Discrimination


Religious freedom in UK to be considered by Strasbourg Court

3 September 2012 by

Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release

Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.  Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.

The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed  intervening submissions under Rule 44 §3 of the Rules of the Court.

Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.


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BC Supreme Court grasps the nettle in right to die case

21 June 2012 by

Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment

Interest in the “locked-in syndrome” cases currently before the High Court runs high.  We posted here on the permission granted to locked-in sufferer Tony Nicklinson  to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.

He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)

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Housing benefit system discriminated against disabled people, rules Court of Appeal

19 May 2012 by

Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment

In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.

Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.

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Should we outlaw genetic discrimination?

9 May 2012 by

The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.

Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.

According to the Human Genetics Commission (HGC)

The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011)
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Disability lawyers chewing at the Big Apple’s core

17 April 2012 by

A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.

We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety.  Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
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Michael Gove’s full letter on homophobic teaching materials in schools

22 February 2012 by

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:

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University funding, Scotland and a question of equality

22 August 2011 by

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.

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A leap of faith?

20 July 2011 by

In the midst of all the coverage of the phone hacking scandal and the mounting woes of News Corporation an interesting piece of human rights news from the past week got lost: the announcement by the Equality and Human Rights Commission (“EHRC”) that it is applying to intervene in four cases before the European Court of Human Rights being brought by Christians who claim their Article 9 rights are not being sufficiently protected in UK law.

The applicants are Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane, each of whom has lost claims of workplace discrimination on the grounds of religion and belief in the UK courts over the past couple of years (see our general comment pieces here and here). The EHRC has now said that in its view “Judges have interpreted the law too narrowly in religion or belief discrimination claims” and that “the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.”

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Litigating equality: a costly business?

5 April 2011 by

Commission for Equality & Human Rights v Griffin, Lumby, Darby

[2011] EWHC 675 (Admin) Read judgment

The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law.
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Disabled volunteers can be discriminated against

28 January 2011 by

X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment

The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.

In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:

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Spy cameras to be regulated following criticisms

6 July 2010 by

The Coalition Government is to introduce a system of statutory regulation to govern the use of automatic number plate recognition (ANPR) cameras, responding to criticism of its scheme in Birmingham which was said to be targeting Muslim residents.

As we posted recently, ANPR cameras were controversially introduced in two predominantly Muslim areas of Birmingham under a scheme funded by an counter-terrorism initiative; the cameras have since been covered with plastic bags while a consultation process is undertaken

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Hardeep Singh libel case reignites debate on place of religion in the English courts

8 June 2010 by

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.

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Mentally disabled prisoner discriminated against by authorities

20 May 2010 by

R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment

The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.

Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.

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High Court says Lord Carey “mistaken” on religious discrimination [updated]

29 April 2010 by

McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment

Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.

The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:

18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.

19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.

Read more:

  • More posts on religious discrimination
  • Judgment in Mcfarlane v Relate Avon Ltd.
  • Update 30/4/10 – Lord Carey responds: legal battle against believers is “”a deeply unedifying collision of human rights””

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