather than another, or the imposition of sanctions on the leaders of one state rather than another. He also said that it was anyway not open to the claimants to complain under section 29(6) about alleged nationality discrimination with regard to their right to enter the UK (which was the primary aspect of the Afghan Scheme they were complaining about) since a complaint under that head is excluded by paragraph 17 of Schedule 3, a point to which Burnett LJ referred to in [46] of his judgment. I understood Mr Jaffey to accept this last point, but his riposte was that it did not exclude the claimants’ complaints about other allegedly discriminatory aspects of the Afghan Scheme, for example its financial and training provisions.

In his oral argument, Mr Swift submitted that the essence of the complaints advanced by the claimants relates to their circumstances as employees, that is to say a case within Part 5. If the claimants are unable to establish a sufficiently close connection with Great Britain and British labour law to entitle them to invoke Part 5, they cannot have an alternative basis of claim under Part 3. There must be a territorial limit to the operation of Part 3, and Mr Swift submitted that the measure of its scope is confined to the exercise of public functions in Great Britain. He said there is nothing in section 29(6) that warrants it having a wider territorial operation. He also developed his point as to why the Divisional Court’s conclusion in relation to the territorial limits of the PSED under section 149(1)(b) and (c) did not undermine its narrower conclusion as to the reach of section 29(6). The former duty goes only to the decision making process, it does not go to substantive outcomes and it says nothing about the geographic reach of Part 3.

Mr Jaffey’s submission that the Divisional Court’s conclusion in relation to the territorial reach of the PSED under section 149(1)(b) and (c) meant that its different conclusion as to the territorial reach of Part 3 of the 2010 Act was wrong is, in my view, fallacious. Burnett LJ knew what he was deciding, and why he was deciding what he did, and gave rational reasons for his conclusions. His conclusion as to the reach of section 149(1)(b) and (c) is not the subject of a cross-appeal and so this court must proceed on the basis that it was correct. It does not, however, follow that his different conclusion in relation to the reach of Part 3 was incorrect.

Not only does it not follow, in my view his conclusion in relation to the reach of Part 3 was correct. Section 28 provides that Part 3 of the 2010 Act does not apply to discrimination that is prohibited by Part 5. That means that a work-related discrimination claim can be brought only under Part 5 and not under Part 3. If (as I would hold) the claimants are not entitled to invoke Part 5 in pursuit of their work-related discrimination claim (because Parliament did not intend Part 5 to extend to their employment in Afghanistan) then, in agreement with the Divisional Court, I would regard it as surprising if Parliament must nevertheless have imputed to it an intention that the claimants can instead invoke the provisions of Part 3. Quite apart from the point that Burnett LJ made in [49] as to many of the schedule 9 exceptions (relating to Part 5) having no counterpart in the schedule 3 exceptions (relating to Part 3), my intuitive sense as to Parliament’s presumed intention is that (a) if a work-related discrimination claim can be brought, it can only be brought under Part 5; and (b) if, for jurisdictional reasons, a work-related discrimination claim cannot be brought under Part 5, it cannot be brought at all. But if that is to put the matter too broadly, I would anyway accept Mr Swift’s submission that section 29(6) should not be interpreted as extending to claims other than in respect of the exercise of public functions in Great Britain. I would not accept that there is any warrant for imputing to Parliament an intention to extend it to claims based on the extra-territorial effect of exercise of public functions.

I would therefore uphold the Divisional Court’s decision in relation to the claim based on section 29(6) of the 2010 Act.

Is the claimants’ direct, alternatively indirect, discrimination claim under the 2010 Act established?

In light of my conclusions that the English court has no jurisdiction to entertain the claimants’ discrimination claims under the 2010 Act, it is strictly unnecessary to say anything about this. There is little value in considering claims that the court has no jurisdiction to hear. The substantive basis of the claims was, however, argued both below and before us and the Divisional Court dealt with it. I shall therefore consider it too.

The direct discrimination claim is based on the complaint that, insofar as the Afghan Scheme treated Afghan LES less favourably than the Iraq Scheme treated Iraqi LES (particular reliance being placed on the different relocation provisions), it amounted to unlawful discrimination against Afghan LES because of their nationality as Afghans. In Regina (European Roma Rights Centre and others) v. Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55; [2005] 2 AC 1, at [73], Lady Hale provided a succinct summary of the required ingredients of (inter alia) a direct race discrimination claim:

As for point (i), the hypothetical comparator for the purposes of the present claim is an Iraqi LES, although presumably not an Iraqi national who was resident in Afghanistan and engaged there by Her Majesty’s Government as an LES for the purposes of the Afghan conflict. That is because such a comparator would (so it seems to me) have been entitled only to the benefits of the Afghan Scheme (as modified, if necessary, so as to give him like rights as were given to Afghan LES). Thus, for the claimants to invoke his aid as a comparator would undermine their nationality-based case. Their preferred hypothetical comparator would, therefore, presumably be an Iraqi LES entitled to the benefit of the Iraq Scheme, their case being that the defendants’ failure to give Afghan LES a scheme as favourable as the Iraq Scheme was because of their Afghan nationality. All that said, the need to identify a comparator is not an essential part of the relevant inquiry as to whether there has been direct discrimination. In Coll v. Secretary of State for Justice [2015] EWCA Civ 328, Elias LJ, at [24], (in a judgment with which Sharp LJ and Lord Dyson, Master of the Rolls, agreed) explained the doubtful value of endeavouring to identify a comparator and concluded by saying:

If, for the purposes of section 23 of the 2010 Act, there were no material differences between the local conditions and circumstances in Iraq and Afghanistan in which the two schemes came respectively to be formulated, there might be much to be said for the view that there was at least a presumption of less favourable treatment of the Afghan LES because of their nationality. The case is, however, more difficult than that because the defendants’ evidence went to considerable lengths to explain how the Iraq and Afghan Schemes came respectively to be formulated and why the local conditions and circumstances in which the Afghan Scheme came into being differed materially from those in which the earlier Iraq Scheme did. The evidence was that of Patrick Lamb, who spoke as to Iraq, and Dr Liane Saunders, who spoke as to Afghanistan. In this context it is relevant to refer back to [9] above for Burnett LJ’s description of the Afghan and Iraq Schemes, but he then again briefly summarised as follows the essence of the differences relating to the genesis of the two Schemes when explaining his view that it followed that the Afghan Scheme was not unlawfully discriminatory:

The essence of that was, therefore, that the relevant local circumstances relating to the engagement of LES in Iraq and Afghanistan respectively were materially different; and that the reason for the differences in the Afghan Scheme as compared with the Iraq Scheme was because the different conditions in Afghanistan satisfied the architects of its Scheme that it was appropriate to formulate the different scheme for Afghan LES that they did.

The central difference between counsel as to whether the differing local conditions and circumstances in the two countries provided an answer to the discrimination charge was this. Mr Jaffey submitted that these differences went merely to the motive for the less favourable treatment of the Afghan LES, not to the ground for such treatment, whereas it is only the ground that is relevant, not the motive, and here nationality is an express part of the Afghan Scheme. By contrast, Mr Swift submitted that the different local conditions and circumstances in each country were not the motive for the different Afghan Scheme but instead represented the facts that operated on the mind of those formulating the scheme. They were the facts that caused the less favourable treatment of Afghan LES. Quite apart from that, he said that anyway the relevant Iraq/Afghan local circumstances were materially different so that section 23 showed that a comparison between the treatment of Afghan LES as compared with Iraqi LES was an invalid one.

This distinction (as between motive for the less favourable treatment and the ground for it) underlying the primary part of the rival arguments is well recognised and an exposition of it is contained Lady Hale’s judgment in Regina (E) v. The Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15; [2010] 2 AC 728, at [55] to [66]. Having just reviewed the authorities, Lady Hale there explains that whilst the alleged discriminator’s motive for acting as he did is irrelevant, the reason that caused him to act as he did is highly relevant; and it is the answer to that latter ‘reason why’ question that is essential for the purpose of deciding whether the less favourable treatment complained of was because of, or on the ground of, a protected characteristic.

In my view, the most lucid and helpful explanation of the relevant distinction is to be found in the speech of Lord Nicholls of Birkenhead (to which Lady Hale referred) in Nagarajan v. London Regional Transport [2000] 1 AC 501, at 510, 511. Transposing Lord Nicholls’s observations on the Race Relations Act 1976 to section 13 of the 2010 Act, he explained that in order for it to be within section 13 the less favourable treatment must be on racial grounds (which in this case includes grounds of nationality). He continued:

In this case, I interpret the Divisional Court as having concluded in [56] (without in terms so expressing it) that the answer to the crucial question as to why the Afghan LES were (in certain respects) treated less favourably than the Iraqi LES by the promulgation of the different Afghan Scheme is that, as compared with the conditions earlier experienced in Iraq, the different conditions prevailing in Afghanistan either required, or justified, such a different scheme. It was of course a scheme that applied to Afghan LES but the reason why its provisions were in some (but not all) respects less favourable than those of the Iraq Scheme was not because of the nationality of its beneficiaries. It was because of the different conditions relating to the theatre of war in which they were engaged. In addition (although it really comes to the same point) the comparison with Iraq was unhelpful because there were anyway material differences for section 23 purposes between the circumstances there and in Afghanistan.

Another way in which the like conclusion as to the ground for the alleged discrimination might be rationalised would be to ask whether ‘but for’ the Afghan LES’s nationality, they would have been given a scheme comparable to the Iraq Scheme. As Lady Hale noted in JFS, at [59], the ‘but for’ test was endorsed by the House of Lords in James v. Eastleigh Borough Council [1990] 2 AC 751 (see at 765D, per Lord Bridge of Harwich). The answer to that question would, I consider, be firmly in the negative. That is because the Iraq Scheme had been fashioned in light of the different conditions prevailing in Iraq and was exclusively for those LES serving in Iraq. It was not available to LES serving in Afghanistan in the different conditions prevailing there. This way of approaching the case appears to me to underline that, for section 23 purposes, Iraqi LES are simply not relevant comparators.

In my judgment, Burnett LJ’s conclusions on this part of the inquiry were correct. I respectfully agree with them. There was here no direct discrimination because of nationality. I would reject the claimants’ contrary arguments.

As regards the claimants’ alternative case based on alleged indirect discrimination, this appears to have been something of a late afterthought on the part of the claimants and I admit to having failed to understand its basis. If a case of indirect discrimination is to be made out, a claimant must identify the provision, criterion or practice (‘PCP’) relied upon for the purposes of section 19(1) of the 2010 Act. To that end, the appellants’ skeleton argument does no better than to say that ‘the difference in the [Iraq and Afghan] schemes is indirectly discriminatory because it amounts to a [PCP] that puts Afghans at a particular disadvantage compared to others who do not share their nationality.’ That, however, is simply another way of asserting that the Afghan Scheme is directly discriminatory because it is less favourable than the Iraq Scheme. The difference between the two schemes cannot be a PCP for section 19 purposes. The oral argument was, so far as I was concerned, no more enlightening. Mr Swift, in addition to questioning the identification of the PCP, submitted that any indirect discrimination was objectively justified by reason of the different relevant circumstances prevailing in Iraq and Afghanistan respectively.

The Divisional Court did not deal separately with the indirect discrimination claim, and I shall say no more about it than that, even if the court did have jurisdiction to entertain it, I was not persuaded that it has any substance.

The common law claim

This claim is said to be based on the common law prohibition of discrimination. I understand it in fact to be based on the proposition that like cases should be treated alike and, in the present context, it amounts to the assertion that it was irrationally wrong for those promulgating the Afghan Scheme to include in it the less favourable treatment for Afghan LES than did the Iraq Scheme for Iraqi LES.

The Divisional Court dismissed this line of attack summarily. Burnett LJ said:

The court therefore rejected the common law claim. I consider it was right to do so for the reasons it gave. I would uphold its decision.

The public sector equality duty [PSED] claim

Section 149 of the 2010 Act, ‘Public sector equality duty’, and section 150, ‘Public authorities and public functions,’ provide materially:

Burnett LJ explained that no PSED assessment was made for the purposes of the Afghan Scheme before it was formulated. The claimants’ assertion was that it followed that the Scheme should be quashed.

In dealing with this claim, Burnett LJ explained, in [58], that, if he was right in holding that neither section 39(2) nor section 29(6) of the 2010 Act was in play (as I would hold he was), section 149(1)(a) had no relevance. Nor could section 149(1)(b) have any application to the immigration aspects of the Afghan Scheme and he recorded Mr Jaffey’s acceptance of his conclusion in that respect. He then explained that the claimants nevertheless asserted that both section 149(1)(b) and (c) applied in relation to the Afghan Scheme, albeit that the former applied only to its financial aspects. After referring to section 150(3) and (4), he continued:

Having found, however, that no assessment was made for the purposes of section 149(1)(b) and (c) before the Afghan Scheme was formulated and announced, the Divisional Court simply made a declaration:

There is no cross-appeal by the defendants against the Divisional Court’s order in this respect, nor any appeal by the claimants against the court’s holding either as to the inapplicability of section 149(1)(a) or as to the limited application of section 149(1)(b). The claimants do of course challenge the court’s order but only on the basis that they say that the court was wrong to grant merely declaratory relief as to the breach of the relevant PSED and should instead have quashed the Afghan Scheme.

The defendants’ response to the institution of the present proceedings was to institute an equality analysis. That assessment was a material factor in the Divisional Court’s decision to refuse substantive relief and grant merely declaratory relief. Burnett LJ explained his approach as follows:

In support of the claimants’ appeal against the granting of merely declaratory relief, Mr Jaffey’s argument was to the following effect. He said the ordinary judicial response to a finding of a breach of the PSED is, or should be, a quashing order, and he referred to this court’s decision in Bracking and others v. Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60. In that case the Secretary of State (by the Minister of State in the department) had failed to discharge the PSED when making a decision to close ‘The Independent Living Fund’, which provided assistance to disabled people enabling them to live their lives with an enhanced degree of independence. McCombe LJ said that:

That decision reflected, as Mr Jaffey submitted, that the PSED is not a matter of ‘mere form or box ticking’. It must be performed with ‘vigour and an open mind’ (see Hammett v. Essex County Council [2014] EWHC 246 (Admin), per Singh J, at [45]). That is because the whole point of the PSED is that proper compliance with it has the potential to alter the substantive outcome.

As for Burnett LJ’s reasons in [62] for refusing substantive relief, Mr Jaffey said the first reason was groundless, as nothing in a quashing order need prevent the Afghan Scheme’s continued operation on an interim basis pending the performance of the PSED. The second reason was inadequate. The defendants’ ex post facto analysis was in March 2015, thus post-dating the policies making up the Afghan Scheme by several years. This court in Regina (Elias) v. Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213 made it clear, however, that public bodies to whom the PSED applies are required ‘to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them’ (see [274], per Arden LJ), and not merely (like the March 2015 assessment) what amounts to a rearguard action following a concluded decision (see Bracking, supra, per McCombe LJ, at [26], referring in turn to Kaur & Shah v. LB Ealing [2008] EWHC 2062 Admin, at [23], [24], per Moses LJ sitting as a judge of the Administrative Court).

Mr Jaffey placed his main reliance on this court’s decision in Regina (C (A Minor)) v. Secretary of State for Justice [2008] EWCA Civ 882; [2009] QB 657. That was a case in which the Secure Training Centre (Amendment) Rules 2007 included in rule 2 an amendment to rule 38(1) of the Secure Training Centre Rules 1998. The 2007 Rules were laid before Parliament and debated in the House of Lords, which did not resolve to annul them, and so they took effect by virtue of the negative resolution procedure. The claimant, a trainee at a secure training centre, sought their quashing by way of judicial review on the grounds that the Secretary of State had unreasonably failed both to consult the Children’s Commissioner for England and to carry out a race equality assessment (‘REIA’), which was required by section 71(1) of the Race Relations Act 1976, before laying them before Parliament. This court allowed an appeal against the Divisional Court’s refusal to quash the 2007 Rules despite those two failures.

Buxton LJ, in opening his discussion on ‘The relevant law on relief’, said:

Re C was, like the present case, one in which an REIA was only produced after the relevant decision (or rather, in that case, the making of the change in the Rules), and I shall come to what the court said about that. First, however, and as to the general importance of due compliance with duties such as the PSED, Buxton LJ said:

Buxton LJ then turned to whether the Court of Appeal should quash the Regulations. He opened his discussion by saying that:

In coming to his decision, which was that the Regulations should be quashed, Buxton LJ referred to the production of the REIA four days before the hearing before the Court of Appeal and, after referring to further submissions, said this:

Tuckey LJ agreed with Buxton LJ’s judgment. Keene LJ added a firm endorsement of what Buxton LJ had said in [41] (quoted above). He also said he would have been more hesitant about the exercise by this court of its quashing power, given what had happened since the Divisional Court decision, but for his consideration of two particular matters, namely those arising under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, being considerations special to the case.

I must refer to the BAPIO decision. It concerned a judicial review challenge to a change in the Immigration Rules that had not, as it should have, been preceded by the making by the Home Office of an REIA. An REIA was, however, subsequently produced – and it is important to note that it was produced before the hearing before the Administrative Court. One ground of challenge to the validity of the change in the Rules was based on this failure, and it was held in the Administrative Court to be established. But Stanley Burnton J then said (see The Queen o/a BAPIO Action Limited and another v. Secretary of State for the Home Department and another [2007] EWHC 199 (Admin)):

Mr Jaffey noted that in this case too, as in BAPIO, the belated PSED assessment was produced before the Divisional Court considered the claim, but he said this still did not justify that court in dealing with the matter in the way it had. He said that this could only be appropriate in a case in which the court is satisfied that a fresh decision would inevitably be the same, whereas he said it was far from clear that a fresh PSED assessment would come to the same conclusion. He said that, in the rapidly changing security environment in Afghanistan, a fresh analysis with all options on the table may yield new information and conclusions regarding the situation of former Afghan LES and how that compares with the situation of former Iraqi LES. This could in turn lead to a different substantive outcome. He also said that there is a wider public interest in ensuring that Government decisions are made, and seen to be made, in a lawful and procedurally fair manner.

Mr Swift responded that whilst the making of a quashing order in consequence of a non-compliance with the PSED may well be appropriate, the court still retains a discretion as to whether to make such an order, whereas the thrust of Mr Jaffey’s case was to emasculate that discretion. The critical feature of the present case is not only that a PSED assessment was carried out before the hearing in the Divisional Court (compare BAPIO), its consequence was that changes were then made to the Afghan Scheme to reflect the outcome of the assessment. The assessment that was done in fact went further than the Divisional Court later held it needed to go, in that it considered the matters raised in all three paragraphs of section 149(1). Dr Liane Saunders put the assessment in evidence and explained that Ministers had considered it and had concluded as a result that: (a) neither the Ex Gratia Scheme nor the Intimidation Policy directly discriminated on the ground of any protected characteristic; (b) nine areas of potential negative impact had been identified, which were all considered to be justifiable; (c) the definition of ‘family’ in the Scheme and Policy referred to in (a) above would be amended to include same sex civil partnerships, which was consistent with the UK Immigration Rules, which already applied with relocating Afghan LES to the UK; and (d) a stand-alone definition of ‘dependant’ would be included in the Scheme and Policy aforesaid in line with the Immigration Rules. Dr Saunders added that officials in the department were unaware of any Afghan LES who are affected by these proposals.

This is, said Mr Swift, therefore a case in which, by the time it came before the Divisional Court the relevant work had been done, and the Divisional Court was in consequence satisfied that there was no need to quash the Afghan Scheme. In addition, as the Divisional Court also noted, the real focus of the claimants’ complaints had always been on the relocation aspects of the Scheme, in respect of which it was accepted that section 149 could have no application. This was a case in which the Divisional Court concluded, as it was entitled to, that no practical purpose would be achieved by requiring a fresh analysis and that a declaratory order was sufficient.

I would not in any way depart from the clear and firm judicial statements to which I have referred that underline the importance of the PSED. I respectfully agree with the observation in Bracking that, in a case where the PSED has not been performed, that will ordinarily result in the quashing of the resultant decision. That said, the making of a quashing order is still not an automatic judicial response. The appropriate remedy in a successful judicial review application is a matter of discretion, to be exercised in all the relevant circumstances. Buxton LJ expressly recognised this in Re C, at [41], where he also recognised that it may be more important to correct unlawful legislation by an appropriate form of order (which was in point in that case) than ‘to correct a single decision, that affects only a limited range of people’ (which is perhaps closer to the present case). BAPIO is a decision where, despite the failure to precede the rule changes by an REIA, Stanley Burnton J declined to grant a quashing order, an REIA having subsequently been carried out, and before the hearing in the Administrative Court. That was, therefore, a case which was perhaps closer in nature to the issue in Re C, although the analogy cannot be pressed too far since Stanley Burnton J correctly recognised that the Immigration Rules are not strictly in the nature of delegated legislation and he explained their somewhat special nature (see [2007] EWHC 199 (Admin), at [38]). In the Court of Appeal, Sedley LJ also referred to their unique constitutional nature (see [2007] EWCA Civ 1139, at paragraph 28). BAPIO is, however, an important case for present purposes, since it is one in which the court concluded that, whilst the ‘after the event’ production of a proper REIA did not undo the prior procedural wrong, it could, and in that case did, provide a proper basis upon which the court could conclude that the remedy on the judicial review application should be limited to a declaration.

In the present case, the Divisional Court refused a quashing order for essentially two reasons. First, that such an order would have an adverse impact on those who might wish to take, or were currently taking, advantage of what the Afghan Scheme offered. But, ‘furthermore’, because given the assessment since carried out in performance of the PSED (one that in fact went beyond the limits of the section 149(1) obligations), a quashing order was not necessary; and a mandatory order requiring a fresh assessment limited to the narrower range of section 149 obligations that should have been carried out ‘would serve no practical purpose’.

I am not convinced that the first reason was a sound one and, had that been the only ground for refusing a mandatory order, I might well have had doubts as to whether the refusal was justified. But I interpret the second reason as a freestanding additional one for the refusal of relief, and in my view it reflected a proper, rational and correct ground for doing so. Whilst Burnett LJ did not spell it out in terms, it is implicit that he was satisfied that the assessment was a proper one and we were told that Mr Jaffey accepted at the hearing that its making had been approached with an open mind. Not only was the assessment carried out, it also resulted in changes to the Afghan Scheme. It is obvious from the way in which Burnett LJ dealt with this matter that he was satisfied that, the further assessment having been carried out and resulting in the changes it did, no practical purpose was to be served by quashing the Afghan Scheme and requiring the PSED to be re-performed.

In my judgment, the Divisional Court’s decision to do no more than grant declaratory relief was an exercise of the court’s discretion that cannot be faulted. I would dismiss the claimants’ appeal against the refusal to make a quashing order.

I would dismiss the appeal.

I agree.

I also agree.