Restriction of student loans in Scotland to under-55s deemed to be unlawfully discriminatory

Photo credit: The Guardian

Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.

The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.

Background

The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.

The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.

Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance. Continue reading

UK Government tells High Court: Same-sex couples may be shut out of Article 14

Special Guest Post by Professor Robert Wintemute

Professor-Robert-WintemuteOn 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the judicial review of the ban on different-sex civil partnerships brought by Rebecca Steinfeld and Charles Keidan. It was argued on behalf of the supposedly LGBTI-friendly UK Government (represented by Nicky Morgan, the Secretary of State for Education and Minister for Women and Equalities) that the High Court should follow two anti-LGBTI decisions from 2006. Continue reading

Court of Session: Partners in Crime Have no ‘Family Life’

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship. Continue reading

Couple launch challenge to heterosexual bar on Civil Partnerships

Charles-Keidan-and-Rebecc-012

Photo credit: guardian.co.uk

For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.

The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.

Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.

However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.

Continue reading

The paradox beneath Strasbourg’s French veil ban decision

french-veil-ban-001S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

Continue reading

The non-residents legal aid case – LC advised to go for the ball, not for his opponent’s shins

roy-keane_1342720cPublic Law Project  v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made.  The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered. 

But more of that after some thoughts on the discrimination ruling.

Continue reading

Plan to stop non-residents getting Legal Aid is unlawful, rules High Court – Angela Patrick

PLP v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Residence Test UKHRBAs the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.

While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.

The Administrative Court may this morning have handed him one of his first “to-do” list items.   In – PLP v Secretary of State for Justice  a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.

Continue reading