Neutral Citation Number: [2008] EWHC 1625 (Admin)
Case No: CO/11392/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2008

Before :

THE HON. MR JUSTICE BURNETT
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Between :

	R (on the application of Graham PRIMROSE)	Claimant	
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	The Secretary of State for Justice	Defendant	

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Hugh SOUTHEY (instructed by Irwin Mitchell Solicitors) for the Claimant
Clive SHELDON (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 23 May 2008
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Judgment 

The Hon. Mr Justice Burnett: 
1.	One of the legislative responses to the persistent overcrowding in prisons in England and Wales was to introduce a scheme for early release on what is known as Home Detention Curfew [HDC]. By section 34A(1) of the Criminal Justice Act 1991 [“the 1991 Act”], introduced by amendment in 1999, the Secretary of State was empowered to release on licence a prisoner serving a sentence of imprisonment of more than 18 months up to 135 days before he would ordinarily have been eligible for release. That is half way through the sentence. That provision, although now repealed, continues to apply to prisoners who were sentenced for offences committed before 4 April 2005. New arrangements are in place for prisoners convicted after that date. Such arrangements do not apply to terms of imprisonment of less than 3 months. The calculation of the early release period varies depending on the length of the sentence.

2.	A critical feature of HDC is that those who are subject to it are tagged. Anyone who is tagged in England or Wales, whether under this scheme or others operating in the criminal justice environment, is subject to monitoring by one of a number of companies who provide their services to the Ministry of Justice.

3.	Mr Primrose, the claimant, was sentenced to 2 years imprisonment on 27 March 2007 for mortgage fraud committed some years earlier. He became eligible for HDC on 13 November 2007,that is 135 days before his earliest release date. To be considered for HDC a prisoner must provide an address in England or Wales in which he intends to reside. If he has no address in England and Wales then the Secretary of State can make accommodation available through a scheme called “Clearwater”. Such accommodation is in the nature of flats or houses, rather than a hostel.

4.	The Claimant is a Scot by birth and upbringing. He lived in Scotland until he married and moved with his wife to Wiltshire. There he lived until 2004 when his marriage failed. He returned to Scotland, basing himself at his mother’s home in Dunfermline. He developed a relationship with a woman who lives nearby with her children. The offences for which he was eventually convicted were committed whilst he was an expatriate living in England. Pending trial he received bail at his mother’s address. At the time of his conviction he considered himself habitually resident in Scotland with no continuing ties in England.

5.	On 31 August 2007 the Claimant applied for HDC on the relevant form. He nominated his mother’s Dunfermline address, despite the notes to the form making it clear that only an address in England and Wales would be considered. The application was returned to the Claimant in early September with a post-it note attached which succinctly identified the problem:

		“No HDC in Scotland”

The Claimant chose to remain in an open prison rather than be released on HDC to a Clearwater accommodation in England and Wales. He was twice asked if he would like to apply for such accommodation and indicated in writing that he would not. Such a facility was available in Northumberland. 

6.	The Claimant took the matter up with his constituency Member of Parliament, who is the Prime Minister. The Prime Minister initially raised the matter with the Home Secretary on 21 September 2007 but as a result of the reorganisation of departmental responsibilities made earlier in the year, the Prime Minister received a reply from the Lord Chancellor and Secretary of State for Justice which included the following:
“Mr Primrose’s HDC eligibility date is the 13 November 2007 and his conditional release date is 26 March 2008.

I regret to inform you that it is not possible for Mr Primrose to be released on HDC in Scotland. Although a form of HDC was introduced in Scotland on 3 July 2006, there are no cross-border arrangements in place between Scotland and England to enable prisoners to be released into the other sentencing jurisdiction on HDC.

Where a prisoner does not have a suitable curfew address, it may be possible for him/her to be provided with accommodation in England and Wales, through initiatives such as Clear Springs – The Accommodation and Support Services for Bail & HDC. I suggest that Mr Primrose speaks with his personal officer in the prison as they may be able to assist in trying to find a suitable address.”

7.	Mr Southey, who appeared on behalf of the Claimant, submits that this state of affairs that prevents a Scot who is habitually resident in Scotland from nominating a Scottish address for HDC gives rise to three distinct, albeit linked, claims:

(a)	A claim under the Human Rights Act 1998 and Article 14 of the European Convention of Human Rights (‘the ECHR’) for violation of the Claimant’s right not to be discriminated against. He submits that the Claimant has been less favourably treated than other prisoners because he is Scottish or because he is ordinarily resident in Scotland. He accepts that, unlike the discrimination on grounds of residence, there is no direct discrimination on grounds of race but relies upon indirect discrimination;
(b)	A claim for indirect discrimination under sections 1(1A), 1(1B) and 19B(1) of the Race Relations Act 1976 on the basis that HDC is a ‘social advantage’;
(c)	A claim that the Secretary of State is in breach of his general duty under section 71 of the Race Relations Act 1976 to have ‘due regard’ to eliminate unlawful racial discrimination.
Thus the essence of the argument is that the HDC scheme operates unlawfully because the Secretary of State has not introduced legislation (primary or secondary) and made arrangements with the Scottish Executive under devolution arrangements to enable cross-border operation of the scheme.
8.	The Secretary of State placed further information before the Court concerning the operation of the HDC scheme. There are about 2,300 prisoners on HDC at any one time in England and Wales. Between 1999 and 2006 the annual release figure for HDC has varied between 13,649 and 21,188. The total number released during those years was 145,000. Bernadette McCarthy, whose witness statement dated 1 February 2008 provides this information, has explained that statistics are not kept of the number of prisoners in English and Welsh prisons of Scottish origin who would wish to be released to an address in Scotland. There is a scheme in place which allows transfer of prisoners between Scotland and the rest of Great Britain (and vice versa), but out of a prison population of about 80,000 at any one time transfers to Scotland from England and Wales and vice versa only reach low double figures each year. The claimant did not make an application to be transferred to a Scottish prison to serve his sentence. She explained that:
“currently cross-border arrangements have not been made to enable the monitoring of prisoners released from an English prison to an address in Scotland.”

There is, however, an HDC system in Scotland introduced in 2006 but it applies only to prisoners serving sentences in Scottish prisons and who wished to be released to an address in Scotland. I was told that the mechanisms to enable a prisoner serving a sentence in England or Wales to transfer to a prison in Scotland are slow. Whether the Claimant might have transferred is a moot point. But if a prisoner does transfer then the problem identified in this case would not arise because he could be released in Scotland on HDC from a Scottish prison. The Defendant has explained that the ‘problem’ is simply not one that has arisen before, to the knowledge of the Department.

9.	Mr Southey explained that publicly available statistical information suggests that at any one time 2% of those living in England and Wales are expatriate Scots. In those circumstances one would not expect the percentage of Scottish prisoners in the English and Welsh prison estate to be very different. That might explain why so few prisoners apply for transfer to Scottish prisons. Interesting though those statistics are, they provide information about a group to which the Claimant ceased to belong when he returned to Scotland after the break down of his marriage. He was no longer a Scot living in England and Wales. It is not unreasonable to suppose that most of those identified within the 2% would have an address in England and Wales should they be seeking early release from prison. The number of individuals resident in Scotland when convicted of a crime in England and Wales who are sentenced to terms of imprisonment of more than 3 months is likely to be very small indeed. Yet that is the Claimant’s cohort.
Statutory Provisions
10.	Section 34A of the 1991 Act as material provides:-
“ Subject to subsection (2) below, subsection (3) below applies where a short-term prisoner is serving a sentence of imprisonment for a term of three months or more.
(2) …
(3) After the prisoner has served the requisite period for the term of his sentence, the Secretary of State may, subject to section 37A below, release him on licence. 
(4) In this section “the requisite period” means – 
(a) for a term of three months or more but less than four months, a period of 30 days;
(b) for a term of four months or more but less that eighteen months, a period equal to one-quarter of the term;
(c) for a term of eighteen months or more, a period that is 135 days less than one-half of the term.
(5) …
(6)…”
11.	The mechanism by which a curfew condition is introduced is described in Section 37A:- 
“37A – 
(1) A person shall not be released under section 34A (3) above unless the licence includes a condition (“the curfew condition”) which – 
Requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified (which may be an approved probation hostel); and includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but shall not specify periods which amount to less than 9 hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3) The curfew condition shall remain in force until the date when the released person would (but for his release) have served one-half of his sentence.
(4) The curfew condition shall include provision for making a person responsible for monitoring the released person’s whereabouts during the periods for the time being specified in the condition; and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State.
(5) The power conferred by subsection (4) above – 
(a) shall be exercisable by statutory instrument ; and
(b) shall include power to make different provision for different cases or classes of case or for different areas.
(6) Nothing in this section shall be taken to require the Secretary of State to ensure that arrangements are made for the electronic monitoring of released persons’ whereabouts in any particular part of England and Wales;
(7)...”
12.	The statutory instrument foreshadowed in Section 37A(4) is the Curfew Conditions (Responsible Officer) Order 1999. The schedules to that order identified three monitoring companies who would provide employees to act as “responsible officer” for different areas of the country. Those three companies were Premier Monitoring Services Ltd, Securicor Custodial Services Ltd and GSSC of Europe Ltd. Although Section 37A(6) makes clear that the Secretary of State was not under an obligation to put in place monitoring arrangements in every part of England and Wales, the three companies I have identified between them assumed responsibility for the whole of England and Wales. The designation of areas coincides with the geographical reach of different police forces. 
13.	The relevant provisions of the Criminal Justice Act 1991 extended only to England and Wales, save for a number of specifically identified provisions. That general approach respected the independent criminal justices systems of Scotland, Northern Ireland, the Channel Islands and the Isle of Man. 
14.	The arrangements in place between the different constituent parts of the United Kingdom of Great Britain and Northern Ireland for transferring prisoners whilst they are serving the custodial part of their sentences, transferring obligations for supervision and the like, are detailed and complex. Whilst it would be possible for the Westminster and the Holyrood governments to propose and secure the enactment of legislation to enable individuals to be released directly from an English prison to an address for curfew in Scotland (and vice versa) neither has done so.
Those Affected by the Issue Identified in this Claim
15.	The Claimant is a Scot who wished to be released on HDC to a Scottish address. Yet the issue he has identified would affect any prisoner seeking early release of this nature who did not have an address to nominate in England and Wales, but who had one elsewhere, and was disinclined to take advantage of the offer of Clearwater accommodation. There may well be individuals from Northern Ireland, the Channel Islands or the Isle of Man who would find themselves in a similar position. And so too would many prisoners who are not British nationals and have no ready address in England and Wales. A large proportion of those within any of these categories is likely to have an address in England and Wales because it is likely that most will have committed their offences in England and Wales and been a resident here when they did so. However, those who are foreign to England and Wales are not the only people who might be affected. There are those who whilst originally from England or Wales are resident abroad. Then there are many people who, whilst not having an address out of the jurisdiction, do not have one available in England and Wales. For a variety of reasons large numbers of prisoners do not have ready accommodation when they leave prison. For example, the homes they came from may have been temporary. Rented accommodation may have been lost or they may no longer be welcome at home. All such people, of necessity, will need to accept Clearwater accommodation if they are to take advantage of HDC.
16.	The legislation does make some provision for dealing with foreign nationals. Section 46A of the 1991 Act enables the Secretary of State to remove from prison someone who is “liable to removal from the United Kingdom” for the purpose of removing him from the United Kingdom. He may do so after the person concerned has served a “requisite period”. That requisite period broadly reflects those in early release provisions. Section 46A only applies to foreign nationals liable to removal from the United Kingdom. It has no impact on those with a right to be here. 
Discrimination under Article 14 ECHR
17.	Article 14 of the European Convention on Human Rights (ECHR) provides: 
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”
Article 14 does not provide an independent right but only comes into play when considered in connection with other substantive rights protected by the ECHR. It is not necessary to establish a breach of a substantive right to rely upon Article 14, but it is necessary to show that the action complained of was within the ambit of one of the other articles. The principles were summarised by the Grand Chamber of the Strasbourg Court in Stec v United Kingdom [2005] 41 EHRR SE 295 at paragraphs [38]-[40]. Applying those principles and the decision of the House of Lords in R(Clift & Others) v Secretary of State for the Home Department [2007] 1 AC 484 there is no doubt that a decision concerning early release from prison falls within the ambit of Article 5 ECHR. That was common ground between the parties. Mr Southey submitted that a decision on early release was also within the ambit of Article 8. Mr Sheldon, who appeared on behalf of the Secretary of State, disputed that proposition, but since Article 14 applies through Article 5 it is not necessary for me to decide the issue. 
18.	Once Article 14 is in play, it is then necessary to consider whether there has been differential treatment between the Claimant and another on a ground protected by Article 14. Thereafter, if there has been differential treatment, the question arises whether there is enough of a relevant difference between the Claimant  and the other to justify different treatment. 
19.	I take that formulation from paragraph 31 of the speech of Lord Hoffmann in R(Carson) v Work and Pensions Secretary [2006] 1 AC 173. He was there commenting upon the so-called Michalak questions formulated by Brooke LJ in Wandsworth LBC v Michalak [2003] 1 WLR 617, 625 at paragraph [20] and various attempts to refine them. What is clear is that the approach to discrimination claims under Article 14, whilst often assisted by Michalak, should not be strait-jacketed by it. As Lord Nicholls of Birkenhead put it in paragraph 3 of Carson:
“For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in Article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”
20.	The Claimant makes two distinct arguments under Article 14. He suggests that he has been indirectly discriminated against because he is of Scottish origin. Additionally, he suggests direct discrimination on the basis that his habitual residence was in Scotland rather than England or Wales. 
Indirect Discrimination
21.	Article 14 ECHR is primarily concerned with direct discrimination. The over-whelming majority of cases considered by the Strasbourg Court under Article 14 have been concerned with such direct discrimination. However, there have been some cases in which the Court has considered indirect discrimination. That is to say, it has considered statutory or administrative arrangements which on their face do not discriminate on a basis protected by Article 14 but are said to have that indirect effect. 
22.	In Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 287 Carnworth LJ said this about indirect discrimination in Convention law:-
“Indirect Discrimination in Convention Law
17. Finally, although detailed discussion is not required in this case, I agree with Mr Sales that caution is necessary in applying the concept of indirect discrimination to the somewhat loosely-defined categories used by Article 14 of the Convention. The case-law is as yet relatively limited: see Thlimmenos v. Greece (2001) 31 EHRR 15, at [44]; Jordan v. UK (2001) 37 EHRR 52, at [154]; Pretty v. UK (2002) 35 EHRR 23, at [88]-[90]; and Hoogendijk v. Netherlands (2005) 40 EHRR SE22, at 206-207. 
18. In so far as one can distil a test from the cases, the question seems to be whether the effects on the particular group are "disproportionately prejudicial" (see e.g. Jordan para [154]).”
23.	Since the judgment of the Court of Appeal in Esfandiari the Grand Chamber in Strasbourg has given its judgment in D.H. and Others v The Czech Republic (Application No. 57325/00).
24.	D.H. was concerned with the education of Roma children in the Czech Republic. Statistical information available to the court suggested that a Roma child was 27 times more likely to be placed in a special school than a non-Roma child. The applicants, all Roma children placed in special schools, accepted that the legislative and administrative schemes in place which governed whether children should go to special schools did not on their face discriminate against Roma. Nonetheless, they suggested that the stark statistical disparity led strongly to the conclusion that indirect race discrimination was in play. The majority of the Court, in the course of an exceptionally long judgment, accepted that proposition. The Grand Chamber reaffirmed that in discrimination cases statistical information could be important but was not sufficient in itself to prove discrimination [137]. In paragraph [175] the Grand Chamber recapitulated the main principles and said:-
“The court has also accepted that a general policy or measure that has disproportionately prejudicial affects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group… and that discrimination potentially contrary to the convention may result from a de facto situation (Zarb Adami v. Malta, NO.17209/02,paragraph 76). ”
25.	The Court went on, in paragraphs [177] and [178], to deal with questions of burden of proof and prima facie evidence. It said:-
“the Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submission. According to its established case law proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar un-rebutted presumptions of fact”
26.	In the result, the formulation identified by Carnworth LJ in Esfandiari has been repeated by the Grand Chamber. 
27.	The Claimant’s complaint is not, in truth, that this measure indirectly discriminates against individuals of Scottish origin. It is that it indirectly discriminates against anyone who is neither English nor Welsh because such people are less likely to have an address available to them where they may be monitored for HDC purposes. 
28.	Mr Southey submitted that one could safely infer that Scotsmen (and no doubt the others I have identified) suffer discrimination of this sort. The absence of any statistical information concerning the question is the fault of the Secretary of State who should be collecting such information, but who is not. Mr Sheldon points to the absence of evidence of any problem identified directly or anecdotally as supporting the conclusion that there is no disproportionately prejudicial effect on a particular group. That is so, he submits, whether the group is limited to Scottish prisoners who wish to be released on HDC in Scotland or other non-English or Welsh prisoners who wish to be released somewhere other than England and Wales.
29.	In my judgment the circumstances of the Claimant’s case are very far removed from the type of circumstances envisaged by the Grand Chamber in DH or of those canvassed in the other cases referred to by Carnworth LJ. There is no disproportionately prejudicial effect on Scotsmen in the way that the early release scheme operates. All of those I have identified in paragraph [15] above are less well off under the scheme than those who have a readily available address in England and Wales because living in Clearwater accommodation will usually be less agreeable than being at home. Furthermore, there is no proper basis for inferring that any particular group has in fact been adversely affected by the need to have an address in England or Wales to avoid the choice between Clearwater accommodation or more time in prison. If there were a particular problem with the Scots or indeed any other subset it would have become apparent during the operation of the scheme. On the information placed before me, there is no reason to suppose there is any particular or general problem at all. The evidence is to the effect that there has not been.
30.	Mr Southey advanced his argument under indirect discrimination on the grounds of race before that of direct discrimination because such discrimination requires more by way of justification than discrimination on grounds of residence. Nonetheless, I am satisfied that even if I am wrong in rejecting this indirect discrimination claim because the evidential foundations for it are, in reality, absent such difference as there may be obviously stand up to scrutiny. There is a relevant distinction between the Claimant and those he identifies as his comparators upon tagging and monitoring. The Secretary of State has no jurisdiction in such matters in Scotland because Parliament has chosen not to confer any on him. Looking at this issue as the House of Lords suggested in Carson there is no justified complaint under Article 14. The essential background to that issue is that for historical reasons different and independent legal jurisdictions have arisen within the different parts of the United Kingdom. As between England and Wales (on the one hand) and Scotland on the other devolution has made additional and fundamental changes to the legislative independence of Scotland within defined spheres of activity, including prisons and matters of early release. The HDC scheme that this case concerns was introduced by Westminster legislation that applied only to England and Wales. Monitoring was an essential component of HDC. Whilst not obliged by the statute to put in place monitoring arrangements for the whole of England and Wales, the Secretary of State did so.  That allowed early release to any home in England and Wales originally so long as it had a land line, but now via a mobile as long as a signal is available. Conscious that many prisoners, for all sorts of different reasons, would be unable or unwilling to specify an address in England and Wales he made arrangements for places in Clearwater accommodation to be made available. That was foreshadowed by the legislation. No general problems relating to the Scots (or indeed any other group) have ever come to light. Whilst it would be possible to put in place secondary legislation and activate the devolution mechanisms to allow HDC to be monitored in Scotland that would be an entirely disproportionate response to what is at most a very small problem.
Direct Discrimination
31.	The first question is whether “residence in Scotland” or perhaps more accurately coined “residence outside England and Wales” is a “status” which provides a basis for an Article 14 challenge. In Carson the House of Lords was prepared to assume that foreign residence was a convention ground even though it did not easily fall within the rubric of a “personal characteristic” that the Strasbourg Court had considered essential to “other status” for Article 14 purposes (see Kjeldsen v Denmark [1976] 1 EHRR 711, at paragraph  56 and paragraph [13] of Lord Hoffmann’s speech in Carson). As I read the speeches in that case, only Lord Caswell’s conclusion carried with it the necessary implication that foreign residence was a status for Article 14 purposes. In Carson the Secretary of State did not seek to argue otherwise and he had conceded the point in the Court of Appeal. At first instance, [2002] 3 All ER 994, Stanley Burnton J had concluded
“residence applied as a criterion  for the differential treatment for citizens is in my judgment is a ground within the scope of Article 14. Like domicile and nationality, it is an aspect of personal status.” (see paragraph 57) 
In the light of that conclusion, I shall proceed on the same basis. 
32.	Mr Southey submits that even if indirect discrimination on grounds of race cannot be established there is direct discrimination based upon place of residence. 
33.	So the comparator identified by Mr Southey is someone who is ordinarily resident in England and Wales. Put shortly, he says the difference is simply between someone whose home is in England and Wales and someone whose home is elsewhere.
34.	In so far as the HDC Scheme discriminates directly it does so against those who do not have an available address in England and Wales but do have an address elsewhere in the United Kingdom or abroad to which they could go if the Secretary of State had monitoring arrangements in place. The question then arises, which I have already identified by reference to observations by Lord Hoffmann and Lord Nicholls in Carson, whether there is a relevant difference between the two groups that justified the different treatment. 
35.	In my judgment the factual distinction between the two groups in reality itself justifies the different treatment. I would hold this to be an obvious case of the sort contemplated by Lord Nicholls for the reasons I have identified in paragraph [30] above.
36.	The Secretary of State is responsible in England and Wales for administering the statutory provisions which govern when prisoners within that jurisdiction may be released. HDC was an early release scheme that depends on monitoring. The statutory arrangements contemplated release within England and Wales subject to monitoring arrangements put in place by the Secretary of State. Those monitoring arrangements extend only to England and Wales. Whilst it would be possible to create cross-jurisdictional arrangements within the United Kingdom to enable direct release to Scotland through the Devolution mechanisms, thus engaging the Westminster and Holyrood administrations and Parliaments, none of those bodies has taken that step.
37.	The difference in treatment withstands scrutiny because there is an obvious relevant difference between the Claimant and those he seeks to compare himself with, namely, that he cannot readily be monitored (unless he accepts Clearwater accommodation) whilst they can.
38.	Even if that did not provide a complete answer, the other way of looking at it would be to conclude that the differentiation has a legitimate aim, namely to achieve the early release of prisoners within  England and Wales subject to monitoring, and the adverse impact is not disproportionate. That is essentially for reasons I have already identified in paragraph [30]. Alternative arrangements are available through Clearwater accommodation and to require the legislative process necessary in both England and Scotland (ignoring for the moment any other United Kingdom or foreign jurisdictions) to be set in motion is not a proportionate response given the negligible impact of the differentiation that this case has brought to light.
The Human Rights Act 1998 [“the 1998 Act”]
39.	Article 14 is not of direct effect in United Kingdom law but is a Convention Right for domestic law purposes because it is identified as such in section 1(1)(a) of the Human Rights Act 1998.
40.	Sections 6(1) and 6(2) of the 1998 Act provide:
“6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
       (2) Subsection (1) does not apply to an act if – 
a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
41.	Mr Sheldon submitted that even if, contrary to my conclusion, there was a breach of Article 14, the Secretary of State would be protected by Section 6(2). That is because the Secretary of State was acting in conformity with primary legislation (i.e. section 37A(4)) and delegated legislation (the 1999 Regulations) which cannot be read down under Section 3 of the 1998 Act. Although, the issue does not strictly speaking arise, the submission is a sound one.

The Claims Under the Race Relations Act 1976 [“the 1976 Act”]
42.	Mr Southey ran two arguments founded on the provisions of the Race Relations Act 1976. The first suggested discrimination against the Claimant on the basis of his Scottish origin. The second suggested a breach of a general duty imposed by section 71 of that Act.

43.	He submitted on the strength of BBC Scotland v Souster (2001) SC 458, a decision of the Court of Session, that discrimination on the basis that someone was English or Scottish was discrimination for the purposes of the 1976 Act.  Mr Sheldon did not dispute that proposition.

44.	Mr Southey accepted that he could not bring the claim within section 1(1) of the 1976 Act, but submitted that the claimant had been discriminated against for the purposes of section 1(1A) when read with sections 1(1B), 19(B) and 78 of the Act.

Section 1(1A) provides that:
“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably than he treats or would treat other person;”      

The material parts of Section 1(1B)
“ Section 1(1B) of the 1976 Act provides, among other things, that:
“The provisions mentioned in subsection (1A) are-
(c) section 19B, so far as relating to- …
(iv) any form of social advantage”

Section 19B in these terms:

(1)	It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination. 
[(1A) …
(2)  In this section “public authority” - 
(a)  includes any person certain of    whose functions are functions of a public nature; but 
(b)  does not include  any person mentioned in subsection (3).
(3)  …
(4)  …
(5)  …
(6)  …]
	  	
Section 78 provides:
“social protection” and “social advantage” have the same meaning as in Article 3 of Council Directive 2000/43/EC’

45.	Mr Southey submits that the HDC puts a Scotsman at a disadvantage when compared to the English and Welsh because he is more likely to endure HDC whilst in Clearwater accommodation (even if in Northumberland close to the Scottish border) than his more southern neighbours who are more likely to be able to undertake HDC at home. It was common ground that section 1(1A) of the Act, together with other accompanying amendments, was Parliament’s legislative response to Council Directive 2000/43/EC [“the Directive”]. That is why section 78 of the Act provided that ‘social advantage’ has the same meaning as in Article 3 of the Directive.

46.	That Directive is concerned with equal treatment. Whilst Article 3(f) of the Directive specifies that it applies to ‘social advantages’ it does not define them. The phrase has appeared before in European legislation, for example EC Regulation 1612/68. It is as yet unclear whether the term has the same meaning in both instruments. There is no European case law on the meaning within the Directive. In R (Elias) v Secretary of State for Defence [2006] 1WLR 3213 it was accepted for the purposes of that litigation that an ex gratia payment to those interned by the Japanese during the Second World War was a social advantage for these purposes (see paragraph [56] of the judgment of Mummery LJ). If correct, the phrase would have a broader meaning than under Regulation 1612/68 where it is anchored to free movement purposes (see Baldinger v Pensionsversicherungsanstalt der Arbiter [2004] ECR I-8411, paragraph 19). 

47.	 The scope of the Directive is set out in Article 3:
“ Scope 
1.Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: 
(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; 
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; 
(c) employment and working conditions, including dismissals and pay; 
(d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; 
(e) social protection, including social security and healthcare; 
(f) social advantages; 
(g) education; 
(h) access to and supply of goods and services which are available to the public, including housing.
2. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.” 	

48.	Put shortly, the domestic provisions were designed to secure compliance with the Directive. Sections 1(1A) and 1(1B) are relevant for the purposes of this claim only so far as they engage section 19B when it relates to ‘any form of social advantage’. That is because early release plainly does not fall within any of the other criteria found in section 1(1B). In support of the proposition that early release on HDC is a form of social advantage, Mr Southey relied upon two decisions of the European Court of Justice. The first was Commission of the European Community v Greece [1998] I-ECR 6601. The case was concerned with provisions of Greek law that prevented workers from other Member States being accorded ‘large family status’ which would bring with it enhanced social security benefits. The Commission’s complaint was brought, inter alia, under Regulation 7 of Regulation 1612/68. That provision, which falls within a Regulation dealing with free movement of workers, includes a requirement that a migrant worker should ‘enjoy the same social and tax advantages as national workers’. The Greek legislation conferred a social advantage because in the context of free movement of workers,

“it is settled law that this concept embraces all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers with the Community (Martinez Sala, paragraph 25).” 
See paragraph 20 of the opinion of the Advocate General.

49.	 The second was Netherlands v Reed [1987] 2 CMLR 448 which also concerned free movement of workers. The Court concluded that the ability of a migrant worker to obtain permission for his unmarried companion to join him, where that companion was not a national of the host Member State, was a social advantage.

50.	 So, submits Mr Southey, the ECJ takes a broad view of social advantage as a concept wide enough to encompass the location to which a prisoner is released and must reside. That is especially so, he submits, because it impacts on his ability to re-enter the labour market and enjoy normal family life again.  

51.	I am unpersuaded that either case assists the Claimant. However broad a concept ‘social advantage’ may turn out to be it cannot be broad enough to encompass these facts. Early release does not confer a social advantage but is concerned with the way in which a prisoner serves what is part of his sentence. But there is a more fundamental objection to the suggestion that early release from prison is a social advantage for the purposes of the Directive and the Act. The Directive operates only ‘within the limits of the powers conferred upon the Community’ (Article 3). Mr Sheldon submits that European Union law does not and cannot extend to the terms upon which prisoners are sentenced, held or released. It has nothing to say about the mechanics of terms on which prisoners are released from custody. Such matters are not within the powers conferred on the EU. Therefore, neither the Directive nor the Act can be concerned with the details of early release schemes. 

52.	I accept that submission. Since matters concerning the early release of prisoners are outwith the limits of the powers conferred on the EU, they are not social advantages for the purposes of the Directive or the Act.

53.	Even if I am wrong in this, it seems to me that the evidence available does not support a conclusion that the Scots are at a ‘particular disadvantage’ when compared with others. I have already dealt with the facts when considering the claim for indirect discrimination under Article 14 ECHR. Mr Southey submits that it is a matter of common sense, or strong inference, that such a particular disadvantage must exist. But that is not necessarily so. Whilst he is correct to suggest that the absence of evidence, statistical or otherwise, of others having faced the same difficulty cannot automatically defeat this part of his case, it does to my mind suggest there is no general problem of the sort he contends for. The reason for that is likely to be that many people who commit crimes in England and Wales, even if they hail from other countries or regions within the United Kingdom, do so while they are living here. If, like the Claimant, they are short-term prisoners they may well have a home to return to. 

54.	Finally on this issue, even if discrimination had been established, in my judgment the Secretary of State has demonstrated that the HDC scheme as operated in England and Wales is a proportionate means of achieving a legitimate aim. The factors that lead me to that conclusion are the same as I identified when considering similar issues in connection with Article 14. 

55.	The second argument advanced by reference to the 1976 Act arises from the terms of section 71(1) which provides:
“Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-
(a)	to eliminate unlawful racial discrimination; and
(b)	to promote equality of opportunity and good relations between persons of different  racial groups.”

56.	The essence of the complaint is that the Secretary of State has failed to have ‘due regard’ to eliminate unlawful racial discrimination because he has failed to assess whether the operation of the HDC scheme has an adverse impact on those who do not have an available residence of choice within England and Wales. The Commission for Racial Equality published a Code of Practice on the Duty to Promote Race Equality under section 71C of the 1976 Act (since superseded by provisions in the Equality Act 2006). Underlying this part of the claim is the suggestion that had the Secretary of State paused and contemplated the possibility of difficulties being caused to Scots, Northern Irish, those from the Channel Islands and Isle of Man, and abroad (not covered by section 46A of the 1991 Act), he should have embarked upon collecting statistics so that he could then decide on a more informed basis whether to make alternative arrangements. It seems to me that this approach is lacking in reality and seeks to impose an entirely disproportionate burden on the Secretary of State to anticipate and then deal with a state of affairs that appears to be a theoretical rather than real problem.

57.	The Statutory duty is to have ‘due regard’ to the matters referred to in section 71. The circumstances of the HDC early release scheme will require a range of people in different circumstances to move to Clearwater accommodation if they wish to take advantage of the scheme, or otherwise face staying in prison until their release date arrives. There is nothing in the circumstances in which the policy operates which suggests that the Secretary of State should have done anything of the sort suggested by the Claimant. It cannot be said that he failed to have ‘due regard’ to the need to eliminate unlawful racial discrimination because the impact of the scheme in the sphere of the 1976 Act is at its highest marginal. To embark on the sort of exercise contemplated by the Claimant would not be a proportionate response to that state of affairs, even if it had been appreciated before he raised the issue, which it was not. 

58.	For these reasons this claim is dismissed.