Discrimination


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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Analysis | Court of Appeal upholds hotel gay discrimination ruling – Marina Wheeler

19 February 2012 by

Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment

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).

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Lawful for Home Secretary to deport Palestinian activist accused of fostering hatred

6 November 2011 by

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – Read Judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

The First-Tier Tribunal (Asylum and Immigration Chamber), has upheld the decision of the Home Secretary to deport Raed Mahajna, who had come to the UK to attend a number of meetings and speaking engagements.

Mr. Mahajna  (also known as Raed Saleh) was born in Israel in 1968. He is however of Palestinian origin and has been a vocal critic of the Government of Israel. Aware of his intention to travel to the UK, the Home Secretary issued an exclusion order against him on the basis that he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. However, this order was never served upon him, and he entered the UK on 25th June 2011. He was subsequently arrested on 27th June and detained until released on bail on 18th July.

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Inquiry into disability-related harassment reports

13 September 2011 by

The Equality and Human Rights Commission has published Hidden in plain sight, a report into disability-related harassment and how well this is currently being addressed by public authorities.

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:

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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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Discrimination at London’s first gay pub

17 January 2011 by

In its heyday

Lisboa v. Realpubs Ltd & Ors [2011] UKEAT 0224_10_1101 (11 January 2011) – Read judgment

The Employment Appeals Tribunal (EAT) has ruled that a well-known gay pub’s strategy to encourage straight customers led to gay customers being treated less favourably, meaning that the a gay employee was forced to resign.

The policies included seating straight customers at the front of the pub where they would be most visible to passers by. The Claimant was an employee of the well-known London pub the Coleherne. The Coleherne was thought to be the city’s first ‘gay pub’ and had been operating as such for the past forty years, but in September 2008 reopened as a gastro-pub, The Pembroke.

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Henry VIII stalks the Public Bodies Bill

9 November 2010 by

Updated | The Select Committee on the Constitution has published its report on the Public Bodies Bill, and has expressed concern that the Bill as proposed will impose “Henry VIII” powers on the Executive.

The Bill, which has already attracted attention for seeking to abolish 192 quangos, is currently making its way through Parliament (track its progress here) and has its second reading in the Lords on Tuesday 9th November. You can watch a recording of the debate here. The committee reports:

When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’. In our view, the Public Bodies Bill [HL] fails both tests.

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