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Comments on the case Marshall v Bermuda1

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The case Larry Winslow Marshall and Others v The Deputy Governor of Bermuda and Others [2010] UKPC 9 deals with the Men's Rights issue of conscription.  In this appeal to the Privy Council of the House of Lords, the appellants belonged to an organisation called "Bermudians Against the Draft," and some/all of them had been called up to serve in the Bermuda Regiment as conscripts.  The appellants were unsuccessful in this court action.

The appellants employed five arguments, but I will concentrate on just one of them -- the sex discrimination argument, where the two Acts referred to were the Defence Act 1965 and the Human Rights Act 1981 ("HRA").

Both men and women can serve in the Regiment as volunteers, but only men can be conscripted.  There are few volunteers, so most of the Regiment is made up of conscripts (i.e. of men).  The appellants argued that because conscription is restricted to men in Bermuda the HRA is infringed, and the power of conscription is therefore invalid. 

The case relates crucially to section 6(1) of the HRA.

 

"Employers not to discriminate

6 (1) Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2(2) by --

(a) refusing to refer or to recruit any person or class of persons (as defined in section 2) for employment;

...

(e) establishing or maintaining any employment classification or category that by its description or operation excludes any person or class of persons (as defined in section 2) from employment or continued employment;

..."

 

One argument centred around section 6(1)(a) and one centred around section 6(1)(e). 

The appellants argued that the term any person in section 6(1) need not refer to the same person as is referred to by the phrase any person in section 6(1)(a).  In other words, they claimed that the HRA prohibited discriminating against any one person by refusing to refer or recruit any person (i.e. the same person or class of persons or another person or class of persons) for employment.  On a generous interpretation, that must certainly be correct, since the relevant part of the HRA could easily have been drafted as follows:

 

Employers not to discriminate

6 (1) Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2(2) by --

(a) refusing to refer or to recruit that person or the class of persons (as defined in section 2) to which he belongs for employment;

 

Linguistically, the function of a demonstrative pronoun such as that is to refer to an otherwise identified (e.g. previously mentioned) entity.  Since the HRA abstains from the use of a demonstrative in section 6(1)(a), and uses the referentially independent phrase any person again, it is clear that the purpose is to catch as broad a range of circumstances as possible.  The Court claims (paragraph 18) that section 6(1)(a) treats employment as something that is desirable.  That is clearly untrue, and the Court does not give any evidence for this claim, except to refer to the wording of section 2(2)(a), which defined discrimination in general.  The Court states:

 

"The relevant wording echoes that of the similar provision in section 2(2)(a), where the ambiguity of the phrase 'any person' is not present."

 

Section 2(2)(a) reads:

"(2) For the purposes of this Act a person shall be deemed to discriminate against another person --

(a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because --

(ii) of his sex;"

 

There is no reason to say that the wording in section 6(1) echoes the wording in section 2(2), and there is no reason to say that the phrase any person is ambiguous.  It clearly is not ambiguous.  It means what it says.  Section 2(2) refers to a broad range of circumstances, which clearly covers the conscription situation which is the subject of this court case.  Section 6(1), on the other hand, refers specifically to employment.

As far as section 6(1)(e) is concerned, the Privy Council admits (paragraph 19) that it is arguable that conscripts constitute an employment classification or category. However, it states that the section fails to exclude anyone from employment, because both men and woman are in fact legally employed in the Bermuda Regiment.  However, the relevant wording is by its description or operation excludes any person or class of persons.  As the Court points out, this category (conscription) does not exclude anyone by its operation, but it does exclude women by its description.  It is hard to see what the phrase by its description could possibly apply to if it does not apply to this case.

 

Conclusion

Although Lady Hale makes a personal statement in favour of sex equality in conscription at the end of the judgment, I consider that this is just camouflage, aimed at concealing the fact that the Court uses dishonest arguments in order to continue the oppression of men which all Feminist countries perpetrate.  She states (paragraph 56):

Nor should it be assumed that women welcome their exclusion from what might at first seem unattractive activities.

That is either a very stupid statement or a grossly hypocritical one.  Given the gross pursuit of female self-interest by many females in the legal profession, we must assume that this is a case of gross hypocrisy.  The issue here is obviously not the exclusion of women: women are free to join the military as volunteers.  The issue is conscription -- women elect and serve in governments that draft men and send them to kill and maim and be killed and be maimed -- against their will.  Women are not subject to conscription.  Feminists make a big issue of what they call "choice": the ability of women to choose to kill unborn babies without consulting the babies or the fathers of the babies.  Conscription is the antithesis of choice, and -- in the 20 or so decades of Feminists agitation -- no sign has ever been seen of any attempt by any Feminist to get women conscripted on an equal basis with men.

 

1. I would like to thank the Human Rights Barrister Tony Ellis for bringing this case to my attention, although the views expressed here are 100% my own views.

 

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