Supreme Courts finds the PSED does not have extra-territorial effect
Written by Grace Corby
Image of Grace Corby
In a unanimous judgment, the Supreme Court in R (on the application of Marouf) (Appellant) v Secretary of State for the Home Department (Respondent) [2023] UKSC 23 has determined that the public sector equality duty (“PSED”) does not have extra-territorial effect.
Context
The Appellant was a Palestinian refugee living in Lebanon, having fled the conflict in Syria. She challenged the lawfulness of a settlement scheme (“the Resettlement Scheme”), the parameters of which effectively prevented Palestinian refugees from qualifying to take part. The only issue the Supreme Court was considering was whether (and to what extent) the PSED had extra-territorial effect.
The Appellant had succeeded on this issue in the High Court, where Laing J (while expressing scepticism) had been bound by two earlier decisions of the divisional court, R (Hottak) v Secretary of State for the Home Department [2015] EWHC 1953 (Admin) and R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin).
The Court of Appeal overruled this decision, holding that those cases were wrongly decided and that the PSED did not have extra-territorial effect.
Appealing to the Supreme Court, the Appellant advanced two alternative arguments about the PSED: the first was that the PSED had extra-territoriality as a whole. The second was that the PSED had extra-territorial effect when it was co-extensive with the extraterritorial effect of the substantive provisions of the Equality Act (“EqA”) 2010. In this case, that relevant substantive provision was section 29 EqA 2010.
The Supreme Court rejected both arguments.
The Legal Framework
The PSED is imposed by section 149 of the EqA 2010. It is a procedural obligation that requires public bodies to have due regard to the equality needs listed in that section when exercising their functions.
Section 149(1) EqA 2010 states as follows:
(1) A public authority must, in the exercise of its functions, have due regard to the need to-
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Section 29(6) EqA 2010 provides (in so far as was relevant to the case):
29 Provision of services etc
(1) A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. …
(9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of the Immigration Act 1971), it does not matter whether an act is done within or outside the United Kingdom.
(10) Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.
The Decision of the Supreme Court
Lady Rose delivered the unanimous judgment of the Court.
Whether Section 149 has extraterritorial effect as a whole
After reviewing the relevant case law, Lady Rose affirmed the presumption against extra-territorial effects of legislation, saying at paragraph 41 “In the absence of express words, the extraterritorial application of legislation may be implied but it is high threshold that needs to be overcome.”
She then considered whether the presumption against extra-territorial application had been overridden in this instance and determined it had not been, stating at paragraph 54:
“54. There is nothing in the legislation from which one can infer that the presumption against extraterritoriality has been overridden. On the contrary, the scope of the goals which the words in section 149 require the public authority to aspire to achieve suggest that there is no such intention. It is one thing to expect the wide range of bodies listed in Schedule 19 to the EqA 2010 to have due regard to the “need” set out in section 149 as regards the people within their remit but another to expect them to have due regard to the “need” to do so as regards people overseas. The PSED is intended to ensure that the specified public bodies have due regard to the need to adopt policies which help to bring about the societal change that would see the elimination of discrimination, equality of opportunity and good relations between different groups within the community. There is no general duty under section 149 on public bodies to attempt to bring about that kind of change in countries outside the United Kingdom and it is not open to a person with a protected characteristic but no connection to the United Kingdom to challenge a decision of a public body on the grounds that a policy adopted failed to have due regard to the need to improve their position within that overseas community.
56…There is nothing to suggest that public bodies on whom the duty is imposed are intended to be accountable to people elsewhere in the world who have no particular connection with the UK.”
Whether Section 149(1)(a) has extra-territorial effect co-extensively with the extraterritorial effect of the substantive provisions of the EqA 2010
The more complex alternative submission by the Appellant was that, in the alternative, section 149 had a limited extra-territorial effect, as the territorial scope of the PSED must be as wide as the relevant substantive provisions that set out the duty not to discriminate, which do have extraterritorial effect.
The Appellant relied on the Court of Appeal's finding that the decisions applying the Resettlement Scheme in individual cases fell within section 29(6) because of section 29(9) (although on the facts, the Court of Appeal had held there had been no unlawful discrimination). The Appellant argued that, having found that the decisions applying the Resettlement Scheme in individual cases fell within section 29(6) because of section 29(9), the Court of Appeal should have held that section 149(1)(a) had extraterritorial effect, at least to that extent.
Again, the Supreme Court disagreed. Section 149(1)(a) was still not engaged because the adoption of the Resettlement Scheme was not within the prohibition laid down by the substantive provisions of the Act.
The PSED was primarily directed at policy decisions, not at the application of policy to individual cases. The duty on an official not to discriminate unlawfully against an individual at all stages of granting entry clearance was imposed by the relevant substantive obligations in section 29 (paragraph 62). There was no need to add on a duty under section 149(1)(a). Further, if the duty was imposed, rights would be conferred on people all over the world to challenge the decision-making process of a public body exercising its functions, if the exercise of those functions affected them (paragraph 64).
Finally, Lady Rose observed that within the EqA 2010, Parliament had carved out a careful exceptions where extra-territoriality applied (such as within section 29 EqA 2010). It followed that as a matter of statutory construction, if Parliament had wanted the PSED to have extraterritorial effect for section 149(1)(a), but not to (b) and (c), it would have made that express in the legislation (paragraph 65).
Conclusion
This judgment makes it clear that the PSED is of no assistance to individuals overseas who are affected by schemes or decisions of public bodies that have discriminatory outcomes.
However, Lady Rose did take the opportunity to highlight that the PSED is not the only mechanism to challenge the conduct of public bodies abroad. In particular, judicial reviews can challenge a failure to take into account relevant considerations, which may include disadvantages suffered by overseas people with a particular protected characteristic. To exemplify this, Lady Rose cited the quashing of the decision to use public money to finance the Pergau Dam in Malaysia (R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd [1995] 1 WLR 386) and the removal of the Chagossians from the British Indian Ocean Territory (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61).
