House of Lords
Published November 27, 2007
Watt (formerly Carter) and Others v Ahsan
Before Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe,
Lord Carswell and Lord Brown of Eaton-under-Heywood Speeches November 21,
2007
An unsuccessful applicant for selection as a Labour Party candidate in local
elections who alleged that the failure to select him had been motivated by
racial discrimination should have brought his claim against the party under
section 25 of the Race Relations Act 1976 in county court proceedings, but
since an employment tribunal ruled that it had jurisdiction to hear the
complaint under section 12 of that Act, the party could not claim that the
tribunal did not have jurisdiction.
The House of Lords so held in allowing an appeal by the applicant, Mr Raghib
Ahsan, against a decision to contrary effect made by the Court of Appeal
(Lord Justice Buxton and Mr Justice Rimer, Lord Justice Sedley dissenting)
([2005] ICR 1817).
The applicant, of Pakistani origin, had been a Labour Party councillor in a
ward with a large Pakistani population. He had been named in newspaper
articles alleging that local councillors of Pakistani origin had been
involved in alleged abuses of the membership system and the obtaining of
housing grants for Pakistani residents.
The Labour Party had suspended the local party and ruled that its National
Executive Committee would select candidates for the forthcoming local
elections. The applicant was interviewed but a candidate was chosen who had
no connections with the Pakistani community. In the event, no evidence was
found of any impropriety on the part of the applicant or any of the other
councillors.
The applicant brought proceedings in the employment tribunal against Mr Matt
Carter, as general secretary of the Labour Party, since replaced by Mr Peter
Watt, under section 12 of the 1976 Act which prohibited discrimination by a
body which could confer an authorisation or qualification needed for
engagement in a trade or profession.
A preliminary issue as to whether the Labour Party was a qualifying body for
the purposes of section 12 was determined in the applicant’s favour by the
Employment Appeal Tribunal: see Sawyer v Ahsan ([2000] ICR 1). Subsequently,
the Court of Appeal held in Ali v McDonagh([2002] ICR 1026) that a political
party was not acting as a qualifying body for the purposes of section 12
when it selected candidates for public office.
The employment tribunal, notwithstanding that decision, concluded that its
obligation was to promulgate its decision, as directed by the appeal
tribunal, and it upheld the claim.
The majority in the Court of Appeal, however, held that the employment
tribunal had been bound by Ali to decline jurisdiction and that in any event
the tribunal’s primary findings had not justified a finding of
discrimination.
Mr Robin Allen, QC and Ms Akua Reindorf for the applicant; Mr
Gavin Millar, QC and Mr Michael Ford for the Labour Party.
LORD HOFFMANN said that the Labour Party was not a qualifying body for the
purposes of section 12. The notion of an authorisation or qualification
suggested some kind of objective standard which the qualifying body applied;
an evenhanded, transparent test which people might pass or fail.
The qualifying body vouched to the public for the qualifications of the
candidate and the public relied on the qualification in offering him
employment or professional engagements. That was why section 12 fell under
the general heading of discrimination in the employment field.
But that was far removed from the basis upon which a political party chose its
candidate. The main criterion was likely to be the popularity of the
candidate with the voters, which was unlikely to be based on the most
objective criteria.
That did not mean that a political party was entitled to discriminate on
racial grounds in choosing its candidates. But the relevant prohibition was
to be found, not in section 12, but in section 25, which dealt with
discrimination by associations against members or prospective members.
Although section 25 applied only to associations whose admission to membership
was so conducted that the members did not constitute a section of the
public, the Labour Party was such an association.
Applicants for membership had to accept the principles and policies of the
party and not belong to any inconsistent or proscribed organisations.
Constituency parties and the general secretary had the right to object to
applicants for membership. Members of the public were not free to attend
party meetings.
Section 25, however, did not help Mr Ahsan because it could not be relied upon
before an employment tribunal. Proceedings had to be brought in the county
court.
The question here was whether, given that the Employment Appeal Tribunal had
been wrong in Sawyer v Ahsan when it ruled that the employment tribunal had
jurisdiction to hear Mr Ahsan’s complaint, that decision remained binding
upon the parties.
In his Lordship’s opinion, the Employment Appeal Tribunal was a court of
competent jurisdiction to determine whether the Labour Party was a
qualifying body within the meaning of section 12 and its decision had
therefore been binding on the parties.
It did not matter that a later decision, now approved by the House, had shown
that it was erroneous in law. The whole point of an issue estoppel on a
question of law was that the parties remained bound by an erroneous
decision.
His Lordship turned to the majority of the Court of Appeal’s view that, in any
event, the employment tribunal’s findings of fact did not support a
conclusion that there had been discrimination.
It had stated, at paragraphs 93 and 94 of its judgment, that the Labour
Party’s wish not to have a candidate who would be seen to identify with the
Pakistani community was a legitimate objective provided that “the perception
that the problem was predominantly a Pakistani one was itself legitimate”.
It would have been illegitimate, it said, if “the judgment that the problems
were particularly associated with the Pakistani community had been
influenced at least in part by the racial make-up of that community”, but
there had been no finding to that effect.
His Lordship asked how one could form a view that the problem was associated
with the Pakistani community but reach that view uninfluenced by the racial
make-up of that community. Its racial make-up was what enabled it to be
described as a Pakistani community.
The only meaning he could ascribe to the distinction was that it would be
unacceptable for the Labour Party to discriminate against a Pakistani
candidate if it held no racist views about Pakistanis but thought it was
better not to have a Pakistani candidate because the electorate would
identify the problem with the Pakistani community.
If that was what the distinction meant, it was unacceptable. It was nothing
more than the old plea that you have nothing against employing a black
person but the customers would not like it. In essence it was a defence of
justification based on political expediency.
It might salvage the purity of the personal motives of the selection panel but
it did not satisfy the terms of the 1976 Act, which did not allow any
justification for direct discrimination. It simply said that one should not
discriminate on racial grounds. Lord Rodger, Lord Walker, Lord Carswell and
Lord Brown agreed.
Solicitors: Mr Anthony Robinson, Southwark; Thompsons.
