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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Garland v British Rail Engineering Ltd [1982] 2 All ER 402

LORD DIPLOCK: My Lords, the facts which give rise to this appeal are sufficiently stated in the four explanatory paragraphs incorporated in a reference to the European Court of Justice, made by this House under article 177 of the EEC Treaty, of questions concerning the interpretation of article 119 of that Treaty and of two directives made by the Council of Ministers. The reference was in the following terms:

1. Mrs. Eileen Mary Garland is a married woman employed by the respondents, British Rail Engineering Ltd. (BREL). The whole of the shareholding in BREL. is held by the British Railways Board which is a public authority charged by statute with the duty of providing railway services in Great Britain.

2. All employees of BREL. enjoy certain valuable concessionary travel facilities during the period of their employment.. These facilities entitle each employee, regardless of sex, to travel free or at a reduced rate on British Rail and certain foreign railways. Such facilities are extended not only to the employee, but to his or her spouse and dependent children.

3. After employees of BREL. retire from their employment on reaching retiring age (which is earlier for women than for men) there is a difference in their treatment depending on their sex. In the case of former male employees, they continue to be granted (though on a reduced scale) travel facilities for themselves, their wives and dependent children. In the case of former female employees, they receive (on a similarly reduced scale) travel facilities themselves, but no such facilities are granted in respect of their husbands or dependent children. These facilities are not enjoyed by former employees as a matter of contractual right, but employees have a legitimate expectation that they will enjoy them after retirement and it would be difficult in practice for BREL to withdraw them unilaterally without the agreement of the trade unions of which their employees are members.

4. On November 25, 1976, Mrs. Garland complained to an industrial tribunal that BREL were discriminating against her contrary to the provisions of a United Kingdom Act of Parliament, the Sex Discrimination Act 1975. Her complaint after consideration also by two intermediate appellate courts, the Employment Appeal Tribunal [19781 I.C.R. 495 and the Court of Appeal sub nom. Roberts v Cleveland Area Health Authority [19791 1 WLR 754, has now reached the House of Lords which is a court against whose decision there is no judicial remedy under United Kingdom law.

5. In order to enable it to give judgment on the appeal, this House considers that a decision is necessary on the following questions:

1. Where an employer provides (although not bound to do so by contract) special travel facilities for former employees to enjoy after retirement which discriminate against former female employees in the manner described above, is this contrary to: (a) article 119 of the EEC. Treaty? (b) article 1 of Council Directive (75/1171)? (c) article 1 of Council Directive (76/207/E.E.C.)?

2. If the answer to questions 1 (a), 1 (b) or 1 (c) is affirmative, is article 119 or either of the directives directly applicable in member States so as to confer enforceable Community rights upon individuals in the above circumstances?

Before it reached this House, Mrs. Garland's claim had been dealt with in an industrial court, the Employment Appeal Tribunal and the Court of Appeal upon the footing that it turned upon the true construction of section 6 (4) of the Sex Discrimination Act 1975, but without any consideration being given to the fact that equal pay without discrimination on the grounds of sex is required by article 119 of the EEC Treaty and that the application of this article had also been the subject of directives made by the Council of the EEC. under article 189 of the Treaty. Furthermore, after the passing of the Sex Discrimination Act 1975, the European Court of Justice had held in Defrenne v. Sabena that article 119 was directly applicable in member states, without the necessity of any further act by any institution of the Community or legislative action by a member state, to make unlawful any discrimination between men and women in the amount of compensation receivable by them for equal work performed in the same establishment whether private or public.

Section 6 of the Sex Discrimination Act 1975 appears in Part 11 of the Act which bears the general heading " Discrimination in the Employment Field and is the first of a fasciculus of five sections under the sub-heading 'Discrimination by employers'. For present purposes it is sufficient to set out the following provisions of section 6:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman...

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services....

(4) Sub- sections 1 (b) and (2) do not apply to provision in relation to death or retirement.

The industrial tribunal was of opinion that concessionary travel facilities afforded to ex-employees after their retirement fell within subsection (4);. they were "provision in relation to...retirement" and so were not subject to the prohibition on discrimination imposed by subsection (1) or (2)(a). The Employment Appeal Tribunal took the contrary view. They considered that the words of the exception created by subsection (4) ought not to be construed so widely as to include "a privilege [that] has existed during employment "and is allowed by the employer "to continue after retirement". The Court of Appeal restored the decision of the Industrial Tribunal....

In neither the Employment Appeal Tribunal nor the Court of Appeal was attention drawn by counsel, as it should have been, to article 119 of the EEC. Treaty or to either of the two directives dealing with sex discrimination, Council Directive of February 10, 1975 (75/117 EEC), and Council Directive of February 9, 1976 (760/207 EEC); although in the light of the answers given by the European Court of Justice to the questions referred by this House, reference to article 119 is sufficient to dispose of the matter and reliance upon neither of these directives has turned out to be necessary....

My Lords, even if the obligation to observe the provisions of article 119 were an obligation assumed by the United Kingdom under an ordinary international treaty or convention and there were no question of the treaty obligation being directly applicable as part of the law to be applied by the courts in this country without need for any further enactment, it is a principle of construction of United Kingdom statutes, now too well established to call for citation of authority, that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom. are to be construed, if they are reasonably capable of -bearing such a meaning, as intended to carry out the obligation and not to be inconsistent with it - A fortiori is this the case where the Treaty obligation arises under one of the Community treaties to which section 2 of the European Communities Act 1972 applies.

The instant appeal does not present an appropriate occasion to consider whether, having regard to the express direction as to the construction of enactments "to be passed" which is contained in section 2(4), anything short of an express positive statement in an Act of Parliament passed after January 1, 1973, that a particular provision is intended to be made in breach of an obligation assumed by the United Kingdom under a Community treaty, would justify an English court in construing that provision in a manner inconsistent with a Community treaty obligation of the United Kingdom, however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency. For, in the instant case the words of section 6(4) of the Sex Discrimination Act 1975 that fall to be construed, "provision in relation to ... retirement" without any undue straining of the ordinary meaning of the language used, are capable of bearing either the narrow meaning accepted by the Employment Appeal Tribunal or the wider meaning preferred by the Court of Appeal but acknowledged by that court to be largely a matter of first impression. Had the attention of the court been drawn to article 119 of the EEC Treaty and the judgment of the European Court of Justice in Defrenne v. Sabena I have no doubt that, consistently with statements made by Lord Denning MR in previous cases, they would have construed section 6(4) so as not to make it inconsistent with article 119.

In order to decide whether the construction of section 6 (4) in fact adopted by the Court of Appeal was inconsistent with article 119, and whether that alternative construction adopted by the Employment Appeal Tribunal was consistent with it, it was desirable to obtain a ruling of the European Court of Justice that would be binding upon all courts in England, including this House, upon the question of the effect of article 119 on the kind of discrimination as respects concessionary travel facilities after retirement to which Mrs. Garland was subjected by her employers simply because she was a woman and not a man.

Although I do not believe that any of your Lordships had any serious doubt as to what answer would be given to that question by the European Court, there was not in existence at the date, January 19, 1981, when the order of reference under article 177 was made, so considerable and consistent a line of case law of the European Court of Justice on the interpretation and direct applicability of article 119, as would make the answer too obvious and inevitable to be capable of giving rise to what could properly be regarded as "a question" within the meaning of article 177. lt thus became mandatory on this House, as a court from whose decisions there is no possibility of appeal under internal law, to refer to the European Court of Justice the questions that were in fact referred by the order that I have quoted at the beginning of this speech, so as to provide the House with material necessary to aid it in construing section 6(4) of the Sex Discrimination Act 1975.

To those questions the answers given by the European Court are...

1. Where an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement this constitutes discrimination within the meaning of article 119 against former female employees who do not receive the same facilities.

2. Where a national court is able, using the criteria of equal work and equal pay...to establish that the grant of special travel facilities solely to retired male employees represents discrimination based on difference of sex, the provisions of article 119 of the Treaty apply directly to such a situation.

As is rightly conceded by the respondent employers, British Railway Engineering Ltd, these answers make it clear that the construction put upon section 6(4) of the Sex Discrimination Act 1975 by the Employment Appeal Tribunal was correct, with the result that the appeal must be allowed.