Category: Article 14 | Anti-Discrimination


When human rights hit the private law of damages for death

24 July 2012 by

Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment

This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?

Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via  s.3 of the Human Rights Act  (to make the FAA  rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.

So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.

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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.


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Hunting, animals, and the evolving landscape of rights

4 July 2012 by

Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment

The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions,  the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.

Background

In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:

“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
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Will the European Court force churches to perform gay marriages?

12 June 2012 by

The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”

The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.

Let’s consider the argument. The Church puts a number of propositions. First,

It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.

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Housing benefit system discriminated against disabled people, rules Court of Appeal

19 May 2012 by

Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment

In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.

Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.

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Should we outlaw genetic discrimination?

9 May 2012 by

The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.

Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.

According to the Human Genetics Commission (HGC)

The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011)
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Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

29 March 2012 by

Gas and Dubois v France (2012) (application no 25951/07).  Read judgment (in French).

The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other.  And the Daily Mail goes off on another frolic of its own.

Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002.  Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000.  Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois. 
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Michael Gove’s full letter on homophobic teaching materials in schools

22 February 2012 by

The Trade Union Congress have sent me the full letter (download here) which Education Secretary Michael Gove sent to its leader Brendan Barber in relation to a complaint about seemingly homophobic booklets distributed to Roman Catholic schools in Lancashire. The letter which Mr Barber sent to Mr Gove is here.

I complained in this post that the excerpt of the response published by The Observer appeared to misunderstand the provisions of the Equality Act which apply to schools. I also said that the quote in the article could have been out of context. In short, it was. Here is the full paragraph, which presents a much fairer representation of the law:

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Is it legal to teach gay hate in schools?

19 February 2012 by

Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.

Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:

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Analysis | Court of Appeal upholds hotel gay discrimination ruling – Marina Wheeler

19 February 2012 by

Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment

On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.

For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful.  To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).

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Archbishop on warpath

29 January 2012 by

Dr John Sentamu, the Archbishop of York, has thrown  a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is.  “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.

Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to  “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.

In a secular society, the participation of clerics in the  House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint.  The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does,  we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
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Making a Fist of It: The Law and Obscenity

9 January 2012 by

On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.

Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.

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Successful challenge to library closures: lip service not enough for equality duties

24 November 2011 by

R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment

In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful. 

The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly.  Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.

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Another cuts challenge fails: Changes to housing benefit scheme is lawful

14 October 2011 by

Child Poverty Action Group v Secretary of State for Work & Pensions [2011] EWHC 2616 (Admin) – Read judgment

On 13 October 2011 Mr Justice Supperstone in the High Court held that changes to rules for calculating housing benefit were lawful and in particular did not breach equality legislation.

Two particular measures were under challenge. The first was the introduction of maximum weekly caps on the amount of local housing allowance (LHA). The second was the reduction of the maximum size in accommodation eligible for housing benefit from five bedrooms to four bedrooms.

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Inquiry into disability-related harassment reports

13 September 2011 by

The Equality and Human Rights Commission has published Hidden in plain sight, a report into disability-related harassment and how well this is currently being addressed by public authorities.

The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:

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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 appeal 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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