The Weekly Round up: cakes, emergency services and legal advice all in the limelight

14 October 2018 by Thomas Hayes

Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…

The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).

Much more interesting than any of the above, the Supreme Court this week gave judgement in the Northern Irish case of Lee v Ashers Baking Company Ltd. Lee had attempted to purchase a cake from Ashers, a small family run bakery, decorated with a message in support of gay marriage. The bakery declined to supply such a cake, arguing that to do so would be inconsistent with their strongly held religious beliefs and offensive to God. The case thus pitched the baker’s rights to freedom of religion and freedom of expression under articles 9 and 10 of the European Convention on Human Rights against those of Mr Lee to not be discriminated against as enshrined in equalities legislation. Lee had previously won his case at the court of first instance in Belfast and in the Court of Appeal.

In a unanimous decision, the Supreme Court overturned the decision of the Court of Appeal. Finding that the refusal to supply the cake was based on the message only rather than being a case of associative discrimination, the court held there was no discrimination against Mr Lee on the grounds of his sexual orientation. It was open to the owners of the bakery to refuse to provide a service to customers based on their deeply held views where that refusal related to the customer’s request rather than the customer’s characteristics.

Interestingly, the judgement in Lee made reference to an American Supreme Court decision (Postscript at Para 59). In Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission a baker had refused to make a cake for a homosexual individual’s wedding arguing that to do so would itself constitute an expressive statement of support and thus infringe his rights to freedom of speech and free exercise of religion under the first amendment. The Commission decided that this constituted unlawful discrimination. The Supreme Court ruled against the Commission on the basis that it had not employed religious neutrality, violating Masterpiece owner Jack Phillips’ rights to free exercise of religion. Liberal justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who ordered it. The UK court considered this distinction of principle importance, but the decision in Washington clearly demonstrates the difficulties the law here may encounter as it evolves following Lee.

In other news…

• The Supreme Court has overturned a ruling by the Court of Appeal that an NHS hospital trust was not liable for the misstatements of its non-medical staff. In Darnley v Croydon Health Services [2018] UKSC 50 the appellant, who had suffered serious brain damage after an assault, claimed that the misleading information given to him by an A&E receptionist about waiting times led to his decision to leave the hospital, thus suffering a catastrophic collapse from which he would have recovered had he been in a hospital setting. This ruling will have important implications for emergency services; read Owain QC’s analysis of the Supreme Court’s decision here.  Law Pod UK will shortly release a podcast discussion of this case with Owain.

• The court dismissed an appeal against a deportation order despite intervention from the United Nations High Commissioner for Refugees in AS (Guinea) v Secretaryof State for the Home Department. The appellant, supported by the UNHCR, argued that to be considered stateless he had only to establish a reasonable degree of likelihood or a real risk that he was stateless, not prove it on the balance of probabilities. In addition, the appellant contended that statelessness amounted to an exceptional circumstance for the purposes of the Immigration Rules. Both were dismissed. The court held that statelessness, unlike refugee status, could be relatively safely determined by appropriate applications to the country concerned. Having failed on the first ground, it was unnecessary to consider the second.

• Claims against Suffolk police and a local hospital were dismissed in Griffiths & Ors v Suffolk Police & Anor [2018] EWHC 2538 (QB). A woman was killed by a friend who had been disappointed in his hopes for a romantic relationship after he was seen by mental health services and the Police contacted regarding his threatening behaviour. The claimants alleged that the hospital failed to perform adequate assessments under the Mental Health Act 2009 and were under a duty to warn either the Police or the victim of the risk he posed. In addition, they alleged the Police failed to respond adequately to threats made by the individual to the victim. Her daughter’s claims under the Fatal Accidents Act 1976, s8 of the Human Rights Act 1998 and in common law negligence against both the police force and hospital were rejected in a lengthy judgement containing a detailed analysis of precedent cases against the police.

• The decision of the Employment Appeal Tribunal in X v Y Ltd cast doubt on the definition of effecting iniquity in relation to legal advice privilege. Legal advice privilege has long facilitated open discourse between clients and advisors and could be relied upon unless such advice was deemed to effect iniquity. The definition of iniquity had long been considered a high bar, usually constituting advice on how to commit fraud, dishonest or criminal conduct. However, the EAT held this could extend to advice on how to cloak a potentially discriminatory dismissal. Given that much of employment litigation involves allegations of unfair, discriminatory or whistleblowing activity, the ability of lawyers to give advice in the knowledge they can rely on legal privilege has now been called into question (read more here).

• After the expiry of an anonymity order, it was revealed that Zamira Hajiyeva, the wife of the former chairman of the state-controlled International Bank of Azerbaijan, Jahangir Hajiyev, has become the first person to be issued with a new unexplained wealth order (National Crime Agency v Hajiyeva (Rev 1) [2018] EWHC 2534 (Admin)). After reigning his post in 2015, Mr Hajiyev was sentenced to 15 years in jail for fraud, embezzlement and misappropriation of public funds by an Azerbaijani court. On October 3^rd, Supperstone J rejected her submissions that the grounds to affect such an order had not been met. Unless Mrs Hajiyeva can provide a statement explaining how she obtained her property in the UK, the Criminal Finances Act 2017 now gives law enforcement agencies the powers to recover the proceeds of crime, including money laundering.

Lastly, a new book by Helen Duffy, Professor of International Humanitarian and Human Rights Law at the University of Leiden, sheds a new light on the growing but relatively under-explored field of strategic human rights litigation. The book describes five detailed case studies drawn from the author’s own experience and explores the strategic commencement of litigation to help advance human rights. With reference to genocide in Guatemala, slavery in Niger, forced disappearance in Argentina, torture and detention in the ‘war on terror’ and Palestinian land rights, the book considers how more effective litigation strategies may be developed in the future.