United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL DIAMOND (of Counsel) Appearing under the Bar Direct Access Scheme
For the Respondent	MR ADRIAN LYNCH (One of Her Majesty's Counsel) Instructed by: The Treasury Solicitor One Kemble Street LONDON WC2B 4TS

SUMMARY

Religion or belief

The appellant was a Justice of the Peace. He sat on the Family Panel which, inter alia, places children for adoption. He objected to the possibility that he might be required to place a child with a same sex couple. The reason he gave was that he considered that there was insufficient evidence that this was in the child's best interests and he felt that children should not be treated like guinea pigs in the name of politically correct legislation.

He asked to be relieved from hearing cases which might raise these issues. Representatives of the respondent refused to allow this and he resigned from the Family Panel. He complained that this was both direct and indirect discrimination and harassment, contrary to the Employment Equality (Religion or Belief) Regulations 2003.

The Tribunal found that on the facts there was no unlawful conduct of any kind. He had not indicated that his objections were rooted in any religious or philosophical belief. There was in fact no direct or indirect discrimination for religious or philosophical reasons, nor any evidence of harassment. Even if there were a criterion adversely impacting on the appellant, the respondent was justified in requiring him to carry out the full duties of the office in accordance with his judicial oath.

The EAT rejected the appeal. The case was dismissed largely on the facts, but in addition the Tribunal was fully entitled to find that any indirect discrimination was justified.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. The appellant is a married man with a family, and a practising Christian. He has served as a Justice of the Peace in Sheffield since 1988, and still holds that office. He states that he cannot in conscience, and compatibly with his philosophical and religious beliefs, agree to place children with same sex couples. By section 79 of the Civil Partnerships Act, which amends the Adoption Act 2002 civil partners and same sex partners living in a same sex relationship were added to those couples who may in some way (such as by adoption, fostering or care) look after children. (In fact there was no barrier to individuals in same sex relationships from looking after children even before the amendment, but apparently the appellant was not aware of this.)
2. The possibility that he may have to place children in that way arose from the fact that he was a member of the Family Panel. He sought to be relieved from the duty to officiate in such cases by an administrative arrangement. When it was indicated to him that an exception would not be made in his case, he resigned from that Panel, although he continues to serve as a Justice of the Peace on the Adult Panel, dealing with criminal and motoring matters.
3. He brought proceedings alleging that he had been forced to resign from membership of the Family Panel by the refusal by the Department to accommodate his beliefs. He asserted that this constituted discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003 which gives effect to Council Directive 2000/78/EC which imposes a general framework for equal treatment in employment and occupation. He claimed that he had been discriminated against directly, contrary to regulation 3(1)(a); indirectly, contrary to regulation 3(1)(b), and had been subject to harassment contrary to regulation 5(1)(a). He also alleged that his human rights had been infringed, and in particular his rights under Article 9 of the ECHR which protects freedom of conscience, religion and belief. However, it was recognised that there is no right to enforce free standing human rights in the employment tribunals, as Mummery LJ recognised in Copsey v WWB Devon Clays Ltd [2005] IRLR 811 para.8, because tribunals only have the power to hear cases allocated to them by statute. (It was not argued that the Directive might confer directly enforceable rights.) However, it was common ground that Article 9 was material to the extent that the Regulations should be read, if possible, so as to be compatible with the rights therein provided: see section 3 of the Human Rights Act.

The background.

4. The Tribunal succinctly set out its findings of fact as follows (para 12):

"12.1 Mr McClintock has served as a Justice of the Peace in Sheffield since 1988. He took the Judicial Oath on 20 April of that year. He has an unblemished record and is well regarded by fellow magistrates and by the Respondent.

12.2 He has served as a member of the Family Panel on the Bench in Sheffield since 1991. During this time the Appellant has dealt with cases wherein he had to help decide whether and where children should be placed in care, fostered or adopted.

12.3 The Appellant had never once recused himself from sitting on any case on the Family Panel.

12.4 The Appellant continued to sit on the Family Panel after first raising his concerns in March 2004 up to the time of his resignation in February 2006.

12.5 Since 1927 single persons of whatever sexual orientation have, in addition to married heterosexual couples, been able to adopt children. The Appellant had been unaware of that.

12.6 Following the passing of the Children and Adoption Act 2002 same sex couples have been added to the pool of persons eligible to adopt.

12.7 The Judicial Oath applies to all Judges (a term we shall use to include Justices of the Peace) of whatever religion, creed or persuasion.

12.8 As at February 2006 the Appellant's strongly held view was that the question of allowing same sex couples to adopt children had not been sufficiently researched and tested and that by making it possible for same sex couples to adopt children were effectively being used as "guinea pigs" in a "social experiment".

12.9 At the meeting with the Respondent on 2 February 2006 the Appellant made no mention or suggestion that his views were based on religious grounds or because he held any particular philosophical belief.

12.10 At the meeting on 2 February 2006 the Appellant made clear that he wished to be excused from having to adjudicate on any case which might lead to the adoption of a child by a same sex couple and stated that were he not to be granted such dispensation he would resign as a member of the Family Panel as he would be unwilling to continue to serve as member of it.

12.11 At no stage before during or after that meeting was any pressure put on the Appellant to resign, either as a member of the Family Panel or from his office as a Justice of the Peace. He chose to resign of his own volition. He was in no way forced or even encouraged to do so.

12.12 At the meeting on 2 February 2006 the Appellant was told that there could be no general exemption from sitting and he was reminded that he was duty-bound and obliged by the terms of the Judicial Oath that he had taken to adjudicate on any case which came before him and to decide it in accordance with his Oath and on its merits.

12.13 Had the Appellant agreed to sit on any case on the basis set out at 12.12 above, he could and would readily have been allowed to retain his position as a member of the Family Panel.

12.14 The Appellant's views at the meeting on 2 February 2006 were listened to carefully and courteously. The Respondent's representatives explained the position as they saw it and dealt with the obligations and duties of JPs in relation to their Judicial Oaths, work and status.

12.15 All dealings whether in correspondence or in person were mutually respectful and cordial.

12.16 Dr Byrd, the Appellant's expert witness, had little or no knowledge of the duties of a Justice of the Peace, the scope of the Judicial Oath or of the Respondent's responsibilities for the administration of justice.

12.17 Expert opinion is divided as to whether or not it is in the child's best interests to be placed into the care of or adopted by same sex couples."

5. The terms of the judicial oath taken by Mr McClintock are as follows:

"I… swear by Almighty God that I will well and truly serve our sovereign lady Queen Elizabeth the second in the office of Justice of the Peace for South Yorkshire and I will do right to all manner of People, after the laws and usage of this realm, without fear or favour, affection or ill-will. So help me God".

6. Sub-paragraphs 8 and 9 are of particular importance in this case. They identify the nature of the objection made at the time to DCA officials. This analysis is repeated in more detail in para 45 of the Tribunal's decision, which we set out below. The Tribunal based this conclusion partly on the evidence which the appellant gave to them but also on correspondence between the parties. They had earlier in their judgment set out in some detail the relevant letters. It is not necessary to rehearse the same detail here. We simply identify certain key passages in that correspondence.

7. Mr McClintock first wrote to the Court Manager on 18 March 2004 when what was to be the Civil Partnerships Act was still in the form of a Bill. He raised what he said "is a matter that could concern members of the Family Panel, if certain political developments have their way. It could be either a matter of conscience for individual JPs, or an issue that the Panel as a whole wish to discuss." Later in this letter he said this:

"It is possible to argue that a child is likely to thrive in same sex households. What is much more difficult to argue, however, is that, in the present state of knowledge, such a placement is anything other than experimental. There is no quantity of research that can say "this arrangement has been tried, and found to prepare the child for adulthood as well as an upbringing in a household that is single parent or traditionally heterosexual."

Accordingly, and irrespective of our views of the arrangement in itself, the question arises:

Is not a placement of that kind an experiment in social science?

Is it possible to accept the statutory obligation to remove a child from one kind of harm, and then to place that child where the emotional atmosphere has unproven consequences and where the risk of being teased at school (for having two daddies) could easily be harmful?" …

"Two linked principles are relevant. The first is that we as JPs answer to the law and not to the policy of any particular Government, it is given emphasis by the second – that we have chosen, as lay volunteers to reflect the values of the community. It is therefore entirely proper for JPs with these concerns to voice them. If the concern resonates with a number of Family Panel members, then a collective response to it is for consideration."

7. There was also a handwritten letter to the Chairman of the Family Panel at Sheffield, dated 19 March, in which he expressed the view that there was a "ticklish subject" which might raise :

"I think some factual information from Social Services would help answer the question, whether the issue is for individual conscience or collective response."

8. Then, some 21 months later, he wrote again to the Chairman of the Sheffield Family Panel, on 22 December 2005. He headed the letter "Family Panel-Ethical Position". He observed that he had had cause to consider this issue afresh and said this:

"I find myself in this position: since, not just in the Christian West but throughout the world, children have always been brought up in two-sex households, I believe that to send a child to a same sex household is to make him/her the subject of an experiment in social science. That disposal I see as in conflict with our statutory obligation to provide for the welfare of the child. Accordingly I am unwilling to officiate in a case where such an order is in prospect. This is no way a gesture of dissatisfaction with the Bench as such; and I would be very happy to remain a member, if it is not administratively complicated to allow for my stance."

10. After summarising the facts, the Tribunal then considered three situations where it was alleged that judges had been allowed to recuse themselves from a general class of case because of hostility towards, or conscientious objection to applying, particular laws. Lord Scott had indicated that he would recuse himself from sitting on any case involving the Hunting Act but the Tribunal noted that this was not simply because of opposition to the Act but because he had spoken in debates on the Bill in the House of Lords and expressed strong opposition to the legislation. Certain JPs in South Yorkshire had apparently been relieved from sitting in cases arising out of the miners' strike, but the Tribunal found that this was not the result of a general exemption, but were either recusals because of an appearance of bias or for administrative reasons. Finally, Mr Christmas Humphreys, a Buddhist, had some fifty years ago been exempted in advance of being appointed as a criminal judge in the Old Bailey from hearing cases where he might have to impose the death penalty. The Tribunal found that this was in fact the only genuine exception to the notion that those taking the judicial oath should sit on any case allocated to them (save, of course, where there are proper grounds for recusal in any particular case.)

The law

9. The relevant provisions of the 2003 Regulations are as follows. Regulation 3(1)(a) defines direct discrimination as follows:

"For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if:- (a) on the grounds of religion or belief, A treats B less favourably than he treats or would treat other persons."…

Regulation 3(3):

A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, and not materially different, in the other".

10. Regulation 3(1)(b) contains the definition of indirect discrimination:

"A discriminates against B if –

A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but –

(i) Which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii) Which puts B at that disadvantage, and

(iii)Which A cannot show to be a proportionate means of achieving a legitimate aim."

13. Regulation 2, the definition provision, provided at the material time that "religion or belief" means "any religion, religious belief, or similar philosophical belief" (emphasis added). In fact the word "similar" has since been repealed by section 77(1) of the Equality Act 2007, apparently in order to bring the Regulations into line with the Directive which they seek to implement.

11. The definition of 'harassment' is found in regulation 5(1)(a) in the following terms:

"5 Harassment on grounds of religion or belief

(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose of effect of –

(a) violating B's dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."

15. The appellant alleges that the act of discrimination is either removal from office, or alternatively his treatment constituted a "detriment", both of which are covered by regulation 10 (3) which states:

"It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this Regulation applies, to discriminate against him –…

(c) By terminating the appointment; or

(d) By subjecting him to any other detriment in relation to the appointment."

12. Article 9 of the ECHR provides as follows:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes ... freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitation as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

The hearing before the Tribunal.

13. The appellant submitted that the respondent had failed to accommodate his position. He faced an untenable situation because section 1 of the Children Act 1989 required him, in determining any question relating to the upbringing of a child, to make the child's best interests paramount, and yet he is now also required to have regard to the possibility of adopted parents (or others exercising a parental role) being a gay couple. Mr McClintock did not believe that these were compatible obligations, or at least he was not reassured by the evidence he had seen that they were. He was anxious to carry out his statutory duty and wanted more information as to how the apparent conflict might be resolved. His was not an irrational stance; it was supported by expert evidence which was adduced before the Tribunal, suggesting that children were at greater risk if placed with same sex couples. The concerns expressed by Mr McClintock were very much linked to his conscience and religious beliefs, both of which were protected under Article 9. The Department had therefore directly discriminated against him because of those beliefs.
14. Alternatively, he had been indirectly discriminated against since the failure to accommodate persons with his views inevitably impacted adversely upon those with a religious or conscientious objection to placing children with same sex couples. The DCA were obliged to seek to accommodate his conscientious objections and had singularly failed to do so. The failure to do so, and also the fact that there was an "element of reprimand" in the attitude of the Department, constituted a violation of his dignity and thus amounted to harassment.
15. Mr Lynch QC, counsel for the respondent Department, contended that by his judicial oath, Mr McClintock had undertaken to apply the law fairly and without fear or favour, and it was incompatible with that oath for him to seek to select the laws which he was willing to apply and those which he was not. Judges could not 'cherry pick'. It is vital that a judge sits on all cases allocated to him or her, whatever his religion or belief. Parliament here has provided that in an appropriate case a gay couple may be suitable adoptive parents or to exercise other parental responsibilities. It is not for a judge unilaterally to refuse to give effect to that law, or to seek to evade the consequences of doing so by insisting on the right to opt out of the obligation to judge such cases.
16. The issue is not whether the law was desirable or undesirable. That was a matter for Parliament, and not the court nor the judge. In this case, the DCA was plainly justified in not being willing to make an exception. Mr McClintock had chosen to resign, and that was his right but he could not then complain of any unlawful conduct. In any event, the correspondence demonstrated that Mr McClintock's stance had not been that he had a rooted philosophical or religious objection to placing children with gay parents. Rather it was that insufficient research had been undertaken in relation to whether this was desirable, and that he did not approve of the idea of children being "guinea pigs" in the name of politically correct legislation.
17. This was not direct discrimination, both because the DCA was not aware that it was a religious or similar belief, and in any event because the DCA would have treated anyone adopting the same stance in the same way irrespective of their religious or conscientious beliefs.
18. As to indirect discrimination, the only criterion applied here was that the judicial oath, voluntarily undertaken, should be honoured. This was a criterion applied to all. Even if one could separate out a requirement which adversely impacted upon Mr McClintock, such as an obligation to deal with certain categories of case which were incompatible with his conscience, nonetheless the DCA was justified in imposing this requirement. It was a proportionate response.
19. The claim of harassment, this went nowhere since there was no evidence that anything, even remotely relating to harassment, had occurred.

The Tribunal's conclusions.

20. The Tribunal rejected the direct discrimination claim, finding that it failed "at the first hurdle". They accepted Mr Lynch's submission that the basis on which the appellant had sought to refuse to carry out his duties on the Family Panel was that he thought that children were being treated as guinea pigs in what was part of an unacceptable social experiment. He required more information. He had never made it plain that his objection was underscored by any conscientious or religious convictions. The Tribunal summarised this conclusion as follows (para 45):

"45. …For our part, on the facts of this case, we feel bound to conclude, notwithstanding the fact that Mr McClintock may be a man of Christian beliefs, even strong ones, that the way he expressed his concerns to those whose task it was to deal with them was based on doubts resulting from a lack of research into adoption by same sex couples. He viewed the possible placement of children with same sex couples as being a 'social experiment', with children being used as 'guinea pigs'. He considered it to be 'political correctness' on the part of the government. Those are views many might share, even on a rational basis, irrespective of whether that view is underscored by religious or other similar beliefs. Whilst we can appreciate that people with strong religious convictions or beliefs may not shout them from the rooftops or need to do so, in this case Mr McClintock presented his case on the basis of the matter which concerned him being under researched. We believe that Mr McClintock's case falls at the first hurdle. Mr Diamond, citing the judgment of Rix LJ in Williamson, said that whether or not Mr McClintock expressed himself in religious or philosophical terms mattered not. It was still plain that his views were underscored by his religious beliefs and convictions. In our view Mr McClintock was seeking to convince the respondent that more research was needed into the question. Why else, as Mr Diamond suggested was the case, would he require more 'information'. Again, when giving his evidence before us, Mr McClintock admitted that he had not at the time realised that it was likely to be anything more than an administrative matter. Now that he had come to realize it was something more than that, he might, he said, be prepared to sit on the Family Panel even though he might have some difficulties in doing so. We, for our part, agree with Mr Lynch, i.e. that the regulations are not therefore engaged in the first place. At the time he was seeking to put his case over to the respondent between March 2004 and February 2006, it was based on his assertion that the whole thing was experimental and under researched."

21. As to the alleged exceptions made in the past, the Tribunal concluded that the only genuine case was Judge Humphries, and the very fact that this was so exceptional demonstrated that in principle the judicial oath had to be respected.
22. The Tribunal dismissed the harassment claim in peremptory terms, describing it as "without merit". No-one had sought the appellant's resignation. There was sadness when he resigned. He had been treated courteously, and with consideration, as he himself accepted in evidence. They found that there was not the least whiff of reprimand in the way he was treated.
23. The Tribunal summarised its conclusion on this part of the case by saying:

"In no way whatsoever could it be said that he had had his dignity violated or that he had been harassed in any way….To say otherwise would in our view turn the English language on its head."

24. With respect to indirect discrimination, the Tribunal accepted Mr Lynch's argument that the only relevant criterion was that all who took the judicial oath should honour it. They found that this did not even engage the issue of indirect discrimination for the following reason (para 48):

"In so far as the claim of indirect discrimination is concerned the Appellant was of course in no different and certainly no worse a position than anyone else who took the judicial oath. That was the only group or pool of people he could compare himself with and anyone within it, bar none, would have been treated and dealt with in exactly the same way as himself, i.e. irrespective of what their religions were or what they may have believed. It follows therefore that Mr McClintock cannot in our view succeed on either of his claims for discrimination under Section 3(1)(a) or (b)."

29. In any event, even if there had been a prima facie case of indirect discrimination, the Tribunal concluded that this was manifestly a situation where the defence of justification applied. They said this:

"…To have allowed the Appellant, or anyone else for that matter, to opt out of cases where they disapproved or were less than enamoured with the law because of their views on a particular matter or because their conscience would not allow them to consider doing something, would have been abdication of the responsibilities of those whose task it is to uphold the administration of justice in this country. Even if a Judge personally has particular views on any subject, he or she must put those views to the back of his or her mind when applying the law of the land impartially as their judicial oaths of office require them to do. It is the only way the public can place any trust in the law. To allow Judges with a particular point of view the ability to avoid cases which come before them because they feel it will likely cause them embarrassment or difficulty could, apart from anything else, impose greater burdens on others or lead to a situation whereby another pool of Judges with views in another direction might have to sit and adjudicate on such cases. The Respondent's stance was therefore wholly proportionate and wholly justified and, in our view, wholly necessary. In a country where there is such a diverse range of opinions and beliefs held and expounded by people from many religions and walks of life, it would be invidious were judges to pick and choose which cases they were prepared to sit on. It would undermine the basis of our judicial system, one that 'warts and all' has served people well for a very long time."

25. Finally, with respect to the Human Rights argument, the Tribunal found no conflict between Article 9 and the Regulations, and they found no breach of the former in any event. Mr McClintock had chosen to resign from the Family Panel and remained entitled to hold his religious or philosophical views, and to espouse those views, at all times.

The grounds of appeal.

26. Initially, Mr Diamond challenged all the findings of the Tribunal. However, before us he prudently withdrew the direct discrimination claim. In truth, it was bound to fail. The evidence was that the DCA would have treated anyone in the same way who had not been prepared to give effect to the judicial oath; and in any event, there can hardly be a direct discrimination on grounds of religion or philosophical belief when the DCA did not appreciate that this was the basis for the objection.
27. Mr Diamond did not, however, formally abandon the harassment claim, although it was pursued with little enthusiasm. In truth, this argument was bound to fail also. Mr Diamond submitted that the conduct of the officials violated Mr McClintock's dignity. However, this seemed to be premised on the notion that such an affront followed necessarily from the unwillingness of the DCA to make a special exemption for him, or their failure to provide information sufficient to satisfy him that there was no conflict. That is, with respect, a hopeless argument; it would mean that a finding of harassment would follow any finding of discrimination. The Tribunal found as a fact that there was nothing which could remotely be described as harassment or which could be said to have affronted Mr McClintock's dignity. They had evidence supporting that conclusion; indeed, given their findings, we consider that the contrary view would have been perverse.

Indirect discrimination.

28. The real focus of the appeal was on the question whether the Tribunal were entitled to conclude that there was no indirect discrimination. Mr Diamond has raised many points in the course of his argument, as he did below. Some simply raise issues of policy, and as to the others we have not always found it easy to identify to which aspect of his case they relate. However, we trust that we do justice to his submissions by seeking to deal with them by reference to the issues on which they seem to have most bearing.
29. For the purposes of this appeal, it is helpful to identify three elements in the concept of indirect discrimination claim. The first is that there must be a provision, criterion or practice which disadvantages persons who hold beliefs falling within the scope of the legislation; the second is that the appellant must personally be disadvantaged for that reason; the third is that the employer must be unable to justify any such criterion, policy or practice.
30. The Tribunal appear to have dismissed the indirect discrimination claim at the outset on the first ground. They held that since the Department applied the same rule to all, namely the obligation to abide by the judicial oath that negated any possibility of there being an indirect discrimination claim.
31. We agree with Mr Diamond that whilst this will be an answer to a direct discrimination claim, it is no answer to one of indirect discrimination. The very concept of indirect discrimination is premised on the assumption that a criterion or policy will ostensibly be applied equally to all, but will in practice adversely affect a particular group. If an employer's rules provide that everyone must work on Saturday that nonetheless clearly adversely affects Jews and Moslems who take their religions seriously. Accordingly, that particular reason given in paragraph 48 for rejecting the claim displays an error of law.
32. Mr Lynch conceded that this formulation on its own was not an answer to the indirect discrimination claim. He sought to justify the Tribunal's conclusion on what we think is a quite different basis; namely that the second element of the definition had not been satisfied. He submitted that the Tribunal's factual conclusion, namely that the appellant's objection was not based on any religious or similar philosophical belief at all, was an answer not only to the direct discrimination claim, but also any indirect discrimination claim. The reason is that Mr McClintock cannot show that he has been disadvantaged as a consequence of holding a relevant belief falling within the scope of the legislation.
33. Even if there were evidence that others were disadvantaged by reason of their religious or similar beliefs - and in fact there was no such evidence that others felt that they were placed in a similar dilemma - that would not assist Mr McClintock since that was not the basis of his personal objections. This does give rise to an issue which was not explored in any depth before us, namely whether even if Mr McClintock had not at the material time expressed adequately or accurately the real basis of his objection (perhaps because of a reluctance, understandable in the current environment, of admitting to a fixed opposition to the notion of same sex couples) he could nonetheless satisfy this element of the definition of indirect discrimination if at the hearing it became clear that the true basis of his objections was founded in his religious beliefs.
34. We are inclined to think that an appellant could in principle do that, but we have not reached a considered view for two reasons. The first is that, as Mr Lynch argued, the decision of the Tribunal contains passages which suggest that Mr McClintock was still at the hearing maintaining essentially the same position that he had adopted throughout. For example, the Tribunal record him as saying that "he might in certain circumstances, given sufficient information, be properly able to adjudicate, even to the point of placing a child with a same sex couple, much though he might regret deep down having to do so." The second is that the case was not specifically argued on that basis.
35. We agree with the Department that the Tribunal's finding, if sustainable, is indeed decisive of the indirect discrimination claim. However, Mr Diamond seeks to challenge the finding on three interrelated grounds. First, he submits that it was perverse and did not fairly reflect the evidence. Mr McClintock had indicated in his letters that for him the issue was an ethical one, and placed him in a situation where he felt that he could not in all conscience give effect to his primary obligation to further the best interests of the child whilst permitting same sex parenting.
36. The test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society: see Campbell & Cosans v United Kingdom (1982) 4 EHRR 293. That was a decision under Article 9 of the ECHR, but Mr Diamond submits that it should equally inform the construction of the regulations. Here, submits Mr Diamond, the objections identified by the appellant manifestly satisfied those criteria. Moreover, a concern how children were brought up was capable of being a relevant philosophical belief similar to a religious belief, particularly since the House of Lords has held in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 that a principled view that smacking children was necessary for their proper discipline was capable of being a relevant belief within the meaning of Article 9 Further, it would no doubt be shared by many non-religious people and was capable of being a philosophical belief even if not a religious one.
37. Second, he submits that the Tribunal has assumed that in order to fall within the scope of the Regulations, Mr McClintock ought to have stated in terms that his objection was rooted in religious or philosophical beliefs. He says that this was an error. If in fact his objections were linked with his religious or philosophical views, that was enough to create the relevant link with the protected status. He refers to an observation of Rix LJ in the Court of Appeal in Williamson v Secretary of State for Education and Employment [2003] QB 1300, para 164, where his Lordship said:

"The deed does not have to express the belief in proclaiming it. A Muslim or Jew who adheres to his religious dietary laws does not proclaim it (unless perchance there is any need for request or explanation): he does it. To all outward appearances he is like any other person eating a meal: but he is manifesting his religious belief and duty." (Italics added.)

38. A final argument advanced by Mr Diamond is to assert that even if the objections are not religious as such, nor constitute a philosophical belief similar to religious belief, they clearly reflect a philosophical belief. Section 77 of the Equality Act 2007 has amended the Regulations by removing the requirement that philosophical beliefs must be similar to religious ones, and we should if necessary apply that amended law.
39. We reject each of these arguments. The Tribunal found as a fact that Mr McClintock chose not to put his objections on the basis of any religious or philosophical belief. Mr Lynch submitted that they were applying normal English words, and their conclusion could not be upset unless their decision was perverse. We agree, and in this case we are satisfied that they had evidence to sustain that analysis.
40. As the Tribunal in our view correctly observed, to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes; it is not enough "to have an opinion based on some real or perceived logic or based on information or lack of information available." Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child's best interests; he felt that the evidence to support this view was unconvincing but did not discount the possibility that further research might reconcile the conflict which he perceived to exist. We do not think it was perverse for the Tribunal to find that such views did not fall within the scope of the Regulations.
41. As to the second ground, the observations of Rix LJ in Williamson do not mean that a appellant can allege interference with religious or similar philosophical beliefs whenever action is taken against him for a reason which is in fact connected to his religion, even although he chooses to conceal that fact from the defendant. As the words we have italicised in the quote make clear, there will sometimes be a need for an explanation. In any event, once an explanation is given, the other party - and in due course the Tribunal - will normally be entitled to take that explanation at face value. It would be absurd, for example, if an employer could be liable for religious discrimination for refusing an employee time off on a Friday if the employee had not even made it clear that the reason he made this request was for religious purposes. Here Mr McClintock gave his explanation and the Tribunal did not consider that it fell within the terms of the Regulations.
42. As to the effect of the Equality Act 2007, the amended provision only came into force on 30 April 2007. It does not have retrospective effect and is entirely irrelevant to the claims here. It would in any event only have any significance if the objections of Mr McClintock, as found by the Tribunal, were capable of constituting a philosophical belief even although not one similar to a religious belief. Mr Lynch applied the epithet "utilitarian" to Mr McClintock's stance. Whilst that description may do less than justice to the principled position which Mr McClintock adopted, we nonetheless agree with him that the kind of objection which Mr McClintock voiced here, depending as it did on the lack of evidence to justify the approach adopted in the legislation towards same sex parents, could not properly be described as a philosophical belief so as to fall within the scope of the Regulations, even after the amendment..

Two other objections.

43. But even assuming that it could be said that Mr McClintock's objection constituted a religious or similar philosophical belief, and that the requirement to abide by the oath disadvantaged him and others sharing that belief, the claim for indirect discrimination must still have failed for two further reasons, which were only obliquely challenged in the grounds of appeal.
44. The first ground is, as we have seen, that the Tribunal found that any prima facie discrimination was justified i.e. it was in order to achieve a legitimate objective and was proportionate to that end. Mr Diamond raised a number of issues which appear to have been directed to the question of proportionality.
45. The first was that it is desirable that JPs are recruited from a wide cross section of society and that it will undermine that objective if they have to apply laws which they cannot in conscience accept. The second was that there have been occasions in the past when the DCA or its predecessors have reacted sensitively and been willing to take administrative action to prevent such conflicts arising. The third was that the Tribunal had failed to have regard to the extensive evidence adduced before them which suggested that same sex parenting was not in the best interests of the child. This third point was linked to a submission that the Tribunal had misstated the argument when they suggested that Mr McClintock was seeking to opt out of his obligation to obey the will of Parliament; on the contrary, he was seeking to give effect to the obligation to advance the best interests of the child. Indeed, in somewhat flowery terms Mr Diamond suggested that Mr McClintock was upholding judicial independence against oppressive interference from the Executive.

51. We do not accept that any of these grounds constitutes a reason for concluding that the Tribunal has erred in law in its approach to justification. No doubt it is desirable that JPs should be widely recruited. But there is no evidence that requiring adherence to the judicial oath prevents this, and in any event it is a matter for the Department what weight it gives to that factor. As the Tribunal pointed out, the issue is whether a judge should be allowed a blanket objection not to have to hear cases which involve a consideration of laws to which they have a principled or conscientious objection. It does not of course mean that he or she will have to hear particular cases where, because of their activities or public pronouncements, their hearing the case might give the appearance of bias.

52. As to the second issue, the Tribunal considered this but did not think that they were truly analogous, save perhaps for the situation of Judge Christmas Humphreys. In his case he had effectively negotiated an exception before he took office. In any event, even if it were the case that administrative exceptions have been made in the past with respect to particular cases, this would not in our view begin to demonstrate that there was a legal obligation to make an exception in all cases to cater for religious or other philosophical beliefs. No doubt in this case an administrative exception could have been made, but it does not follow that there was a duty to make it.

53. Mr Diamond made the perfectly cogent point that it seems to be something of a paradox if a magistrate can properly recuse himself from a particular case on the grounds that his public actions or words have created the appearance of bias (as was the basis for Lord Scott's proposed recusal with respect to any Hunting Act appeals) and yet will not be permitted to do so where the objection to the law may be for entirely the same reasons but have been only privately expressed. We recognise the force of that. However, the apparent paradox dissolves once the purpose of the rules is appreciated. Recusal for apparent bias occurs where the parties have a reasonable suspicion arising from some particular factor, such as the fact that the judge has a financial interest, or exceptionally because he or she has expressed strong views on an issue, that the judge may not be able to conduct the trial fairly and impartially. This is different from a situation where the judge is refusing to apply the law because he has moral objections to it, or thinks that it has been introduced prematurely or has been insufficiently considered. He is then expected to put his personal views to one side - which judges frequently have to do - and there is no reason why the parties should not trust him to be able to do that.

54. Mr Diamond placed significant emphasis on the third feature, namely that Mr McClintock had adopted a rational position, supported by a host of experts, (although in fact the Tribunal found that expert opinion was divided.) He complained that the Tribunal had not paid proper regard to this fact. In our judgment this submission is misconceived. It was not for the Tribunal to question the wisdom of Parliament, which must be taken to have assumed that there was no inherent conflict in the legal position which it had created. It could not conceivably be the function of an employment tribunal to express a view that JPs could or should ignore a law passed by Parliament on the grounds that it was apparently inconsistent with other statutory provisions.

55. In any event, the issue was not whether Mr McClintock could provide a rational basis for adopting the stance he did; no doubt the wisdom of many laws can be questioned on perfectly rational grounds. Indeed, if his objection was religious or philosophical, it could in principle be relied upon whether it was rational or irrational, sensible or misguided. Furthermore, in the context of proportionality, the issue was whether the Department was entitled to take the view that they could require those who had taken the judicial oath to honour it and subordinate their own particular personal views about the merits of the law. The rationality of those objections may be relevant to the desirability of passing the law in the first place, but it is quite irrelevant to the issue of justification.

56. Nor do we accept that Mr McClintock can properly contend that he is willing to obey the law and is unable to perform his legal duties. Mr Diamond accepted in the course of argument that on a true analysis Mr McClintock was not willing to apply the law involving placing children with same sex parents unless and until satisfied that the duties which he perceived to be conflicting could be reconciled. It is also fanciful and wrong to describe this case as an example of the Executive interfering with the independence of the judiciary. It was the legislature - Parliament - which passed the Civil Partnership Act, not the Executive, and Mr McClintock's duty, as reflected in the judicial oath, is to give effect to the laws which Parliament enacts. The principle of the independence of the judiciary does not mean that they have the right to pick and choose which laws they will apply.

46. Accordingly, in our view none of these issues undermines in any way the Tribunal's clear conclusion with respect to the issue of proportionality.
47. The further hurdle facing a successful challenge to the finding on indirect discrimination is this. Although the Tribunal did not in its conclusions return specifically to consider regulation 10, they did state that the appellant had resigned voluntarily and without pressure once it was explained to him that the DCA did not consider it appropriate to adopt an administrative filter to create an exception in his case. That is a finding of fact wholly sustainable on the evidence. The Tribunal was entitled to conclude that this neither constituted a detriment nor a dismissal from office.
48. True it is that matters might have been brought to a head later in circumstances involving his removal. However, the possibility that such action might have been taken at a later stage, if Mr McClintock had chosen to remain on the Panel and refused to hear these cases, is not enough to bring him within the scope of Article 10 so as to found a cause of action.

Human Rights.

49. Mr Diamond made a number of submissions designed to establish that the DCA was acting in breach of Article 9. As we have indicated, however, the Tribunal was not charged with determining that specific question. In the circumstances, it is perhaps not desirable that we deal with this in any detail at all. Suffice it to say that it seems to us that there would be considerable difficulties in any Article 9 claim.
50. First, given the Tribunal's finding on justification in this case, it would almost inevitably have concluded that there was a defence under Article 9(2). Second, and in any event, there is a line of authority in the European Court of Justice which strongly suggests that, at least in circumstances where a party voluntarily places himself or herself in a position where a conflict might arise between his or her religious or philosophical beliefs and the duty imposed by an employment or office, then it is not in general an infringement of Article 9(1) to insist that the duties are complied with: see in particular the observations of Lord Bingham of Cornhill in R (SB) v Governors of Denbigh High School [2006] 2 WLR 719, para.23. Lord Hoffmann (paras 50ff) and Lord Scott (para 87) expressed views to similar effect. On the face of it, that would be equally applicable here.

Conclusions.

51. The Tribunal acknowledged, as do we, that Mr McClintock demonstrated candour and integrity in his handling of what for him was a sensitive issue. However, he expressed his objections on grounds which the Tribunal was entitled to find did not engage the terms of the Religion and Belief Regulations. Even had they done so, the Tribunal found that the Department was fully justified in insisting that magistrates must apply the law of the land as their oath requires, and cannot opt out of cases on the grounds that they may have to apply or give effect to laws to which they have a moral or other principled objection. The Tribunal was manifestly entitled to reach that view, and in our judgment they acted in accordance with the Regulations, which were themselves compatible with Article 9. It follows that the appeal fails.