Supreme Court Clarifies the Territorial Limits of the Public Sector Equality Duty

Introduction

In the landmark case of Marouf, R (on the application of) v Secretary of State for the Home Department ([2023] UKSC 23), the United Kingdom Supreme Court addressed a pivotal question regarding the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010. The appellant, a Palestinian refugee residing in Lebanon, challenged the implementation of the UK's Vulnerable Persons Resettlement Scheme, arguing that the PSED imposed by the Act should require UK public bodies to consider the equality impacts of their policies on individuals outside the UK. This case has profound implications for the scope and application of equality law, particularly concerning its territorial boundaries.

Summary of the Judgment

The Supreme Court upheld the Court of Appeal's decision, reaffirming that the PSED under section 149 does not possess extraterritorial effect. The Court determined that public bodies in the UK are not required to have due regard to the equality needs of individuals residing outside the United Kingdom when formulating or implementing policies. Consequently, the Secretary of State's implementation of the Resettlement Scheme, which excluded Palestinian refugees due to their classification under UNRWA rather than UNHCR, did not breach the PSED. The Court emphasized the presumption against extraterritorial application of UK legislation unless explicitly stated otherwise.

Analysis

Precedents Cited

The judgment extensively referenced several pivotal cases to elucidate the principles governing extraterritorial application of UK laws:

• R (Bracking) v Secretary of State for Work and Pensions [2013] & R (Bridges) v Chief Constable of South Wales [2020]: These cases outlined the substantive obligations under the PSED and established that the duty must be exercised rigorously and is non-delegable.
• Bilta (UK) Ltd v Nazir (No 2) [2015], Masri v Consolidated Contractors International (UK) Ltd (No 4) [2010], and Cox v Ergo Versicherung AG [2014]: These cases examined the presumption against extraterritoriality, reinforcing that UK statutes are generally not intended to apply beyond its borders unless explicitly stated.
• R (Al-Skeini) v Secretary of State for Defence [2007]: While this case acknowledged limited extraterritorial applications under certain conditions, the Supreme Court clarified that such reasoning does not extend to the PSED.

Legal Reasoning

The Court employed a traditional rule of construction, prioritizing the presumption that legislation applies territorially unless an explicit intention for broader application is evident. The Court dissected the relevant sections of the Equality Act 2010, particularly focusing on:

• Section 29(6): Addressing unlawful discrimination, the Court held that its extraterritorial application was limited and did not encompass the broader policy-making functions of public bodies.
• Section 149: The PSED's mandates to eliminate discrimination, advance equality of opportunity, and foster good relations were interpreted as being confined within the UK's jurisdiction, given the practical limitations and the lack of express legislative intent for extraterritoriality.

The Court emphasized that extending the PSED beyond the UK's borders would render the duty incoherent, as public bodies lack the capacity to influence equality outcomes in foreign jurisdictions effectively.

Impact

This judgment significantly narrows the scope of the PSED, reaffirming that UK equality law primarily concerns domestic matters. Public bodies are relieved from obligations to consider the equality impacts of their policies on individuals outside the UK, ensuring that the duty remains practical and enforceable. This clarity aids in preventing an overextension of equality duties, maintaining focus on promoting equality within the UK's jurisdiction.

Complex Concepts Simplified

Conclusion

The Supreme Court's decision in Marouf v Secretary of State for the Home Department provides definitive guidance on the territorial limits of the Public Sector Equality Duty. By affirming that the PSED does not extend its obligations beyond the UK's borders, the Court ensures that equality laws remain focused and practicable within their intended jurisdiction. This ruling not only clarifies the application of the Equality Act 2010 but also maintains the balance between promoting equality domestically and respecting international boundaries and sovereignty.