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Conor Monighan brings us the latest updates in human rights law
In the News:
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.
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.
Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.
The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.
Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.
Conor Monighan brings us the latest updates in human rights law.
Credit: The Guardian
In the News:
An independent report into building regulations, commissioned by the government in the wake of the Grenfell disaster, has called for the current regulatory system to be overhauled.
However, the report surprised some because it did not recommend a ban on flammable cladding. It also declined to recommend stopping so-called ‘desktop studies’, where materials are tested without setting them on fire. The chairman of Grenfell United expressed disappointment at this conclusion. The Royal Institute of British Architects expressed support for banning inflammable cladding and the government has said it will consult on the issue. The Prime Minister has also pledged £400 million to remove flammable cladding from tower blocks.
The author of the report, Dame Judith Hackitt, said that banning the cladding was insufficient. Instead, she stated that a ‘whole system change’ is needed. Dame Hackitt warned that cost was being prioritised over safety and that ‘banning activities and particular materials […] will create a false sense of security’.
The report recommended fundamental changes to building regulations, saying that the process which drives compliance with the regulations are ‘weak and complex’. Dame Hackitt found that there was a ‘race to the bottom’ in the building industry that was putting people at risk. She also wrote that product testing must be made more transparent, and that residents’ voices were not being listened to.
The Grenfell Inquiry will open this week. For the first two weeks, the lives of those who died will be remembered in a series of commemorations. Continue reading →
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. Continue reading →
X(Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondent) [2012] UKSC 59 – read judgment
The Supreme Court has confirmed the Court of Appeal’s view that voluntary occupation does not attract the protections of the Equality Act or the Framework Directive.
Background
The appellant had worked as a volunteer adviser for the Citizens’ Advice Bureau since 2006. In 2007 she claimed that she was asked to cease work in circumstances amounting to discrimination on grounds of disability. She sought to bring proceedings against the respondent but the Court of Appeal held that the Employment Tribunal had no jurisdiction to hear the case as she was a volunteer rather than an employee, and therefore fell outside the scope of protections against discrimination under the Disability Discrimination Act 1995 (now covered by the Equality Act 2010) and Directive 2000/78/EEC (“the Framework Directive”). See Isabel McArdle’s post on that decision here. Continue reading →
The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.
The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional. The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.
In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes. Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools). To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule with race being a “plus factor” in admission. Continue reading →
We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.
Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.
The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15
The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]
(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.) Continue reading →
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturnthe dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties. Continue reading →
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:
Updated | Bailey & Others v London Borough of Brent Council [2011] EWHC 2572 (Admin) – Read judgment
Every Wednesday my daughter looks forward to the arrival of the mobile library at her nursery. Two by two the children go into the little world of books and emerge holding a new story they have chosen for themselves.
Not for long. Despite the well-documented advantages of exposing children to the joys of reading at an early age – before the attractions of TV, video games and looting shops take hold – library services across the land are being targeted for cuts.
The duty to provide library services for children was one of the key arguments advanced by campaigners in Brent challenging the council’s decision to close 6 of its 12 libraries. Reliance was placed upon section 7 of the Public Libraries and Museums Act 1964. This requires local authorities to provide a comprehensive and efficient library service.
The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.
This decision is worth noting on a number of grounds.
Public Interest Lawyers (PIL), a solicitors’ firm, is planning to bring judicial review proceedings to challenge the Scottish government’s university funding scheme, which allows Scottish universities to charge students from other parts of the UK fees, while students from other parts of the EU and Scotland are not charged fees.
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.
R (on the application of G) v The Governors of X School [2011] UKSC 30 – Read judgment
On 4 October 2007 the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G).
After an (inconclusive) Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Secretary of State with a view to him being barred from working with children. The Claimant appealed to the school governors. He also sought to be represented by his solicitor. In this he was successful on judicial review and at the Court of Appeal.
The question for the Supreme Court was, did Article 6 of the European Convention of Human Rights (the right to a fair trial) mean that G was entitled to be legally represented at the hearing before the school governors?
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“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator 
In 
Public Interest Lawyers
R (on the application of G) v The Governors of X School [2011] UKSC 30 – 
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