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. Continue reading →
The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.
The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.
As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.
As to domestic violence, the amendments are to provide legal aid for civil claims where:
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:
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:
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).
R on the application of the National Secular Society and Clive Bone v Bideford Town Council – read judgment
The High Court today ruled that the Town Council of Bideford (in Devon) had overreached their powers under the Local Government Act 1972 by insisting on the practice of prayers as part of their formal meetings. The ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings.
The Secular Society brought this application as part of their campaign to separate religion from public and civil life. They have observed that prayers have been the cause of tension in a number of local councils. But the Society needed to join an individual claimant since they could not be a “victim” for the purposes of the Human Rights Act.
The claimants contended that the practice, which dates back the days of Elizabeth the First, breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement “public sector equality duty” in the Equality Act 2010: it discriminated indirectly against persons, such as Mr Bone, who had no religious beliefs, and it was not justifiable under those Acts. The practice interfered with Mr Bone’s right not to hold religious beliefs under Article 9 ECHR, and not to be discriminated against for that lack of belief under Article 14. They also contended that it was outside the powers of section 111 of the Local Government Act 1972. Continue reading →
Stott v Thomas Cook Operators and British Airways Plc  EWCA Civ 66 – read judgment
If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight. Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.
The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.
Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.
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. Continue reading →
On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.
R (JG and MB ) v. Lancashire County Council  EWHC 2295 (Admin) – read judgment here.
Public sector cuts are back in the news, with the trade unions warning of their plans to stage the biggest series of strikes in a generation. However, attempts to take the fight against the cuts into the courts as well as onto the streets were dealt a serious blow recently, as the Administrative dismissed an application by two disabled women for judicial review of Lancashire County Council’s decision to significantly reduce their budget for adult social care services.
This case provides a very helpful summary of the courts’ approach to public bodies’ equality duties (now the new general Public Sector Equality Duty in s.149 of the Equality Act 2010). It is also a reminder that the courts are reluctant to interfere with difficult social or economic decisions made by elected officials, as long as there has been proper consideration of the relevant factors, despite other recent cases where such decisions have been struck down.
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:
Currently, non-Scottish students from elsewhere in the UK and Northern Ireland have to pay tuition fees in Scotland, set to rise to up to £9,000 annually next year. However, Scottish students and those from other parts of the EU do not have to pay fees at all. Non-British EU students do not have to pay fees in Scotland due to EU law forbidding them from being treated differently to Scottish students.
We all know that these days you cannot just say you want to employ a Muslim or a Catholic without a good reason. But what about the potentially different question as to whether you can choose your own private judge, namely an arbitrator, by reference to his or her religion?
This problem faced the Supreme Court recently. Its answer involved a detailed analysis of what was involved in the whole process of arbitration, and the similarities and difference between it and a more typical relationship between client and professionals. The Court also touches on the exception to the rule against discrimination, based upon the job having a genuine occupational requirement for a person of a given religion.
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases. Continue reading →
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