Court of Appeal rules on the legality of Christian requirement by fostering agency

7 October 2021 by

R (Cornerstone) v Ofsted  [2021] EWCA Civ 1390

In this claim for judicial review, the issue was whether it was lawful for the claimant independent fostering agency (Cornerstone) only to accept heterosexual evangelical Christians as potential carers under the Equality Act 2010 (EA 2010) and the European Convention on Human Rights (the Convention).

Ofsted wrote a draft report in which they considered this policy to be unlawful when reviewed in the context of the EA 2010 and the Human Rights Act 1998 (HRA 1998) and in a report issued in draft on 12 June 2019 Ofsted assessed the effectiveness of Cornerstone’s leaders and managers as ‘Inadequate’.

The High Court dismissed Cornerstone’s claim, including holding that whilst its policy was not unlawfully discriminatory on the grounds of religious belief, it was unlawfully discriminatory on the grounds of sexual orientation.

The Court of Appeal dismissed Cornerstone’s appeal.

Background law and facts

Cornerstone are a small Independent Fostering Agency (IFA) founded in 1999 based in the North East of England, which at the time of Ofsted’s inspection in 2019 had 14 approved fostering households and cared for 18 children. They claim to provide high quality adoption and fostering services according to Christian principles for children who are hard to place.

The wording of the policy, which potential carers were required to sign up to, under scrutiny appears at paragraph 10 of their Code of Practice under which

There is an expectation on all Cornerstone carers to: […] Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex. [21]

Cornerstone argued that its policy in its entirety was essential to the continuation of its work, both because of the funding it receives and because of the shared faith and values of its carers which led to a community of fellowship and worship.

The Charity Commission Review in 2010

Notably the Charity Commission had also reviewed Cornerstone’s work in 2010 after the judgment in Catholic Care ((Diocese of Leeds) v Charity Commission for England and Wales [2010] EWHC 520 (Ch)) noting that the implications from that judgment were that an organisation that discriminates in a way that is not justified is not likely to be established for the public benefit and as such will not be a charity.

Cornerstone’s response to the Charity Commission was, amongst other things, that it did not discriminate on the grounds of sexual orientation but sexual behaviour. The Charity Commission accepted this but without reason. The Charity Commission also accepted that Cornerstone’s provision of services fell within paragraph 2 of Schedule 23 to the EA 2010 which permits the restriction of services because of the purpose of the organisation and/or to avoid causing offence on the grounds of religion or belief.

The Court of Appeal held that the distinction between sexual behaviour and sexual orientation was a nullity because sexual behaviour was a manifestation of sexual orientation. Additionally, the Court found that, as per the judgment in the High Court, Parliament had allowed discrimination on religious grounds except in respect of acts done on behalf of a public authority pursuant to contract which are discriminatory on the grounds of sexual orientation.


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The Weekly Round-Up: Women and the Police

4 October 2021 by

In the news:

The relationship between women’s rights and the police has been at the forefront of the news again this week, with shocking new revelations in the Sarah Everard case increasing concerns about institutional sexism in the police force, in addition to a scathing judgement from the Investigatory Powers Tribunal (IPT) condemning the sexual relationship carried out by a male undercover police officer as a human rights abuse.

Further details about the tactics used by the police officer Wayne Couzens to kidnap Sarah Everard before her rape and murder were released earlier this week after being presented in court. Couzens used his Metropolitan police-issued warrant card to convince Everard that she was being legitimately arrested for breaching Covid regulations. The new information has heightened debates about whether the Met has an internal culture which tolerates sexism, misogyny, and abuse, with many female police officers reporting inappropriate behaviour and sexual assaults. Towards the end of the week, it was revealed that two officers in a WhatsApp group with Couzens, which allegedly swapped misogynistic, racist, and homophobic messages, remain on duty. Furthermore, the Metropolitan Police’s response to Couzens’ sentencing hearing has been seen by many as completely inadequate, with Commissioner Cressida Dick suggesting that women approached by a plain clothes police officer should consider, inter alia, ‘waving a bus down’ to avoid kidnap. The Met has recently unveiled an action plan to restore trust, but campaigners argue that it is more concerned with changing women’s behaviour than addressing the underlying culture that enables misogynistic behaviour to thrive.

The police were also severely criticised in an IPT judgement handed down last week for violating the human rights of a woman, Kate Wilson, who was tricked into a relationship with undercover police officer Mark Kennedy. Kennedy is thought to have exploited his relationships with Wilson and numerous other women to ingratiate himself with the political organisations he infiltrated. The report found that Wilson’s treatment contravened five rights protected by the European Convention on Human Rights (ECHR): freedom from inhuman or degrading treatment (Art.3); respect for private and family life (Art.8); freedom of expression (Art.10); freedom of assembly and association (Art.11); and the right for convention rights to be applied without discrimination, in this case on the ground of sex (Art.14). The IPT asserted that the senior officers were either ‘… quite extraordinarily naïve, totally unquestioning, or chose to turn a blind eye’. While numerous women have brought civil suits against undercover officers who employed similar tactics, Wilson is the first to bring a claim to the IPT. The Met issued a statement responding to the judgement, accepting and apologising for the ‘damage caused’.


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Can AI qualify as an “inventor” for the purposes of patent law?

28 September 2021 by

Thaler v Comptroller General of Patents Trade Marks and Designs [2021] EWCA Civ 1374

The Court of Appeal has ruled that an artificial intelligence machine cannot qualify as an “inventor” for the purposes of Sections 7 and 13 of the Patents Act because it is not a person. Further, in determining whether a person had the right to apply for a patent under Section 7(2)(b), there was no rule of law that new intangible property produced by existing tangible property was the property of the owner of the tangible property, and certainly no rule that property in an invention created by a machine was owned by the owner of the machine. 

Background Facts and Law

This was an appeal by the owner of an artificial intelligence machine against a decision upholding the respondent Comptroller’s refusal of his patent applications in respect of inventions generated by the machine.The appellant had submitted two patent applications designating an artificial intelligence machine (DABUS), as the inventor. DABUS stands for “Device for the Autonomous Bootstrapping of Unified Sentience”, an artificial neural system owned by Dr Thaler. The first invention was entitled “Food Container” and concerned the shape of parts of packaging for food. The second was entitled “Devices and Methods for Attracting Enhanced Attention”, and was a form of flashing light. On the face of it each disclosed a potentially patentable invention, that is to say patentable as defined by s1 of the 1977 Act. The appellant owned the machine, but had also created it and set it up to produce the inventions in issue. In response to the box requiring him to indicate how he had the right to be granted a patent, he wrote: “by ownership of the creativity machine ‘DABUS'”. The Intellectual Property Office indicated that the statement of inventorship form did not satisfy the Patents Act 1977 Pt I s.13(2), which required him to identify a person as the inventor (section 13 (2) (a) and to indicate how he had derived his right to be granted the patent (section 13(2) (b)). It therefore determined that the applications were deemed to be withdrawn. The applicant was still not entitled to apply for a patent simply by virtue of ownership of DABUS, because a satisfactory derivation of right had not been provided (as machine cannot pass on ownership). The High Court upheld that decision. First, it considered Section 7, which sets out the circumstances in which a person might right to apply and obtain a patent, and found that its natural meaning was that the inventor was a person. Second, it found that although the appellant could perhaps have claimed a right to be granted a patent as the inventor under Section 7(2)(a), he had not advanced such a case. Third, it found that an applicant’s subjective and honest belief that they were entitled to apply for a patent was insufficient to entitle them to the grant of a patent as that would render the provisions of s.7 otiose.


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The Weekly Round-Up: public executions, same-sex adoption and refugee rights

27 September 2021 by

In the news:

A spokesman for the Taliban has said that working women must stay at home for their own safety as “a very temporary procedure” until systems are in place to ensure their safety.  The spokesman also told Afghans not to go to Kabul airport and said the US should not encourage them to leave Afghanistan.

Last week, the former head of religious police for the Taliban confirmed that punishments such as execution and amputation would return to Afghanistan.  Prior to the takeover of Kabul, a Taliban judge told the BBC that Sharia law was clear and included punishments of 100 lashes in public for sex out of marriage, being stoned to death for adultery, and “[f]or those who steal: if it’s proved, then his hand should be cut off.”

On Saturday it was reported that the Taliban hung the bodies of four alleged kidnappers from cranes in Herat city square, before moving them to other areas of the city for public display. An unidentified Taliban commander said the aim was “to alert all criminals that they are not safe”.

In other news:


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“Let the Doctors Decide”

27 September 2021 by

The appeal by Tavistock and Portman NHS Trust was allowed. Image: The Guardian

In Bell and A v Tavistock and Portman NHS Trust and others [2021] EWCA Civ 1363 the Court of Appeal advised judges to avoid formulating policy in an area of social and moral complexity.

Ever since the Divisional Court restricted the medical treatment of children experiencing gender dysphoria at the end of last year (see R (on the application of Bell and A) v Tavistock and Portman NHS Trust and others), discussed on this blog here), the decision has provoked heated debate. Some lamented the distress of young sufferers deprived of treatment. Others applauded limits they said would prevent irreparable harm. On 17 September 2021 the Court of Appeal reversed the decision, but the dispute will continue to rage both in and outside the Courts.

The first Claimant, Keira Bell, is a former patient of the Tavistock who was prescribed puberty blockers at 16 to delay the onset of female sexual characteristics. She transitioned to a male using cross-sex hormones, had a double mastectomy, and then changed her mind, regretting the “brash decision” she said would negatively affect the rest of her life. Her case – accepted by the Divisional Court — was that the “innovative” and “experimental” nature of the treatment, specifically the use of puberty blockers, made it unlikely a child could validly consent to it.


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Law Pod UK is BACK!

24 September 2021 by

Law Pod UK returns after the summer break with Episode 149: a fascinating interview with Special Advocate Angus McCullough QC on Closed Material Proceedings where evidence is so secretive the SAs cannot communicate directly with their clients. Anyone interested in drilling further down into the subject please go to Angus’s two posts on UKHRB: “Secret Justice”: An Oxymoron and the Overdue Review” and “Secret Justice – The Insiders’ View”, with links to the evolution of CMPs, the relevant legislation, the review process now under way and the submissions that Special Advocates have made to Sir Duncan Ouseley, the independent reviewer of this process: The Ouseley Review – SAs-Submission.

And you will notice a few changes: different signature tune, different voiceover: our very own head of Chambers, Richard Booth QC. Also welcome to our new producer Philip at lawpodcasts.co.uk, who’s done a great job taking over the task of delivering this podcast from Simon Jarvis of Whistledown.

We have a terrific line up of guests following Angus for the Autumn. 

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts. 

Please remember to rate and review us if you like what you hear.

Law and the Culture War

21 September 2021 by

The judgment in Forstater v CDG Europe UKEAT/0105/20/JOJ has forced the courts yet again to grapple with the transgender debate. We have already seen the judiciary face up to the challenging issues of whether children with gender dysphoria can consent to receiving puberty blockers (see recent decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363). In the present case, the issue was whether the Claimant’s belief that biological sex is real, important, immutable, and not to be conflated with gender identity was a “philosophical belief” within the meaning of section 10 of Equality Act 2010 (“EqA”).

Background

The claim arose from the Claimant’s statements on Twitter, which manifested her beliefs on the immutability of sex. Her colleagues found these offensive and complained. Her consultancy contract was not renewed, and she brought proceedings before the Central London Tribunal on the basis that she had been discriminated against because of her belief that sex, rather than gender, is fundamentally important and that there are no circumstances in which a trans woman is a woman or a trans man is a man. At a preliminary hearing, the Judge held that the Claimant’s belief was not a “philosophical belief” within the meaning of section 10 EqA.


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The Weekly Round-up: Discriminatory policing, online privacy and puberty blockers

20 September 2021 by

In the news:

This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.

Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.


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“The most complex Covid patient in the world”

13 September 2021 by

Cambridge University Foundation NHS v AH and others (by her Litigation Friend and the Official Solicitor

These are the words that Hayden J, Vice President of the Court of Protection, used to describe AH, the applicant in this case. The Official Solicitor identified it as “the most troubling and tragic of cases of this kind” with which she has been involved.

This case is the most recent and cogent in the consideration of best interests under the Mental Capacity Act in terms of continuing life-saving treatment. The “best interests” test is laid out in Aintree University Hospital NHS Trust v James [2013] UKSC 67.

AH’s family was originally from Pakistan. She and her family moved to Uganda but they were expelled, as South Asian residents, under the Idi Amin regime, in the early 1970’s. AH’s medical history showed signs of non-specific arthralgia, raised calcium levels and Type 2 diabetes. She had been diagnosed with carpal tunnel syndrome. She did not smoke, nor did she drink alcohol. 

In early January 2020 she suffered a high fever which her doctors identified symptomatic and not causative of the cytokine/autoimmune ‘storm’ which created the “devastating” neurological damage and the pathological processes she has suffered from since. Both her treating doctors had seen similar cytokine ‘storms’ in patients critically ill with Covid-19 although neither has seen damage as extensive as that sustained by the applicant. All agreed that it was in consequence of this ‘storm’ that there had been such “extensive damage” to the nerves and to the muscle as well as to the brain.


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The Weekly Round-Up: Incels, prison labour and the deprivation of children’s liberty

13 September 2021 by

Incels metaphorically ‘take the black pill’ (a reference to the film The Matrix) when they believe they are no longer capable of change

In the news:

Hundreds of people attended the funeral services for Sophie and Lee Martyn on Monday, killed last month by Jake Davison, who was active on ‘incel’ or ‘involuntary celibate’ forums (though not describing himself as one). Over 50 people, including the five gunned down by Davison in Plymouth have now been killed by incels across the Anglophone world, who blame women for their own perceived lack of sexual and social status. Incel ideology has been linked to the far right, with obsessions over male appearance and phrenology. Biological determinism defines their beliefs in their inability to find sexual partners, which, when poured into online melting-pots already occupied by anti-feminists and white supremacists, can enflame similar senses of entitlement and injustice that may consume disaffected and reclusive (generally white) men.

In 2018, Amia Srinivasan posed the question in The London Review of Books:

how to dwell in the ambivalent place where we acknowledge that no one is obligated to desire anyone else, that no one has a right to be desired, but also that who is desired and who isn’t is a political question, a question usually answered by more general patterns of domination and exclusion.


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The Online Safety Bill Part 2: Do these proposals go too far, leading to overzealous policing?

11 September 2021 by

This post is the second part of two posts on the draft Online Safety Bill. In my first post, here, I detailed the mechanics of the proposed bill in detail. This post will summarise some of the civil society responses since the publication of the draft bill, attempting an evaluation of how reasonable those responses are in light of the available information. 

Does the bill go too far?

A recent report on freedom of expression online from the House of Lords, ‘Free for All? Freedom of Expression in the Digital Age’ (found here), recommends that the draft bill drops the duty to protect adults from contentious “legal but harmful” content. As detailed in the previous post, “category 1” services would have a duty under the draft bill to identify how their systems could cause adults to come into contact with user-generated content that is legal but nonetheless considered harmful. Further to that duty, they would be required to take steps to proportionately mitigate against the risk of exposure to that harmful content. Given the possibility to adverse impacts on freedom of expression, especially from the potential of overzealous policing of this provision by category 1 services to avoid liability, this has become one of the most controversial elements of the current draft bill.

The House of Lords report recommends that s. 11, implementing the adult safety duty, be dropped from the draft bill. As things stand, there are two ways in which content can be caught by the adult safety duty. Under s.46(2), the relevant secretary of state can designate by regulation certain types of content as “priority content”. Second, under s.46(3 – 5), content for which there is a “material risk” of having “significant adverse physical or psychological impact on an adult of ordinary sensibilities” is also considered “content that is harmful to adults”. Category 1 services must take steps to proportionately mitigate against the likelihood of adults using their service to come into contact with these types of content. 


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The UK’s Afghanistan Resettlement Scheme

9 September 2021 by

Refugees are airlifted out by British forces. Image: The Guardian

On 15 August, the government of Afghanistan collapsed, President Ashraf Ghani fled and shortly afterwards the Taliban took power. Thousands of the 39 million population have been scrambling to flee the future that now awaits Afghanistan. Countries are working to accommodate Afghan refugees — including the UK, which decided to resettle 20,000 refugees.

What is happening in Afghanistan?

The Afghan government’s rapid collapse came two decades after the U.S. invaded Afghanistan to as part of the ‘War on Terror’ to seek to deny Al-Qaeda a safe base for operations in the country following the 9/11 terrorist attacks and the refusal of the Taliban government to extradite Osama bin Laden. The immediate context is the decision in April of this year by President Biden to withdraw the 3,200 troops U.S. and NATO troops by the twentieth anniversary of the 9/11 attacks. Although Afghan security forces were well funded and equipped, in the event they put up little resistance as Taliban militants seized much of the country as soon as the troops began withdrawing. The Taliban regime that was once toppled in 2001 is now back in power. Moreover, the fall of Kabul came much sooner than expected by U.S. intelligence analysts.

Why are Afghans fleeing?


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The Weekly Round-Up: “undue lenience” and unpopular social care proposals

7 September 2021 by

In the News: 

In the relatively quiet period before the courts reopen for Michaelmas term, a suspended sentence handed down by a judge at Leicester Crown Court has attracted relatively loud censure. 

Timothy Spencer QC, Leicester’s senior resident judge, sentenced 21-year-old former Leicester student Ben John to two years in prison, suspended for two years. John had been found guilty of a terror offence under Section 58 of the Terrorism Act after downloading almost 70,000 white supremacist documents and bomb-making instructions.

The judge characterised John’s crime as an “act of teenage folly” and instructed him to return to court every four months to be “tested” on classic literature by Dickens, Austen, Shakespeare and Hardy.


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Misconduct in public office – ECtHR reviews foreseeability of common law offence

6 September 2021 by

On 6 July 2021 the European Court of Human Rights (ECtHR) published its judgment in the case of Norman v UK (Application no. 41387/17).  The case concerned Mr Robert Norman, an officer at Belmarsh prison, who in 2015 was convicted of misconduct in public office for passing a variety of information to a tabloid journalist in exchange for money. The ECtHR found that, in Mr Norman’s case, the offence itself did not constitute a breach of Article 7 ECHR (no punishment without law): Mr Norman’s conduct was sufficiently serious for it to have been foreseeable that it would constitute a criminal offence. The ECtHR also found that the newspaper’s disclosure of Mr Norman’s activities to the police, and his subsequent prosecution and conviction, did not breach his rights under Article 10 ECtHR (freedom of expression).

Image source: The Guardian

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Is an expert report prepared for the purposes of an inquest covered by litigation privilege?

2 September 2021 by

In the matter of an application for Judicial Review by Linda Kercher and Carol Mitchell [2020] NICA 31; [2020] Inquest L.R. 76

A niche question, but an important one for those in the field, particularly as the Northern Ireland Court of Appeal has found that it is not.

The case concerns a coroner’s decision to seek disclosure of an expert report prepared on behalf of the families of two soldiers who were found dead at their barracks. The families resisted disclosure relying on s.17B(2)(a) of the Coroners Act (Northern Ireland) 1959, which provides that a person cannot be compelled to produce a document to a coroner if he or she could not be required to do so in civil proceedings in Northern Ireland. (An equivalent provision for England and Wales is found at para. 2(1)(a) of Schedule 5 of the Coroners and Justice Act 2009.) The expert report, they argued, attracted litigation privilege. The coroner’s case was that as inquests were non-adversarial they were not litigation, and hence no privilege could be asserted.

NICA found for the coroner, with reluctance. Had it had a blank sheet, it would have held that litigation privilege applied. There were good reasons why it should do so, not least as it allowed for a participant in an inquest to take reasonable steps to inform and prepare its position (see the dissenting speech of Lord Nicholls in  Re L (a minor) [1997] AC 16). However, the court considered itself bound by the majority in Re L and the authority of Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610 (HL), and in particular the conditions for litigation privilege set out as [102] by Lord Carswell in the latter case:

(a) litigation must be in progress and contemplation;

(b)  the communications must be made for the sole or dominant purpose of conducting that litigation; and

(c)  litigation must be adversarial, not investigative or inquisitorial.

Although the court found for the coroner on the point before it, the victory was pyrrhic. Morgan LCJ, delivering the judgment of the court, joined the High Court in questioning the wisdom of the coroner’s decision to seek disclosure of the report. The coroner had already instructed his own expert, whose report he had found to be satisfactory; what public interest was there in seeking disclosure of the families’ report in what appears to have been an unprecedented way? The court invited the families to consider an application under s.17A(4)(b) of the 1959 Act, which provides that a person can resist disclosure to the coroner on the basis that it “is not reasonable in all the circumstances to require him to comply with such a notice” (see also para. 1(4)(b) of Schedule 5 of the 2009 Act for England and Wales). The court’s view (obiter) was that, ‘it appeared to us that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable’ [37].

Lessons

Those involved in the coronial proceedings may wish to take note of this judgment, and in particular the tight definition of litigation privilege. However, properly interested persons should be aware of the alternative basis for resisting disclosure provided by the relevant statutory provisions on reasonableness. Coroners will no doubt read the final paragraphs of the NICA judgment and ask themselves whether seeking disclosure of such reports is really appropriate in the first place.  

It should also be noted that where an expert report is prepared for the ‘dominant purpose’ of adversarial litigation, privilege will apply as long as the other two conditions set out in Three Rivers (No. 6) are also met.

There is a further implication of the judgment that is of practical interest. The 2009 Act makes it a criminal offence to ‘suppress or conceal’ a document where it is likely that the coroner ‘may wish to be provided with it’: para. 7(2)(a) and 7(3) of Schedule 6. If an expert report is not covered by litigation privilege, then it is at least possible that a coroner may wish to be provided with it. That being so, is there an obligation on those connected with an inquest to inform the coroner about the existence of such a report, even if they do not wish to rely on it in evidence? 

NB The judgment was handed down in June 2020, but has only recently been made available online.

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