Azelle Rodney, Gay Rights and the Cabinet Shuffle – The Human Rights Roundup

9 September 2012 by Sam Murrant

Welcome back to the UK Human Rights Roundup, your weekly booster shot of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Now that the Games are ending along with the August legal vacation, human rights news is back in force – it’s been a big week for commentary. Our top stories this week: gay rights, religious freedom and what the new Cabinet roster may mean for our justice system.

Coalition cabinet 2.0

It’s been a few days now since the Cabinet reshuffle, and the legal sector is still trying to get used to the idea of a non-lawyer as Lord Chancellor and Secretary of State for Justice. Chris Grayling was announced as Ken Clarke’s replacement on Tuesday (see here for the official announcement, which promises radical reforms to come), and while Ken may have had his share of controversial decisions, our own Adam Wagner will miss him, as Ken was a lawyer who “got” human rights law and called out Theresa May for her “catgate” posturing on human rights issues. Shami Chakrabarti (Director of Liberty) is willing to give Grayling a chance; she points out that Grayling opposed the “Snooper’s Charter” during the last government (though it remains to be seen whether he’d do the same against his own party, particularly as he’s an “on the up” politician).

Mr. Grayling is something of an unknown quantity – he is seen as more right-wing than Ken Clarke was, but his stance on the Human Rights Act is not yet clear. Many commenters are worried, though – Joshua Rozenberg worries in the Guardian that the first non-lawyer Lord Chancellor may open the door for “mischief”, scathingly referring to his qualifications for the job as “perceived to be right-wing and once shadowed prisons”. Rozenberg is particularly concerned that Grayling will be unable fully to comprehend the principle of the rule of law (a difficult task, as any law student will agree) and thereby defend it, and that as a man looking to advance his political career he may seek to undermine public confidence in the justice system to score points. Others are concerned too, primarily about Grayling’s background – Legal Cheek has helpfully collated 10 reactions to the appointment here.

On a slightly lighter note, some of the new ministers may be a little less supportive of the legal aid plans – see Legal Futures.

Lord Dyson – our new Master of the Rolls

There has also been a new appointment in the senior judiciary – congratulations to Lord Dyson, who will be taking the post of Master of the Rolls from the 1st of October. Read the official announcement here, then refer to this post by ObiterJ, which explains the significance of this historic post, as well as providing some exposition of the careers of the previous incumbents.

Azelle Rodney Inquiry Begins

An inquiry into the death of Azelle Rodney, who was shot by police in 2005 in a “hard stop” of his vehicle in north London, has begun this week, presided over by Sir Christopher Holland, as reported in the Telegraph here. The Inquiry website is here.

This is significant because such deaths are normally investigated by simple “inquest” – this is the first thime an inquiry has been held into someone’s death. An inquiry is as much more involved process, as anyone who has been following the Leveson Inquiry will know. The Azelle Rodney Inquiry, however, will not be quite as easily followed as Leveson, as its online broadcast is restricted to audio, and there is an order in effect and material referenced in the opening statement will not be available online until adduced in evidence. Judith Townend expresses her concern over the “openness” of the inquiry as a consequence in this post.

Christians in the margins

The “marginalisation” of believers in general and Christians in particular  in favour of other groups in the UK has been a hotly debated issue for years. This week four test cases went before the Strasbourg Court to decide whether there is inadequate protection of the freedom to manifest one’s religion in the UK. The facts of these cases, heard as Macfarlane and other v. UK, will be familiar to many readers, but see this post by Rosalind English for a quick refresher. The cases are essentially split two ways: the first two focus on whether it is justified to ban the wearing of crucifix necklaces at work; the second (more widely discussed) two on whether professionals can choose not to serve gay clients based on religious objections to homosexuality. David Blackburn, posting on the Spectator website, goes into a bit more detail on these cases, and takes the view that the issue of religious freedom in the UK should be a British one, and the subject of considered public debate rather than a decision by foreign judges.

Various commenters have weighed in on this issue. Joshua Rozenberg, in this article for the Law Society Gazette, is of the opinion that if a religiously motivated belief isn’t impeding another’s rights, it should be respected. He backs this up by reference to the Ladele case which hinges around whether a registrar can conscientiously (as a Christian) object to civil partnerships and refuse to officiate at them – if someone else is available to do it instead, the gay couple does not suffer; Rozenberg argues that Ladele’s employer was being intolerant of her beliefs by forcing her to go against them in this way. Adopting a similar line of reasoning is Frank Cranmer of Law & Religion UK, who takes the view that, whether secular society likes it or not, some people hold religious beliefs and society tends to protect those beliefs. In his opinion, state interests must be weighed carefully against the burden of conscience of the religious, and the state should not interfere lightly.

James Wilson, posting on Halsbury’s Law Exchange, is more firmly on the secular side. He argues that one simply should not be allowed to discriminate against gay people in the workplace based on religion, because the same discrimination based on non-relgious belief would absolutely not be allowed – why, he asks, should religious belief have special status? Rosalind English, posting for UKHRB, takes the same line, and examines the Equality Act 2010, considering that it does a remarkably poor job of its aim to enforce neutrality by allowing exemptions for religion-based discrimination. She also makes the very strong point that religious belief is a choice, as are non-religious beliefs, so why, when a Christian and a simple bigot are required by the state not to discriminate against gay people, should only the bigot have to comply?

Christianity, or rather the freedom to hold Christian beliefs, is protected by the ECHR as with all beliefs both religious and non. However, when that right conflicts with another (say, the right not to be discriminated against on the basis of sexual orientation), there is a problem. Specifically, conservative Christians set their “right” to treat gay people differently based on what their religion says about homosexuality against the right of gay people not to be treated differently based on their sexual orientation, as identified by Andrew Brown in his blogpost on the Guardian website. This “battle” is one Christians are bound to lose, says Brown, and once they have, Christianity can be protected more by human rights law – it is because Christians have tied their freedom of religion to the ability to persecute others that they feel they are persecuted.

Gay rights

Moving from Christianity to what Christians so often are heard to oppose, the issue of gay marriage remains controversial both here and abroad. Rob Clark, a solicitor in Australia, discusses in this post on the Oxford Human Rights Hub why that might be.

Better late than never – men who were convicted of consensual gay sex (before it was decriminalised in 1967) can apply to have those convictions expunged from their records from October this year, correcting this pervasive legal anomaly. See this article in the Guardian for more information.

On Assange

When something new surfaces on Julian Assange, I simply can’t help but include it. This week, David Allen Green provides an excellent breakdown of the Assange case, in which he seeks to debunk some of the “zombie facts” surrounding his extradition to Sweden. Among the undead in the public perception:

• That Assange was unaware of the charges and hasn’t been questioned about them yet;
• That the charges are somehow without merit – they are serious charges that would if true constitute offences in Sweden and the UK and their truth or falsehood should be for a Swedish court to determine on the evidence;
• That Assange would accept his flight to Sweden and subsequent extradition if he were not at risk of subsequent extradition to the US. The article explains in great depth why there is no such risk (in fact, contends the author, Assange would be safer in Sweden from the US’s clutches – not that they’ve actually issued an extradition request yet), and concludes that Assange must want to avoid answering his charges for some other reason.

In the courts

Keyu v. SOS (Foreign & Commonwealth Affairs) and SOS (Defence) [2012] EWHC 2445 (Admin) High Court rules there is no obligation under human rights law for public inquiry into 1948 Malaya killings by British soldiers; Secretaries of State’s collective decision not to hold inquiry was reasonable.

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UKHRB Posts

• Can a judgment in default of defence be a breach of Article 6? Sept 7, 2012 David Hart QC
• Are Christians really marginalised in this country? Sept 7, 2012 Rosalind English
• So long, Ken, noble scourge of imaginary cats [updated – and hello Mr Grayling] Sept 4, 2012 Adam Wagner
• Religious freedom in UK to be considered by Strasbourg Court Sept 3, 2012 Rosalind English

by Sam Murrant