Housing Association can discriminate on religious grounds. Plus fracking and indefinite detention: The Round Up

11 February 2019 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: the Guardian

In the News:

The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.

The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions.

The Committee also called for an independent body to decide whether or not an individual should be detained. Ms. Harman pointed out that police must involve a court if they wish to detain someone for more than 36 hours, whereas the Home Office is able to detain people at will. The UK is the only country in Europe which does not put a time limit on detentions.

In Other News….

• The High Court has ended the injunction which prevented the Telegraph from publishing allegations that Sir Phillip Green had sexually and racially abused employees. The court found the injunction was now ‘pointless’ and the Telegraph has published full details of the story. It has also released an audio recording in which Sir Green apparently threatens to bankrupt the Telegraph if they publish. Sir Phillip Green denies the allegations. The case has raised concerns about the use of Non Disclosure Agreements and it seems likely the Government will take action as part of its Domestic Abuse Bill. The BBC reports here.
• The Equality and Human Rights Commission (EHRC) has published guidance on free speech in universities. The guidance states universities could break the law if they refuse to allow groups from putting across their views. The ECHR highlighted that s.36 of the Education Act 1986 requires universities to take ‘reasonably practicable’ steps to ensure freedom of speech. More from Out-Law here.

In the Courts:

• Burgon MP v News Group Newspapers Ltd & Anor: Mr Richard Burgon MP, the Shadow Secretary of State for Justice, won his libel claim against News Group. The Sun published an article in 2017 suggesting that Mr Burgon had joined “a heavy metal band that delights in Nazi symbols”. The High Court approached the article from the perspective of a lay-person. It found the article’s single meaning was: “Mr Burgon joined a band which as he knew took great pleasure in using Nazi symbols”. The court held that serious harm had inevitably been caused by this allegation. The defence of truth was not available, because the band did not take ‘great pleasure in using Nazi symbols’. Rather, the image published by the band was a tribute to, or imitation of, a Black Sabbath album cover. The court also ruled there was no defence of honest opinion, nor was the publication in the public interest. The Sun have stated they will be appealing.
• Barlow (On Behalf of Harthill Against Fracking) v Secretary of State for Housing, Communities And Local Government: The Claimant is the Chairman of an action group which opposes proposals for a fracking site. He sought a four-week adjournment to a planning inquiry so that he, and the action group, had more time to consider a report outlining plans for traffic management around the site (“the report”). The High Court ruled the report was not substantial or significant new evidence. Although the report may have appeared lengthy, it was evident that only nine pages of text were relevant and its impact was minor. The Claimant had access to the report two weeks prior to the start of the inquiry, had been able to voice his objections, and the Inspector gave parties the opportunity to ask questions of the person who had written the report. The High Court therefore concluded that the Claimant had been given a reasonable opportunity to respond and there was no procedural unfairness.
• Z & Ors, R (On the Application Of) v Hackney London Borough Council & Anor: The High Court ruled that a housing association (“AIHA”) can primarily allocate its social housing to Orthodox Jews. It was common ground that this policy amounts to direct discrimination. However, the discrimination is lawful because AIHA are providing a service specifically aimed at a disadvantaged group. The court found the disadvantages faced by Orthodox Jews are both real and substantial, including “very high levels of poverty and deprivation” and anti-Sematic behaviour. In addition, the High Court held that AIHA’s policy of housing allocation was proportionate. The policy did not involve a blanket ban on non-Orthodox Jews receiving housing and was understandable given the disadvantages they face.
• Kannan v London Borough of Newham: The Appellant had a number of medical conditions which amounted to a disability. Despite this, Newham Council housed him in a property which lacks a shower and is accessed by 14 steps. The Court of Appeal adopted a benevolent approach to the Council’s decision. However, even after doing so it found an inadequate review of the Appellant’s needs had been conducted. The medical assessment had been misunderstood and downgraded for no apparent reason. The Council had not focused properly on the Appellant’s disability, as required by the public sector equality duty. Merely reciting relevant parts of case law in a decision was not a substitute for actually following it. Appeal allowed.

On the UKHRB

• ‘Final Report: Government review of legal aid for inquests’ by Matthew Hill.
• ‘What price freedom? Counting the cost when DoLS goes wrong’ by Jeremy Hyam QC, covering Esegbona v Kings College Hospital.
• ‘Serious mistakes in exercising investigatory powers’ by Lawrence McNamara.
• ‘A criminal record, or a clean slate?’ by Matthew Flinn, covering R (P, G and W) and Anor v Secretary of State for the Home Department and Anor.

On LawPod

• ‘Informed Consent – how much direction do patients actually want?’, with Rosalind English and John Whitting QC.
• The first episode is posted this afternoon of the four part series of 1 Crown Office Row’s seminar ‘Erasure, Remediation and Rights of Appeal in Disciplinary Proceedings’. Robert Kellar and Jeremy Hyam QC discuss appeals by the general medical council.

Recent Publications

• EU Policies Against Human Smuggling and their Impact on Civil Society: Critically examines the anti-smuggling policies introduced by the EU since 2015, during the so-called ‘European refugee humanitarian crisis’, and their effects. Use the discount code “CV7” to get 20% off when you order here.
• What is Wrong with Human Trafficking? Critical Perspectives on the Law: Bringing together cross-legal perspectives from diverse disciplines, this volume discusses and critiques the legal regulation of human trafficking in national and transnational contexts. Use the discount code “CV7” to get 20% off when you order here.
• Citizenship, Nation-building and Identity in the EU: The Contribution of Erasmus Student Mobility  (1st Edition), Cherry James: With Brexit looming, a major issue facing UK Higher Education is whether the UK will be able to stay in the Erasmus Programme. This book sits at the intersection of three main interrelated themes: EU citizenship, the current state of the university in Europe, and student mobility.

Events:

• What does Brexit tell us about the evolution of EU citizenship?, 13^th February at City, University of London. More here.
• Lord Carnwath: Climate Change and the Law, 13^th February at City, University of London. More here.
• Women’s Legal Landmarks – in conversation, 13^th February at IALS. More here.
• The Guantanamo Military Commissions: an Insider’s Perspective, 19^th February at the British Institute of International and Comparative Law. More here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com