United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J GOUDIE QC MR T RESTRICK (of Counsel) Mr T J Sharpe (Solicitor) Messrs Gregory Rowcliffe & Milners Solicitors 1 Bedford Row London WC1R 4BZ
For the Respondent	MR R ALLEN QC MR S ATKAR Litigation Officer Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA


 


MR JUSTICE LINDSAY:

1. In 1991 the Respondent, Mr Ahsan, even then, as now, a long standing Member of the Labour Party, was elected at a by-election to be a member of Birmingham City Council to represent the Sparkhill Ward. It has been said that the Sparkhill ward is a safe Labour ward. Mr Ahsan is a Muslim of Pakistani origin. In May 1994 he was re-elected on the Labour ticket for a further 4-year term. In the run up to the Local Government Elections of May 1998 he sought re-adoption by the Labour Party in order to stand once again as the Labour Candidate for the Sparkhill Ward. On the 21st December 1997 he was told that he had been unsuccessful; the West Midlands Regional Executive Committee of the Labour Party selected instead a white male who, says Mr Ahsan, had neither any previous experience as a Local Councillor nor any close connection with the Sparkhill Ward. On the 26th February 1998 Mr Ahsan lodged his form of complaint - his "IT1" - to the Industrial Tribunal claiming racial discrimination. At that early stage the only respondent was Tom Sawyer, the General Secretary of the Labour Party. On the 24th March 1998 the Respondent, describing itself as "The Labour Party", lodged its Notice of Appearance. It took the point that it did not employ Mr Ahsan and asserted that a Preliminary Hearing should be arranged to deal with the applicability of section 12 of the Race Relations Act, a section which Mr Ahsan, who had until then been acting in person, had mentioned in his IT1. On the 25th March 1998 Solicitors for Mr Ahsan asserted that his claim was, inter alia, under section 12.
2. By the 21st May 1998 Mr Ahsan had obtained the support of the Commission for Racial Equality and on the 2nd July 1998 the Chairman of the Industrial Tribunal confirmed to the parties the nature of the questions which were to be the subject-matter of a Preliminary Hearing. That hearing took place before Mr S. Williams, Chairman, Mrs G.M. Deane and Mr G. Drew on the 6th and 8th July 1998. By the time of the hearing the Respondent had become "Tom Sawyer on his own behalf and on behalf of the all other members of the Labour Party". On the 25th August 1998 the Tribunal's decision was sent to the parties. The section the decision was concerned with, section 12 of the Race Relations Act 1976, provides:-

"(1) It is unlawful for an Authority or Body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against such person -

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

(2) In this Section -

(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;

(b) "confer" includes renew or extend.

(3) Sub-section (1) does not apply to discrimination which is rendered unlawful by Section 17 or 18".

3. The Tribunal's unanimous decision, which accurately reflects the questions which had been framed to be dealt with at the preliminary hearing, was;

"(1) Holding the office of Councillor on Birmingham City Council amounts to engagement in a profession within the meaning of Section 12 of the Race Relations Act 1976;

(2) The Labour Party is a body which can confer an authorisation or qualification which is needed for, or facilitates, such engagement;

(3) Accordingly, the Industrial Tribunal has jurisdiction to entertain the Applicant's claim.

And it is further ordered that this application be relisted to be heard on its merits".

On the 24th September 1998 Tom Sawyer as appellant, on his own behalf and on behalf of all other Members of the Labour Party, lodged a Notice of Appeal. It will be convenient to describe the appellant as "The Labour Party". The Industrial Tribunal had had before it a Statement of Agreed Facts for the Preliminary Hearing and beyond that there was some oral evidence, more by way of brief supplement, we are told, than of any contentious nature.

4. We cannot over-emphasise that at this stage there has been no examination whatsoever of whether the Labour Party has, in relation to Mr Ahsan, done anything at all on racial grounds. That will become material only if the Labour Party's appeal as to jurisdiction fails at this or at whatever higher or highest level to which the question is taken.
5. The Tribunal set out in closely argued "Extended Reasons" the grounds for the conclusions at which it had arrived. Mr Goudie Q.C. who appears, as he did below, for the Labour Party, identifies three broad issues of law raised by the Appeal, namely, firstly, whether the West Midlands Regional Executive Committee of the Labour Party, by refusing or deliberately omitting to select Mr Ahsan or by withdrawing from him its earlier approval, was refusing or withdrawing an "authorisation or qualification" within the meaning of section 12. Secondly, whether that Committee or the Labour Party was an "authority or body" within the meaning of section 12. Thirdly, whether holding office as, or being elected to the office of, a Local Government Councillor generally or a Labour Councillor in Birmingham City Council in particular, constitutes "engagement in a particular profession or trade" within the meaning of the section. We shall need to return to those three issues and the section in more detail later but first we shall deal with general points which Mr Allen makes as to the correct approach which this Tribunal should have to the construction of section 12.
6. Mr Allen first goes to the Preamble to the European Convention on Human Rights ("the ECHR") under the fourth heading of which is a re-affirmation of a profound belief in the value of "an effective Political Democracy". In the text itself, at Article 3 of the Fifth Protocol, there is an undertaking by "the High Contracting Parties" to hold free elections "under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature". He adds that in Mathieu-Mohin & Clerfayt -v- Belgium (1987) 10 EHRR 1 the European Court of Human Rights held that the last phrase cited above essentially implied (with Mr Allen's emphasis):-

"The principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election".

We were reminded, too, of Article 14 of the ECHR which may be read together with Article 3 and which provides that the enjoyment of the rights set forth in the Convention:-

"Shall be secured without discrimination on any ground such as .... race, colour .... or other status".

Article 17 shows that nothing in the Convention may be taken to confer any right to engage in anything destructive of the rights conferred by the Convention to any greater extent than the Convention itself provides. We were also taken to Articles 25 and 26 of the United Nations Conventions on Civil and Political Rights and to the International Convention on the Elimination of all Forms of Racial Discrimination which (at Article 2 (1) (d)) provides:-

"Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation".

By Article 5 of that Convention the State Parties undertook to prohibit racial discrimination in all its forms and, in that regard, to guarantee, inter alia, the right to stand for election and to take part in the conduct of public affairs at all levels.

7. It is common ground that if section 12 of the Race Relations Act does not in any actionable way outlaw racial discrimination in circumstances such as those we here have to consider then nothing else in domestic English law does so either. Accordingly Mr Allen paints a somewhat apocalyptic picture of a society in which, for want of section 12 taking effect as he urges it does, there can be racial discrimination in the selection of candidates for Local Government Elections. One could all too easily end up, he urges, with a society in which leading political parties could, on racial lines, effectively deny candidacy to members of particular ethnic groups and, in turn, in which such parties could, from their dominant positions, bar whole segments of society from having elected representatives of their own origin. Whilst Mr Allen's picture may seem exaggerated we are entitled to remind ourselves of historical parallels .
8. Mr Goudie's answer at this general level is to point to the limited weight or effect which is, as yet, to be given to the ECHR and to the other instruments to which we have been referred. The ECHR is, in terms of present domestic law, still merely a Treaty; as yet - July 1999 - it has no direct enforceability. The other Conventions suffer from the same weakness. Further, Article 3 of the Fifth Protocol is an undertaking, Mr Goudie argues, which binds only the "High Contracting Parties" which, needless to say, do not include the Labour Party. Article 14, he adds, is not free-standing but has force only in implementation of other Convention rights. If Article 3 confers no actionable right on Mr Ahsan (which he says is the case) then neither can Article 14. Moreover, the "legislature" referred to in Article 3 is the National legislature and does not include Local Government - see Glimmerveen and Hagenbeek -v- The Netherlands (1979) 4 EHRR 260 (which proceeded upon an assumption rather than a holding as to the applicability of Article 3 at a local level) and Booth-Clibborn & Ors -v- The United Kingdom (1985) 43 D & R 236, in which it was held that Metropolitan County Councils could not be said to form the "legislature" of the United Kingdom for the purposes of Article 3. Finally, he adds, nothing which the Labour Party may have done or omitted has affected Mr Ahsan's ability to stand for election (although, of course, it has affected or will affect his ability to stand as a Labour Candidate). We accept Mr Goudie's argument. However, we do not understand him to resist the limited force which English authority does suggest is at the moment proper to be given to the ECHR and to other United Kingdom Treaty obligations, namely that although the English Courts are under no duty to apply such provision directly they should act as Lord Brandon of Oakbrook summarised it in Re In M. and H. (Minors) (Local Authority; Parental Rights) 1990 1 A.C. 686 at 721, viz:-

"While English Courts will strive when they can to interpret statutes as conforming with the obligations of the United Kingdom under the Convention, they are nevertheless bound to give effect to statutes which are free from ambiguity in accordance with their terms, even if those statutes may be in conflict with the Convention".

We will so strive but also recognise ourselves to be so bound. However, weight must, in addition, be given to the familiar dictum of Lord Templeman in Savjani -v- Inland Revenue Commissioners [1981] Q.B. 458 at 466-467, that the Race Relations Act:-

"..... was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act".

One can quite see (were the facts to be so found) that for an established holder of public office such as a Councillor in a large City Council to be de-selected on racial grounds would inescapably be a matter of public notice and comment and would be well able to be "humiliatingly discriminatory". Accordingly we should in our view approach the construction of the detailed domestic legislation with a disposition not only, if we encounter ambiguity, that it should, if possible, be resolved in a way that conduces (as may be appropriate) to the actionability, censure, penalisation or avoidance of racial discrimination but also that we should not be too readily receptive of any argument that there is no ambiguity if that leads to "something which is humiliatingly discriminatory in racial matters" falling outside the Act.

9. With that approach in mind we return to section 12. We must first notice its position in the Act and the important ways in which it is expanded by the definition sections. Section 12 is found in Part II of the Act under the main heading "Discrimination in the Employment Field". Part II is further divided by lesser general headings. Thus sections 4 to 9 are headed "Discrimination by Employers" whereas sections 10 to 15 are headed "Discrimination by other bodies". The particular section heading to section 12 is "Qualifying Bodies". As for the definition provisions, section 12 (2) (a) and (b), as will have been seen, themselves expand on the terms "Authorisation or Qualification" to include, inter alia, "recognition" and "approval" and, in addition, section 78 has a further three material definitions. The word "Employment" - thus affecting the meaning of the main heading - is defined as meaning:-

"Employment under a Contract of Service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly".

The word "Profession" is defined as including "any vocation or occupation" and "Trade" includes any business.

10. It is thus possible to read section 12, in point of the words used, as providing that "It is unlawful for an authority or body which can confer [a recognition [or] an approval] which is needed for or facilitates engagement in a particular profession [vocation or occupation] to discriminate against a person" in any of the ways described in paras (a) (b) or (c) of subsection (1). There is criticism by the Court of Appeal in a case which we shall need to refer to in more detail later, Tattari -v- PPP [1998] ICR 106 - of what was there called "piecemeal" construction - p. 111 - and, whilst we accept that after looking at the words used in detail, word by word, one has to step back, so to speak, to see how a meaning so derived accords with or departs from the apparent overall intent of the totality of the language used, we equally have to recognise that each additional word - such as "recognition", "approval", "vocation" or "occupation"- when added to "authorisation or qualification" or "profession" is to be taken, unless the contrary is clear, not to be redundant but to have been intended to add to the meaning. We thus see it as appropriate for the purposes of this Appeal, incorporating what are probably the widest of the various words used, to ask ourselves whether relevant Committee of the Labour Party or the party itself is a body which can confer an approval which is needed for, or facilitates, engagement in a particular occupation.
11. First we will look at the matter without taking into account the authorities which have been cited to us.
12. As for the Labour Party itself being a "body", it is an unincorporated association whose members are bound to one another in contract. The word "body" - as found also in the heading to sections 10 to 15 - "Discrimination by other Bodies" - manifestly includes partnerships, trade unions, employment agents, persons concerned with vocational trading and various entities such as Scottish Enterprise and the Highlands and Islands Enterprise. The Secretary of State is a "body" for these purposes. There is no reason to exclude unincorporated associations as such or Committees thereof from being within the intendment of the word.
13. As for whether (at differing levels of abstraction) politics or being a Councillor or being a Labour Councillor can be a profession, vocation or occupation, Mr Allen draws attention to dictionary definitions speaking of the "profession of politics". Although we would see some need for regularity in the payment of attention to it to be required of an occupation, we do not regard it as a necessary ingredient of engagement in a profession, vocation or occupation that the proponent has to be engaged in it full time or that it should be his or her sole occupation. A young barrister, or say, an architect setting out on his own account, who is only rarely briefed or commissioned and whose work accordingly as such requires only a little of his time is nonetheless engaged, we would have thought, in his or her particular profession or occupation notwithstanding that each works occasionally or even longer than he does as a barrister or architect, as, for example, a lecturer to or tutor of others. A "resting" actor would surely also be so regarded. Nor do we regard it as a necessary feature of engagement in a profession or occupation that the proponent should attract substantial or any remuneration or even that remuneration should necessarily be his or her aim; given that "any vocation" is included within the definition it is easy enough to imagine some in holy orders under vows of poverty being engaged in a "vocation" yet being without any intent to be remunerated. In any event, Mr Ahsan, as a Birmingham City Councillor, was entitled to and did receive some £8,700 per annum gross, taxed on the ordinary PAYE basis, which amount, we are told, was a flat-rate which could be higher depending upon membership of particular committees and the travelling involved. We are not prepared to hold that no engagement in a profession or occupation is involved in Mr Ahsan's case.
14. As for "approval" (as also "recognition"), that seems to us to be a word wide enough to embrace that which emerges from the Labour Party's selection process. Normally each applicant for Labour Party candidacy at Local Government level is first examined to see whether he or she is an individual member of the party - Labour Party Rule Book Rule 5A.3 (b). The Local Government Party has power to refuse "endorsement" - 5A.3 (d). A list of members who are so "endorsed" forms the Party's panel of prospective candidates - 5A.3 (f). There are normally then special short-listing and selection meetings - 5A.4. That normal procedure was, in the Sparkhill case, displaced under Rule 5A.6; the white male candidate was "imposed" by the Management Committee of the appropriate Local Government Committee, a process requiring the "approval" of the Regional Secretary of the Party on behalf of the National Executive Council. The candidate so selected is doubtless expected to describe himself in his campaign and on the voting papers themselves as the Labour Party candidate. He or she is likely to receive canvassing support from that Party. Such selection as a candidate can in practical terms be regarded, it seems to us, as a "recognition" of he or she being, or as an entitlement that he or she may describe himself or herself as, the Labour Party candidate.
15. Is that Labour Party approval or recognition (or that of the Management Committee of the appropriate Local Government Committee) needed for or does it facilitate engagement in any relevant profession or occupation? It is obviously not needed in order that one should be engaged as a Councillor; there are, of course, Councillors of other parties and of none. Can it be said, instead, that being a Labour Councillor is an occupation? If being a Councillor is one (which we would accept) then we fail to see why being a Labour Councillor is not an even more "particular" occupation. Labour Party approval is manifestly an approval which is needed for engagement in the particular occupation of being a Labour Councillor. Of course, it is the votes of the constituency which will determine whether a particular candidate becomes a Councillor but it is notable that the approval to which section 12 refers, whilst having to be necessary, is not required to be sufficient. The need for a majority of the votes cast thus does not deny Labour Party approval the description of being "needed".
16. It may be argued that being a Labour Councillor is at most a part of a greater profession, being a Councillor, and that it is only that greater profession which is to be regarded for the purposes of section 12. An approval for entry only into a part of a profession or occupation, runs the argument, would not suffice. However, one can fairly speak, for example, of the profession or occupation of accountancy, as it seems to us, notwithstanding that there are a number of professional bodies regulating both entry into it the professional parts of it and continuation in them and notwithstanding that no one professional body regulates the whole of it. Although by membership of, for example, the Institute of Chartered Accountants, one perhaps enters, very strictly, only upon the profession of being "a Chartered Accountant", it is fair to see it also as an entry into the particular occupation of accountancy. Equally the Bar is a particular profession and each separate Inn of Court is a body which can confer a recognition, registration, enrolment, approval or certification which is needed for engagement in it, even though it is not the only such body that so confers it or that it confers it in respect only of a part of the profession. Taking the example of the Inns of Court further, in a sense authorisation by any one Inn of Court is not needed for engagement in the profession of barrister because that any one of the other three would suffice. Much the same would probably apply to different branches of the Accountancy profession. But to exclude the section solely because there was another or were other like bodies similarly placed whose authorisation was needed in the alternative would enable any body to escape section 12 by dividing itself into two, each with similar powers. Each would escape the section because neither's authorisation would be necessary. It would be so plain a gateway to abuse that it would, in our view, be likely to have been expressly spelled out (which it is not) had it truly been intended. This problem, though, may be material only if we are wrong in seeing that being a Labour Councillor is an occupation within section 12.
17. The word "facilitates" troubles us as one can perhaps only "facilitate" that which actually happens (so that, for example, Labour Party approval of the candidate would not "facilitate" his or her election in a safe Conservative ward). We cannot see the legislature as having intended Tribunals to evaluate whether a given candidate would or might have been elected had only his party's approval (by whichever party) not been denied or withdrawn. Even so, it may be possible in the context of English Local Government (an area in which members of the leading parties, even if not elected, very commonly, almost invariably, achieve more votes than those of other candidates) to regard even a losing Labour Party candidate as having been facilitated towards his engagement in the profession or occupation of politics or of being a Councillor or being a Labour Councillor by way of his endorsement pursuant to the party's rules. However, because of our doubts, we will rely only upon "needed for" rather than on "facilitates".
18. The word "engagement" excited no attention; it is plainly intended in Section 12 to be a word of very wide import able to cover both the taking up of and, with some degree of regularity, the expenditure of time in any profession, vocation, occupation, trade or business. Nor is any point taken that deselection of the kind being considered cannot fall within paragraphs (b) or (c) of section 12 (1). However, the Labour Party does have a significant point deriving from the words in the main heading, "Discrimination in the Employment Field". Mr Goudie argues, by reference to the definition of "employment" in section 78 supra, that Part II of the 1976 Act, and thus section 12 within it, is directed only to contractual relationships falling within that definition. He goes on, of course, to point out that a Councillor, even a Labour Councillor is, as such, not employed either by the Council or by the Labour Party or by anyone else but is an office-holder.
19. It is plain, however, that Part II does not refer only to discrimination by employers, as is clear from the heading "Discrimination by other bodies" to sections 10 to 16 in contra-distinction to the heading "Discrimination by employers" to sections 4 to 9. Nor does Part II obviously refer only to discrimination in employment in the limited sense as, had that been the case, it surely would have sufficed to have a heading "Discrimination in Employment" as opposed to "Discrimination in the Employment Field"; that last word suggests that something wider is concerned than mere "employment". Nor is it any apparent part of Part II that only an employee can invoke its provisions. Thus, for example, a person discriminated against by his or her Trade Union for having his membership taken away from him on racial grounds would, so far as one can judge from such express provisions as are made, be able to complain under section 11 (3) (b) without having to prove that he was an employee either of that Union or of anyone else. Nor is it any apparent requirement of a complaint relying upon being within Part II that the kind of work to which, in the loosest way, it might be thought to relate to must be only that which is provided under a contract of service or a contract personally to execute any work or labour. Thus, for example, it would be hard to contemplate that the Inns of Court were intended by Parliament to be outside the provisions of section 12 yet they are, in the loosest of senses, often concerned with work or workers habitually not regulated by contract. Perhaps a stronger argument against some such limitation to matters of contract of service etc. as Mr Goudie argues for can be found in the terms of section 13 and section 15. Section 15 (1) includes discrimination in the provision of facilities under Section 2 of the Employment and Training Act 1973 and section 15 (2) does the same in relation to the provision of facilities under such arrangements as are mentioned in section 2 (3) of the Enterprise and New Towns (Scotland) Act 1990. Not only does that 1990 Act speak of "arrangements", a term a good deal wider than "contracts", but the statutory provisions relating to "facilities" would necessarily seem to go beyond contracts of service or of apprenticeship or of contracts personally to execute any work or labour. So also the terms of section 13 (1) include the case of persons providing "facilities". It may be that the words in the heading - "in the Employment Field" - are intended to refer in the most general way to work. That may be seen by looking to Part III - "Discrimination in other fields" - where there are provisions in relation to education, goods, facilities, services and premises. That Parts II and III might overlap, absent express provisions, is apparent from section 12 (3) and section 13 (2). There is an apparent anomaly in that section 26A is marked "Discrimination by or in relation to Barristers" in that, although broadly relating to work, it is found in Part III rather than Part II. However, it was not in the Act as first enacted but was added later and given, in particular, the references to the provision of facilities, that there is such a possible anomaly does not, in our view, enable us to limit Part II and hence section 12 to cases involving only (and in some unspecified way) contracts falling within the section 78 definition of employment. We therefore do not accept Mr Goudie's argument on this point.
20. Mr Allen raised an argument which depends on a comparison with the very similar scheme of the Sex Discrimination Act 1975, section 13 of which, ("Qualifying Bodies"), is similarly under a main heading - "Discrimination in the Employment Field" - in Part II of that Act and corresponds to section 12 in Part II of the 1976 Act. He draws attention to section 33 S.D.A. ("Exception for Political Parties") under the heading "Goods, facilities, services and premises" in Part III ("Discrimination in other Fields"). Parliament, he urges, could plainly see that the 1975 Act might apply to the activity of political parties and saw also that some express exception was required for them in the particular respect described ( one sex provisions). That, he continues, indicates that where Parliament saw a need for the exception of political parties it knew very well how to create one. By contrast, he rightly continues, there is nothing at all comparable in any part of the 1976 Act. However, if the point has any cutting edge at all it has two; the point is as consistent with Parliament never having contemplated section 12 as possibly affecting political parties as it is with its deciding not to except them from its provisions. It does not assist us.
21. Still on the word "employment" Mr Allen bases a further argument on a comparison with the S.D.A. 1975. Section 19 of the Act ("Ministers of Religion etc.") is under the heading we have mentioned as referring to "the Employment Field". Sub-section (2) of section 19 says that section 13 of that Act (corresponding with our section 12) does not apply in the cases there specified which, in comparison with section 19 (1) (which is expressly limited to cases of "employment") would seem not to require (or, at any rate, not expressly to require) that some "employment" should be involved. The point, though, is of no assistance; the fact that section 19 (2) disapplies section 13 of that Act without requiring, as a pre-condition of the disapplication, that there should be some employment involved is not necessarily inconsistent with section 13 requiring employment to be involved before it applies.
22. Mr Goudie, in an alternative argument, urges that the West Midlands Regional Executive Committee of the Labour Party was, in deselecting Mr Ahsan, simply filtering applications and not conferring or withholding any final "approval". It was only the electorate, he said, that could confer or withhold true "approval". A mere filter system, he said, would not attract the provisions of section 12. Of course, we accept that the approval of the Committee alone or of the Labour Party alone would not constitute a man or woman either a Councillor or a Labour Councillor but section 12 does not require the "approval" to be sufficient in itself, only that it should be needed (as we have already addressed). Thus to point to the inability of Labour Party's approval of itself to confer the office of Councillor or of Labour Councillor leads, as we see it, no disapplication of section 12. We would, moreover, feel some unease at drawing careful lines between filtering and other processes; all too easily advantage could be taken to open up a highway to discrimination. Further, as the description of the Respondent below as including all members of the Labour Party is so wide, no point is available to Mr Goudie such as that the members or officers of some Committee or other or of the Party itself have not been joined.
23. Finally Mr Goudie argued that if Mr Ahsan's argument succeeded then Employment Tribunals would be drawn into questions such as whether a putative candidate of a party or an "official" candidate had or would have had a good chance of being elected in whatever particular constituency was involved. If the correct question is whether or not the party's approval is needed for engagement in the occupation of being a Councillor describable as being of that party we do not see any need at all, at all events at the jurisdiction stage, to ask questions such as those Mr Goudie describes. Moreover, the answer to his rhetorical question "Could Parliament possibly have intended that?" is no more obvious than the answer to Mr Allen's countering question - "Could Parliament have intended racial discrimination in so potentially an "humiliatingly discriminatory" area to have been left beyond the law?".
24. Having thus examined section 12 without the benefit of authority we would conclude that its provisions are wide enough to confer jurisdiction in Mr Ahsan's case. We see the endorsement of a candidate by the relevant process within the Labour Party, thus enabling (perhaps even requiring) him or her to describe himself or herself as the Labour Party candidate for election to the Birmingham City Council, as being an approval by a body which approval is needed for (and may perhaps also facilitate) engagement in the particular occupation of Labour Councillor. Standing back from the detailed or "piecemeal" study of the words of the section and attempting to divine its overall intendment, we see no reason to limit the breadth of the words "facilitate", "approval", "vocation" or "occupation" which were, as to all of them save for "facilitate", so carefully added to what would otherwise have been a less wide subject-matter. We repeat that the approval, whilst required to be necessary, is not in terms required by the statute to be sufficient. That, thus far, we feel so able to conclude as to jurisdiction seems to us consistent with what we would take to be the broad legislative purpose of the 1976 Act, to which we are entitled to have regard - Jones -v- Tower Boot Co Ltd. [1997] ICR 254 C.A. at 261. Further, so far from such construction leading to any inconsistency, it would rather accord, with the Treaty commitments to which we have earlier referred and would exhibit that slowness in finding the Act ineffective or excluded to which Lord Templeman's powerful dictum in Savjani supra refers. We add that if one can be said to "facilitate" that which has not happened or might never happen our conclusion thus far would have been a little more easily reached.
25. Now we must turn to the authorities. In British Judo Association -v- Petty [1981] ICR 660 EAT the relevant provisions were the similar ones of section 13 of the Sex Discrimination Act 1975. By a definition provision corresponding to section 78 of the Race Relations Act "profession" is there similarly enlarged to include any vocation or occupation. Browne-Wilkinson J., as he then was, giving the judgment of the EAT, proceeded, it seems, on the footing that being a judo referee fell within the description of "profession" as so enlarged and he did so notwithstanding that the case was argued on the basis that the complainant, Mrs Petty, was neither employed nor remunerated as a referee. Speaking of both section 13 of the 1975 Act and section 12 of the 1976 Act, Browne-Wilkinson J. said:-

"It seems to us that, without introducing any words by inference, the words of the statute are clear and produce an intelligible result. A complainant must show simply that the qualification facilitates his or her job prospects and that attached to such qualification is a term which is discriminatory against the sex or race of the complainant".

The decision of the Industrial Tribunal that the Judo Association had discriminated against Mrs Petty was upheld. Given that Mrs Petty was, as referee, doing or intending to do unpaid work taken for the purposes of the case not to be employment, the reference there to "job prospects" must, as it seems to us, be wide enough to include prospects as a Councillor or prospective Councillor. Nothing in this case requires us, as we have understood it, to depart from the conclusion we have indicated as being that at which we would have arrived without reliance upon authority.

26. In R -v- Immigration Appeal Tribunal Ex parte Bernstein [1987] Imm. AR 182 both Taylor J and, later, the Court of Appeal at [1998] Imm. AR 449 were concerned with a Zimbabwean holidaymaker who was refused a work permit by the Department of Employment on, she claimed, the ground of her sex. Again, section 13 (1) of the 1975 Act, corresponding to section 12 of the 1976 Act, was in issue. Taylor J held at pp. 187-188 that the Department of Employment's refusal was a refusal to work generally rather than, as section 13 required, a refusal in relation to a particular profession, trade or calling. In the Court of Appeal Bingham LJ (the only judge who there expressly dealt with section 13) held that:-

"Section 13 (1) of the 1975 Act cannot in my view avail the Appellant for reasons convincingly given by Taylor J in his judgment in this case ....... at pages 187-188".

Putting similar weight on the word "particular" in section 12 in Mr Ahsan's case adds nothing to the Labour Party's argument; indeed, it may assist to turn the proper regard from being to a Councillor to being to a Labour Councillor, a narrower focus which can only assist Mr Ahsan.

27. In Malik -v- Post Office Counters Ltd [1993] ICR 93 EAT Mr Malik had applied to Post Office Counters Ltd to be a Sub-Postmaster. He was at first told his appointment had been successful but then (on what he claimed were racial grounds) that offer was withdrawn. He relied, inter alia, on section 12. The judgment of the EAT given by Knox J, whilst accepting that section 12 should not be narrowly construed so as to produce a less wide ambit than the natural meaning of the words used suggested - p. 97G -, held that Post Office Counters Ltd (as opposed to the Post Office itself) had no exclusive privilege as to the granting or withholding of authority to conduct a Sub-Postmaster's business. It had been accepted in argument in that case that the qualification looked for, in order for it to fall within section 12, had to be exclusive - p. 97H; p. 98C-D. By contrast, if in Mr Ahsan's case the relevant occupation required to be considered is that of being a Labour Councillor then the Labour Party does effectively have an exclusive privilege as to the conferring or withholding of approval or recognition of a candidate as a Labour Party candidate or Labour Councillor. Even if the relevant occupation was to be the wider one of "Councillor", the position we have suggested above as to each of the four Inns of Court and as to Accountants leads us to the view that it is not in all cases that an "exclusive" privilege is necessary; it may suffice if what is approved or recognised is engagement in part only of a profession or occupation or if the needed qualification could, alternatively, have been sought from some similar body. So understood Malik does not thus far require a reconsideration of the view we earlier expressed without the benefit of authority but the case then goes on to raise an important point which is further developed in later cases, namely that an appointment by a body of an agent to carry on part of that body's trade is outside section 12, even if the body is the only person carrying on that trade. We shall deal later with this important point in its more developed later form.
28. In Tattari -v- PPP Ltd [1998] ICR 106 C.A. Dr Tattari, a person already recognised by the General Medical Council as a person having a right to practice plastic surgery in this country, claimed that Private Patients Plan, a company that underwrote about 28% of medical and health cover nationally, had discriminated against her on grounds of race by not adding her to its list of specialists. Dr Tattari (using language derived from the British Judo Association case supra) argued that if PPP was a body capable of advancing her job prospects by accepting her for the purpose of its insurance policies, it must be a body as described within section 12. The Court of Appeal held at p. 111 that:-

"The kind of bodies referred to are those similar to authorities which are empowered to grant qualifications or recognition for the purpose of practising a profession, calling, trade or activity".

Beldam LJ (with whom Roch LJ and Sir John Balcombe agreed) continued that section 12:-

"..... referring as it does to an authority or body which confers recognition or approval, refers to a body which has the power or authority to confer on a person a professional qualification or approval needed to enable him to practice a profession, exercise a calling or take part in some other activity. It does not refer to a body which is not authorised to or empowered to confer such qualification or permission but which stipulates that for the purpose of its commercial agreements a particular qualification is required".

Dr Tattari's appeal was dismissed. So far as concerns the former citation, although the ambit of the words "similar to" is not clear, we would see the Labour Party, in its rôle as endorser or not of candidates as Labour Party candidates in Local Government elections, as at least "similar to" bodies empowered to grant recognition for the purpose of enabling a man or woman to engage in or at least attempt to engage in a calling or occupation. Nor does the later citation, by its emphasis upon commercial agreements, appear to drive the Labour Party out of section 12; it is not said that any arrangement with Mr Ahsan was or would be commercial or for a commercial purpose.

29. In Kelly -v- Northern Ireland Housing Executive [1998] ICR 828 the statute in issue was the Fair Employment (Northern Ireland) Act 1976 which has, at section 23, a section which (albeit clearly only in relation to employment) has a provision similar to section 12. The Housing Executive engaged Solicitors in private practice to defend public liability claims made against it - p 831 f-g. It appointed Solicitors to a panel to do such work. Two Solicitors claimed they had failed to be appointed to the panel and that they had, in that regard, been discriminated against on (inter alia) the religious grounds covered by section 23. Lord Slynn of Hadley at p. 857 referred to two earlier Northern Ireland authorities on section 23, both of which referred to the section's applicability to "authorisations and qualifications" (terms enlarged in that Act much as in our section 12) which conferred some sort of "status" on the employee concerned in relation to his or her work. Lord Slynn at p. 838 e-f held that the word "status":-

"may give some indication of the essence of a qualification"

although he felt that the emphasis given to it by the two earlier Northern Ireland cases might require further argument. He continued:-

"I am however satisfied that "qualification" as defined does not cover the appointment of a duly qualified professional man to carry out remunerated work on behalf of a client, however prestigious the client. If it were otherwise the appointment of a City firm of Solicitors by a large United Kingdom company or a multi-national would amount to the grant of a qualification just as it would to the appointment of a firm by a non-governmental public authority".

Lord Griffiths, Lord Lloyd and Lord Steyn agreed without adding anything further as to section 23. At page 847 Lord Clyde spoke of section 23 covering a stamp of approval by a recognised authority but again thought the reference to the conferring of some sort of "status" as possibly distracting. The "Qualification" required by section 23 was, he held:-

"Something more than selecting someone to provide for oneself the professional services which the person is already qualified to perform".

Thus, although Malik -v- Post Office Counters Ltd supra was not directly cited in Kelly, its notion of the authorisation or qualification required not being merely the appointment of an agent for oneself or the selection of someone to provide services for oneself was developed, both in Lord Slynn's example of a large client picking its own Solicitors and Lord Clyde's reference to provision "for oneself". There may be added, as comments deriving from Kelly, that Labour Party approval plainly confers a "status" on a candidate and that devoid of such approval the person concerned is not already qualified to perform as a Labour Councillor.

30. The final development, as yet, of the idea of picking someone to serve oneself is to be found in Arthur -v- The Attorney-General & Ors (unreported) heard in the EAT by Morison J, President, Mr Hack and Mrs Marsland. The transcript of the Judgment is dated 1st March 1999. A black woman, Mrs Arthur, had applied to the Middlesex Area Advisory Committee on Justices of the Peace to be a lay magistrate. She was not recommended to the office. She asserted there had been racial discrimination and mounted a complaint based on section 12. Leaving aside arguments relating to the applicability of section 12 to the Crown, two important points emerge from Arthur.
31. Firstly, so far as concerned a wide meaning being given to the word "occupation", the EAT held:-

"To describe everything that a person does as an occupation within the Act would include people's hobbies and leisure activities".

However, hobbies and leisure activities, in contrast with engagement in a profession or trade, have the characteristic that they can be taken up, put down and taken up again at the will of the individual concerned. By contrast, it is not merely at his will that a person becomes engaged in even the humblest trade or the least exacting profession. Engagement in a trade requires an employer or the setting up of oneself in the trade and a profession usually requires some form of testing of fitness. Moreover, the basic intent of Part II (as we have mentioned earlier) as covering work would exclude hobbies and leisure activities. Further, one cannot merely at will become a Councillor or a Labour Councillor and, if one relinquished being either a Councillor or a Labour Councillor, one could not become one again merely at will. We do not see that our contemplating either being a Councillor or a Labour Councillor of a large City Corporation as being an "occupation" within section 12 carries with it, by inescapable extension, that everything that a person does, including hobbies and leisure activities, would also be "occupations" within that section.

32. Secondly, in Arthur the EAT held, of section 12, that:-

" ...... it is directed to circumstances in which A confers on B a qualification which will enable B to render services for C. Where A and C are the same entity, the section would appear to be inapplicable, otherwise it would apply to every selection panel".

Mrs Arthur's appeal was dismissed although the EAT described the position as a lacuna in the Act.

33. The EAT's references to "A", "B" and "C", the continuation of the point first mentioned in Malik and developed through Tattari and Kelly, require us to identify the player who fits each letter. "A", to both Mr Goudie and Mr Allen, is the Labour Party and each has Mr Ahsan as "B" but the difference between them appears when, to Mr Goudie, it is the Labour Party which is "C", with the result that "A" and "C" are the same and accordingly, if Arthur is right, as Mr Goudie contends, section 12 does not apply. To Mr Allen "C" is the general public or at least that section of it which lives or works in the Sparkhill Ward, with the result that "C" differs from "A" and that the Arthur argument does not put Mr Ahsan outside section 12.
34. We prefer Mr Allen's argument. To select a candidate as the Labour candidate for Sparkhill or any other Local Government constituency is, in our view, very different to appointing an agent (as in Malik), to reaching a commercial agreement of similar effect (Tattari) or to appointing a Solicitor or other person to provide professional services for oneself (Kelly). In each case the appointor in those cases was selecting for its own purposes, even though those purposes included the appointee, if selected, dealing on its behalf with some sector of the public (respectively customers of Post Office Counters Ltd., customers of PPP and persons suing the Housing Executive). No doubt in each of those cases the appointee could, in an appropriate case, be removed by the appointor or could in many cases be given mandatory directions as to how to conduct matters on pain of dismissal. By contrast, a Labour candidate, if elected, cannot be removed as Councillor by the Labour Party and, whilst, on pain of losing the whip or party membership, pressure can be put upon him by the party, he is left to make up his own mind. He can retire at will or remain, independent of the wishes of the Party, for his elected term. He cannot be directed by the Party in any mandatory way if he chooses to ignore its wishes, its whip and its membership. He would even remain a Councillor if after election he chose to describe himself as an independent or as a Councillor of a rival party. We were told, moreover, that his oath of office (which we were not shown) is not only common to all Councillors of whatever political persuasion, but also (as we would expect) is of a duty to the public rather than to party. In these circumstances, whilst in a sense the Councillor, if elected, represents the Labour Party, we cannot accept Mr Goudie's argument that a Labour candidate or a Labour Councillor is either selected or elected "to render services for" the Labour Party (to use the phrase in Arthur).
35. There is, though, a possible parallel between Arthur and Mr Ahsan's case that requires further attention. A magistrate, like a Councillor, serves the public. Could it not have been said, in Arthur itself, that "A" and "C" were different, causing section 12 to apply, because whereas "A" in that case was either the Lord Chancellor or his advisory committee, "C" was "the public".
36. We are not bound by Arthur, nor does it appear to have been argued there that "C" was the public but, beyond that, significant differences between the relationship between the Lord Chancellor, his advisory committee or, indeed, the Crown and a lay magistrate or an aspirant to be a lay magistrate on the one hand and as between the Labour Party and an aspirant or elected Labour Councillor on the other are immediately apparent. The Lord Chancellor can, no doubt in a suitable case, remove such a magistrate from office; the Labour Party cannot remove a Councillor from office (although it could deprive him of the appellation "Labour"). Further, it may be (this was not explored) that the approval of the Lord Chancellor's advisory committee is not needed in the sense of being a necessary prerequisite of appointment to the magistracy. It may be that the such committee merely recommends or not rather than having either a veto or being the only route to appointment. That alone (if we are wrong on our suggested case of the four Inns of Court) could cause section 12 not to apply to the case of the lay magistracy. By contrast, the Labour Party's endorsement in some form is an essential prerequisite to anyone wishing to stand as a Labour candidate or wishing to continue to be described as a Labour Councillor once elected; there is no alternative. Another difference may appear in this regard; if the magistrate is seen to perform his office so poorly that he is falling short of his oath of office he can (we assume) be removed from office by or on behalf of his appointor; by contrast even if a Labour Councillor joins another political party the Labour Party cannot remove him from office and if he is sought to be removed for some serious dereliction it would not be the Labour Party that so sought to remove him nor would the removal be on the Party's behalf.
37. It may be, despite these points, that properly examined Arthur was a case in which "A" and "C" were the same but the case rested on its own facts and lays down no test for determining in what circumstances "A" and "C" must be regarded as the same. Each case therefore needs to be examined on its own facts. Here the difference between the relationship between "A", the approval giver and "C", the person thereby intended to be served, in Arthur is so different to the corresponding relationship in our case that whilst in Arthur one could, if it is right, say that the appointor, the Crown, was the person for whom the appointee was "to render services" (to use the EAT's language in Arthur), in our case one cannot, in our judgment, in any similar sense say that the approved candidate was to be approved and selected for candidacy in order "to render services for" the Labour Party. Rather selection is to serve the public in the ward concerned. If Arthur is right and even were it otherwise to bind us, we would distinguish it on that ground.
38. We have not so far mentioned the judgment of the Employment Tribunal in this case in any detail. That it is very far from being any mark of disrespect; it is rather that as the argument before the Employment Tribunal was much the same as that before us (although they did not have Kelly before them as it was not then reported) it would only lengthen this judgment if we were to set out any more than the Tribunal's conclusion, which we have already done. Nor have we referred to the case of Jepson & Dyas-Elliott -v- Labour Party [1996] IRLR 116, a decision of the Employment Tribunal which held that the Labour Party's refusal to allow the applicant men to be considered for selection as Labour Party Parliamentary candidates was contrary to section 13 of the Sex Discrimination Act. Adoption as a prospective Parliamentary candidate was there held to represent an "authorisation" which facilitated engagement in a particular profession. Mr Allen tells us that Jepson was referred to in one or more skeletons in Tattari yet, as it would seem, it attracted no express disapproval. The parallels between Jepson and this case are obvious but, again, leaving aside argument peculiar to the Sex Discrimination Act, the decision in that case is based on arguments corresponding to those we have already dealt with and accordingly we shall not deal with them again save to add that in that case Parliamentary material was brought into play or attempted to be brought into play under the Pepper -v- Hart doctrine, a step which was not attempted before us.
39. We have now dealt with all the authorities cited to us. None in, in our view, either binds or persuades us to depart from the view we expressed in the absence of authority. We do not pretend that our view is free of difficulty; if, for example, the relevant occupation in section 12 is that of being a Labour Councillor can it really be, asks Mr Goudie, that Parliament intended that Tribunals should get involved in questions such as whether there was discrimination on the withdrawal of a party's whip? We have already indicated Mr Allen's countering question of whether Parliament could have intended that so potentially harmful a class of discrimination should be left without remedy. Ultimately the matter falls for decision not upon a balance of competing rhetorical questions but upon the basis of the words of the Statute, construed using the approach we indicated earlier and in the light of binding or persuasive authority. It is on that basis, as we have understood the matter, that we dismiss the appeal. The Employment Tribunal has, in our judgment, jurisdiction to hear Mr Ahsan's complaint. We would ordinarily go on to direct the matter to return to the Employment Tribunal to be heard on the merits but at the close of the hearing both sides indicated firstly that, whichever lost, it or he would wish to appeal and, secondly, that the winner would not resist the grant of permission to appeal. Important principles are plainly involved and we welcome the matter going further; permission to appeal is granted to the Labour Party. If no Notice of Appeal is lodged within the prescribed or any duly extended time then the matter is to be relisted at the Employment Tribunal to be heard on its merits.