The UK Supreme Court unanimously decided that the public sector equality duty in the Equality Act 2010 does not apply directly to persons outside of the UK. However, the equalities objectives may remain indirectly relevant to decision-makers.
Does the public sector equality duty in section 149(1)(b) of the Equality Act 2010 have extra-territorial effect so as to apply to decisions taken within the UK that affect the lives of persons living outside it?
No, according to the UK Supreme Court in R (Marouf) v SSHD [2023] UKSC 23, in a unanimous judgment delivered by Lady Rose on 28 June 2023. There may, however, be equalities requirements at common law that fall to be taken into consideration when developing and implementing policy decisions with effects overseas.
Background
The Claimant was a Palestinian refugee living in Lebanon. She challenged the UK government's Vulnerable Persons Resettlement Scheme (introduced in 2014) which was operated by the United Nations High Commissioner for Refugees ('UNHCR') and was designed to identify and recommend vulnerable refugees to be resettled to the UK. Initially it was limited to Syrian nationals but was subsequently broadened to other nationalities in July 2017.
The Claimant fell outside of the UNHCR's remit owing to the fact that Palestinian refugees fell under the scope of a separate agency that pre-dated the UNHCR, namely, the United Nations Relief and Works Agency for Palestine Refugees in the Near East ('UNRWA').
The claim
The Claimant alleged that the Resettlement Scheme indirectly discriminated against Palestinian refugees and breached the PSED for failing to advance equality as between Palestinian refugees and other refugees. By the time the case reached the Court, following proceedings in the High Court and Court of Appeal, the only remaining issue was whether or not the PSED applied extra-territorially. However, the Court was required to address the Claimant's alternative case that section 149(1)(b) was co-extensive with the extraterritorial effect of section 29(6) of the EqA 2010, which prohibits discrimination in the exercise of a public function.
The Court's judgment
At §14-15, the Court rehearsed the familiar principles on the PSED established by key authorities of the last decade.
Between §§25-41, the Court considered several key authorities on the well-established general presumption against the extraterritorial effect of UK legislation outside of UK territory in the absence of express words to the contrary. The Court disagreed with the Claimant's submission that the case of Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23; [2016] AC 1 had lowered the threshold for displacing the common law presumption and introduced greater flexibility depending on the context of the legislation and whether giving it extraterritorial effects would jeopardise the comity of nations. The policy reasons behind the presumption were discussed in R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] AC 153 at § 45 onwards, in the context of the extraterritorial application of the Human Rights Act 1998 to the conduct of British forces in Iraq, however, those policy considerations 'do not determine the application of the principle'.
At §41, the Court concluded that: 'the extraterritorial application of legislation may be implied but it is high threshold that needs to be overcome.'
Turning to the PSED itself, the Court considered recent Court of Appeal authorities on the concept of 'due regard' in R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058; [2020] 1 WLR 5037 at §181 and R (Sheakh) v Lambeth London Borough Council [2022] EWCA Civ 457; [2022] PTSR 1315 at § 56. While the Court acknowledged that the effect of the duty on decision-makers was context-dependent, it found that the PSED could be effectively and purposefully applied without extending its scope beyond the UK (§§43-46).
The Court agreed with the reasoning of the Divisional Court and the Court of Appeal below, finding that Parliament could not have intended to require public authorities to advance equality objectives among people outside of the UK, beyond their operational sphere and cultural context (§§52-54).
However, the Court did not exclude the possibility of indirect application of the equality objectives, as part and parcel of lawful decision-making where a policy impacted on persons overseas who share a 'protected characteristic'. A failure by decision-makers to consider such objectives may be susceptible to challenge on ordinary public law principles, irrespective of the statutory reach of the PSED (§57).
While the Court accepted that section 29(9) of the EqA 2010 contained a modest extension of the substantive prohibition on race and religion or belief discrimination in the exercise of public functions so as to cover the grant of entry clearance under the Immigration Acts, this exception did not extend to the adoption of the Resettlement Scheme itself (the target of the Claimant's challenge) under the PSED (§62). The EqA 2010 contains several express extensions of jurisdiction. Parliament was therefore unlikely to have left the extraterritorial application of section 149(1)(b) to be addressed by the Courts (§66).
The Court drew a general distinction between the PSED and the substantive prohibitions in these terms (§62):
'The PSED is primarily directed at policy decisions not at the application of policy to individual cases. The duty on an official not to discriminate unlawfully against a particular individual at all stages of the grant of entry clearance is imposed by the substantive obligations imposed by the EqA 2010, rather than by the PSED. There is no need to impose on that official in addition the duty under section 149(1)(a).'
Unlike the duty in section 6 of the HRA 1998 (held to have extraterritorial application in Al-Skeini) the PSED lacked in-built limitations such as the requirement to be a victim and to be within UK jurisdiction for the purposes of Article 1 of the ECHR.
Comment
This judgment draws to a conclusion a case with a rather turbulent history in the lower courts, where the Claimant succeeded at first instance on her PSED claim but failed on her indirect discrimination claim and where the Defendant succeeded on appeal to the Court of Appeal on both points (althought the Court of Appeal found that in limited circumstances relating to entry clearance decisions, indirect discrimination which takes place outside of the UK and affects persons overseas was potentially within the jurisdiction conferred by the Equality Act 2010).
Public and equalities lawyers will benefit from the Court's accessible re-statement of the key principles of the PSED and the detailed consideration of the key concepts of 'due regard' and the presumption against extraterritoriality. The judgment gives consideration to how the structure of the EqA 2010 was assembled by Parliament and the objectives that lie behind the PSED, forming the general principles over the admittedly niche point of extraterritoriality arising out of the Claimant's unfortunate circumstances.
Further, the Court did not entirely close the door on the potential, indirect extraterritorial application of the PSED. Where policies or decisions affect persons with protected characteristics who are outside the UK, public authorities and decision-makers should consider the equalities implications at stake and to ensure that their administrative processes are both rational and procedurally fair. Marouf cannot be relied on to cast equalities implications overseas to the wind.