Hampson v Department of Education and Science

The statutory immunity for discrimination done “in pursuance of” a ministerial instrument is construed narrowly. It protects a discriminatory requirement specified by the instrument. It does not protect a non-statutory criterion devised and applied through administrative discretion merely because the decision-maker was exercising a duty or power created by the instrument.

A broader construction would undermine the statutory prohibition of racial discrimination by immunising much public-sector decision-making. Where the instrument does not require the discriminatory criterion, its application must therefore be justified before the tribunal under the ordinary law of indirect discrimination.

The appellant, who had undertaken teacher training and worked in education in Hong Kong, applied for qualified-teacher status in England and Wales. The Secretary of State refused recognition because her training was not regarded as comparable to an approved United Kingdom course. She alleged indirect racial discrimination under the Race Relations Act 1976.

The industrial tribunal dismissed her complaint. The Employment Appeal Tribunal, [1988] I.C.R. 278, upheld the result. The Court of Appeal, by a majority, dismissed her further appeal: [1989] I.C.R. 179. It held that section 41(1)(b) protected the decision as an act done in pursuance of the governing regulations.

The sole issue before the House was whether section 41(1)(b) protected an allegedly discriminatory criterion created through administrative discretion rather than prescribed by the regulations.

1. Appeal allowed unanimously. Lord Lowry delivered the leading speech. Lord Bridge of Harwich, Lord Griffiths and Lord Ackner agreed with it. The orders of the Court of Appeal and Employment Appeal Tribunal, and the industrial tribunal’s decision, were set aside. The case was remitted to a differently constituted industrial tribunal for rehearing on justifiability.

2. Per Lord Lowry, the exceptions in section 41 of the Race Relations Act 1976 extend across the fields covered by Parts II to IV and potentially protect both pre-Act and post-Act measures. Because they qualify the Act’s general prohibition of discrimination, language capable of more than one meaning should receive a narrow construction.

3. The expression “in pursuance of” in section 41(1)(b) was more restrictive than the expression “by virtue of”. In its statutory context, the immunity applied where the discriminatory act or requirement was specified by the enactment, order or instrument. It did not extend merely to every discretionary act performed under statutory authority.

4. The regulations obliged the Secretary of State to consider whether the appellant’s overseas course was comparable to an approved course. They did not prescribe three consecutive years of training as the criterion of comparability. That criterion arose from administrative practice and discretion. Its creation and application were therefore not protected by section 41(1)(b), even though the duty to decide the application arose under the regulations.

5. A wider interpretation would confer virtual immunity on extensive areas of Crown, local-authority and statutory-body decision-making. It would substantially impair the remedies created by the Act. Parliamentary scrutiny also supported the narrower boundary: a discriminatory requirement prescribed by legislation could be scrutinised in Parliament, while an administratively selected criterion should remain subject to justification before an industrial tribunal.

6. The possible availability of judicial review for perversity or misuse of power was not an adequate substitute for the statutory right to complain of discrimination. The House expressed no view on whether the criterion was justifiable under section 1(1)(b)(ii), because that issue had not been argued. It was left for the tribunal on rehearing.

1. House of Lords: Allowed the appeal unanimously, set aside the orders and decisions below, and remitted the case to a differently constituted industrial tribunal for rehearing on justifiability.

2. Court of Appeal: By a majority, dismissed the appeal: [1989] I.C.R. 179. It held that section 41(1)(b) provided a complete defence. Balcombe LJ dissented.

3. Employment Appeal Tribunal: Held that the three-year-course stipulation was a “requirement or condition”, but upheld the dismissal under section 41(1)(b) and on justifiability: [1988] I.C.R. 278.

4. Industrial tribunal: Dismissed the indirect-discrimination complaint. It found no “requirement or condition” and held alternatively that section 41(1)(b) applied and that the criterion was justifiable.