The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Held: A declaration was granted: ‘The provision of Approved Premises in England and Wales by the Secretary of State pursuant to section 2 of the Offender Management Act 2007 constitutes direct discrimination against women contrary to section 13(1) of the Equality Act 2010 which is unlawful unless justified under paragraph 26 of Schedule 3 to the 2010 Act. No such justification has yet been shown by the Secretary of State.’
The Court acknowledged the capacity of separate but equal treatment to be discriminatory and that paragraph 26 of Schedule 3 proceeds on the basis that, subject to the exception there specified, such treatment is unlawful discrimination. Baroness Hale, with whom all the other Justices agreed, said as follows: ‘This brings us, therefore, to paragraph 26 of Schedule 3 to the 2010 Act . . The history of the United States of America and of the Republic of South Africa, to take the two most obvious examples, has taught us to treat with great suspicion the claim that, if the races are segregated, ‘separate but equal’ facilities can be provided for both, quite apart from the affront to dignity in the assumption that the races have to be kept separate. There have been periods in our own history where segregation of the sexes has led to separate facilities which were very far from equal. Paragraph 26 recognises that there may be good reasons for providing separate facilities for men and women. . . [Paragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimination. The question, therefore, is whether in this case the discriminatory effect of providing only single sex establishments can be justified.
[Counsel for the claimant] characterises paragraph 26(1) as providing for ‘separate but equal’ facilities for men and women. This permits the provision of separate services for persons of each sex, provided that a joint service for both sexes would be ‘less effective’ and the ‘limited provision is a proportionate means of achieving a legitimate aim’. She characterises paragraph 26(2) as referring to ‘separate and different’ services. It permits providing separate services differently for persons of each sex, provided that a joint service for both services would be ‘less effective’, that ‘the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex’, and that the ‘limited provision’ is a ‘proportionate means of achieving a legitimate aim’. She argues that ‘limited’ must here mean ‘limited by sex’. I agree, because there is nothing else that ‘the limited’ can be referring back to, other than providing separate services for each sex, whether equally or differently.’
Judges:
Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hodge, Lord Toulson
Citations:
[2017] UKSC 40, [2017] WLR(D) 375, [2017] 1 WLR 2093, [2017] 1 WLR 2093, 43 BHRC 65, UKSC 2015/0148
Links:
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170221am Video, SC 20170221pm Video
Statutes:
Jurisdiction:
England and Wales
Citing:
At First Instance – Griffiths v Secretary of State for Justice Admn 19-Dec-2013
The claimants challenge what is said to be the continuing failure of the Secretary of State for Justice (‘the Secretary of State’) to make adequate provision for so called approved premises to accommodate women released from prison on licence. The . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Coll v Secretary of State for Justice CA 31-Mar-2015
The appellant was serving a mandatory life sentence for murder. She was being considered for release from custody to ‘Approved Premises’. There were however more such centres for men and the provision for women was unplanned. The results, she said . .
Cited – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited by:
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Prisons, Discrimination
Updated: 08 August 2022; Ref: scu.584229