R v Secretary of State for Justice

Direct sex discrimination occurs where sex itself determines access to differently configured services and women consequently face a substantially greater risk of a material detriment. Every woman need not suffer that detriment. The exact-correspondence analysis used for proxy criteria does not apply.

Separate services may be justified under paragraph 26 of Schedule 3 to the Equality Act 2010. The provider must establish proportionality. Cost saving is legitimate, but budgetary considerations alone cannot justify discrimination.

Unequal sex-specific provision is direct, rather than indirect, discrimination. A declaration may record that justification has not been shown while leaving the public authority free to prove justification in subsequent individual proceedings.

The appellant, a woman serving a life sentence, brought judicial review proceedings because the geographical distribution of approved premises made it substantially more likely that women released on licence would be placed far from their homes and families. After her release, she was required to reside in approved premises in Bedford rather than near her family in London.

Cranston J dismissed the discrimination claim but declared that the Secretary of State had breached the public sector equality duty under section 149 of the Equality Act 2010: [2013] EWHC 4077 (Admin). The Secretary of State did not challenge that declaration. The Court of Appeal dismissed the appellant's appeal against the rejection of direct and indirect discrimination: [2015] EWCA Civ 328.

The central issue before the Supreme Court was whether the sex-specific distribution of approved premises constituted unlawful direct or indirect sex discrimination and, if direct discrimination was established, whether it had been justified under paragraph 26 of Schedule 3 to the 2010 Act.

1. Disposition. Lady Hale, delivering the unanimous judgment, allowed the appeal to the extent of granting a declaration. The provision of approved premises under section 2 of the Offender Management Act 2007 constituted direct discrimination against women under section 13(1) of the Equality Act 2010. It was unlawful unless justified under paragraph 26 of Schedule 3, and the Secretary of State had not yet shown such justification.

2. Direct discrimination. Women required to live in approved premises faced a much greater risk than men of being placed far from home. It was immaterial that some women obtained a placement close to home. Direct discrimination does not require every person sharing the protected characteristic to suffer the detriment. The exact-correspondence principle considered in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 and Preddy v Bull [2013] UKSC 73 applies where a different criterion may operate as a proxy for a protected characteristic. Here, the criterion determining which premises were available was sex itself. The circumstances were materially analogous to R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] 1 AC 1155.

3. Comparison. The male and female offenders were in materially the same circumstances for section 23(1): each was being released on licence subject to a requirement to live in approved premises. Differences in their general characteristics and risk profiles did not concern the relevant issue, which was the opportunity to be accommodated near home.

4. Separate services. Paragraph 26 of Schedule 3 assumes that single-sex services may otherwise be discriminatory and provides a justification. The expression limited provision means provision limited by sex. Paragraph 26(2), concerning separate services provided differently, was applicable because the geographic availability of premises differed materially between men and women. A mixed service would be less effective, and the smaller demand from women made an equivalent network of premises impracticable. The remaining question was proportionality.

5. Failure to justify. The Secretary of State bore the burden of proving that the discriminatory provision was proportionate. Saving public money is a legitimate objective, but budgetary considerations cannot themselves justify discrimination. The unchallenged finding that the public sector equality duty had been breached showed that the Ministry had not assessed the disadvantage to women, its significance, possible mitigation or alternative arrangements. It therefore could not establish proportionality.

6. Indirect discrimination and relief. The complaint concerned unequal sex-specific provision, not a provision, criterion or practice applied equally to men and women. The same conduct could not simultaneously constitute direct and indirect discrimination. Although the arrangements were capable of future justification, a declaration properly recorded that no justification had yet been shown. An affected woman could bring an individual claim, in which the Secretary of State would remain entitled to seek to establish justification.

1. United Kingdom Supreme Court: In R v Secretary of State for Justice [2017] UKSC 40, the court unanimously allowed the appeal to the extent of declaring that the provision of approved premises constituted direct sex discrimination which was unlawful unless justified, and that no justification had yet been shown.
2. Court of Appeal: The court dismissed the appellant's discrimination appeal in [2015] EWCA Civ 328. It rejected the view that the male and female offenders were materially incomparable but held that unlawful discrimination had not been established.
3. High Court, Administrative Court: Cranston J dismissed the discrimination claim in [2013] EWHC 4077 (Admin), principally because he considered that male and female prisoners were not in materially comparable circumstances. He declared that the Secretary of State had failed to comply with section 149 of the Equality Act 2010.