Larry Winslow Marshall and others v The Deputy Governor of Bermuda and others (Bermuda)

A human-rights statute must be read generously and purposively, but interpretation cannot distort clear language. Male-only military conscription did not fall within the employment-discrimination provisions of the Human Rights Act 1981 where women could volunteer on the same terms, no one was refused recruitment or excluded from employment, and conscription was a method of procuring employment rather than a term or condition of it.

Statutory preconditions to conscription were considered on the accepted factual basis. Appellate courts ordinarily do not revisit concurrent findings of fact absent exceptional grounds. A public-law duty of candour supplies information needed for informed adjudication; it does not shift to a public authority the burden of proving matters the claimant can prove. Administrative publication of call-up notices could be delegated under the Carltona principle.

The appellants, members of Bermudians Against the Draft, challenged their compulsory service in the Bermuda Regiment. They relied on alleged sex discrimination under the Human Rights Act 1981, statutory limits in the Defence Act 1965, an alleged error of law, failure to consider a quota for women, and invalid publication of call-up notices under section 17(1).

Chief Justice Ground dismissed the consolidated proceedings on 7 March 2008. The Court of Appeal of Bermuda dismissed the appeal on 28 November 2008 and certified whether the Government could lawfully enforce compulsory military service. The Privy Council considered that question through the appellants’ five arguments.

Appeal dismissed. Lord Phillips delivered the principal judgment. Lady Hale agreed in the result and added a separate concurring postscript.

1. Discrimination. The Board accepted that human-rights legislation should receive a generous and purposive interpretation, but held that this could not distort the natural meaning of the statutory language. Sections 6(1)(a), (e) and (g) of the Human Rights Act 1981 did not make conscription unlawful. Women were not refused recruitment or excluded from employment. Conscription was a method of procuring employment, not a special term or condition of employment, and conscripts and volunteers served on identical terms.
2. Preconditions and factual findings. The respondents accepted the lower courts’ construction of section 4 of the Defence Act 1965, and the Board therefore resolved the issue on the facts without finally determining its reservations about the breadth of that construction. The relevant questions were whether the Governor had addressed the Regiment’s size reasonably and whether reasonable steps had been taken to recruit volunteers. The Board ordinarily would not review such issues for a third time after concurrent findings below, absent a miscarriage of justice, breach of legal or procedural principle, or another special reason. None was shown. Any duty to recruit volunteers extended no further than reasonable steps to persuade recruits to join the Regiment as it was; it did not require making service more attractive.
3. Duty of candour. The authorities concerning public authorities’ duty to explain their conduct, including R v Lancashire CC, Ex P Huddleston [1986] 2 All ER 941 and R v Civil Service Appeal Board, Ex P Cunningham [1992] ICR 816, required careful application. The duty assists the court where the authority alone can provide information necessary for an informed decision. It does not transfer to the respondent an evidential burden which the claimant is able and required to discharge. The Governor had commissioned the review and there was no basis for an adverse inference.
4. Other arguments. A legal contention advanced in litigation did not establish that the Governor had acted under that alleged error of law. The quota argument failed because a fixed quota would not assist recruitment and the evidence did not show that sufficient women volunteers were available. The Carltona principle, as explained in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 and Evans v Minister for Education [2006] Bda LR 52, could extend to purely administrative functions beyond powers conferred on ministers. Publication of the section 17(1) notice was mechanical and could properly be performed by the authorised Administrator.
5. Lady Hale’s postscript. Lady Hale considered the male-only conscription scheme a serious sex-discrimination grievance and identified possible comparative approaches requiring justification, but left reform and the ultimate policy question to the Bermudian legislature.

The Board advised Her Majesty that the appeal should be dismissed. Costs submissions were invited within 28 days.

1. Privy Council: dismissed the appeal from the Court of Appeal of Bermuda and advised Her Majesty accordingly.
2. Court of Appeal of Bermuda: dismissed the appellants’ appeal from Chief Justice Ground’s decision on 28 November 2008 and certified whether compulsory military service could lawfully be enforced.
3. First instance: Chief Justice Ground dismissed the consolidated challenges on 7 March 2008.