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A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.
The Times reports today that Judge Virginia Philips found that the policy violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment. Continue reading →
The government is moving away from the wide-ranging public sector equality duty which was due to come into force in April 2011.
The Equalities Office has announced a consultation on the public sector equality duty imposed by the Equality Act 2010. Reading the consultation document, it is clear that the government intends to delegate the equalities duty to the general public, rather than imposing top-down standards from Whitehall:
We do not intend to prescribe how public bodies go about their business, but we will ensure that we put in place the right framework which empowers citizens to scrutinise the data and evidence on how their public services perform.
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.
The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.
Updated 12/9/10 | PM, R (on the application of) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (04 August 2010) – Read judgment
Some people get to a certain age and stop counting. For them, the exposure of their true age to friends or colleagues might cause embarrassment. But for asylum seekers, proving their true age can alter the direction of their lives.
The recent High Court case of an Afghan asylum-seeker has highlighted the different, and often better, treatment which child asylum seekers received compared to their adult equivalents. It has also brought into focus the importance of a court’s initial, and often difficult, assessment of an asylum-seeker’s age, and the duty on local authorities to make up their own minds.
A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.
The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8’, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.
Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that
I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment
The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.
In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.
In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.
We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.
There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”. Continue reading →
Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010
A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment
The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”) and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7. Continue reading →
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
The controversial Equality Act, which was designed to replace a number of anti-discrimination laws, was due to come (partially) into force in October. However the intervening change of government since its enactment in April 2009 appeared to threaten the legislation, particularly after the timetable for the gradual enforcement of its provisions was withdrawn.
Some experts speculated that instead of repealing the Act, the new Government would simply not bring certain parts of it into force, notably the provisions on pay reporting and positive discrimination that were unpopular with the Conservative Party. However the Government Equality Office has now reinstated the original timetable, with the core provisions due to commence in October.
There is still some possibility that some parts of the Act will not become law. Introduced as part of the Labour Party’s 2005 manifesto fulfilment, the Equality Act came under fire for some of its sections dealing with equal pay, positive action and addressing socio-economic disadvantage.
HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB) (17 May 2010) – Read judgment
The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?
The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.
AC v Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin) (25 May 2010) – Read Judgment
An NHS Trust acted rationally in refusing to provide breast enlargement surgery to a transsexual, the High Court has ruled, even though there was credible medical evidence that the surgery would have been beneficial. The case raises issues as to when treatment can truly be said to be “necessary” in light of increasingly tight purse strings, and whether NHS policy could be discriminatory towards transsexuals.
The Claimant, AC, had been diagnosed with gender identity disorder (GID). As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had refused.
As part of her treatment, AC was given hormone therapy but was disappointed with her subsequent breast development. Her GP wrote in 2006 that AC had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depression… Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.” Continue reading →
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A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.
Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010 
The controversial Equality Act, which was designed to replace a number of anti-discrimination laws, was due to come (partially) into force in October. However the intervening change of government since its enactment in April 2009 appeared to threaten the legislation, particularly after the timetable for the gradual enforcement of its provisions was withdrawn.
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