5.42.1R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213
It had been disproportionate for the Secretary of State to exclude from an ex-gratia compensation scheme British citizens who had not been born in the UK, unless one of their parents or grandparents had been. In addition, the Secretary of State had failed to discharge his duty under section 71 of the Race Relations Act 1976
Facts: the Secretary of State published an ex-gratia compensation scheme to compensate British civilians interned by the Japanese in the Second World War but excluded British citizens who had not been born in the UK unless one of their parents or grandparents had been. Ms Elias was a British citizen, born in Hong Kong to British subjects of Iraqi-Jewish and Indian-Jewish origin, none of whom had been born in the UK. Accordingly, Ms Elias was excluded from the ex-gratia compensation scheme despite having been interned by the Japanese as a civilian between 1941 and 1945, suffering extremely traumatic experiences resulting in serious, long-term psychological effects.
Judgment: the Court of Appeal (Mummery, Arden and Longmore LJJ) held that (i) by excluding a greater proportion of those with non-UK national origins than those who were born in the UK and had UK national origins the scheme was indirectly discrimination and the burden was on the Secretary of State for Defence to justify it; (ii) stringent scrutiny was required because the nature of the discrimination was very close to direct discrimination; (iii) the Secretary of State for Defence had not discharged the burden of demonstrating justification, inter alia, because the scheme had not been properly thought out and, in particular, because the Secretary of State for Defence had not discharged his duty at section 71 of the Race Relations Act 1971, by giving advance consideration to the need to eliminate unlawful race discrimination:
269. Anti-discrimination legislation has implications for the administration of justice. When adjudicating, in accordance with the law, on cases involving alleged discrimination, judges have a role to play in the process of transforming society from one in which inappropriate distinctions have in some cases been drawn between individuals based purely on their race, gender or other grounds to a society in which, through the integration of laws prohibiting discrimination in specified ways, each individual is valued and treated equally.
270. The adverse effects of unlawful discrimination are manifold. Discrimination can have a severe negative psychological effect on the individual involved, as well as a loss of dignity and self-esteem, and induce a sense of alienation. This sense of alienation can lead to a mistrust of institutions, such as the police or the justice system. This mistrust is detrimental to social cohesion. The co-operation of minority groups is particularly important in the fight against crime and terrorism: see for example per Lord Hope of Craighead in R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307, para 57.
271. Unlawful discrimination has economic consequences too. Discrimination in educational and other opportunities can lead to a reduction in the pool of available candidates for further education and employment. This hinders social and economic progress since it means that society loses the benefits of the talents of these individuals and the different perspectives that they can bring to the solution of the problems facing business or society. Society benefits when each individual realises his or her potential and thus this process should not be impeded by unlawful discrimination.
272. In dealing with the detailed issues in this case, the above issues are some of the issues to which, as I see it, this court must be alive.
Section 71 of the Race Relations Act 1976
273. The courts are particularly involved in the process of adjudicating upon the remedies provided by the law, not least by statute law for unlawful discrimination. But legal proceedings are not the only way of policing anti-discrimination legislation. Monitoring and self-assessment by public bodies in their decision making can also further the aims of such legislation, and this is the role of section 71 of the 1976 Act, which Mummery LJ has set out in material part in para 51 of his judgment. The judge set out the requirements for the content of a race equality scheme in para 92 of his judgment, and these show that the body making the scheme must therefore set out its arrangements for assessing and consulting on the likely impact of its proposed policies on the promotion of race equality. The judge went on to make a declaration that in the present case the Secretary of State had not complied with his obligations under section 71(1) of the Race Relations Act 1976 in formulating and maintaining the scheme. There is no appeal against that part of his order.
274. It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State’s non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play. I express the hope that those in government will note this point for the future.