Category: Article 14 | Anti-Discrimination


International Human Rights, Public Interest Immunity, and Brook House – The Round Up

24 August 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.

Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.


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Family Court Guilty of ‘State Sanctioned Abuse’? Plus Hate Speech and Judicial Bias- the Round Up

26 July 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

Scottish_Parliament_Debating_Chamber_2

Credit: Colin

The public consultation on Scotland’s controversial Hate Crime and Public Order (Scotland) Bill has closed. In summary, the Bill:

  • Adds age as a possible basis for hate speech.
  • Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
  • The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
  • Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
  • Updates and amalgamates existing hate crime law.
  • Abolishes the offence of blasphemy.
  • In addition, a new offence of misogynistic harassment is being considered.

The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.

However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.

Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.

Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.

James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.

In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.

In Other News….

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Transgender Rights, an Inquest Update, and the British Judge Suing the EU- The Round Up

4 May 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

index

The long-delayed Domestic Abuse Bill returned to Parliament last week. It contains a number of measures, including a statutory definition of domestic abuse. The new definition will include not only physical violence, but also emotional, coercive and economic harm.

The Coronavirus has highlighted the importance of the Bill.  Many have expressed concern about the impact of the lockdown on abused individuals. Victims are trapped in their homes and many domestic abuse services reduced their support.

Disturbingly, the National Domestic Abuse helpline has seen a 25% increase in calls, and the Metropolitan Police has reported a similar increase in charges and cautions.

In Parliament, a number of MPs spoke out about their experience of domestic abuse. Bolsover MP Mark Fletcher described growing up with an abusive stepfather. Rosie Duffield MP, who herself is a survivor, also spoke powerfully.

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Round Up- The Child Sexual Abuse Inquiry reports, Equal Pay, and waiving Article 6

13 January 2020 by

Conor Monighan brings us the latest updates in human rights law

index

In the News:

ICCSA, the Independent Inquiry into Child Sexual Abuse, published its report into protecting children who live outside the UK.

It described how there has been “extensive” sexual abuse of children by British nationals whilst abroad. Between 2013 – 2017, 361 UK nationals requested consular assistance between 2013 – 2017 for being arrested for child sex offences. The inquiry suggested this was likely to be a small proportion of offenders committing crimes abroad.

The report highlights the case of Gary Glitter, who was able to travel abroad and abuse vulnerable children even after he had been convicted. Glitter was later sentenced again for abusing two girls, aged 10 and 11, in Vietnam.

ICCSA concluded that travel bans should be imposed more frequently to prevent this behaviour. It noted that Australia bans registered sex offenders from travelling overseas. ICCSA’s report also argued that the burden of proof for imposing travel bans should be reduced, saying that the need for evidence is often overstated by courts and the police.

The inquiry described the global exploitation of children as worth an estimated £27.7 billion, with developing countries being particularly at risk.

The full report can be read here. More from the BBC here.

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Whistleblowing judges: protected by human rights?

18 October 2019 by

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment

The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.

In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).


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ALBA Conference 2019: A Review (Part 2)

15 October 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai

Jobcentre-007
Credit: The Guardian

Introduction: The ‘Benefit Cap’

Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).

Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.

In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)


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The Round Up: Should veganism be protected by the Equality Act?

10 December 2018 by

Conor Monighan brings us the latest updates in human rights law

Vegan.jpg

Credit: The Guardian

In the News:

This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.

Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.

Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.

The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
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The Round Up: Criminal Sentencing, Assisted Suicide and a warning to Facebook

3 December 2018 by

In the Courts:

Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.

The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.

Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).

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Round-Up: Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

In the News:

The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.

Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.

Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.

The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

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The Round-Up: Deportation by Data Deals, Dubs, and a Step Towards Decriminalising Sex Workers

5 March 2018 by

A doctor looks at a patient’s readings on a health monitor.

Photo credit: Guardian

In the News

UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.

Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.

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The Round Up: Couples in the Courts

27 February 2017 by

Image result for wedding cake guardian

Immigration law featured heavily in courts in the past week, with judgments in two cases handed down by the justices.

The first, MM and others, concerned the Minimum Income Rule, which requires a minimum income of £18,600 to sponsor a foreign spouse’s visa to live in the UK.

The second, R (on the application of Agyarko), saw the Supreme Court uphold the treatment of those unlawfully in the UK who have formed relationships with British citizens.

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

1 June 2016 by

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.

by Fraser Simpson

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

22 January 2016 by

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.
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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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