Updated | Juries are often being hindered by judges’ interventions, Lord Justice Moses has argued in the Annual Law Reform Lecture at Inner Temple.
In an illuminating and entertaining speech, he argued that many of the directions to juries are unhelpful and given in a “foreign tongue”, and that we should “no longer pretend that judges can assist a jury’s recollection by a recitation of the facts”.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors  EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
In this consultation announced this week, the Ministry of Justice is trying to get itself out of the multiple Aarhus problems facing UK justice. Infraction proceedings are threatened in the EU Court, and adverse conclusions were reached by Aarhus Compliance Committee; all much posted about on this blog, for which see below. The main problem is that the Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and everybody now appears to agree that the basic UK system of “loser pays the costs” does not achieve that objective without changes. So what does MoJ propose to do about it?
It says that costs protection should be provided via codification of the rules concerning Protective Costs Orders. That means that a claimant in any public interest case may ask the court for a PCO, to “cap” his liability to pay the other side’s costs to such a figure as does not deter him from bringing those proceedings. The boundaries of when a PCO can be ordered are much fought over – leading to more costs – but it certainly extends in principle to all public interest judicial review cases, not simply environmental ones. It is possible (at its very lowest) that PCOs can be made in public interest environmental challenges not involving judicial review, though there is not yet a decision either way on that.
It is just over five years since the landmark United States Supreme Court decision in the case of Obergefell v Hodges (26 June 2015), and just over fifty-one years since the Stonewall riots (28 June 1969). To the many important dates in Pride Month must now be added 15 June 2020, the date of the Supreme Court’s decision in Bostock v Clayton County, which confirmed that is, in fact, illegal to fire an employee because they are homosexual or transgender.
It might seem surprising to many readers of this blog that there was a question about this. In the United States. In 2020. Yet even here in the UK it can hardly be said that employment protections for gay and transgender people have existed since time immemorial. It was only in December 2003, for example, that the UK Government enacted the Employment Equality (Sexual Orientation) Regulations 2003, which prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation” (for which thanks is owed to the European Union, which mandated such legislation pursuant to the Equal Treatment Framework Directive of November 2000).
It can be said, however, that the legislation in the UK is sufficiently clear to put the question beyond doubt. Since 2010, sexual orientation and gender reassignment have been “protected characteristics” for the purposes of general discrimination law, pursuant to sections 4, 7 and 12 of the Equality Act 2010.
The law in the United States is not so explicit. Rather, Title VII of the Civil Rights Act 1964 makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, colour, religion, sex, or national origin.” The question for the Supreme Court in Bostock was whether the prohibition of discrimination because of an individual’s sex also entailed a prohibition of discrimination on the basis that an employee was gay or transgender.
Three cases were being appealed together, and the facts in each of them were simple, and stark:
Mr Gerald Bostock worked for his local authority (Clayton County) in Georgia as a child welfare advocate. After a decade of employment, during which time the County won national awards for its work, Mr Bostock made the fateful decision to start participation in a recreational gay softball league. He was promptly fired.
Mr Donald Zarda was a sky-diving instructor in New York. He tried to reassure a female customer who had concerns about a tandem skydive with a male instructor by confirming that he was “100% gay”. She complained, and he was dismissed days later.
Ms Aimee Stephens worked in a funeral home in Michigan. At the start of her employment she presented as male. Two years into her employment she underwent psychiatric treatment for “despair and loneliness” and was diagnosed with gender dysphoria. Her clinicians recommended that she start to live as a woman. Several years later, when she informed her employer that she would be returning to work as a woman after her vacation, she was fired because it was “not going to work out”.
In all three cases the employers openly acknowledged that their motive for dismissing their employees was that they were gay/transgender; but they said that was a wholly lawful thing to do. The plaintiffs argued that it was not, pursuant to a proper reading of Title VII of the Civil Rights Act 1964.
The decision was hotly anticipated. In the United States, the appointment of judges to the Supreme Court is lamentably politicised, and after President Obama’s nomination of Merrick Garland had been blocked by the Republican-controlled Senate in 2016, and the current occupant of the White House had apparently assured a 5-4 conservative majority by appointing two justices (most recently, following a harrowing confirmation process, Kavanaugh J), socially progressive groups could be forgiven for awaiting the judgment with some trepidation.These background issues are discussed further on the blog here.
On this occasion, they need not have worried. The split of votes was a refreshingly decisive and bipartisan 6-3, including Chief Justice Roberts. What’s more, the majority opinion was written by Gorsuch J, a “conservative justice” appointed in 2017.
The opinions make for a thoroughly enjoyable read (don’t be put off by the 172 pages — it is mostly appendices to Alito J’s dissenting opinion). As a student of English law, I am used to reading judgments which are characterised by temperate language, caveats, a degree of circumspection, or even consternation. In contrast, at least in this case, the opinions of the justices (particularly Gorsuch and Alito JJ) read like the most passionate of essays or written arguments — almost as if they were advocates rather than judges.
Updated | For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.
Abu Hamza wins passport appeal – BBC: Radical Muslim cleric Abu Hamza has won his appeal in the Special Immigration Appeals Commission against government attempts to strip him of his British passport. Apparently he won as taking his passport away would have rendered him “stateless”. We will comment on the case once the judgment is released (update – judgment is here and our post is here). In the meantime, you can read the background to his extradition appeal here.
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
An eventful week in Europe
Advocate-General Trstenjak has issued her opinion in NS v SSHD, a case currently pending before the Court of Justice of the EU. As reported by Cian Murphy for the Guardian, the case involves an Afghan asylum seeker who arrived in the EU via Greece before making his way to the UK to seek refuge.
Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return the claimant to Greece. The claimant then challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions. In her opinion, AG Trstenjak made recommendations on a number of points, including the following:
Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very existence of intuitive morality.
US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.
The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet). Continue reading →
A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week.
The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’
Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping.
In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.
Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily.
In Other News
China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues.
At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia.
An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’.
Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’.
In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country.
In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary.
In the Courts
In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor  EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1)  EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
Updated | The UK Supreme Court has released guidance on the use of “live text-based communications” from the court. Put simply, tweeting will be allowed in most cases.
The UK’s highest court of appeal has sensibly said that since its cases do not involve interaction with witnesses or jurors, subject to limited exceptions “any member of a legal team or member of the public is free to use text-based communications from court, providing (i) these are silent; and (ii) there is no disruption to the proceedings in court“.
Lord Saville has already come under significant criticism for the time and money which has been swallowed up by the Bloody Sunday Inquiry. Future public inquiries could now be under threat as new Justice Secretary Ken Clarke has accused the Lord Saville of allowing the process to get “ludicrously out of hand“.
The Saville Inquiry Report was published yesterday and can be downloaded here, a summary here and a good analysis here. Lord Saville’s long-awaited inquiry into the Bloody Sunday killings of 30 January 1972 was set up to investigate the events surrounding a march in Derry when 29 protesters were shot by British soldiers, leading to 13 deaths. The Inquiry has been widely criticised prior to its findings.
Chester v Secretary of State for Justice & Anor  EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.
The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.
RU (Bangladesh) v Secretary of State for the Home Department  EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal.This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.
In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:
‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’
Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson  EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
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