Anwar (Appellant) v The Advocate General (representing the Secretary of State for Business Energy and Industrial Strategy) (Respondent) (Scotland)

Michaelmas Term

[2021] UKSC 44

On appeal from: [2019] CSIH 43

Appellant
Aidan O’Neill QC
Scott Blair

(Instructed by Drummond Miller LLP (Edinburgh))

Respondent

David Johnston QC John MacGregor QC

(Instructed by Office of the Advocate General for Scotland)

Intervener
(Equality and Human Rights Commission)
Christine O’Neill QC
(Instructed by Equality and Human Rights Commission)

LORD HODGE: (with whom Lord Lloyd-Jones, Lord Briggs, Lord Leggatt and Lord
Burrows agree)

1. This appeal from the Inner House of the Court of Session in Scotland concerns

proceedings for judicial review by the appellant (“Ms Anwar”). So far as is now
relevant, she claims compensation from the United Kingdom Government for an
alleged failure properly to implement Council Directive 2000/43/EC implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin,
Council Directive 2000/78/EC establishing a general framework for equal treatment in
employment and occupation, and Parliament and Council Directive 2006/54/EC on the
implementation of the principle of equal opportunities and equal treatment of men
and women in matters of employment and occupation (together “the Equality
Directives”). Her claim, which is directed against the Secretary of State for Business,
Energy and Industrial Strategy, is that the United Kingdom failed to provide an
effective remedy for the harassment which she suffered at the hands of her former
employer on the grounds of sex, race and religion. As explained below, Ms Anwar
asserts that that failure is the failure to enact a legislative provision to enable an
employment tribunal in Scotland to grant a warrant for the interim remedy of
arrestment on the dependence. Ms Anwar argues that she should have been able to
obtain such a warrant against her former employer at or after the commencement of
the tribunal proceedings, thereby giving her the ability to freeze her former employer’s
bank account and thus prevent the alleged dissipation of the funds which otherwise
would have been available to meet her financial claim.

2. As explained by Lord Drummond Young, who wrote the majority judgment in

the Inner House ([2019] CSIH 43; 2020 SC 95), under EU law, member states are
obliged to provide effective remedies for the implementation of EU law-based rights
(“the principle of effectiveness”) and in so doing must provide remedies that are
equivalent to those available for comparable claims that do not involve EU law (“the
principle of equivalence”) (see the judgment of the Grand Chamber of the Court of
Justice of the European Union (“CJEU”) in Impact v Minister for Agriculture and Food
(Case C-268/06) EU:C:2008:223; [2009] All ER (EC) 306; [2008] ECR I-2483. The
principle of effectiveness is articulated in the Treaty on European Union (2012/C
326/13) (“the TEU”) itself in article 19(1), which states:

“Member states shall provide remedies sufficient to ensure

effective legal protection in the fields covered by Union law.”

Similarly, article 47 of the Charter of the Fundamental Rights of the European Union
(2012/C 326/02) (“the Charter”) recognises the general principle of EU law of effective
judicial protection by providing:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.”

Article 52(1) of the Charter addresses the scope of the rights which the Charter recognises:

“Any limitation on the exercise of the rights and freedoms
recognised by this Charter must be provided for by law and
respect the essence of those rights and freedoms. Subject to
the principle of proportionality, limitations may be made only
if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to
protect the rights and freedoms of others.”

3. As the CJEU observed in Impact (paras 44-45) and in many other cases, in the

absence of EU law rules governing the matter, it is for the domestic system of each
member state to designate the courts and tribunals having jurisdiction and to lay down
the detailed procedural rules governing actions for safeguarding rights which
individuals derive from EU law, but a member state is responsible for ensuring that
those rights are effectively protected in each case. Effective protection means that the
procedural rules must not render the exercise of those rights practically impossible or
excessively difficult: Impact para 46. That statement remains good law. (See for
example ENEFI Energiahatekonysagi Nyrt v Directia Generală Regională a Finantelor
Publice Braşov (DGRFP) (Case C-212/15) EU:C:2016:841; [2017] ILPr 10, para 30; ML v
Aktiva Finants OŰ (Case C-433/18) EU:C:2019:1074; [2020] ILPr 9, para 29; SL v Vueling

Airlines SA (Case C-86/19) EU:C:2020:538; [2021] 1 WLR 2479, para 39 and the cases cited therein, and the judgment of this Court in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2) [2017] UKSC 51; [2020] AC 869, para 106.)

4. It is not in dispute that the principle of effectiveness mandates that there be an interim measures procedure available to a claimant in an action that safeguards his or her rights derived from the Equality Directives. In my view counsel were correct so to agree. The CJEU in R v Secretary of State for Transport, Ex p Factortame (No 2) (Case C-

(i)         Does the Court of Session or the sheriff court have power to grant a

warrant for inhibition and arrestment on the dependence of an application to
the employment tribunal by a worker who alleges unlawful work and workplace
related discrimination or harassment on the grounds of sex, race, religion or
belief?

(ii) If the answer to issue (i) is that those courts have such a power, does the

requirement for an applicant in an employment tribunal claim to raise such
court proceedings constitute a breach of EU law principles of effectiveness or
effective remedy? and

(iii)       If the answer to issue (i) is that the courts do not have such a power, does

this constitute a breach of EU law?

Ms Anwar also alleges that the United Kingdom Government has breached the principle of equivalence.

DOMESTIC LAW

(i)         The jurisdiction of the Employment Tribunal

13.        Part 9 of the 2010 Act, which is concerned with enforcement, divides

jurisdiction over complaints of discrimination or harassment because of protected characteristics between the sheriff court and the employment tribunal. In Scotland sections 113 and 114 confer jurisdiction on the sheriff court in relation to a wide range
of claims, including those relating to services and public functions (Part 3), premises
(Part 4), education (Part 6) and associations (Part 7). Separate provision, which
addresses discrimination and harassment in the context of work, is made for claims by,
among others, employees and applicants for employment in Part 5 of the Act. Section
120 of the Act confers jurisdiction on an employment tribunal to determine a
complaint relating to a contravention of Part 5. It follows that while a claimant/pursuer
advancing a complaint of discrimination or harassment in the sheriff court can apply to
the sheriff in that process for a warrant for diligence on the dependence, a
claimant/pursuer pursuing such a claim in an employment tribunal would have to raise
a separate court action, if that were competent, to obtain such an interim remedy.

(ii)        The enforcement of an Employment Tribunal’s judgment

14.        Section 15(2) of the Employment Tribunals Act 1996 (“the 1996 Act”) provides:

“Any order for the payment of any sum made by an
employment tribunal in Scotland … may be enforced as if it
were an extract registered decree arbitral bearing a warrant
for execution issued by the sheriff court of any sheriffdom in
Scotland”

The employment tribunal’s order for payment is equated with a decree arbitral which has become directly enforceable by having obtained from the sheriff a warrant for its execution. The employment tribunal’s order can therefore be enforced without the

need to apply to the court for such a warrant or to raise a court action for payment of
the sum awarded in the order for payment.

(iii)       Diligence on the dependence

15. Historically, Scots law allowed a claimant/pursuer to obtain the interim remedy

of diligence on the dependence automatically where the claimant/pursuer was
asserting a right to the payment of a debt that was alleged to be currently due. The
claimant/pursuer did not have to persuade the court that he or she had a prima facie
case on the merits of the action or to establish that there was a need for the diligence.
Only where the action was for the payment of a future or contingent debt did a
claimant/pursuer have to demonstrate special circumstances to support the grant of a
warrant for the diligence. Those special circumstances were that the defender was at
significant risk of insolvency or was contemplating flight from the country (vergens ad
inopiam or in meditatione fugae). In the overwhelming majority of cases the
claimant/pursuer sought diligence on the dependence in an action in which the court
granting the warrant for such diligence would thereafter adjudicate on the merits of
his claim for payment if the claim were not settled by agreement. But there is also case
law of high authority which supports the view that it is competent to raise an action for
payment in the Scottish courts for the purpose of obtaining diligence on the
dependence of the action as interim security in respect of a claim that is pursued in
another forum.

“1. The pursuer must establish a prima facie case on the
merits of the action. 2. The pursuer must establish that there
is a specific need for an interim remedy; this will generally
involve demonstrating either that there is a significant risk of
the defender’s insolvency or that the defender is taking steps
to conceal or dissipate his assets or that there is a significant
risk that the defender will remove his assets from the
jurisdiction. 3. A hearing must take place before a judge at
which the last two matters are considered. 4. If protective
attachment is used without an objective justification, and in
particular if the pursuer is unsuccessful in the action, the
defender should be entitled to damages for any loss that he
has suffered in consequence of the attachment.”

19.        The Scottish Parliament thereafter enacted section 169 of the Bankruptcy and

Diligence etc (Scotland) Act 2007 which added Part 1A to the Debtors (Scotland) Act 1987 (“the 1987 Act”). The provisions in Part 1A were designed to address the problems which the Scottish Law Commission and others, including Lord Drummond Young, had identified. I do not need to set out the relevant provisions in any detail but quote only those provisions which are central to the issues in this appeal. Section 15A which is headed “Diligence on the dependence of action” states so far as material:

“(1)	Subject to subsection (2) below and sections 15C to

15F of this Act, the Court of Session or the sheriff may grant

warrant for diligence by

(a)	arrestment; or
(b)	inhibition,

on the dependence of an action.

(2)	Warrant for -
(a) arrestment on the dependence of an action is
competent only where the action contains a conclusion for payment of a sum other than by way of expenses; …”

Section 15C, which is headed “Diligence on the dependence to secure future or contingent debts”, provides:

“(1) It shall be competent for the court to grant warrant for diligence on the dependence where the sum concluded for is a future or contingent debt.

(2)	In this section and in sections 15D to 15M of this Act,

the ‘court’ means the court before which the action is
depending. …”

Section 15D provides that a creditor may apply for warrant for diligence on the dependence of the action “at any time during which the action is in dependence” and makes provision for such an application. Section 15E sets out the matters as to which the court must be satisfied before making an order to grant diligence on the dependence without a hearing under section 15F. It provides that that where the court makes such an order it will (i) fix a date for a hearing under section 15K, at which the defender or any person having an interest may seek recall or restriction of the warrant, and (ii) order intimation of the date of that hearing. Section 15F provides for a hearing on an application for a warrant for diligence on the dependence. Under both sections 15E and 15F the matters which the court must be satisfied before it makes an order granting a warrant for diligence on the dependence are in substance the same. Those matters are (quoting from section 15E(2)):

“(a)	that the creditor has a prima facie case on the merits

of the action;

(b) that there is a real and substantial risk enforcement of

any decree in the action in favour of the creditor would be
defeated or prejudiced by reason of -

(i)          the debtor being insolvent or verging on

insolvency; or

(ii)         the likelihood of the debtor removing, disposing

of, burdening, concealing or otherwise dealing with all

or some of the debtor’s assets,

were warrant for diligence on the dependence not granted in

advance of such a hearing; and

(c)	that it is reasonable in all the circumstances, including

the effect granting warrant may have on any person having an interest, to do so.” (The words in italics are included only in section 15E)

In each of sections 15E and 15F it is provided that the onus shall be on the creditor to satisfy the court that the order granting a warrant should be made (section 15E(3) and section 15F(4)).

20.        It is sufficient at this stage of the judgment to note that the provisions of Part

1A of the 1987 Act require (i) that the action in respect of which a warrant for diligence on the dependence may be granted is one which has a conclusion for the payment of a sum of money other than by way of expenses (section 15A(1) and (2)) and (ii) that the
court granting the warrant must be the court before which the action described in (i) above is depending (section 15C(2)). The provisions place no further restriction as to the nature of the action for payment which is before the court which grants the

warrant.

THE JUDGMENTS OF THE COURT OF SESSION

21. In a succinct opinion dated 1 June 2018 ([2018] CSOH 54) the Lord Ordinary, Lord Tyre, refused Ms Anwar’s petition for judicial review. He held that the EU law principle of effectiveness would be breached if there were no mechanism, such as diligence on the dependence, to protect the right to compensation of a claimant

before an employment tribunal from the risk of a respondent’s failure to meet the tribunal for payment of compensation was enforceable without further intervention by the court (section 15 of the 1996 Act) did not render incompetent an action raised purely to obtain diligence on the dependence. Turning to the second issue which I have stated in para 12 above (the principle of effectiveness), he concluded that the need to raise a separate action in the sheriff court to obtain a warrant for diligence on the dependence did not render Ms Anwar’s exercise of the EU law right practically impossible or excessively difficult. The standard of practical impossibility was a high one. The additional expense and inconvenience of having to raise a separate action in the sheriff court to obtain the warrant was likely to be modest and the cost of the application would be incurred regardless of the forum. Lord Tyre also addressed and rejected the argument that there had been a breach of the EU law principle of equivalence.
award (para 24). On the first issue which I have stated in para 12 above he held that
Hawkins v Wedderburn and Fordyce v Bridges established that: (i) it was competent to
raise an action in the Court of Session for the sole purpose of obtaining diligence
pending the outcome of proceedings in a foreign court; (ii) such an action was not to
be dismissed on the ground of lis alibi pendens; and (iii) it was of no consequence that
the Scottish court had no jurisdiction to decide the merits of the action (para 28). He
held that the introduction of Part 1A into the 1987 Act did not alter the common law in
this regard and that there was no reason to distinguish between the powers of the

22. The First Division of the Court of Session (the Lord President, Lord Drummond Young and Lord Malcolm) by majority upheld the Lord Ordinary’s decisions in a judgment dated 2 August 2019 ([2019] CSIH 43; 2020 SC 95). Lord Drummond Young delivered the substantive majority judgment and Lord Malcolm delivered a short concurring judgment.

(i)         The first issue: an ancillary jurisdiction?

28.        Mr Aidan O’Neill QC on behalf of Ms Anwar renews the submission that the

Court of Session and the sheriff court do not have power to grant a warrant for diligence on the dependence of an application to the employment tribunal by a worker alleging work-related discrimination or harassment.

29. He submits, first, that neither court has any power at common law or through

an inherent jurisdiction to grant warrant for diligence on the dependence in any case in
which it does not have jurisdiction to hear and determine the merits and substance of
the dispute. I disagree. In my view the Court of Session and the sheriff court have
jurisdiction to hear an action which is ancillary to other proceedings and to grant a
warrant for diligence on the dependence of that ancillary action, thereby in substance
providing security for the claim in the other proceedings.

30.        The first reported case to recognise the power of the Court of Session to grant

diligence on the dependence in support of a claim being pursued in proceedings in entitlements to participate in the profits of a commercial partnership based in London, in which proceedings were brought in Chancery in England against parties domiciled in England. Those defendants owned estates and moveable property in Scotland and were resident in Scotland. The claimants in the English proceedings raised an action in the Court of Session seeking payment of the same debt as they were claiming in their suit in London, but expressly for the purpose of obtaining a warrant for diligence on the dependence and not to have the merits of the dispute determined by the Scottish court. The sole purpose of the Scottish action was to obtain security for the enforcement of any decree which the plaintiffs might obtain in the Chancery proceedings in England. The Lord Ordinary (Lord Cuninghame) determined that the action for this purpose was competent and rejected the defenders’ plea of lis alibi pendens. The Second Division on appeal was divided on the question and consulted the other judges of the Court of Session who decided by a majority of 9:3 that the proceedings were competent. The Lord Justice-Clerk (Lord Hope) summed up the decision in these terms (pp 944-945):
another tribunal is a decision of the whole of the Court of Session in Hawkins v

“I go distinctly on the principle, that I think a party is entitled
to raise and keep up an action for the very purpose of
securing himself by ultimate payment, although he may not
be in a condition … to follow out the action at the time, but
must wait the decision of another tribunal ... [A]n action may

be raised and will be sustained for the purpose of security …

For this result I think there is a clear principle, and it seems to
me to be applicable equally whether the subject matter of
discussion is under submission, or before the court in
England. By a process which is in dependence, the party may
be subjected in liability to the pursuer. The debt is not yet
constituted or liquidated; neither is it when a common action
is raised in this country for a debt. Whether it is to be
liquidated by a decree in a submission, or by a decree in the
cause in Scotland, or by production of a decree to be
obtained in the English court, does not appear to me to affect
the competency of obtaining and maintaining security over
property in this country, by an action with diligence on the
dependence.”

The Lord Justice-Clerk’s reference to a “submission” in the second paragraph which I have quoted is a reference to a submission to arbitration, which excludes the court from hearing and determining the merits of the claim but does not render the court action incompetent: see MacDonald v MacDonald (1829) 7 Shaw 765, to which the Lord Justice-Clerk referred at p 945.

31. Shortly afterwards, in Fordyce v Bridges (1842) 4 D 1334, a case concerning a

will governed by English law, the Second Division of the Court of Session followed the
whole court’s decision in Hawkins in upholding the competency of an action in the
Court of Session which was raised for the purpose of obtaining diligence on the
dependence against heritable property in Scotland as security for the proceedings in
England.

“… I do not think the competency of such an action as the
present depends at all on the enquiry, whether this court has
jurisdiction to try the question on the merits between the
parties. The principle which I stated in Wedderburn, on which
I apprehend that judgment rests, was this: - A party has a suit
in England in which he may obtain decree, and he finds that
his debtor has property in Scotland which it may be
necessary for him to secure, in order to meet and satisfy the
decree, if he obtains it in England. He comes into this court
with a summons narrating the English suit, averring, of
course, that he will obtain decree. He sets forth that as his
interest and civil right to us who have jurisdiction over the
property of his adversary, and he raises his action here to
secure property to make that decree effectual; and, on
obtaining that decree, asks for judgment and execution in

terms of it.” (Original emphasis)

(a)	The principles of effectiveness and effective judicial protection

41.        Ms Anwar’s second challenge is that the United Kingdom has failed properly to

implement the enforcement provisions of the Equality Directives by its failure to provide effective interim protection for successful workplace discrimination and harassment claims. In advancing this challenge Mr O’Neill relies principally on the

43. In my view the judgment does not support counsel’s contention. The words,

relies, are to be understood in the context of the legal challenge which was made. The
case concerned complaints brought before the Equality Tribunal in Ireland by people
who had been excluded from the procedure for the recruitment of new police officers
to the national police force because they were above the maximum age for
recruitment which was laid down in national regulations. The challenge was that the
setting of the maximum age constituted discrimination prohibited by Directive
2000/78 and by the national law which transposed that Directive. The Minister
challenged the jurisdiction of the Equality Tribunal, which was the predecessor of the

submission that the need for a claimant, who pursues such a claim in the employment
tribunal, to raise separate proceedings in the sheriff court to obtain diligence on the
dependence, breaches the principles of effectiveness and effective judicial protection
enshrined in article 19(1) of the TEU and article 47 of the Charter. He also argues that
there has been a breach of the principle of legal certainty in EU law: the clarity and
accessibility of legal rules are, he submits, components of the principle of
effectiveness.

42. In support of the contention that EU law mandates that an individual seeking a

remedy for an infringement of a right conferred by EU law be provided with a “one
stop shop”, that is a tribunal that will determine the merits of his or her claim and also
be empowered to authorise interim measures such as diligence on the dependence,
Mr O’Neill refers to judgment of the Grand Chamber of the CJEU in Minister for Justice
and Equality v Workplace Relations Commission (Case C-378/17) EU:C:2018:979;
[2019] 2 CMLR 13. He founds in particular on para 50 of the judgment in which the
CJEU stated:

“It follows from the principle of primacy of EU law, as ensure that EU law is fully effective, disapplying if need be any national provisions or national case law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case law by legislative or other constitutional means.” (Emphasis added)

interpreted by the court in the case law … that bodies called
upon, within the exercise of their respective powers, to apply

which I have emphasised in para 50 of the CJEU’s judgment and on which counsel had jurisdiction to rule on complaints against measures that were allegedly incompatible with the Directive and national law but that only the High Court had jurisdiction to disapply or strike down a rule of national law. The CJEU interpreted the essence of the referring court’s question as being (para 31):

“whether EU law, in particular the primacy of EU law, must
be interpreted as precluding national legislation … under
which a national body established by law in order to ensure
enforcement of EU law in a particular area lacks jurisdiction
to decide to disapply a rule of national law that is contrary to
EU law.”

In answering that question in the affirmative, the CJEU asserted the principle of the primacy of EU law and repeated its ruling that that principle required all organs of the state, which were called upon, within the exercise of their powers, to apply EU law, to disapply national legislation that is contrary to EU law. There is no question on this appeal of a tribunal having to have power to disapply national legislation. The CJEU’s judgment did not address the wholly separate question, which arises on this appeal, whether a tribunal charged with applying EU law must have the power to order interim measures or whether a national legal system can lawfully provide that another public body, such as a court, is to exercise that power.

44. Mr O’Neill also submitted that, if there were an ancillary jurisdiction by which

establishing that jurisdiction were not sufficiently clear and accessible to the claimant
to comply with the principle of effectiveness. He observed, as did the Lord President,
that employment lawyers do not appear to be aware of the possibility of using the
courts for this purpose. He argued that the proper transposition of the Equality

the courts could support the claimant in an employment tribunal, the rules and not mere case law, and in particular the case law in this appeal which he described as “antiquarian”.

45. In support of those contentions, he referred to two judgments of the CJEU. The

first was Commission of the European Communities v Kingdom of the Netherlands
(Case C-144/99) EU:C:2001:257; [2001] ECR I-3541, which concerned Council Directive
93/13/EEC on unfair terms in consumer contracts. The Commission’s complaint was
that specific provisions of the Directive, on how to assess the unfair nature of contract
terms and on the interpretation of written consumer contracts, had not been expressly
transposed into Netherlands law so as to make the specific rights which the Directive
conferred on consumers clear and unambiguous. As appears from the opinion of
Advocate General Tizzano (EU:C:2001:50), the Netherlands Government relied not only
on specific provisions of the Netherlands Civil Code in relation to property law,
obligations and contracts which were not to the same effect as the relevant terms of
the Directive but also on a decision of the Hoge Raad (the Dutch Supreme Court) that
the provisions of the Netherlands Civil Code governing standard contractual terms
must be interpreted in such a way as to confer on consumers at least the same level of
protection as the Directive. The Advocate General opined (points 26-31) and the CJEU
held (para 20) that the results intended by the Directive could not be obtained by
applying the domestic law of the Netherlands as it then was. It was against this
background that the CJEU made the following statement (para 21) on which Mr O’Neill
relies:

“As regards the argument advanced by the Netherlands interpreted in such a way as to ensure conformity with the Directive - a principle endorsed by the Hoge Raad der Nederlanden (Netherlands) - it would be possible in any event to remedy any disparity between the provisions of Netherlands legislation and those of the Directive, suffice it to note that … even where the settled case law of a member state interprets the provisions of national law in a manner deemed to satisfy the requirements of a Directive, that cannot achieve the clarity and precision needed to meet the requirement of legal certainty. That, moreover, is particularly true in the field of consumer protection.”

46. In my view, this statement is not authority for a proposition that when EU law is

given effect in a common law jurisdiction, in which judge-made law is a source of law
independent from statute and enjoys a considerable degree of certainty by the
operation of the doctrine of precedent, authoritative propositions of domestic law laid
down in case law are to be deemed to lack clarity because they are not in the form of
legislation. Commission of the European Union v The Netherlands must be read in the
context in which the Dutch courts were seeking in a general ruling to impose a strained
interpretation on the provisions of the Netherlands Civil Code by requiring those
provisions to be read up or read down in order to implement the Directive.

47.        The second judgment of the CJEU to which we were referred in this context is

European Commission v United Kingdom (Case C-530/11) EU:C:2013:554; EU:C:2014:67; [2014] QB 988. The case concerned a complaint by the European Commission that the United Kingdom had failed to transpose into domestic law a requirement imposed by Parliament and Council Directive 96/61 (inserted into articles 3(7) and 4(4) of Parliament and Council Directive 2003/35/EC) that procedures for the review of approvals of projects which might affect the environment were not to be prohibitively expensive. In resisting the complaint, the United Kingdom Government relied on the discretion conferred on a court to make a protective costs order in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 and other cases. The CJEU observed (para 56) that the effect of the body of case law was subject to debate and the case law did not provide the unequivocal rules which were needed to make effective the rights which the Directive conferred. The transposition of the Directive was therefore not sufficiently clear and precise. It went on to explain that the case law test that required that the issues were of public interest was not appropriate, that the courts did not appear to be obliged to grant protection where the cost of the proceedings was objectively unreasonable, and that it was not appropriate to exclude the costs protection where a particular interest of the claimant was involved. The regime laid down by the case law also did not ensure the claimant reasonable predictability as regards his or her exposure to costs.

48. This case is not authority for the proposition that legal rules set out in case law

cannot meet the requirements of precision and clarity that EU law requires when the
relevant EU provision is designed to create rights for individuals. As the CJEU stated
(paras 35-36) a judicial practice that the courts may decline to order an unsuccessful
party to pay costs is not sufficient to meet the requirements of precision and clarity
but “it cannot be considered that every judicial practice is uncertain and inherently
incapable of meeting those requirements.” Much will depend upon the circumstances
of the relevant rules.

49. Mr O’Neill also relied on the statement of the CJEU in para 65 of its judgment,

which cited Križan (para 4 above) and the case law, being the Factortame and Unibet
judgments, to which it referred:

“it is apparent from settled case law that a national court
seised of a dispute governed by European Union law must be
in a position to grant interim relief in order to ensure full
effectiveness of the judgment to be given on the existence of
the rights claimed under European Union law.”

50.        It is important to see this statement in its proper context. In both Factortame

Unibet Križan, concerned the temporary suspension of the application of the permit pending the court’s final decision on the legal challenge. In my view these circumstances are far removed from interim orders freezing the assets of a defender in order to obtain security for a financial claim in the event that a claim is successful. Care must be taken when addressing the reasoning in those cases to have regard to their proper context.
and the relevant interim measures which were sought were the suspension of public authority to disclose the urban planning decision as to the location of the site. The question of interim measures, which was the fourth question addressed by the CJEU in
national measures alleged to be incompatible with EU law. Križan concerned an
environmental challenge (under article 15a of Council Directive 96/61 and the Aarhus

51. It is also important to consider what are the enforcement provisions in the Equality Directives which it is said the UK Government has failed properly to implement. In each case they concern the defence of rights and compensation or sanctions.

52.        Directive 2000/43 provides for the defence of rights in article 7(1) in these

“Member states shall ensure that judicial and/or
administrative procedures … for the enforcement of
obligations under this Directive are available to all persons
who consider themselves wronged by failure to apply the
principle of equal treatment to them, even after the
relationship in which the discrimination is alleged to have

occurred has ended.”

Article 15 provides:

“Member states shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures

necessary to ensure that they are applied. The sanctions,
which may comprise the payment of compensation to the
victim, must be effective, proportionate and dissuasive.”

53. Directive 2000/78 includes in articles 9(1) and 17 identical provisions on the

defence of rights and sanctions as articles 7(1) and 15 of Directive 2000/43 which I
have quoted in the immediately preceding paragraph.

54.        Directive 2006/54 provides for the defence of rights in article 17(1): “Member states shall ensure that … judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.”

Article 18 provides for compensation or reparation:

“Member states shall introduce into their national legal
systems such measures as are necessary to ensure real and
effective compensation or reparation as the member states
so determine for the loss and damage sustained by a person
injured as a result of discrimination on grounds of sex, in a
way which is dissuasive and proportionate to the damage
suffered.”

55.        What is worthy of note is that the Equality Directives themselves do not

themselves mandate the creation of interim measures. The requirement of EU law that measures should not exist as part of the general law of a domestic legal system rather than being specified in legislation that implements the Equality Directives.
interim measures should be available is the product of article 19 of the TEU, article 47
of the Charter and the established case law of the CJEU, which I have discussed in
paras 4 and 50 above. Mr David Johnston QC for the respondent does not dispute that

56.        The requirement of precision and clarity in this context must in my view be

Session Practice (1916), pp 77 and 387, which was formerly the leading textbook on practice, and more recently in the Stair Memorial Encyclopaedia, The Laws of Scotland (1991) vol 8, para 260. Both those texts refer to the doubts expressed in Atkinson and Wood v Mackintosh (para 33 above) but the text in the Stair Memorial Encyclopaedia recognises the continued existence of the ancillary jurisdiction in relation to arbitration, including foreign arbitrations. Modern texts on court practice also recognise that jurisdiction: Macphail, Sheriff Court Practice, 3rd ed (2006), para 2.99 and Court of Session Practice (2020), para E115. The ancillary jurisdiction is also recognised in leading texts on arbitration. It is based ultimately on the decision of the whole Court of Session in Hawkins v Wedderburn which remains authoritative. Ms Anwar’s challenge based on arguments of legal certainty and precision must therefore fail.
assessed by the standard of the informed lawyer rather than the lay claimant. The
existence of the ancillary jurisdiction is, as I have said, discussed in Graham Stewart on

57. That leaves the question whether the requirement to raise an ancillary action

for payment in the sheriff court in order to obtain diligence on the dependence of that
action to secure the claim in the employment tribunal renders the claimant’s exercise
of his or her EU law rights practically impossible or excessively difficult. In my view,
essentially for the reasons which have been stated by the Lord Ordinary and the
majority of the First Division, the answer to that question is that that requirement does
not breach the principle of effectiveness or the analogous principle of effective judicial
protection.

58.        It is important to bear in mind that diligence on the dependence, which freezes

a defender’s bank account if an arrestment is used or which inhibits the defender’s the tests in sections 15E and 15F which a pursuer must meet to obtain a warrant for diligence on the dependence: para 19 above.
ability to transact with his or her heritable property if an inhibition is used, is a
draconian remedy. It was for that reason that the availability of the remedy as of right
was criticised in the Report of the Scottish Law Commission and it was held to be
unlawful by the Court of Session in Karl Construction because it did not respect the

59. A claimant pursuing a complaint, which involves a claim for compensation of a

value of many tens of thousands of pounds, in an employment tribunal may well
engage a lawyer to pursue that claim, as Ms Anwar did in this case. The claimant would
wish to protect that claim if he or she had evidence that the debtor/employer was
facing insolvency or acting to defeat the claim. It is highly likely that the claimant
would wish the assistance of a lawyer to present a case for such a warrant by
demonstrating that the statutory tests are met in an action in the sheriff court and also
even if the application for the warrant could be presented in the employment tribunal.
But the claimant is entitled to present the application without legal representation in
the sheriff court. The application in the employment tribunal would require some form
of written pleadings and evidential documentation to demonstrate the matters, such
as the insolvency or imminent insolvency of the debtor, which must be established and
there would have to be a hearing at which the application could be challenged. It
cannot be assumed that an employment tribunal would not charge any fee if it were
given this new jurisdiction. On obtaining a warrant for diligence on the dependence
the claimant would incur the cost of (i) engaging sheriff officers or messengers at arms
to serve the schedule of arrestment on a third party or serve the inhibition on the
debtor and (ii) registering the inhibition in the Register of Inhibitions. Section 15M of
the 1987 Act provides that, subject to the court’s power to modify, the claimant is
entitled to the expenses incurred in obtaining the warrant and in executing the
arrestment or inhibition.

60. The additional hurdles which a claimant faces by having to raise an action in the

sheriff court are (i) the payment of court fees, (ii) the preparation of a straightforward
initial writ which contains a crave for payment, an application for a warrant for
diligence on the dependence and averments about the existence of the employment
tribunal claim and its likely success, and (iii) the exposure to the prospect of an adverse
award of expenses in favour of the debtor/employer (a) if the claimant has acted
unreasonably in applying for and obtaining the warrant for diligence on the
dependence (section 15M(2) of the 1987 Act) or (b) if the claimant is unsuccessful in
the application or in resisting an application by the debtor for restriction or recall of
the diligence (section 15M(4)).

61.        A perceived need to incur the expense of engaging a lawyer may deter many

claimants from seeking to obtain a warrant for diligence on the dependence, whether the application be made in the sheriff court or, as Ms Anwar advocates it should be, in the employment tribunal. But a claimant with a claim which does not involve a
substantial sum of money is unlikely in any event to seek diligence on the dependence
as the diligence would be likely to be treated as nimious unless an arrestment were

restricted to a modest sum commensurate with the likely value of the claim.

“[T]he principle of equivalence is essentially comparative.
The identification of one or more similar procedures for the
enforcement of claims arising in domestic law is an essential
pre-requisite for its operation. If there is no true comparator,
then the principle of equivalence can have no operation at
all: see the Palmisani case [1997] ECR I-4025, at para 39. The
identification of one or more true comparators is therefore
the essential first step in any examination of an assertion that
the principle of equivalence has been infringed.” (Emphasis
added)

72.        Both the Lord Ordinary and the First Division (unanimously) identified the

correct comparator in this case as another employment-related claim which comes erred in law in making the comparison which they did. In my view the courts below were unquestionably correct in making that comparison. As an employment tribunal cannot grant a warrant for diligence on the dependence when considering either a claim derived from EU law or a claim based solely on domestic law, there is no breach of the principle of equivalence.

before the employment tribunal and which is based on domestic law, such as a claim
for unfair dismissal. As Lord Drummond Young explained (in para 89 of his opinion)
claims come before the employment tribunal because they are based on contracts of
employment. The comparison advanced on behalf of Ms Anwar was between an EU-
derived claim for employment-related discrimination which is heard in the
employment tribunal and an EU-derived claim for discrimination brought in the sheriff
court, for example in relation to a contract for the supply of goods or the supply of
services. One insuperable difficulty with that comparison, as Lord Drummond Young
pointed out, was that it did not compare a claim based on EU-derived rights against a
claim based on domestic rights. This observation is in my view unanswerable. Mr
CONCLUSION

73.        I would dismiss the appeal.

JUDGMENT

Anwar (Appellant) v The Advocate General for
Scotland (representing the Secretary of State for
Business, Energy and Industrial Strategy)

(Respondent) (Scotland)

before

Lord Hodge, Deputy President
Lord Lloyd-Jones

Lord Briggs Lord Leggatt Lord Burrows

JUDGMENT GIVEN ON

13 October 2021

Heard on 25 February 2021