The love that dared not speak its name

Thanks to @ChouetteLaura for making this photo available freely on @unsplash 🎁

Every day is supposedly a school day and I have just learned that, 125 years ago today, Oscar Wilde, Victorian poet and novelist, was began a sentence for 2 years’ imprisonment for the crime of gross indecency in terms of Section 11 of the Criminal Law (Amendment) Act 1885.

This was the culmination of several legal actions in which Wilde had become embroiled in order to end speculation about his sexual orientation. Although married and being the father of two children, Wilde had a secret: he was a gay man living in a very hostile environment.

It was such a hostile environment that Professor Dominic Janes of Keele University (and author of Oscar Wilde Prefigured: Queer Fashioning and British Caricature, 1750-1900) (University of Chicago Press, 2016) states that:

“Britain had some of the strongest anti-homosexuality laws in Europe … The death penalty was in place until 1861 [the last execution took place in 1835]. In general, one of the main images of what we’d call a gay or queer man was a sexual predator of younger men. Many people would have also been informed by religious arguments from the Old Testament.”

When Wilde’s ‘sexual transgressions’ with a number of younger men were finally exposed in court due, in a large part, to the work of a private detective, he didn’t really stand a chance against the ensuing moral outrage of Victorian society.

The trials and eventual prison sentence would ruin Wilde financially and reputationally – for good (or so it seemed at the time).

More information about the trials of Oscar Wilde can be found in an article which appeared in The Independent to mark the 125th anniversary of his downfall.

https://edition.independent.co.uk/editions/uk.co.independent.issue.250520/data/9525296/index.html

The long and winding road

If Victorian society was uniformly unforgiving and scornful of Wilde in 1895, contemporary British society has certainly rehabilitated his reputation. There is now almost universal agreement that Wilde was the victim of oppressive laws and social attitudes.

Wilde himself would probably be astounded at the amount of progress that members of the LBGTQI community have made in the intervening 125 years.

I’m also sure that he would be delighted to know that he is still the focus of discussion in 2020 (“There is only one thing in life worse than being talked about, and that is not being talked about.”).

It has been a a long and winding road for members of the LBGTI community to achieve legal recognition and protection.

Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, society (and particularly the work-place) could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights.

In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands.

Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles; then reduced to 18; and then finally 16 years of age. Societal attitudes had moved on and the law had to follow.

In the last 20 years, the influence of the European Union has also been particularly profound regarding measures to combat sexual orientation discrimination. In spite of Brexit, there is a large body of anti-discrimination law which has been bequeathed to us as a result of our membership of the European Union.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

This body of law is not just going to disappear overnight when the transitional period for Brexit ends (as currently anticipated by the UK Government) on 31 December 2020. As I often remark, European Union has become hardwired into the various legal systems of this disunited Kingdom.

Indeed, a person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Even greater strides towards equality were ushered in as a result of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Northern Ireland finally legalised same sex marriage in 2020.

When Oscar Wilde was serving part of his sentence in Reading Gaol (which inspired his Ballad of the same name) he could hardly have contemplated life as we know it in 2020.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 25 May 2020

Volunteers please!

Photo by ray sangga kusuma on Unsplash

I seem to be on something of a theme these last few weeks where my focus in the previous blog (and in this one) has been on agreements which are not enforceable in court.

In my last blog (Rock, paper, scissors …), I examined the historical, legal position in Scotland in relation to gambling agreements. These types of arrangements were – until the introduction of the Gambling Act 2005 – unenforceable in the Scottish courts on the basis that they fell into a category of agreement which was below the dignity of judicial scrutiny (sponsiones ludicrae).

It was with some interest then that the ongoing Covid-19 crisis should flag up another aspect of the law of contract which addresses situations where certain agreements are deemed to be unenforceable.

I am speaking of agreements where an individual volunteers to provide services, for example, to a charitable or community organisation. This type of arrangement is technically referred to as an agreement binding in honour only.

The well known UK retailer, Boots, has recently been criticised for its use of volunteers during the Covid-19 outbreak and accusations of exploitation have been flying around. The retailer placed advertisements for individuals to come forward to be trained as testers. This was all part of a UK Government initiative to encourage people to volunteer to help out during the crisis.

At first glance, there seems to be nothing wrong with what Boots is doing, but the retailer has been accused of abusing or exploiting the enthusiasm of volunteers to help out. The advertisements stated that individuals must commit to work at least 32 hours per week. This situation begins to sound less like volunteering and more about control. The Trades Union Congress and some employment lawyers have warned that Boots may be opening itself to legal action in the future. You may label an individual as a volunteer, but if you begin to treat him or her as a worker or even an employee, you may find that the relationship is not one of volunteer and recipient.

A link to the story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.140520/data/9513276/index.html

When we think of volunteers, we do not often think of them as individuals who provide services to commercial companies, but rather charitable and community based organisations. Furthermore, UK National Minimum Wage legislation exempts charities from its provisions – not commercial organisations like Boots.

Genuine volunteers

Such situations arise where the parties (the volunteer and the recipient of services) clearly intend not to be bound by the agreement that they have entered. There is no intention in the minds of the parties to create a legal relationship. The arrangement will last as long as the parties find it convenient. Other side can withdraw from this arrangement at any time without penalty. The party who withdraws from the arrangement may find that their honour or integrity is called into question, but in the absence of legal sanctions, this is a situation that they can probably live with.

There are downsides to being a volunteer: they are not employees within the meaning of Section 230 of the Employment Rights Act 1996 and this means that if such individuals suffer less favourable treatment in the course of their involvement with the recipient, they may have limited legal redress.

Section 83 of the Equality Act 2010 makes it very clear that if a person wishes to pursue an employment related discrimination claim, s/he must be in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. The wording of Section 83 would, therefore, exclude genuine volunteers because such individuals are providing services to recipients under an agreement binding in honour only.

In X v Mid Sussex Citizens’ Advice Bureau (CAB) and Others [2012] UKSC 59, the UK Supreme Court affirmed the earlier decision of the English Court of Appeal in which the claimant (‘X’) had signed a ‘volunteer agreement’ to work at the Citizens’ Advice Bureau which was ‘binding in honour only’. This meant that ‘X’ did not have a contract of employment or a contract in which to perform services personally. This meant that ‘X’ was outwith the disability discrimination laws (now contained in the Equality Act 2010) and it was incompetent of her to have brought the claim. The Supreme Court, in a lengthy exposition of the effect of EU Directives, also considered whether there was an obligation placed upon EU member states to outlaw discrimination in relation to volunteers. The Supreme Court concluded that there was no such duty placed upon member states by the EU.

A link to the Supreme Court’s judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2011-0112-judgment.pdf

Copyright Seán J Crossan, 18 May 2020

Rock, paper, scissors …

Photo by Seán J Crossan

An interesting story from Canada caught my attention last week and got me reminiscing about the legal status of gambling agreements in Scotland. Sponsiones ludicrae they were otherwise referred to – ludicrous promises.

The Québec Court of Appeal had to consider whether a bet placed on the outcome of a game of rock, paper, scissors was legally enforceable under that Province’s laws. At stake lay a sum of $500,000 and the loser of the bet had taken out a mortgage to cover this. Luckily for him, the Court upheld the judgement of the trial judge who had determined that the bet was not legally enforceable because it was excessive. Strictly speaking, gambling agreements can be enforced in Québec, but under that Province’s laws the bet must not apply to a game of chance; it must require skill or bodily exertion. Admittedly, Justice Chatelain, the trial judge seemed to be split on whether rock, paper, scissors was strictly a game of chance or one which required some element of skill or bodily exertion, but she was eventually swayed by the fact that the size of the bet was excessive.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/500k-bet-on-rock-paper-scissors-written-off-by-appeal-court-in-canada-11978822

Gambling agreements are arrangements that people enter into usually by way of placing a bet on a variety of sporting events or other frivolous activities e.g. who will be the latest evictee from ITV1’s I’m a celebrity: get me out of here!

When I started my legal career, I could confidently say to people that gambling agreements had no legal status whatsoever. They were unenforceable.

The introduction of the Gambling Act 2005, however, fundamentally reformed this area of the law of contract (more about this later in the article).

The historical position in Scotland

As Professor Laura J MacGregor of the University of Edinburgh has pointed out the theoretical objections of the Scottish judiciary were often quite nebulous when it came to deciding the grounds on which gambling agreements were unenforceable (Pacta Illicita: A History of Private Law in Scotland; Volume II edited by Reid and Zimmerman (OUP: 2000)).

True, such agreements didn’t quite fall into into the category of pacta illicita or illegal contracts because, after all, gambling was, for the most part, a perfectly legal activity. This, of course, did not prevent certain members of the judiciary (from time to time) placing such agreements in the category of illegal contracts (see Lord Moncrieff’s conclusions in Calder v Stephens (1871) 9 M 1074) in this respect).

England, on the other hand, had taken a different approach from Scotland to gambling agreements. The Unlawful Games Act 1541, passed during the reign of King Henry VIII, had to all intents and purposes made nearly all gambling activities illegal. Although this legislation seems to have been enforced rarely (or never), its influence ensured that gambling contracts had the status of pacta illicita or illegal contracts: they were void and unenforceable in the English Courts. Over the centuries, the laws regulating gambling in England would become progressively liberalised, but the Act of 1541 cast a long shadow.

The end result in both Scotland and England was very much the same: gambling agreements were unenforceable, albeit this conclusion being arrived at on the basis of different philosophical principles (sponsiones ludicrae in Scottish decisions and illegality in English cases).

Historically, of course, successive UK Government were quite hypocritical in their attitude towards gambling activities. They were quite happy to tax the punters, yet the Scottish and English courts consistently refused to enforce such agreements. Typically, the courts regarded gambling agreements as below their dignity and not worthy of judicial scrutiny. In the past, unlucky punters who were slow or refused to settle outstanding gambling debts with a bookie may have found themselves having to do a runner from hired ‘muscle’, that had been engaged by the bookie, to persuade them to pay up.

It also cut the other way: a lucky punter might be outraged to learn that a bookie had no intention of paying out if a rank outsider had romped home in that year’s Grand National horse race.

I remember reading (with much amusement), the writer, John O’Farrell’s face off with a book maker in 1997*. O’Farrell, a life long Labour Party supporter, had placed a bet that Tony Blair would lead the Party to victory at the next British General Election. When the bet was originally put down, the odds against a Labour victory were high. Needless to say that, when Mr Blair won the General Election in 1997, O’Farrell was banking on a large payout. To O’Farrell’s initial consternation, the bookie was not willing to pay out and there was no legal avenue to force him to do so. O’Farrell, who made regular TV appearances on well known shows such as Have I Got News for You, cleverly used his media status to persuade (gently) the bookie to pay out his winnings. The bookie duly complied.

*Things Can Only Get Better: Eighteen Miserable Years in the Life of a Labour Supporter, 1979–1997 (1999, Black Swan).

Arguably, the unwillingness of Scottish (and English) courts to enforce gambling agreements over the centuries seems to stem from the time in which Christianity was a much more powerful influence in society. Although, there would appear to be limited scriptural objections to such activities, many Christian societies were disapproving because it was a means of obtaining a reward without putting in the effort of hard labour. If pushed to think of condemnation of gambling in the Bible, I can really only think of the example of lots being cast by the Roman soldiers for the clothing and possessions of Jesus Christ at the crucifixion on Good Friday (Matthew 27: 35; Mark 15: 24; Luke 23: 34; and John 19: 23-24 fulfilling Psalm 22: 18).

The words of the eighteenth century Scottish judge, Lord Kames come readily to mind when considering how gambling contracts were viewed:

“[Such a contract] ought not to be converted into a serious matter, by bringing the fruits of it into a Court of Justice … Neither doth this court profess to take under its protection every covenant and agreement. Many engagements of various sorts, the fruits of idleness, are too trifling, or too ludicrous, to merit the countenance of law; a court, whether of common law or of equity, cannot preserve its dignity if it descend to such matters.”

Two examples of the way in which gambling agreements were dealt with by the Scottish courts can be seen below:

Robertson v Balfour (1938) SC 207 Robertson had entered into gambling agreements with Balfour, a bookie, to place bets on two horses, ‘Swift and True’ and ‘Scotch Horse’. Both horses won their respective races, but Robertson received a mere £10 in winnings from Balfour. In fact, Balfour owed Robertson another £33 in winnings. Robertson had agreed that he would give Balfour additional time to pay him the balance of this debt.

Held: Robertson could not enforce the outstanding debt of £33 against Balfour. This was a gambling debt and the courts would not enforce it.

Ferguson v Littlewoods Pools Ltd (1996) GWD 21-1183 the members of a football pools syndicate had won several million pounds on a coupon – or so they thought. The syndicate members were completely unaware of the fact that the agent for Littlewoods Pools had not forwarded their stake money because he had stolen it. When the theft was uncovered, the syndicate members not unnaturally demanded that Littlewoods should honour the winning coupon. Littlewoods stated that it had never received the coupon. In response, the syndicate argued that Littlewoods should be held responsible for the dishonest actions of its agent.

Held: by Lord Coulsfield in the Outer House of the Court of Session that the contract between the syndicate and Littlewoods was a gambling agreement and it was, therefore, unenforceable. Lord Coulsfield refused to order to pay out the sum which the syndicate thought it had won.

Gambling syndicates

Despite the previous unwillingness of the Scottish courts to provide a remedy to a party seeking to enforce a gambling agreement, arrangements made between members of a gambling syndicate could be legally enforceable.

The Inner House of the Court of Session had reason to consider legal position as applicable to arrangements between syndicate members in Robertson v Anderson [2002] ScotCS 312 by focusing on an area of contract law known as collateral contracts.

In Robertson, two friends who regularly attended Bingo sessions together had an arrangement that they would share equally between them any prize money that they won. One night, Anderson won over £100,000 and Robertson, her friend, expected to receive her share. Unfortunately, Anderson backtracked on their agreement and Robertson took legal action to secure her share of the winnings. Evidence was led which established that both women had an agreement to divide their winnings equally. As this case occurred before the introduction of the Gambling Act 2005, the Inner House of the Court of Session accepted that, if Anderson had attempted to sue Mecca Bingo for the winnings, she would have been unsuccessful due to the doctrine of sponsiones ludicrae. The question before the Inner House, therefore, centred around whether the agreement between Anderson and Robertson was a collateral contract and, consequently, enforceable – albeit one which was slightly tainted by association with the main gambling agreement.

Held: the Inner House started that Robertson could enforce the collateral contract that she had with Anderson. Collateral contracts are linked to another contract or agreement and give rise to a completely different set of rights and duties. Their contract related to gaming, but was not of itself a gaming agreement. The issue before the court – whether Robertson was entitled to share in Anderson’s winnings – did not involve the enforcement of a gambling agreement. This was the crucial difference between this case and Ferguson v Littlewoods’ Pools (1996) which was discussed earlier in this article. In any event, the introduction of the Gambling Act 2005, to which we shall shortly turn, now means that this discussion is largely of historical interest only.

That said, the decision of the Inner House was hardly surprising given that, as far back as the 19th Century, Lord President Normand (in Knight & Co. v Stott (1892) 19 R 959) could state:

There is no legal taint in betting as to infect all the contracts which are in any way related to it.’

In this way, the Court of Session could find in favour of a betting commission agent being allowed to sue successfully for sums owed to him by his principal.

The Gambling Act 2005

Such cases as the two above and the musings of Lord Kames were consigned to the dustbin of history with the passage of the Gambling Act 2005.

This legislation came into force on 1 September 2007 and, as a result, of Section 335, the doctrine of sponsiones ludicrae or ludicrous promises in relation to gambling agreements was repealed.

Section 335(1) of the Act simply states:

The fact that a contract relates to gambling shall not prevent its enforcement.’

This important legal reform has meant that Scottish and English courts have jurisdiction to deal with disputes between parties to a gambling agreement and to provide them with a remedy.

Conclusion

Section 335 of the Gambling Act was a very significant development in the law of contract that swept away the doctrine of sponsiones ludicrae. This doctrine had long been an important and well-established part of the Scots law of contract and ensured that those individuals who were party to a gambling agreement had no effective legal remedy should a dispute arise. The Gambling Act 2005 now ensures that such agreements will be regarded as legally enforceable.

Such a reform would have been unthinkable in the past because no doubt the Christian Churches would have railed against it. Given the steep decline of the influence of Christianity in modern Britain, it is perhaps not a huge surprise that the UK Parliament introduced the Act. More generally, there was also greater toleration of gambling amongst the British public possibly as a result of the introduction of the UK National Lottery (introduced by the National Lottery etc Act 1993).

Copyright Seán J Crossan, 7 May 2020

Virtual appeal?

Photo taken from the First Edition of Introductory Scots Law: Theory & Practice (Hodder Gibson, 2004)

The above scene, taken some years ago in Edinburgh’s Court of Session, portrays a normality that has been sadly lost to us in the legal world over the last month or so. It’s very unlikely that our two Advocates (the English equivalent would be Barristers) will be having face to face discussions for the foreseeable future.

Yes, we’re back to the ramifications of the Coronavirus (again) and lawyers, like so many other professionals, are now having to learn to rely on technology in order to deliver services to the public.

It should not have come as a great surprise, therefore, to see that Scotland’s most senior civil court has decided to proceed with a virtual appeal hearing in respect of a high profile defamation claim.

Last year, the well known Scottish independence (not to say controversial) blogger, Stuart Campbell was unhappy with the decision of a Sheriff in his defamation claim against Kezia Dugdale, the former Scottish Labour Party Leader (Campbell v Dugdale [2019] SC EDIN 32).

Mr Campbell sought leave to appeal to the Inner House of the Court of Session – which was granted – but this was before the virus outbreak and life as we know it changing in ways that we could not have foreseen.

The old adage about justice delayed means justice denied is extremely appropriate to the times we are living in. Due to the viral outbreak, both civil and criminal proceedings in Scotland (as in so many other countries) have practically ground to a halt.

How do we deal with this?

Necessity is the mother of invention and a virtual Inner House has been created by the Scottish Courts and Tribunals Service (SCTS). Eric McQueen, SCTS Chief Executive, is confident that the three appeal judges, court staff and lawyers for both litigants will be able to work with these arrangements. Currently, this is a temporary arrangement and jury is still out as to whether virtual court hearings will become a permanent feature of the Scottish, legal landscape. The answer to this question will surely depend on how matters progress in this particular appeal.

Even our legislators in the Scottish and Westminster Parliaments are having to grapple with the opportunities (and disadvantages) that remote working represents. Yesterday, the first virtual session of the House of Commons took place at Westminster.

Strange times indeed, but needs must when the devil drives …

A link to the BBC News website about the virtual Inner House can be found below:

https://www.bbc.co.uk/news/uk-scotland-52358830

A link to the original decision of the Sheriff (Nigel Ross QC) can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019scedin32.pdf?sfvrsn=0

Copyright Seán J Crossan, 23 April 2020

Scotland’s shame

Photo by Seán J Crossan

Look at the above image: the crime of vandalism? Almost definitely, but put it into context and a more sinister picture emerges that of sectarianism.

The building in the picture is a meeting place of the Loyal Orange Order and it has been spray painted with blatantly offensive graffiti which is diametrically opposed to everything that the Order stands for i.e. the unity of the British State, upholding Protestant religious values and support for the British monarchy. This is not just an act of vandalism: it is also a hate crime; an example of sectarianism.

The vandals, if ever caught, may also incur civil liability for their actions. Section 10 of the Equality Act 2010 covers the protected characteristic of religion and philosophical beliefs.

Sadly, these types of incidents can be all too common and both sides of the sectarian divide can be guilty of such behaviour. In January 2019, a young man admitted to a sectarian offence at Glasgow Sheriff Court. While attending an Orange Walk, Bradley White spat on a Catholic priest, Canon Tom White, who was standing at the door of St Alphonsus’ Church when the parade passed by. The incident gained a lot of media attention.

Man who spat on Glasgow priest caught by his own DNA

A sheriff condemned the “disgusting” assault, which took place outside a Glasgow church as an Orange walk went past.

The Scottish Parliament (which first sat in 1999) was keen to address the issue of sectarianism and finally did so by passing the much maligned Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The 2012 Act acknowledged that a large part of sectarian division was expressed through the medium of football with reports of disorder at stadia and offensive comments being circulated on social media.

It was also the fact that before the 2012 Act was introduced, Scots Law had an existing arsenal upon which to draw when tackling hate crimes of a sectarian nature, namely:

  • Common law offences
  • Criminal Law (Consolidation) (Scotland) Act 1995
  • Crime and Disorder Act 1998
  • Criminal Justice (Scotland) Act 2003

The 2012 legislation has since been repealed by the Scottish Parliament on the grounds that it was difficult to operate and that it had significantly restricted freedom of speech.

Related Blog article:

https://seancrossansscotslaw.com/2019/12/26/a-pile-of-mince-or-a-dogs-dinner/

That said, the Scottish Government has not been prepared to leave this area alone and it instructed Lord Bracadale, a retired Senator of the College of Justice to chair an inquiry into the current state of hate crime laws in Scotland.

A link to Lord Bracadale’s recommendations can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

A secular society?

Although, the United Kingdom is regarded as a largely secular society in that the majority of its citizens no longer profess allegiance to a particular religion, many of the its people come from a distinct religious tradition. Yet, the British State itself has not caught up with these social trends: Queen Elizabeth II is the Supreme Governor of the established Church, the Church of England; and Anglican Bishops still sit in the House of Lords deliberating on and making laws for the country.

According to the British Social Attitudes Survey of 2018, more than 50% of people in Britain stated that they had no religious beliefs.

A link to an article in The Guardian about this aspect of the Survey can be found below:

https://www.theguardian.com/world/2019/jul/11/uk-secularism-on-rise-as-more-than-half-say-they-have-no-religion

The Protestant Reformation

Since the events of the Protestant Reformation in 16th Century, religious and political tensions have been a hallmark of British and Irish culture and society.

England, Scotland and Wales became Protestant countries while Ireland remained overwhelmingly Roman Catholic in its religious outlook.

To proclaim yourself as a Protestant was to pledge your loyalty to the Scottish and English Crowns (there was not yet a United Kingdom, although there was a union of the two Crowns in 1603).

To assert your Catholicism was often viewed as disloyal and treasonous. It could also mean that you could be subjected to criminal sanctions e.g. fines, confiscation of property, imprisonment and even the death penalty.

The Reformation raised Ireland’s already tense and problematic relationship with England to new heights (and later Scotland when James I became King of England).

Suspicion about Roman Catholics’ loyalties were further exacerbated as a result of the Gunpowder Plot of 5 November 1605. Robert Catesby, Guy Fawkes, Thomas Percy and their co-conspirators were fanatical Roman Catholics who wanted to kill the King and his key Ministers by blowing up the State opening of Parliament. Had the Plot been successful, plans were in hand to re-establish Catholicism as the religion of the embryonic British State.

Sectarianism in Scotland

Historically, religious discrimination or sectarianism in Scotland has been a big problem and has often been referred to as ‘Scotland’s shame’. These tensions really began to surface during the Irish Potato Famine (an Gorta Mór) in the 1840s. Thousands of Irish people – who were overwhelmingly members of the Catholic Church – left their homes and settled in Scotland in search of work and to escape hunger.

This huge influx caused tensions with the local Scottish, Protestant communities. In Glasgow in 1814, there was just one priest – Reverend Andrew Scott – serving the Catholic community. Father Scott supervised the building of St Andrew’s RC Cathedral on Glasgow’s Clyde Street in order to minister to his “vast Irish flock” (James Handley: The Irish in Scotland (1964): 127).

In the years following, many Irish continued to come to Scotland (and other parts of the UK) in search of work. Caused huge social tensions and Irish people were often the target of institutionalised discrimination. In Scotland, this discrimination always had a religious dimension – better known as sectarianism.

Discrimination ran right through Scottish society: Catholics and Protestants went to different schools, attended different churches, lived in separate neighbourhoods and, significantly, supported different football teams e.g. in Glasgow, Catholics supported Celtic FC and Protestants supported Rangers FC; in Edinburgh, Catholics supported Hibernian FC while Protestants supported Heart of Midlothian FC; and in Dundee, Catholics supported Dundee United whereas Protestants supported Dundee FC.

Conclusion

Although religious participation in Scotland has decreased significantly – in line with trends across the UK generally – the echoes of religious traditions can still be heard. In Glasgow and west-central Scotland (where Irish immigration was most heavily concentrated), support for Celtic and Rangers Football Clubs is still a pretty good indication of a person’s ethnic and religious origins.

The Scottish Parliament and Government has tried to take a lead in combating sectarianism – not always successfully. To the credit of the Government and Parliament, they are not prepared to leave the matter and Lord Bracadale’s recommendations on updating existing Scottish hate crime laws are both welcome and timely.

Copyright Seán J Crossan, 20 April 2020

You’re Black; you’re banned!

Photo by Belinda Fewings on Unsplash

In June 2019, I wrote an article which has become one of my most viewed Blogs – ‘Is it cos I is Black?’ The title was taken from Sachs Baron Cohen’s comic creation Ali G whose catchphrase it is. In that article, there was nothing actually that funny. My purpose was to highlight the shockingly high levels of racism that people of Afro-Caribbean origin still continue to experience in contemporary Britain – in spite of all the legislation (such as the Equality Act 2010) which theoretically puts people on an equal footing.

Race is a protected characteristic in terms of Sections 4 and 9 of the Equality Act 2010 and it is unlawful if a person is subjected to prohibited conduct e.g. direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

It will, therefore, be unlawful in the UK to subject a person to a detriment because of race in relation to employment, education, training and the provision of services generally.

Bearing all of this mind, I was startled to read about a story from Guangzhou, China where a McDonald’s outlet has been severely criticised due to its staff refusing entry to African Americans. No reason has been given for this behaviour.

McDonald’s is understandably very sensitive about this issue and has apologised for the behaviour of its staff.

Had this incident occurred in the UK, you would be correct to conclude that legal action in terms of Sections 9 and 13 of the Equality Act 2010 would have been threatened. To anyone who doubts that discrimination against Black people is a thing of the past, this story will serve as a timely wake up call. Who would have thought that such things would still be going on in 2020?

A link to the story on the Sky News website can be found below:

Outrage after black people banned from McDonald’s branch in China

http://news.sky.com/story/outrage-after-black-people-banned-from-mcdonalds-branch-in-china-11973200

The story from China reminded me of an incident in the American city of Philadelphia which involved racism against two African American men who were arrested in a Starbucks outlet. The men were waiting for a friend to join them in the store when a manager called the Police because they had not purchased anything. They were taken from the store in handcuffs by the Police. The incident went viral and The ensuing publicity did Starbucks no favours at all.

A link to this story as reported by The Independent can be found below:

https://www.independent.co.uk/news/world/americas/black-men-starbucks-philadelphia-settlement-1-dollar-entrepreneurship-fund-a8333526.html

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

Copyright Seán J Crossan, 15 April 2020

No Blacks, No dogs, No Irish!

The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.

It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.

In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.

A link can be found below which provides more information about Mr Upadhyaya’s story:

https://eachother.org.uk/racism-1960s-britain/

Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:

https://youtu.be/mGesyvKfAOA

This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.

Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):

https://www.theguardian.com/money/2017/nov/08/landlord-ban-coloured-tenants-unlawful-court-rules-equality-watchdog

‘No DSS’ tenants

With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.

If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.

At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.

This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?

The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.

Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.

In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:

  • There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
  • Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
  • Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
  • The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
  • The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
  • The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.

A link to the Supreme Court’s judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2015-0161-judgment.pdf

Conclusion

It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.

Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:

Landlords who say ‘no DSS’ breaking equality laws

“No DSS” landlords who turn down housing benefit claimants risk breaching equality laws.

Legal victories over ‘No DSS’ letting agents

Two single mothers win out-of-court settlements against letting agents refusing benefit claimants.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/03/04/there-aint-nothin-goin-on-but-the-rent/

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/06/21/sickness-absence/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

Copyright Seán J Crossan, 13 April 2020