Mba v London Borough Of Merton  EWCA Civ 1562 – Read judgment
The Court of Appeal has dismissed the appeal of a Christian care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.
The Court unanimously found that although both the EAT and the Employment Tribunal (ET) had erred in law, the ET’s decision was ‘plainly and unarguably right’ , and applying the principle in Dobie v Burns International Security (UK) Limited  ICR 812, the errors did not make any difference to the outcome.
R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party)  EWCA Civ 1495 – read judgment
The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.
This was an appeal against a ruling by Silber J ( EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision). Continue reading
The Queen v. D (R) – Ruling available here.
The ruling by HHJ Murphy in Blackfriars Crown Court this Monday that a defendant in a criminal trial should not be allowed to wear a niqaab (face veil) whilst giving her evidence has prompted calls for a public debate about the wearing of face veils in public more generally. Adam Wagner has already commented on the case here. A summary and analysis of the decision follows below.
The defendant in this case, D, is a woman who is charged with a single count of witness intimidation. When the judge asked D to remove her veil in order to be formally identified for the court’s purposes at a plea and case management hearing, D refused because she believes she should not reveal her face in the presence of men who are not members of her immediate family. As a result, HHJ Murphy listed a special hearing to consider what orders should be made about the wearing of a niqaab during the rest of the proceedings, describing the issue as ‘the elephant in the court room’ which needed to be dealt with early on.
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
Black and Morgan v. Wilkinson  EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull  EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.
R (Dr Hans-Christian Raabe) v. Secretary of State for the Home Department  EWHC 1736 (Admin) – read judgment
Dr Hans-Christian Raabe lost his judicial review challenge to the revocation of his appointment as the GP member of the Government’s Advisory Council on the Misuse of Drugs (ACMD). His appointment was revoked less than a month after he had accepted an offer to join the ACMD, as a result of certain views about homosexuality expressed in a paper he had co-written in Canada some 6 years earlier.
This case deals with a heady cocktail of controversial issues, ranging from same-sex marriage to the level of crystal meth use in gay clubs, and from paedophilia to the ostracising of Christians because of their religious beliefs. Indeed, it hits so many hot-button issues at once that it is very surprising it has not yet received much media coverage, despite the judgment being handed down on 20 June.
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board  CSIH 36 – read judgment here and Alasdair Henderson’s commentary here
It is easy to become complacent about women’s reproductive rights in mainland Britain. Compared to our Irish neighbours, women here are able to access their chosen contraceptive, abortion and maternity services with relative ease. When Savita Halappanavar died after she was refused an abortion in Galway, commentators lamented a system where a woman could be told by healthcare staff that she couldn’t have an abortion because Ireland is a Catholic country. We imagined that such events could not happen here. A recent judgment of the Scottish Inner House of the Court of Session (the Scottish Court of Appeal) shakes that belief. Of most concern is that the court failed to engage with the human rights implications of its decision.
Our abortion law is found in the Abortion Act 1967. Section 1 makes abortion lawful only when it has been authorised by two doctors who attest that continuing the pregnancy poses a risk to a woman’s physical or mental health, or where the child would ‘suffer from such physical or mental abnormalities as to be seriously handicapped’. In effect, all abortions, save those for fetal abnormality, are performed on the basis that there is a threat to the woman’s physical or mental integrity as a result of pregnancy. Section 4 excuses a person from ‘participating in any treatment’ under the Act if they express a conscientious objection to abortion. As the Abortion Rights campaign points out, the law gives doctors control over women’s informed choices about their pregnancy that can lead to damaging delays in accessing abortion services.
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board  CSIH 36 – read judgment here
The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions.
The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.
The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.
Mr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment
In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.
The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.
Core Issues Trust v. Transport for London 22 March 2013  EWHC 651 (Admin) – read judgment.
In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.
The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”
AI v MT  EWHC 100 (Fam) – Read judgment
The Times (amongst others) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras -):
Eweida and Others v. the United Kingdom – read judgment
The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).
On 29 December 2012 The Daily Telegraph published an article under the headline Christians have no right to refuse to work on Sundays.
This has now been shown to be nonsense. The judgment in Mba v London Borough of Merton was released yesterday and is analysed here. Mr Justice Langstaff made entirely clear that the judgment only applies to the individual worker who brought the appeal, not more generally. Here is some inaccurate reporting from David Barrett (remember this by him?), Telegraph Home Affairs correspondent:
Mba v London Borough Of Merton (Religion or Belief Discrimination)  UKEAT 0332/12/1312 (13 December 2012) – Read judgment
The Employment Appeal Tribunal (EAT) has dismissed the appeal of a Christian care worker against the decision of an Employment Tribunal that she was not constructively dismissed as a result of her refusal to work on Sundays.
Mr Justice Langstaff, President of the EAT, made it clear in his judgment however that anyone hoping either for ‘a ringing endorsement of an individual’s right not to be required to work on a Sunday’ or an employer’s right to require it would be disappointed, as ‘no such broad general issue arises’. 
With apologies for the boring title, here are three quick things.
First, the Government’s consultation on Judicial Review changes ends on 24 January 2013, so you have just over two weeks to respond. As with some previous consultations, I will be collating responses on the blog so please feel free to email them to me. My most recent thoughts are here: Quicker, costlier and less appealing: plans for Judicial Review reform revealed
Secondly, the European Court of Human Rights is to rule next Tuesday 15 January on four key cases involving discrimination and religious rights. The full background is here: Religious freedom in UK to be considered by Strasbourg Court and you can watch the entire hearing here. We will, of course, be covering the judgment in full.
Thirdly, in November 1 Crown Office Row hosted a mock trial on the topic of public inquiries and inquests at which a number of 1COR barristers, including me, spoke. The podcast of the event is now online and you find it here and also below the page break. You can also download the handout, which includes a number of very useful skeleton arguments for the mock trial, here.