A suggestion for Suzy Gale

They’re still at it. Suzy Gale, wife of the Conservative MP Roger Gale, says

I have taken advice from an employment lawyer and if this goes ahead I will be taking legal action for unfair dismissal or positive [sic] discrimination against whatever authority I can.

But also

Gale said advice she had received suggested it was not clear against whom she should launch legal challenges. “Who do I sue for unfair dismissal? My husband or the House of Commons?

Only her employer can dismiss her: surely she must know who her employer is. If it’s her husband, won’t he have given her particulars of employment under section 1 of the Employment Rights Act 1996?

I’ve already explained why employment law doesn’t help her. But on reflection, I do have some thoughts about a possible form legal action might conceivably take. I’m not saying it’ll succeed. But it may be possible.

The Independent Parliamentary Standards Authority set up by the Parliamentary Standards Act 2009 is obviously doing something of a public nature; and it’s outside Parliament, so in principle will be judicially reviewable. Suzy Gale will be affected by what it does, if it prepares a scheme under section 5 that prevents any allowance being used to pay her to work for her husband. So she’d have standing to judicially review it. Her gounds? If the scheme took effect immediately, she might try arguing that the IPSA was irrational to adopt it because (1) its effects are indirectly discriminatory since they will affect more men than women and (2) that it is unreasonable and disproportionate for it to have the effect of terminating her job immediately after 27 years.

The beauty of this approach it that it gets round the obvious problems of an employment law route. The discrimination argument is an abstract one of principle so the “comparator” issue doesn’t arise, and since judicial review gets at the rule-maker rather than the employer applying the rules, it also opens up a possible proportionality argument. Note that the claim doesn’t necessarily rely on proportionality as a free-standing ground of challenge (whether it can be or not in English public law is an old chestnut debate among lawyers). Proportionality comes into the argument as an essential part of the discrimination claim, since the indirect discrimination in the scheme would be plainly justified except to the extent it has disproportionate effects on some individuals. The discrimination argument wouldn’t be the basis of the legal challenge as such, but just an essential part of the reasoning: the argument is that because of the discrimination and the harsh effect on some individuals, the IPSA acted unreasonably in preparing the scheme.

Notice also that I’ve not mentioned a legitimate expectation argument. I suppose if you really were conducting this litigation, you’d probably throw it in. But it’s a bad argument I think. Suzy Gale can only have a legitimate expectation to be employed in accordance with whatever the current rules are; a clear proposal from Sir Chris Kelly soon, and statement by the IPSA that it will incorporate his proposals into its scheme will surely be enough to make illegitimate any expectation she might possibly have of being entitled to work on regardless.

If I were advising the IPSA, this just possible judicial review might make me think it’d be safer for the scheme to contain some transitional provisions softening the blow and making it more difficult to argue a lack of proportionality – one Parliament’s grace for people with over 25 years’s service like Suzy Gale, for example, would seem to me more than enough. A year or two would almost certainly do, I’d have thought.

I’m not suggesting the scheme would be unlawful without such transitionals – even the proportionality line of argument is weak because Suzy Gale can have no expectation her husband will be reelected and her current work will continue. She must have spent all of the last 27 years thinking about the day she’d need to get another job, so the effect on her of the scheme would not be so life-changing as all that. And as Botogol pointed out in comments on my previous post, if the “ban” on employing spouses is merely in IPSA’s allowance scheme, it won’t actually prevent Suzy Gale continuing to work for her husband. It’s just that, like most employers, he’d have to pay her.

All I’m saying is that this may actually be a legal claim Suzy Gale could try, and that the risk of her doing so might be realistic enough to influence IPSA’s thinking at the margins.