The UK Supreme Court takes a positive approach to positive action: R (Z) v Hackney LBC and Agudas Israel Housing Association Ltd (AIHA) [2020] UKSC 40

External view of the Supreme Court in London

Dr Michael Connolly offers a commentary on a UK Supreme Court judgment clarifying the scope of permissible positive action under domestic equality law.

In the case of R (Z) v Hackney LBC and Agudas Israel Housing Association Ltd (AIHA) [2020] UKSC 40 the Supreme Court ruled for the first time on the positive action provisions of the Equality Act 2010. It found that the positive action in giving priority to the housing needs of Haredi Orthodox Jews was lawful under s. 158. This post offers a summary and commentary on selective aspects of this significant judgment.

The Facts

Agudas Israel Housing Association Ltd (AIHA), a housing charity dedicated to help practising Orthodox Jews, supplied houses to the local authority on the basis that priority will be given to practising (Haredi) Orthodox Jews, unless there was a surplus, in which case non-Orthodox Jews could be housed. In reality, there was never a surplus as Haredi demand outstripped supply.

This was challenged as directly discriminatory by Z, a mother of four children who was on Hackney Council’s priority list, but was not awarded a suitable (4 bed) house, it being allocated to a Haredi family. The policy meant that non-Haredi families would have to wait longer for suitable accommodation and Z challenged the policy as directly discriminating on grounds of religion and race under the Equality Act 2010, s. 13. (The Equality Act is applicable as s. 29 covers service providers and persons exercising public functions, which included the supplies of housing in this case.) The defence was that the policy amounted to lawful positive action under s. 158 (and s. 193, permitting charities to provide benefits for protected groups).

The Supreme Court’s findings

The Supreme Court rejected the claim. Writing the judgment for a unanimous Court, Lord Sales found that the allocation arrangement fell within s. 158, providing for positive action in cases other than employment (s. 159) and election candidates (s. 104). 

Section 158(1) provides three triggers and corresponding aims that may be pursued. If a person ‘reasonably thinks’ that either: 

(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic (‘disadvantaged’),

(b) persons who share a protected characteristic have needs that are different from

the needs of persons who do not share it (‘different needs’), or

(c) participation in an activity by persons who share a protected characteristic is disproportionately low (‘underrepresented’).

Correspondingly, s. 158(2) permits action which is a proportionate means of achieving the aim of:

(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,

(b) meeting those needs, or

(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.

In this case, two triggers were met: ‘disadvantage’ and ‘different needs’. The Supreme Court endorsed these findings of the High Court at first instance:

(i) The disadvantages faced by Orthodox Jews are real and substantial;

(ii) Those disadvantages are ‘connected with’ the religion of Orthodox Judaism;

(iii) The needs of members of the Orthodox Jewish community are different from those who are not members of it.

The following findings of fact were identified, among others, as Disadvantages or Needs ([35]):   

The Disadvantages

  • The Orthodox Jewish community is subjected to anti-Semitism, including racially aggravated harassment and assaults, criminal damage to property and verbal abuse. 
  • The Orthodox Jewish community face prejudice when trying to rent properties in the private sector, on account of their appearance, language and religion.

The Needs:

  • The Orthodox Jewish community has a particular need for larger properties because of their large family sizes.
  • Orthodox Judaism is not a lifestyle but a way of life, and that living as a community is a central part of this.
  • The community had a need to live together in relatively close proximity ‘with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic abuse and crime’ and benefit from the protection offered by volunteer security patrols.
  • The Orthodox Jewish community has a particular need to live close to community facilities, such as schools, synagogues and suitable shops.

Proportionality

With the triggers satisfied, the main issue was the proportionality of the actions taken under s. 158(2). 

Three arguments were advanced by the claimant. First, cases under the Equality Act 2010 should follow the European Court of Justice (ECJ) case law and its strict application of proportionality. Second, that a ‘bright line’ approach was inappropriate. Third, that the disadvantages should be compared with that of the claimant, rather than on a group basis.

(i) The relevance of ECJ case law

The first argument centred on the actual test to be applied. The claimant relied on the ECJ case law , this forming the basis of the present provisions, even though the ECJ cases were confined to sex discrimination within employment (thus more immediately relevant to s. 159). The claimant argued that ECJ employment cases had ruled against any automatic selection of persons from the protected group (Case C-407/98 Abrahamsson, EU:C:2000:367). In effect, that is what happened in these housing decisions, as demand by Haredi Jews outstripped supply (a waiting list of 700 against 470 homes). Thus, every available house went to a Haredi Jewish family. The Supreme Court preferred a more conventional objective justification test, identifying a legitimate aim and testing the scheme for proportionality. More generally, this is a division between equality of opportunity (generally acceptable) and equality of results. Equality of results is controversial as it invokes notions of hiring lesser qualified candidates to achieve a quota. The ECJ case law was based on the now-repealed Equal Treatment Directive 76/207, which permitted positive action to achieve ‘equality of opportunity’ (art. 2(4)). Its replacement, the Recast Directive 2006/54, now requires ‘equality in practice’ (art 3).

The Supreme Court was unimpressed by such a debate and took a different perspective, with Lord Sales holding that this approach ‘tells one nothing of any significance about the proper approach’ to s. 158. Instead, the question was whether the measures were ‘ameliorating the position of members of the Orthodox Jewish community.’ Hence, the aims of the policy relate to improving outcomes for that community, not merely equality of opportunity of the more limited kind discussed in the cases on the Equal Treatment Directive’ ([65]-[66]).

(ii) Blanket effect and ‘bright line’ rules

Given this, Lord Sales rejected the claimant’s second argument that the policy should be struck down because of its blanket effect. This argument related to another principle of the ECJ case law, that any positive action plan should be accompanied by a ‘savings clause’. This allows for the appointment or favouring of a man in exceptional circumstances. In this case, the only exception which would permit allocation to non-Jews would be the event the association had a surplus. And even this is a matter of form over substance; the excessive demand by Haredi Jews meant that this was unlikely ever to happen. The argument was again rejected by Lord Sales,

‘Unless and until the aim of elimination of such disadvantages is achieved, it would be proportionate for AIHA to operate a simple ‘blanket policy’ to allocate its properties to members of the Orthodox Jewish community as a means of promoting that legitimate aim.’ ([77]).

The endorsement of this blanket effect was underlined by a deferment to a ‘bright line’ approach. Lord Sales cited two reasons to favour this bright line approach. The first is a ‘purely practical one’ and the second is legal certainty. Lord Sales ([85]) cited in support a case concerning the withholding of student loans to anyone falling under the broad category of ‘immigrant status’. On the practical reason, it was said, 

‘...the circumstances in which people may have a claim on the resources of the state are too varied to be accommodated by a set of rules. There is, therefore, no realistic half-way house between selecting on the basis of general rules and categories, and doing so on the basis of a case-by-case discretion.’

And on legal certainty,

‘The advantages of a clear rule ...are significant. It can be applied accurately and consistently, and without the element of arbitrariness inherent in the discretionary decision of individual cases. By simplifying administration it enables speedy decisions to be made and a larger proportion of the available resources to be applied to supporting students.’

(R (Tigere) v Secretary of State for BIS [2015] UKSC 57 [88]-[91] joint dissenting judgment of Lord Sumption and Lord Reed).

(iii) Individual or group assessment?

This logic would destroy also the claimant’s third argument, that her particular situation should be taken into account. But Lord Sales could point to another reason to reject it. Citing the Equality and Human Rights Commission Code of Practice (para. 10.22), he stated, ‘Parliament contemplated that the proportionality of measures falling within s. 158... should be assessed on a group basis, by comparing the advantages for groups covered by the measure in question with the disadvantages for groups falling outside it’. Otherwise, the ‘proportionality assessment would be distorted’ by comparing the worst affected non-Haredi individual with the least affected Haredi individual ([80]-[82]).

The Race Discrimination Claim

The claimant also argued that the priority allocation policy was directly discriminatory on racial grounds. She cited R(E) vGoverning Body of JFS [2010] AC 728, where, it may be recalled, the Supreme Court held that the Jewish Free School’s (hereinafter ‘JFS’) policy of favouring Orthodox Jews in admissions amounted to unlawful direct racial discrimination. However, Lord Sales distinguished JFS because the school’s policy included those of Jewish descent no matter what their religious practice ([89]-[94]). It could favour, for example, an applicant who was a practising Roman Catholic, or indeed, an atheist. The housing association’s policy favoured only those practising Haredi Jews, hence it was restricted to differences of religion only.

This judgment signals that the courts will entertain far-reaching positive action programmes, at least under s. 158. The acceptance of the policy that seeks equality of outcomes, as opposed to equality of opportunity, makes this a radical judgment.

Dr Michael Connolly, Reader in Law at Portsmouth Law School, University of Portsmouth

Comment

This judgment signals that the courts will entertain far-reaching positive action programmes, at least under s. 158. The acceptance of the policy that seeks equality of outcomes, as opposed to equality of opportunity, makes this a radical judgment. Recruitment on the basis of equality of outcomes invokes notions of a quota-based system.

Not only does it go beyond the employment cases of the ECJ, it departs from the long-standing hostility to such policies by the United States Supreme Court. Indeed, the US courts will generally only accept positive action programmes that were ‘narrowly tailored’ to achieve an aim of diversity (Regents of the University of California v Bakke 438 US 265 (1978), Grutter v Bollinger 539 US 306 (2003)). This is in contrast to the housing association’s aim of bringing Haredi Jews into a close neighbourhood. However, it is not so clear whether this approach would apply to s. 159 and employment measures, which according to the CJ should be more strictly controlled.

Proportionality

The case makes important points about proportionality under s. 158, if not about its counterpart regarding employment, s. 159. The most significant one is that the courts need not follow the guidelines set out in the ECJ case law, which were in particular, (1) there should be no automatic selection of a ‘lesser qualified’ candidate, and (2) there must be a savings clause. In this case, the only exception was in form only (in the unlikely event that AIHA had a housing surplus).

It should be noted though, that the ECJ case law was concerned with employment and a particular trigger of ‘underrepresentation’, which was not used in this case. It might be that UK courts would follow the ECJ guidance in such cases (see e.g. Furlong v Chief Constable of Cheshire (14 February 2019, Employment Tribunal). This appeared to be Lord Sales’ view, as when distinguishing s. 158 from the ECJ employment cases, he noted that ‘separate provision’ for employment was provided by s. 159 ([65]). But a more clearly expressed opinion would have been welcome for the sake of certainty. This is especially so as the Explanatory Note (512) to s. 158 states that, ‘This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed.’

The endorsement of the blanket or ‘bright line’ policy that swept away any concerns for an individual’s disproportionate hardship was perhaps more contentious. Lord Sales cited Tigere in support, but could only rely on the dissenting speech on this point. In Tigere, student loans were not available to those of immigrant status. The claimant, born in Zimbabwe, but brought up and schooled in England, had ‘discretionary leave to remain’ with the likelihood of this becoming permanent (there was little prospect of her returning to Zimbabwe). Until then, she fell into the category of immigrant status. The majority held that this blanket rule was discriminatory under the European Convention of Human Rights, Art. 14. It was too crude and should be refined for exceptional cases such as this. Although Tigere could be distinguished as a case on student loans under the European Convention on Human Rights, as well as not concerning positive action, it seemed strange for Lord Sales to cite its dissent in support of the notion rejected by the majority. That to one side, Lord Sales has made it clear that proportionality under s. 158 is somewhat more general than expected elsewhere.

The judgment also made the point that positive action is concerned with group, rather than individual, disadvantage, needs, and underrepresentation. This is undoubtedly correct. Not only does this accord with the Code of Practice, it is a fundamental purpose of positive action to address patterns of inequality, rather than individual cases. A normal consequence of positive action is that some individuals, not from the target group, will lose out, as happened in this case. The basis of positive action is that the ‘big picture’ advantages are more important.

A normal consequence of positive action is that some individuals, not from the target group, will lose out, as happened in this case. The basis of positive action is that the ‘big picture’ advantages are more important.

Dr Michael Connolly, Reader in Law at Portsmouth Law School, University of Portsmouth

The racial discrimination claim

The purpose of this argument was rather unfocused. As Lord Sales highlighted, it would raise a range of legal issues. It could bring the Race Directive 2000/43/EC into play, with its differently worded provision for positive action, which, unlike the framework Directive 2003/78/EC (covering Religion), extends to the provision of services. It was convenient for Lord Sales that JFS was so readily distinguishable. However, it would not be so easy to distinguish Mandla v Dowell Lee [1983] 2 AC 548, where, in the case predating dedicated religious discrimination law, the House of Lords stated that Jews (as well as Sikhs) qualified as a racial group by their ethnic origins under the Race Relations Act 1976. Thus, those Jews who could be defined by religious observance would fall under the Mandla definition of a racial group. 

This rather awkward situation highlights a legacy problem of the Equality Act 2010 inheriting the same definition of ‘Race’ from the Race Relations Act 1976. No one considered that the intervening religious discrimination legislation (2003) should indicate a narrowing of the definition of Race.


Dr Michael Connolly is Reader in Law at Portsmouth Law School, University of Portsmouth.

Image republished with credit to the UK Supreme Court press office.

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