For many years, Scotland has had one of the lowest ages of criminal responsibility in the developed world i.e. a child must reach the age of 8 before they could be found guilty of a criminal offence. Although criminal responsibility begins at the age of 8, a child cannot be prosecuted until s/he reaches the age of 12.
Kenny McAskill the former MSP and Scottish Justice Secretary announced proposals (contained in the Criminal Justice and Licensing (Scotland) Bill) in March 2009 to increase the age of criminal responsibility to 12 in order to bring Scots criminal law into line with most of Europe. Elish Angiolini QC, a former Lord Advocate, had supported this reform as she had previously criticised the current age of criminal responsibility as too low. That said, the eventual Criminal Justice and Licensing (Scotland) Act 2010 did not raise the age of criminal responsibility from 8 to 12. The 2010 Act reaffirmed the fact that criminal responsibility begins at the age of 8, but children should not be prosecuted until they were 12 years of age. In England and Wales, by comparison, the age of criminal responsibility continues to be set at 10.
The Scottish Government has now reviewed the age of criminal responsibility and changes will shortly be introduced.
The reason for this is the Age of Criminal Responsibility (Scotland) Bill currently making its way through the Scottish Parliament. This Bill was originally introduced to the Scottish Parliament on 18 March 2018 and has now passed Stage 2 as recently as 19 February 2019.
Barring any problems, the Bill should proceed to Stage 3 and then become law. When the eventual Act is passed, criminal responsibility in Scotland will be set at 12.
Watch this space.
Progress of the Bill can be tracked on the Scottish Parliament’s website:
In the first semester of this academic year, I was speaking to a group of students about disability discrimination in terms of the Equality Act 2010. Disability is a protected characteristic (Sections 4 and 6 of the Act).
We were discussing, in particular, an employer’s duty to make reasonable adjustments to a post in order to assist a disabled person to continue carrying out their duties. The employer is under a duty in terms of Section 20 of the Act to make reasonable adjustments to a disabled person’s post. A failure to comply with this duty would breach Section 21 of the Act.
According to the Equality and Human Rights Commission’s Statutory Codeof Practice on Employment, an example of a reasonable adjustment made by an employer to assist a disabled person could amount to the following:
An employer has a policy that designated car parking spaces are only offered to senior managers. A worker who is not a manager, but has a mobility impairment and needs to park very close to the office, is given a designated car parking space. This is likely to be a reasonable adjustment to the employer’s car parking policy.
What is reasonable when making adjustments?
This will be a key issue when determining whether to implement the requested adjustment. Each case will turn on its own facts and what is reasonable in one situation may be entirely unreasonable in different context. We can look at two contrasting cases to get a better understanding of this issue:
Cordell v Foreign & Commonwealth Office [2011] UKEAT 0016_11_0510 (5 October 2011) , the Employment Appeal Tribunal concluded that the adjustments requested by a senior diplomat were not reasonable in the sense that they would represent approximately five times the cost her annual salary.
Conversely, in Donnelly v Environment Agency[2013] UKEAT/0914/13 (18 October 2013), the Employment Appeal Tribunal stated that the refusal by the employer to consider providing the employee with a designated parking space was a failure to make reasonable adjustments.
Sharpshooting
So, returning to the discussion with my students, I related a story to them that had stuck in my memory about a disability claim. The story was reported in the UK national media in 2015 and concerned a Police marksman or sniper who had served in an armed response team with the Sussex and Surrey Force.
Please see the link to the story on website of the Mail Online:
The Police officer in question, Bruce Shields, had a developed a problem with his hearing. This was an issue which rightly concerned his superior officers. There were legitimate questions about his ability to carry out his job – especially so given the potentially serious situations which he often found himself in when carrying out his duties. Hearing loss is, of course, a disability in terms of the Equality Act 2010.
PC Shields took his employer to an Employment Tribunal alleging disability discrimination under the Equality Act 2010. He won his case, which may seem surprising given that you would have thought that his employer had strong grounds for removing him from these types of duties on health and safety grounds. This could be potentially an objective justification for his removal from firearms duties.
That said, however, the Tribunal decided in favour of PC Shields because his employer failed to send him for the appropriate medical test which would have established his suitability for these types of duties. No pun intended, but perhaps the employer “jumped the gun” by acting too hastily before an objective medical assessment was carried out.
Conclusion
The experience of Bruce Shields shows the importance of the employer carrying out independent medical tests before removing a disabled person from a post. Perhaps, if the employer had acted differently and followed procedures, there may have been a different outcome i.e. a more favourable one for the employer.
Continuity of employment is a very important legal concept.
What is it?
The period that an employee has worked for an employer without gaps which would be deemed in some way to break her service.
In Chapter 6 of Introductory Scots Law, I discuss how continuous employment gives employees access to legal rights (amongst other things):
Unfair dismissal protection
Redundancy rights and payment
Family friendly policies
Flexible working entitlement
It is important to note that, although employees will be in a much stronger position (legally speaking) than other workers or individuals in the labour market, entitlement to employment rights is not necessarily automatic. They must reach minimum periods of service (without breaks or gaps) in order to qualify.
There may be different lengths of continuous service required to access certain rights, for example:
2 years for entitlement to unfair dismissal protection & payment of statutory redundancy pay
26 weeks for entitlement to shared parental leave & flexible working arrangements.
Continuity of employment is not broken by the following:
Sickness absence
Holidays
Paternity/maternity leave
Adoption leave
TUPE i.e. transfers of undertakings
Temporary working abroad
Employer lock-outs (strikes)
Military service with the reserves
When a corporate body gets taken over by another because of a legal change
Time between unfair dismissal and an employee being reinstated
When an employee moves between associated employers
Temporary lay-offs
Individuals on zero hours contracts and other casual arrangements find it near to impossible to build up the necessary continuous service to gain access to these rights. They simply never work long enough for an employer for continuous periods.
For these individuals, there is also the issue of a lack of employment status which compounds their disadvantaged position in the labour market.
Proposals for reform
It was with interest that I noted that the Labour Party is intending to give new employees the right to request flexible working arrangements from the first day of employment (not from completion of 26 weeks of continuous service – the current legal position). The Labour Party must, of course, win power at the next General Election (whenever that is in these stormy Brexit climes) in order to introduce this reform.
One of the justifications given by the Labour Party for the reform is that it will benefit female employees particularly and will help close the gender pay gap. It’s certainly an interesting proposal.
Critically, the proposal would operate in a way that the employee was entitled to presume that her request would be granted. Currently, there is only a right to request flexible working arrangements – which the employer can refuse. That said, the employer must consider the employee’s request seriously.
Flexible working pattern could include annualised hours, flexi-time, job, sharing, shift working and term time working.
A link to an article about the Labour Party’s proposal can be found below:
Being selected for to serve on a jury Scottish criminal case can be a daunting experience for members of the public.
With this in mind, the Scottish Courts and Tribunals Service (SCTS), the body which has day to day responsibility for the operation of the legal system, has produced some short, information films for prospective jurors.
It should be recalled from Chapter 1 of Introductory Scots Law that jury or solemn trials take place in the Sheriff Court and High Court of Justiciary. Such trials deal with more serious types of crime. In a solemn trial, the jury is master of the facts and will determine the guilt or innocence of the accused. If the jury decides that the accused is indeed guilty, it is for the judge (the master of the law) to determine the appropriate punishment.
Overall, however, the vast majority of cases dealt with by the Scottish criminal courts are summary cases (non-jury trials). In such trials, the judge is both master of the facts and master of the law.
Civil juries
In practice, civil jury trials tend to be much more rare in practice than their criminal counterparts. A civil jury will consist of 12 individuals. Before 2017, civil jury trials were exclusively the preserve of the Court of Session. They tended to be used in some personal injury claims and defamation actions (see Thomas Sheridan vNews Group Newspapers Ltd 2006).
Civil juries were abolished in the Sheriff Court in 1980. Now, with the creation of the All Scotland Sheriff Personal Injury Court (as per the Courts Reform (Scotland) Act 2014), it is possible to have a civil jury trial before this body.
In May 2017, the first jury trial before the All Scotland Personal Injury Court took place:
In May 2019, Gordon Jackson QC, Dean of the Faculty of Advocates, stated that he wished to see reform of the Scottish criminal jury system. Primarily, Mr Jackson wishes to see the abolition of the current practice whereby an accused can be convicted by a majority decision of the jury i.e. eight jurors in favour of conviction while the other seven are for an acquittal verdict. It seems perverse to Mr Jackson that someone can receive a very long prison sentence in Scotland for say the offence of homicide on the basis of a simple majority of jurors.
You can read more about Mr Jackson’s thoughts about the jury system (and also about the not proven verdict) by accessing the link below:
In Chapters 3 and 6 of Introductory Scots Law, I discuss the issue of work-related stress.
An employer owes a duty to his employees not only to take reasonable care for their physical, but also their mental well-being. In modern times, more stressful working environments and practices have led to a dramatic increase in the number of employees suffering from psychiatric injuries.
It was, therefore, with a mixture of professional interest and genuine sorrow that I read about a tragic case of work related stress where a 48 year old university lecturer took his life because of the pressures that he was labouring under. The BBC reported the story and a link can be found below:
An employer will usually start off from the understanding that the employee should be able to handle the normal pressures of the job unless he has knowledge that the employee has a particular problem or weakness that makes it much more likely that this person is more susceptible to the risk of developing psychiatric injuries as a result of a stressful working environment. Clearly, it is easier for an employee to put into place safety measures in the workplace that protect an employee’s physical well-being. Reducing the risk of psychiatric injuries to employees caused by work-related stress is much more of a challenge for employers. Very often, employers can only take what an employee tells them about their emotional and mental health at face value. To go further, would be perhaps a breach of the employee’s right to privacy.
The legal consequences of work related stress
The first really ground-breaking case was Walker v Northumberland County Council [1995] 1 ALL ER 737.
Walker worked in a particularly stressful social work post for the Council. He had already suffered a breakdown due to overwork and a lack of support from his employers. His employer gave assurances that safeguards would be put in place upon his return from sick leave in order to reduce the risks of stress. The pursuer returned to work, but suffered a second breakdown because the Council had failed to take reasonable care to prevent him suffering from psychiatric injuries. The pursuer brought a claim for damages against the Council.
Held: by the House of Lords that the pursuer should be treated as a primary victim who was entitled to claim damages as a result of the Council’s negligence. The Council had returned him to his previous (stressful) post and it was, therefore, reasonably foreseeable that if the pursuer was exposed to these stressful conditions it was likely that this would cause him to suffer psychiatric injury. If an employee is regarded as a secondary victim, he must satisfy the tests laid down in White and Others v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 which is also discussed in Chapter 3. White arose because Police officers who were on duty at the Sheffield Wednesday FC ground on the day of the Hillsborough Disaster in 1989 claimed that their employer had caused them to suffer psychiatric injuries as a result of its breach of the duty of care to them. All the officers’ claims failed.
In Hatton v Sutherland [2002] EWCA Civ 76, the English Court of Appeal stressed that the key question to be asked in situations where an employee raised an action for damages for work-related psychiatric injuries was whether the harm suffered by the pursuer was reasonably foreseeable. The pursuer had to prove that he had suffered an injury to his health which is quite different from occupational stress and this injury had been caused by stress at work and not other factors that could affect the pursuer’s health. Very importantly, the Court of Appeal stated that it was wrong to assume that some jobs are more dangerous than others. All jobs should be judged according to the same test.
Hatton involved four claims in total against different employers: Mrs Hatton and Mr Barber were teachers in public sector secondary schools, Mrs Jones was an administrative assistant at a local authority training centre and Mr Bishop was a raw materials operative in a factory. All four pursuers won their cases in the County Court. The Court of Appeal, however, dismissed three of the employees’ claims and only narrowly approved the Mrs Jones’ claim.
It will still be very important for employers to show that they take reasonable care to prevent their employees from developing psychiatric injuries, especially if the employer is aware that the employee is particularly vulnerable in this regard. The approach taken by the Court of Appeal in Hatton was affirmed by the House of Lords in Barber v Somerset County Council [2004] UKHL 13.
In Dickens v O2 PLC [2008] EWCA Civ 1144, the English Court of Appeal effectively updated its guidelines in relation to stress related claims in the work place.
In this case, Dickens, a very hard-working and conscientious employee, had explained to her line manager that she “was palpably under extreme stress” and “about to crack up”. This disclosure effectively put the employer on notice about the risks to this employee’s health and it was reasonably foreseeable that she would develop a psychiatric injury. The employer’s response to Dicken’s disclosure about her psychiatric state was totally inappropriate and inadequate. When the disclosure was made, the employer owed a duty of care to Dickens and it had manifestly failed to implement this and was, therefore, liable for the psychiatric injuries caused. It should be appreciated that this decision significantly modifies the test of reasonable foreseeability for work related stress claims which was originally established in Walker v Northumberland County Council [1995]. In Walker, the risk to the employee of psychiatric injury only became reasonably foreseeable after the employee in question had suffered his first breakdown and was subsequently absent from work due to this condition. The decision in Dickens effectively places a greater burden of responsibility on employers for stress related claims in the work place.
Conclusion
Employers should be particularly mindful of stress suffered by employees and they should regularly update their knowledge of the effects of stress in the workplace. One of the ways in which they can monitor work related stress is by carrying out an audit of the workforce several times throughout the year. The data should then be analysed and acted upon to ensure that particularly vulnerable employees are not put at further risk. Such an audit can be relatively easy to carry out as the Health and Safety Executive has produced a Management Standards Risk Evalution Toolkit and questionnaire to help employers deal effectively with work related stress.
Links to the Management Standards Risk Evaluation Toolkit and questionnaire can be found below:
In a previous blog (Hurt feelings), I discussed the psychological and emotional damage of discrimination suffered by the victim.
A story that has been making headlines this week has been the racist graffiti that was daubed on the front door of a property in Salford, Greater Manchester.
To its great credit, The Guardian published the pictures of the graffiti on its front page in order to expose the true extent of racism in British society in 2019.
A 10 year old boy, David Yamba has spoken about how the offensive graffiti on the front door of his home has traumatised him:
In Chapter 7 of Introductory Scots Law, I discuss the concept of indirect discrimination. It is often a difficult concept to grasp for both students and the lay person. Unlike direct discrimination, harassment or victimisation (which can feel very personal and immediate to the victim of unlawful, less favourable treatment), indirect discrimination can perhaps take more subtle forms and is harder to spot. Arguably, an individual who commits an act of indirect discrimination may not be aware that legal consequences arise as a result of their behaviour.
Section 19* of the Equality Act 2010 addresses the issue of indirect discrimination.
Helpfully, the Equality and Human Rights Commission provides guidance on what constitutes indirect discrimination in its Statutory Code of Practice on Employment. Two examples can be found below:
Example 1
An employer has a ‘no headwear’ policy for its staff. Unless this policy can be objectively justified, this will be indirect discrimination against Sikh men who wear the turban, Muslim women who wear a headscarf and observant Jewish men who wear a skullcap as manifestations of their religion.
Example 2
Requiring a UK-based qualification, when equivalent qualifications obtained abroad would also meet the requirement for that particular level of knowledge or skill, may lead to indirect discrimination because of race, if the requirement cannot be objectively justified.
The concept of indirect discrimination in Section 19 applies to all of the protected characteristics with the exception of pregnancy and maternity which are specifically addressed elsewhere in the Equality Act 2010 (Sections 17 and 18).
New York, New York …
I got thinking about indirect discrimination again when reading an interesting article on the BBC’s website:
The guidance gives black people the right to wear hairstyles previously deemed “unprofessional”.
Apparently, New York City’s Commission on Human Rights is advising employers and service providers that discrimination on the grounds of a person’s hairstyle could constitute unlawful, less favourable treatment.
It would seem that certain hairstyles which are associated with African Americans e.g. afros, cornrows and locs are at risk of being labelled “unprofessional” and some employers are actively discouraging employees from having these hairstyles.
In the BBC report, the words “disproportionately affected” reared up at me.
Why?
Any person who has experience of working in the area of discrimination and equality law here in the UK should immediately spot the relevance of this phrase because it should signal that there is a possibility of indirect discrimination.
Policy, Criterion or Practice (PCP)
Employers and service providers should, therefore, be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554).
I often say to students that, if they were giving advice to organisations on how best to avoid indirect discrimination (which cannot be legally or objectively justified), they should begin by looking at policies and practices with general application to the workforce or the public. I tell them to think about who do they think can more easily comply with these requirements and who do they think might have more difficulty. In particular, could the PCP have a really negative impact on, for example, women, the disabled or certain religious and ethnic groups?
When we talk about the negative impact of a PCP on a group with protected characteristics, we are not talking about minor inconvenience. We really mean that the PCP has a disproportionately adverse effect on the group in question:
London Underground v Edwards (No 2) (1998) IRLR 364 – changing the shift patterns for all drivers on the London Underground had a disproportionately adverse effect on female employees with childcare responsibilities. This was indirect discrimination on the grounds of sex/gender which could not be objectively or legally justified.
Network Rail Infrastructures Ltd v Gammie [2009] UKEAT 0044 – 08 – 0603 – the refusal by the employer to consider flexible arrangements had a disproportionately adverse effect on female employees with childcare responsibilities. Again, as in the Edwards (above), this was an example of indirect discrimination on grounds of a person’s sex or gender.
Equality Impact Assessments
It might be advisable for the organisation to carry out an equality impact assessment before introducing a PCP e.g. a change to the working day; or a commitment to carry out regular reviews of extant PCPs in order to ensure that they comply with UK equality laws.
A useful link to ACAS guidance on carrying out equality impact assessments can be found below:
An organisation, in undertaking an equality impact assessment, might be well advised to conduct a detailed statistical analysis in order to calculate, for example, how many women or how many people of a particular colour, nationality, race, ethnic or national origin can comply in practice with the requirement imposed by the employer or service provider. If fewer Sikhs, for example, can comply with a PCP, it may be that the employer/service provider has indirectly discriminated against this group with the relevant protected characteristic.
Conclusion
At first glance, the condition or the requirement that the employer or service provider imposes on everyone looks completely harmless. Upon a closer inspection, however, it becomes apparent that, for example, more men than women can comply in practice with the employer’s condition or requirement or that more white people can comply with the requirement or condition than can people from an Afro-Caribbean background.
It is not just the fact that fewer people from a particular gender group or individuals of a particular colour or nationality can comply in practice with the requirement, they suffer an adverse impact because of it i.e. they suffer less favourable treatment.
What if, for example, the employer imposed a requirement that all job applicants had to be at least six feet in height?
Admittedly, there are many tall women, but realistically there are many more tall men than tall women who can comply with this requirement in practice. More women would, therefore, be prevented from applying for this job. In other words, women are denied employment opportunities because the employer has imposed a height restriction.
In situations where an employer imposes ‘desirable’ and ‘essential’ criteria in a job advertisement, the Employment Appeal Tribunal has stated these may be examples of indirect discrimination (see Falkirk Council v Whyte [1997] IRLR 560).
The lesson to be learned?: Monitor your organisation’s policies, criteria and practices carefully and regularly in order to avoid falling into the trap of indirect discrimination. An equality impact assessment is a vital tool to keep yourself on the right side of the law.
Postscript
In July 2019, California became the first US State to pass a law banning hairstyle discrimination.
Read more about this development by accessing information on the link below to the SkyNews website:
* Section 19(1)indirect discrimination is defined as:
‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’
Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
Copyright Seán J Crossan, 21 February & 8 July 2019
So sang Frank Sinatra for the first time in 1955, but do love and marriage go together like a horse carriage? In 2019, some people (heterosexual couples) would beg to differ, instead preferring to opt for a civil partnership arrangement.
In Chapter 7 of Introductory Scots Law, it was noted that, according to Section 8 of the Equality Act 2010, a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.
In 2004, the UK Parliament passed the Civil Partnerships Act2004, which came into force on 5 December 2005 and permitted same sex couples to enter into legally binding relationships. It should be recalled that the Scottish Parliament gave its consent to the Westminster Parliament to pass this Act for Scotland too.
This legislation also extended the same employment benefits that married couples already enjoyed to same sex couples who entered a civil partnership. In relation to the field of employment rights, the Act applies to employment and pension benefits e.g. a concessionary travel scheme and civil partners of an employee will be entitled to take advantage of these if existing provisions permit a heterosexual partner or spouse of an employee to claim these benefits.
In Bull and Another v Preddy and Another [2013] UKSC 73, UK Supreme Court Justice, Baroness Hale made the following remarks about civil partnerships:
“Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state.”
Since the Supreme Court judgement in Bull and Another v Preddy and Another [2013], the debate has moved on and the UK Parliament passed the Marriage (Same Sex Couples) Act 2013 (which applies to England and Wales) and, in Scotland, the Scottish Parliament passed the Marriage and Civil Partnerships (Scotland) Act 2014.
Both pieces of legislation now permit same sex couples to enter civil i.e. non-religious marriages. Some Christian denominations, for example, the Church of Scotland, the Quakers (or the Society of Friends) and the Scottish Episcopal Church permit their ministers of religion to officiate at same sex marriage ceremonies, but some denominations do not (for instance, the Roman Catholic Church and the Orthodox Churches) which continue to emphasise the traditional view that a marriage is between a man and a woman.
Northern Ireland is the only region in the United Kingdom which currently does not permit same sex couples to enter marriages – although civil partnership is permitted. Readers of a previous blog entry (The ‘Gay Cake’ row) will be aware of this situation.
Heterosexual couples and civil partnerships
Interestingly, however, heterosexual couples were not permitted to enter civil partnerships as a more, modern alternative to marriage. Traditional marriage between a man and woman has been criticised on a number of grounds:
It’s seen as very patriarchal i.e. historically it unduly favours the male partner
It has religious associations which are not in keeping with the fact that the UK is (in 2019) a much more secular society
Some heterosexual couples are increasingly attracted to a more equitable and modern form of legal commitment i.e. civil partnership.
Despite these criticisms of traditional marriage, neither the UK or Scottish Governments have shown a desire to extend civil partnerships to heterosexual couples. That is until very recently and a UK Supreme Court decision has now made reform of the institution of marriage and civil partnership essential on the basis of a human rights challenge.
The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education[2016].
In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights.
Held: by the English High Court that the claim should be dismissed. Mrs Justice Andrews stated in very strong terms that:
“The alleged interference by the state with their right to private life by denying them the right to enter a civil partnership is even more tenuous. There is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them.”
The UK and Scottish Governments had shown absolutely no inclination to extend the civil partnerships legislation to heterosexual couples. If anything both Governments had prioritised the extension of marriage to same sex couples and Mrs Justice Andrews then went on to observe that:
“In my judgment the question whether maintaining the discrimination complained of is justified must depend upon the specific context. Here, the decision is to wait and see how the extension of marriage to same-sex partners affects civil partnerships before determining what to do about them. At present there is no clear evidence as to how civil partnerships are likely to be affected by extending marriage to same-sex couples and no clear social consensus on what their future should be (as the outcome of the two consultations demonstrates). However the figures that have emerged since March 2014 indicate that there has been a sharp decline in the number of civil partnerships formed in England and Wales compared to 2013, with a corresponding increase in the number of marriages of same-sex couples. In a consultation by the Scottish Government on Review of Civil Partnership dated September 2015, the statistics relating to jurisdictions where both marriage and civil partnerships are available to same sex and opposite sex couples (the Netherlands, New Zealand, and Hawaii) indicate that the vast majority of couples prefer marriage – in New Zealand in 2014 only 0.3% of the couples opted for civil partnership. In Scotland itself, after civil marriage was introduced for same-sex partners, there were only 8 civil partnerships registered in the second quarter of 2015, a decline of 94% from the previous year.”
The English Court of Appeal
This was not the end of the matter: Steinfeld and Keidan were permitted to appeal to the English Court of Appeal against Mr Justice Andrews’ decision (Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81). The Court of Appeal strongly objected to and unanimously rejected the notion that the case did not involve a potential breach of Articles 8 of the European Convention (not to say a potential breach of Article 14: the prohibition against discrimination).
That said, however, Lord Beatson (in dismissing the couple’s claim) went on to state:
“In my view, at present, the Secretary of State’s position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State’s approach was described as a ‘wait and see’ approach, although it would be more accurate to describe it as a ‘wait and evaluate’ approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants’ sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force.”
His colleague, Lord Justice Briggs stated:
“I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.”
The UK Supreme Court
As one might have expected, the UK Supreme Court was to have the final say in the matter.
On 27 June 2018, the Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.
Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:
“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”
Conclusion
There we have it: excluding heterosexual couples from the possibility of entering civil partnerships when same sex couples are now legally entitled to enter both marriage and civil partnership represents a breach of Article 8 and Article 14 of the European Convention on Human Rights. This constituted interference with heterosexuals’ right to a private and family life and discrimination on grounds of sexual orientation.
That said, we have to be careful and Lord Kerr very wisely drew attention to the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights by referring to the Supreme Court’s previous decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening)[2014] UKSC 38:
“An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”
So what happens next?
In October 2018, Theresa May, the UK Prime Minister, announced that the Government would amend the Civil Partnership Act 2004 to permit heterosexual couples to enter into civil partnerships as a result of the Steinfield and Keidan decision:
It should, of course, be remembered that the Scottish Parliament (in terms of the Sewel Convention or Legislative Consent Motion) gave its permission to the UK Parliament to pass civil partnership legislation in 2004 for Scotland (the Civil Partnership Act 2004). Family law (including marriage and civil partnerships) is, of course, a devolved matter for the Scottish Parliament in terms of the Scotland Act 1998. The Scottish Parliament was criticised at the time for not legislating in this area of important social policy.
The rather awkward situation for the Scottish Parliament (and Government) is that the legislation which is currently in force in Scotland regulating civil partnerships is incompatible with human rights. As discussed, the UK Parliament can refuse to implement the Supreme Court’s judgement; the Scottish Parliament cannot.
If, post Steinfeld and Keidan, the Scottish Government continued to allow civil partnership legislation to operate in its original form, there is a very real risk that the Scottish Ministers will be taken to court and challenged by heterosexual couples (using Steinfeld and Keidan [2018]) on human rights grounds.
The solution (for now)?
Letting the status quo prevail in Scotland is not an option because of the implications for human rights, so the Scottish Government announced a public consultation on civil partnerships in September 2018:
There may only be a matter of weeks to Brexit (29 March 2019), but EU Law is very much alive and kicking in the UK.
Just to prove this, I came across a story on BBC Scotland’s website about an ongoing investigation by the European Commission into alleged anti-competitive practices at a number of Scottish fish farms:
An interesting story today on the BBC’s website about how criminal cases involving alcohol as a major issue are dealt with at Glasgow Sheriff Court. Currently, two Sheriffs deal with cases where alcohol is a ‘contributory factor’ in crime. The Court has been operating for the last year and its lifespan has been extended for a further year. It will now deal with domestic abuse cases involving alcohol.
The BBC article contains some useful information about the Court’s approach to this area of criminal law and the types of sentences handed down by the Sheriffs.
A link to the article on the BBC’s website can be found below:
Seán Crossan's Scots Law 