Human Rights Court Decisions – Seán Crossan's Scots Law

The American approach

Equal justice under law?

On Monday 15 June, 2020, the US Supreme Court issued a very important ruling (Bostock v Clayton County, Georgia (Case 17-1618)) that there can be no discrimination on the grounds of a person’s sexual orientation or that they have (or are undergoing) gender reassignment. An attempt by an employer to dismiss a gay person or a transgender person will be an example of unlawful discrimination.

Surprise, surprise you might say: what took the Supreme Court so long?

Such discriminatory behaviour, the US Supreme Court has now declared, is a breach of Title VII of the US Civil Rights Act 1964 (which was enacted by Congress as part of President Lyndon B Johnson’s Great Society programme).

And this is where the American approach to the issue of discrimination on the grounds of a person’s sexual orientation differs quite markedly from the UK.

Title VII of the Civil Rights Act 1964 states that it is:

“unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

From a British legal perspective, the word “sex” in Title VII of the American legislation is problematic when applied to discrimination involving a person’s sexual orientation.

Why?

Quite simply, in the UK, we would understand the word “sex” in discrimination law as applying to an individual’s gender whether they are male or female; or identify as being male or female.

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

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

A link to an article on the BBC website about the judgement can be found below:

US Supreme Court backs protection for LGBT workers

Readers of this blog might not regard the US Supreme Court’s decision in Bostock v Clayton County, Georgia as in any way unusual. After all, in the United Kingdom and across the EU 27 member states, laws have been in place for a considerable period prohibiting unlawful discrimination on the grounds of sexual orientation.

Although the UK has now left the EU, the legislation protecting the LGBTI communities remains very much in place – by way of the Equality Act 2010 and other legislative instruments such as Article 19 of the Treaty on the Functioning of the European Union (primary legislation) and numerous Regulations and Directives (secondary legislation). The provisions in the Equality Act are, of course, an example of Westminster legislation and will remain hardwired into our legal system – for the time being at least.

The continuing status of European Treaty Articles, Regulations and Directives (in relation to the laws of the UK) will, of course, be up for debate when the Brexit transition period ends, as expected, on 31 December 20020.

The Equality Act 2010

Section 12 of the Equality Act 2010 addresses the issue of a person’s sexual orientation. This is a protected characteristic under the Act and means a person’s sexual orientation towards:

persons of the same sex
persons of the opposite sex
persons of either sex.

Sexual orientation discrimination: the historical perspective

Before 1 December 2003, in the United Kingdom, it was not unlawful to discriminate against an employee or potential employee by reason of that person’s sexual orientation. The situation changed dramatically with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003. The relevant law now being contained in the Equality Act 2010, which prohibits less favourable treatment on the grounds of a person’s sexual orientation generally and such protection is no longer confined to the field of employment.

It should be noted, of course, that the Employment Equality Regulations were primarily brought into force to introduce protection for gay, lesbian and bi-sexual people. If, on the other hand, you were heterosexual, you were very unlikely to face discrimination in the work place due to your sexual orientation.

The primer for this change to the law in 2003 was the European Union’s Employment Equality Directive (as a result of the Treaty of Amsterdam 1999) which meant that the UK, as a member state, had to introduce legislation in order to guarantee that people who had suffered less favourable treatment in relation to employment had a form of legal redress. The Employment Equality Regulations 2003 (and now the Equality Act) implemented this duty on the part of the UK.

Employment Equality Directive was limited in its scope because it applied (unlike the more expansive Racial Equality Directive) to just two sectors: employment and vocational training.

Sexual orientation not sex

It is perhaps now instructive to examine the failure of UK laws to provide protection to individuals who suffered sexual orientation discrimination prior to the Employment Equality Regulations coming into force.

In Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School [2003] UKHL 34, the House of Lords held that discrimination on the grounds of a person’s sexual orientation was not covered by existing UK equality laws (specifically the area of sex or gender discrimination then contained in the Sex Discrimination Act 1975).

Macdonald was dismissed from the Royal Air Force because he was homosexual or gay. Pearce, a teacher, had suffered an ongoing campaign of harassment while working at Mayfield School because she was a lesbian. Both Macdonald and Pearce claimed that the treatment that they had suffered was an example of direct sex discrimination.

Both claims failed because the treatment suffered by both individuals was an example of direct discrimination on the grounds of their sexual orientation – not because of their sex or gender. At the time of this appeal to the House of Lords, discrimination in employment on the grounds of a person’s sexual orientation was not prohibited by UK equality laws.

In its judgement, the House of Lords drew attention to the ironic fact that a new equality law prohibiting sexual orientation discrimination would soon be introduced, but this admittedly would be too late for Macdonald and Pearce! Small comfort indeed!

Had the cases occurred today, the employers would be liable for direct discrimination on grounds of sexual orientation in terms of Section 12 of the Equality Act 2010.

The perspective of the Court of Justice

Before the European Union’s Employment Equality Directive, the Court of Justice had been reluctant to lay the basis for greater legal protection in relation to a person’s sexual orientation.

In Case C-249/96 Grant v South West Trains Limited [1998] ECR I-621, Lisa Grant had argued that the failure by her employer to extend a concessionary ttavel scheme (worth £1,000 per year) to Gillian Percey, her same sex partner, with whom she had been in a stable relationship for more than 2 years, was an example of unlawful, less favourable treatment. The employer permitted heterosexual spouses (including common law spouses of more than 2 years standing) to enjoy the benefit of the travel scheme. Grant’s predecessor in the post had been male and his female partner had benefited from the travel scheme.

Grant chose her male predecessor as her comparator as part of an equal pay claim. It is important to appreciate that Grant was bringing her claim as a sex or gender discrimination legal action. Although Advocate General Elmer was broadly supportive of the couple’s claim that they had suffered discrimination under what is now Article 157 of the Treaty on the Functioning of the European Union and the Equal Treatment Directive, the Court of Justice decided not to follow this Opinion.

The Court stated that two men in a same sex relationship would have been treated in exactly the same way as Grant and Percey by the employer. South West Trains did not wish to extend concessionary travel to same sex partners of employees and, currently, there was nothing unlawful about this policy as neither UK or EU equality laws prevented discrimination by reason of a person’s sexual orientation. At the time that this case was decided, it should be appreciated that same sex relationships in the UK were not legally recognised in terms of civil partnership or marriage – such legal recognition was still some way away.

To come back full circle, the European Union would, of course, later redress the situation with the Employment Equality Directive which led to the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 into UK law. Had these Regulations been in force when Lisa Grant commenced her legal action against South West Trains, these would have given her and Gillian Percey significant legal protection from the discriminatory action of her employer. Admittedly, this was scant consolation for them and thousands of other same sex couples who experienced less favourable treatment in employment.

The European Convention on Human Rights

The provisions of the Convention have been implemented into Scots law via the Human Rights Act 1998 and the Scotland Act 1998 which means that an individual will enjoy substantial legal protection in relation to his or her sexual orientation. Article 8 of the Convention places a duty on a public authority to have respect for a person’s private life. Fuirthermore, Article 14 of the Convention confers a general right on individuals not to be subjected to discrimionation. Employers who are defined as a public authority will have to ensure that they comply with these provisions. Private employers will also have to be aware of these provisions because there is nothing to stop an employee bringing a discrimination claim against the UK Government if some loophole exists which permits the employer to behave less favourably towards them on the grounds of their sexual orientation.

Interestingly, in Macdonald v Advocate General [2003] (discussed above), the employee did attempt to argue that his dismissal by the Royal Air Force, by reason of his sexual orientation, was a breach of the European Convention, but this argument failed because the Convention had not yet been implemented by the Westminster Parliament.

Today, of course, Macdonald would have a very strong claim against his employer for the treatment that he had suffered. Although the war may ultimately have been won, this was a battle that the unfortunate Macdonald would lose.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/05/25/the-love-that-dared-not-speak-its-name/

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, 16 June 2020

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, 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

Hate crime?

A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):

‘I disapprove of what you say, but will defend to the death your right to say it.’

Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.

Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).

That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:

it must be prescribed by or in accordance with the law;
it must be necessary in a democratic society;
it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
it must be proportionate.

Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).

Our very own Miller case

In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.

We have just been reminded of this fact by a case which has just been decided by the English High Court.

Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.

Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.

Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.

He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.

Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …”

It was also noted that Lord Bingham in R v Shayler [2003] 1 AC 247 had stated:

“The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.

A subtle judgement?

It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.

There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.

Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:

provide evidence of a person’s motivation for subsequent hate crimes;
provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.

Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:

“He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.”

In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:

“There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.“

His Honour concluded by stating that:

“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”

A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:

https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf

A link to an article in The Guardian can be found below:

https://www.theguardian.com/society/2020/feb/14/transgender-tweet-police-acted-unlawfully

Conclusion

Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:

“The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”

This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

Copyright Seán J Crossan, 16 February 2020

The only gay in the village?

Photo by Steve Johnson on Unsplash

The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).

Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.

The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.

Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:

https://news.sky.com/story/i-felt-i-had-to-hide-my-lgbt-identity-at-work-so-i-decided-to-do-something-about-it-11920174

Links to Stonewall’s findings (and a Sky News article) can be found below:

https://www.stonewall.org.uk/system/files/2020_top_100_report.pdf

https://news.sky.com/story/stonewall-reveals-its-most-lgbt-inclusive-employers-11919950

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).

Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.

One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, 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).

Yes, 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.

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. Things have since moved on and the age of consent was firstly reduced to 18 and then eventually to 16.

In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.

On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).

It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 occurred when the Directive was first transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination. Luckily for them, the Equality Act had since come into force and covered unlawful less favourable treatment on grounds of a person’s sexual orientation with regard to the provision of goods and services.

The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.

The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).

Another massive step forward for the equality of the LGBTI community was the introduction 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). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):

Same-sex marriage: Couple ‘excited but nervous’ to become first in NI

Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.

This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).

Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):

https://www.stonewall.org.uk/best-practice-toolkits-and-resources

Conclusion

As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).

Postscript

On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.

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

http://news.sky.com/story/phillip-schofield-comes-out-as-gay-11928156

If anyone doubts that homophobia still exists in the UK, please see the story below:

Homophobic graffiti daubed on Polo Lounge entrance in Glasgow

Police have launched an investigation after they were alerted to the vandalism at the Polo Lounge.

Related Blog Articles:

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, 15 February 2020

Holocaust denial

Photo by Alexey Soucho on Unsplash

To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.

Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.

Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.

The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).

Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:

“the so-called Holocaust is being used for political and commercial purposes”.

He also stated during the speech:

“Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”

The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.

Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.

Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.

The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.

The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.

If so, it will be interesting to see how the judges respond.

As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.

A photograph of the press release from the ECtHR regarding the Pastörs judgement can be found below:

A link to the actual judgement of the court can be found below:

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22pastors%22],%22itemid%22:[%22001-196148%22]}

Copyright Seán J Crossan, 8 October 2019

I’m a prisoner, I want to vote!

Photo by kyryll ushakov on Unsplash

In one of my first blogs (The problem with human rights … published on 1 February 2019), I discussed the problematic nature of this area – especially when individuals who have been less than law abiding, upright citizens are attempting to argue that they deserve to have their human rights respected.

In that previous blog, I focused on people such as John Hirst (convicted for manslaughter in England); Abu Qatada (a radical Islamic preacher who promoted Jihad); and Anders Brevik (the Norwegian mass murderer); who had all pursued legal actions in terms of the European Convention on Human Rights.

See:

Hirst v United Kingdom (No. 2) (2005) ECHR 681
Othman (Abu Qatada) vUK (Application No. 8139/09) 12 January 2012
Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

As I often remark to my students, people such as those listed above are not ideal ‘poster boys’ if you were going to run a marketing campaign to promote greater awareness of human rights in Scotland.

This year (in Scotland) marks the twentieth anniversary of the implementation of the European Convention via the Scotland Act 1998 (in 2000, the Convention was further implemented across the UK as a result of the introduction of the Human Rights Act 1998).

I doubt very much that supporters of the system of human rights protection will wish to dwell too long on those difficult cases involving murderers, terrorists, paedophiles etc. It rather tends to undermine the whole basis of human rights or, in other words, it’s a very difficult sell.

Yet the difficult cases keep on coming and certainly make this area a constant source of fascinating debate and argument about the rights and wrongs of human rights. They also tend to drive home very forcefully the notion that human rights is a contested concept. Not everyone agrees what should be protected or who should be protected.

In 2000, the former Scottish judge, Lord McCluskey was highly critical of the introduction of human rights to the legal system. As far back as 1986, he had made the following remarks (in his Reith Lectures) about Canada implementing its Charter of Rights and Freedoms, which was based on the European Convention. In his opinion, this would lead to:

“a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.”

His Lordship would make the point that the above remarks applied equally to the then Labour Government’s decision to implement the European Convention directly into the legal systems of the United Kingdom.

Whether Lord McCluskey came to regret making these remarks publicly, we can only speculate. They did, however, come back to haunt him when counsel for a number of appellants before the Appeal Court of the High Court of Justiciary argued that Lord McCluskey (and his fellow judges) should be removed from further participation in an appeal which relied very heavily on human rights arguments, in particular, the right to a fair trial under Article 6 of the Convention (see Hoekstra & Others v Her Majesty’s Advocate [2000] ScotHC 11).

John Hirst

When Andrew Neil, the well known journalist, questioned John Hirst about prisoners being given the right to vote in elections being held in the UK, he was less than subtle when he ran through Hirst’s charge sheet on the BBC’s Daily Politics Show in 2010.

Even instinctive supporters of human rights would have found it very difficult (emotionally speaking) to sympathise with Hirst’s position that the right to vote is a human right and this should be extended to those serving prison sentences.

If you want to be reminded of how awkward an interview this was, please click on the link below:

A persistent problem

The spark ignited by John Hirst smoulders on. Amazingly, we are still talking about the issue in 2019. Last month, the European Court of Human Rights (not to be confused with the EU’s Court of Justice), ruled against the UK for failure to implement its earlier decisions which came down firmly on the side of prisoners. Although the UK was found to be in breach of the European Convention, the European Court of Human Rights decided not to award compensation to those prisoners who brought the claim.

The case in question is Miller & Others v UK 11 April 2019 (Application No 70571/14) and the European Court of Human Rights is effectively declaring that UK electoral legislation does not comply with the European Convention.

Article 3 of Protocol No. 1 of the European Convention states that the signatories or High Contracting Parties (i.e. those countries, including the UK, which have signed the Convention):

“… undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

All of the prisoners involved in this application were alleging that the UK was in breach of the above provision when they were denied the right to vote in one or more of the following elections: the European Parliament elections on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the UK General Election on 8 June 2017.

Section 3 of the Representation of the People Act 1983 is the relevant legislation in this area. It states that:

“A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.”

The above provision is known colloquially as the ‘blanket ban’ i.e. anyone convicted of a crime and imprisoned automatically loses (or forfeits) the right to vote. This is part of the convicted person’s punishment.

A link to the European Court’s judgement in Miller & Others v UK can be found below:

https://hudoc.echr.coe.int/tur#%22itemid%22:%5B%22001-192216%22%5D

As the supreme legislative body of the United Kingdom, it is up to the Westminster Parliament to rectify this situation – if it so chooses.

A political fudge

Since John Hirst won his case in 2005, successive UK Governments and Parliaments have fudged the issue. This whole area is a political hot potato because many politicians (irrespective of Party allegiance) are well aware of the dangers of standing up for the rights of prisoners. If advertising executives find it difficult to promote human rights using the inhabitants of UK prisons as exemplars, think how much more difficult it would be for politicians. They are extremely risk averse in these days of electoral volatility and they most certainly do not want to put their heads above the parapet to campaign for the rights of prisoners to be upheld. I suspect that many politicians would rather give a straight answer regarding their position raising taxes or cutting vital public services in order to avoid this particular, poisoned chalice.

Most politicians seeking re-election would not wish their opponents to level an accusation against them that they were soft on crime. Expect this story to keep on running.

Conclusion

We have been well aware for some time that the so called blanket ban on serving prisoners being denied the right to vote is a breach of the European Convention. Put simply, this provision in the Representation of the People Act 1983 is incompatible with the UK’s obligation to uphold and protect human rights.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the UK Supreme Court’s 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.”

Postscript

Significantly, on 2 August 2019, Michael Russell MSP, the Scottish Cabinet Secretary for Constitutional Affairs, passed what is known as a remedial order to allow prisoners whose domicile (or habitual residence) – when not in prison of course – is within the Scottish parliamentary constituency of Shetland.

Why?

A by-election is taking place because Tavish Scott, the Member of the Scottish Parliament for the Shetland constituency resigned his parliamentary seat. The remedial order is a temporary measure which will remove any accusation, for the time being, that the Scottish Government is in breach of human rights laws by depriving prisoners of the right to vote. This order by the Scottish Government is the prelude to a permanent change in the law.

Again, it’s worth emphasising that the Westminster Parliament and the UK Government can ignore declarations of incompatibility made by the courts in relation to laws which fail to comply with human rights obligations. The Scottish Government and Parliament are in a completely different legal position: all Scottish legislation and policies must comply with human rights laws.

A link to a story about the remedial order on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-49195360

Copyright Seán J Crossan, 1 May and 2 August 2019

There ain’t nothin’ goin’ on but the rent …

Photo by rawpixel on Unsplash

There ain’t nothin’ goin’ on but the rent: so sang Gwen Guthrie in her 1986 R&B hit (older readers may well remember this track). Unfortunately, the same cannot be said for the UK Government which has just lost a human rights case before the English High Court (Mr Justice Spencer being the presiding judge). A link to a report on the BBC website can be found below:

this on the BBC News App and thought you should see it:

‘Right to rent’ checks breach human rights – High Court

Making landlords check the immigration status of tenants leads to racial discrimination, judge rules.

Immigration Act 2014

When Prime Minister, Theresa May was in her previous job as Home Secretary she steered legislation (the Immigration Act 2014) through the UK Parliament which obliged landlords to check the immigration status of tenants. The purpose of this part of the legislation was to create “a hostile and intimidating environment” for illegal immigrants. The scheme was known as the right to rent.

Landlords who failed to carry out this exercise or failed to do it properly, could be charged with a criminal offence in England. The right to rent scheme had not yet been introduced to Northern Ireland, Scotland or Wales, but it was the clear intention of the UK Government to do this. It should be recalled that immigration policy remains an area of law reserved to the UK Parliament.

Introduction of the right to rent policy across the remainder of the UK may now be wishful thinking on the part of Mrs May’s Government. In any event, the Scottish Government had already expressed its hostility to the introduction of this policy.

Between R (Joint Council for the Welfare of Immigrants) (Claimant) and Secretary of State for the Home Department (Defendant) and (1) Residential Landlords Association; (2) Equality and Human Rights Commission; and (3) Liberty (intervenors)[2019] EWHC 452

The High Court has determined that the right to rent provisions of the Immigration Act 2016 are a breach of the Human Rights Act 1998 (i.e. are incompatible) because they discriminate against individuals on the basis of their ethnicity, nationality and/or race. In terms of Article 14 of the European Convention on Human Rights, there is a general prohibition on discrimination. There could also be a breach of Article 8 of the European Convention (right to private life and family life). The Government argued that checking the immigration status of prospective tenants was a necessary means of clamping down on illegal migrants – in other words, it could be objectively justified. The High Court did not share this opinion and stated that the compulsory background checks did nothing to combat illegal migration. In point of fact, it encouraged landlords to discriminate against British citizens from ethnic backgrounds (who not surprisingly had foreign names) and non-UK nationals who were in the country quite legally e.g. EU nationals.

The right to rent scheme also breaches Section 149 of the Equality Act 2010 (the public sector equality duty).

Mr Justice Spencer in his ruling stated:

“The measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

A link to the High Court’s decision can be found below:

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/452.html&query=(joint)+AND+(council)+AND+(for)+AND+(the)+AND+(welfare)+AND+(of)+AND+(immigrants)

The consequences of the judgement?

The right to rent scheme has not yet been rolled out across the rest of the UK. The High Court’s decision (though applicable to England only) will certainly give the UK Government pause for thought. A declaration of incompatibility by a UK court is a very serious matter. Although it will not nullify the legislation (that is for Parliament to decide), it represents a significant criticism that parts of a UK Act of Parliament are not human rights compliant.

Admittedly, the High Court has stated that the Government has the right to appeal and it will be interesting to see what happens next.

Conclusion

Human rights are an area of the law which could be labelled the gift that keeps on giving to legal students and practitioners. In 2019, there is scarcely an area of UK public policy which will be immune from international human rights principles. The UK Government may choose to appeal, but if in the longer term, the decision of the High Court is upheld by the English Court of Appeal (and possibly by the UK Supreme Court), it will be up to the UK Parliament to decide whether to amend the Immigration Act 2016 so that it is compatible with this country’s human rights obligations.

As stated in previously Blogs, the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

Copyright Seán J Crossan, 4 March 2019

Private Enterprise or Public Service?

Photo by Matthew Ansley on Unsplash

The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.

It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas [1990] 3 ALL ER 897 and Griffin v South West Water Services Ltd [1995] IRLR 15) and other private contractors delivering public services.

A recent example of a private sector company falling foul of human rights legislation occurred in the following English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice[2019] EWHC 367.

The facts of the case are as follows:

Her Majesty’s Prison Peterborough is run by Sodexho, a private company, but the UK Government’s Ministry of Justice is ultimately responsible for the running of the institution. The case arose because four inmates at the prison alleged that, in 2017, they had been subjected to strip searches which had breached their human rights, namely:

Article 3 – prohibition of torture and cruel and degrading treatment

Article 8 – the right to respect for private and family life

The English Court of Appeal had ruled in a previous decision – R (LD, RH and BK) v Secretary of State for Justice [2014] EWHC 3517 – that strip searches could represent breaches of Articles 3 and 8. In the present case, however, the High Court stated that there was no conclusive evidence that the strip searches represented a breach of Article 3. That said, the manner of the searches did represent a breach of Article 8.

Conclusion

This ruling is a salutary warning to private contractors carrying out public service contracts that they must be aware of human rights considerations. Companies such as Sodexho, Group 4 and Serco are and have all been involved in carrying out contracts in relation to the criminal justice system whether running prisons or transporting prisoners to and from court hearings. Ultimately, the (Scottish or the UK) Government will have responsibility for the manner in which operations are conducted by these companies because the contracts are deemed to benefit the public in the wider sense.

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

https://www.bailii.org/ew/cases/EWHC/Admin/2019/367.html

The case was widely reported in the UK media and a link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cambridgeshire-47334760

The “Gay Cake” Row

Photo taken from the Peter Tatchell Foundation website:

http://www.petertatchellfoundation.org/ive-changed-my-mind-on-gay-cake-row-heres-why/

In Chapter 7 of Introductory Scots Law, I looked at a case from Northern Ireland which quickly gained the unfortunate moniker or nickname of the “Gay cake row”.

The case in question was Ashers Baking Company Ltd & Others v Lee [2016] and the dispute eventually reached the UK Supreme Court for its final determination (Lee v Ashers Baking Company Ltd & Others [2018] UKSC 49).

It’s probably useful to have a brief recap of the facts of the case:

Ashers Bakery chain is owned by the McArthur family and has its operational base in County Antrim, Northern Ireland. The McArthurs are practising Christians. In May 2014, Gareth Lee, a customer, raised a complaint when his order for a cake was declined by Ashers. Mr Lee had asked for a cake depicting the characters, Bert and Ernie from the well known, American children’s television series, Sesame Street. The cake was also to have a slogan place on it: “Support gay marriage”. The bakery owners justified the refusal to make the cake on grounds of their strong religious beliefs and they could not be seen to be condoning or supporting gay marriage. Mr Lee also claimed that he had suffered discrimination due to his political beliefs – he volunteered with QueerSpace, an organisation which supports LGBT+ people.

At the time of these events (and even now in February 2019), Northern Ireland is the only part of the United Kingdom where same sex marriage is not available (although same sex couples can enter civil partnerships). QueerSpace is not a campaigning organisation, but it does have a pro-same sex marriage position. Mr Lee, supported by the Equality and Human Rights Commission, decided to pursue a claim for direct discrimination on the grounds of his sexual orientation and political beliefs against Ashers for its refusal to provide him with a service. The McArthur family was strongly of the view that their rights to freedom of thought, conscience and religion (which they enjoyed courtesy of Article 9 of the European Convention on Human Rights) were being infringed if they had to complete Mr Lee’s order as originally requested.

The Belfast County Court issued a judgement against Ashers finding that it had discriminated against Lee by reason of his sexual orientation and political beliefs. Ashers appealed this decision and, in October 2016, Sir Declan Morgan, Northern Ireland’s Chief Justice (sitting in the Court of Appeal) was strongly of the view that Mr Lee had suffered direct discrimination on the grounds of his sexual orientation and his political beliefs. The Court of Appeal of Northern Ireland also stated that Mr Lee had suffered discrimination by reason of his association with members of the LGBT+ community.

Ashers Bakery was then given leave to appeal to the UK Supreme Court. On 10 October 2018, Lady Hale, delivering the unanimous judgement of the Supreme Court, stated that

“In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area …

… Everyone, as article 1 of the Universal Declaration of Human Rights put it 70 years ago is “born free and equal in dignity and rights”. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

After dismissing the part of Mr Lee’s claim for sexual orientation discrimination, Lady Hale then went on to address the issue of whether the refusal by Ashers to make the cake with its slogan could be construed as a discrimination on the grounds of someone’s political beliefs. She noted that, in Northern Ireland, political beliefs were constitutionally protected. That said, however, this part of Mr Lee’s claim should also be dismissed:

“The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion …

… The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.”

“The objection [by the Bakery] was to the message, not the messenger.”

Ashers Bakery was not aware of Mr Lee’s political beliefs and involvement with QueerSpace and, therefore, it could not be said that he was being discriminated against by reason of his association with certain individuals who possessed protected characteristics (i.e. members of the LGBT+ community):

It is worth noting that the reason political beliefs are constitutionally protected in Northern Ireland has much to do with that region’s troubled history since its creation in 1921 as a result of the Government of Ireland Act 1920.

Lady Hale also noted:

“The Court of Appeal [of Northern Ireland] held that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community” (para 58). This suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.”

Conclusion

The UK Supreme Court has made quite a nuanced decision in dealing with the dispute between Ashers Bakery and Mr Lee. It will not satisfy everyone. If one had had to stare into the legal equivalent of a crystal ball before the Ashers’ decision, the logic of a previous decision of the Supreme Court – Bull and Another v Hall and Another [2013] UKSC 73 – might have led many to speculate that the Bakery would lose the appeal. This has turned out not to be the case.

In Bull (also discussed in Chapter 7 of Introductory Scots Law), it will be recalled that the Christian owners of a Cornwall B&B establishment had committed an act of direct discrimination by refusing to accommodate a same sex couple who had pre-booked a double room. The owners of the establishment had defended their decision to refuse the couple a double room on the basis of their religious beliefs. Interestingly, it was Lady Hale who also gave the leading speech in Bull.

I think we have to be very clear about the implications of the Supreme Court’s judgement: Mr Lee was not refused the provision of services by Ashers Bakery because of his sexual orientation. The Bakery was not refusing to bake him a cake: it objected to the message that he wanted to place on the cake. As David Scoffield QC, who appeared for Ashers Bakery, submitted:

“The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.”

In the Bull decision, Lady Hale referred to Bayatyan v Armenia (2012) 54 EHRR 15, 494, where the Grand Chamber of the European Court of Human Rights made the following statement:

“The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”

Quite simply, it would have been a grave breach of the McArthur family’s sincerely held Christian beliefs – which are protected under Article 9 of the European Convention – if they had been forced to make a cake with the particular slogan which Mr Lee had requested.

A number of links to articles on the BBC website which cover the case can be found below:

http://www.bbc.co.uk/news/uk-northern-ireland-45810720

http://www.bbc.co.uk/news/uk-northern-ireland-45812579

Postscript

In August 2019, it was reported that Mr Lee was taking his case to the European Court of Human Rights in Strasbourg, France.

It will be interesting to see what develops from this.

https://www.theguardian.com/uk-news/2019/aug/15/gay-marriage-cake-customer-takes-case-to-european-court

Copyright Seán J Crossan, 8 February and 15 August 2019

The problem with human rights …

Photo by Samantha Sophia on Unsplash

It was perhaps appropriate this week that I began a number of lectures about human rights in Scotland. You might ask: why this is appropriate? Well, on Sunday 27 January 2019, we had the annual Holocaust Memorial Day. This important date commemorates the liberation of Auschwitz on 27 January 1945, the Nazi extermination camp, by the armed forces of the former Soviet Union (the Red Army).

It was at this point and with the final defeat of Nazi Germany in May 1945,that the real horrors of Hitler’s regime were fully exposed throughout Europe and the rest of the world.

The anniversary was especially important this week when several British media outlets (the BBC and The Guardian) highlighted a poll conducted on behalf of the Holocaust Memorial Day Trust* which revealed that 1 in 20 British people did not believe that the Holocaust had actually taken place; 8% of adults questioned believed that the extent of the killings had been exaggerated; and over 50% of respondents could not provide the correct figure for the number of Jews killed by the Nazis (6 million in case you didn’t know). As Harriet Sherwood in The Guardian pointed out: the findings of this research closely “echoes the findings of a survey** carried out in seven European countries in November [2018] (“One in 20 Britons does not believe that the Holocaust took place, poll finds” by Harriet Sherwood writing in The Guardian on 27 January 2019)

* The Holocaust Memorial Trust:

https://www.hmd.org.uk/news/we-release-research-to-mark-holocaust-memorial-day-2019/

** CNN (2018) A Shadow over Europe:

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

From 1945 onwards, particularly amongst Western European nations and the USA and Canada, there was a renewed emphasis about protecting basic human rights and democratic freedoms. The Superpower standoff (‘The Cold War’) between the USA and the USSR was also portrayed (in the West anyway) about a greater struggle to protect freedom and democracy. The United Nations’ Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) demonstrated a renewed desire on the part of the international community to protect human rights.

The UK, Scotland and Human Rights

Human rights legislation is now a major source of law in Scotland and the UK. In 1999, the Scotland Act 1998 came into force and the new Scottish Parliament was obligated to pass laws which complied with international human rights standards. A year later, in October 2000, the Human Rights Act 1998 came into operation further reinforcing the United Kingdom’s commitment to the protection of human rights.

In 1950, the UK became one of the first signatories to the European Convention on Human Rights, but it chose not to implement this Treaty directly into UK domestic legislation. The Westminster Parliament could have passed an Act to enshrine human rights protection at the heart of the British constitutional and legal framework, but chose not to do this. It was not until the election of the Labour Government of Tony Blair in May 1997, that there was a clear commitment to pass legislation in this regard.

This meant that, for the first time, ordinary people could enforce the European Convention in the courts of the United Kingdom against the British State and its institutions. Prior to the Scotland Act 1998 and the Human Rights Act 1998, people in the United Kingdom had to go the European Court of Human Rights (based in the French City of Strasbourg) if they wanted to enforce their human rights.

Since 1966, the UK had accepted the compulsory jurisdiction of the European Court of Human Rights, but individuals who used the services of this Court could often expect to wait for 5 years (on average) to have their cases heard and determined. The Government of Prime Minister Tony Blair equated the direct implementation of aspects of the European Convention into domestic law as an example of bringing human rights home.

In Scotland, we’re approaching the twentieth anniversary of the European Convention becoming part of Scots Law and we often take things for granted.

Why are human rights so problematic?

Controversy No 1

Should human rights be universal i.e. should everyone benefit from them?

I often pose the following scenario to students:

What if Adolf Hitler had been captured by the Russians when Berlin fell in 1945, do you think he should have been put on trial like the other top Nazis at Nuremberg?

Did Hitler have a right to a fair trial?

I remember reading Professor Richard Overy’s superb book “Interrogations: the Nazi Elite in Allied Hands, 1945” (Allen Lane: 2000), which highlighted the disagreement between the Allied Powers about how best to deal with Nazi war criminals. The then UK Prime Minister, Winston Churchill would have summarily executed captured Nazi leaders (and lower ranking functionaries) arguing that the law of the outlaw should prevail (or at the very least Parliament would pass an act of Attainder). These individuals, by behaving atrociously towards their fellow human beings, had given up any claim to civilised treatment themselves. Franklin D Roosevelt, the then US President and Josef Stalin, then Chairman of the Communist Party of the USSR argued successfully for the creation of an international judicial tribunal to prosecute those accused of war crimes.

In this respect, the Nuremberg War Crimes Tribunal (as it became popularly known) was the forerunner of the modern International Criminal Court.

Something else that is worthy of consideration: in 1961-62, the State of Israel put Adolf Eichmann, one of the principal architects of the Holocaust, on trial for crimes against humanity.

Many of the first citizens of the State of Israel were Holocaust survivors or had family members who perished at the hands of the Nazis.

Yet … the Israelis still felt it was important to put this man on trial publicly so that the whole world would learn about the true extent of the evil nature of Hitler’s Third Reich.

Eichmann was captured by Mossad agents (the Israeli Foreign Intelligence Service) in Argentina (where he had fled, by way of Austria, after the Second World War) and he was taken back to Israel to face trial.

It might be argued that it would have been easier and more convenient for Mossad to assassinate Eichmann in Argentina or simply make him ‘disappear’

Do “monsters” have human rights? Hannah Arendt, the German Jewish Political Theorist, referred to Eichmann not as a “monster” but as someone who represented the “banality of evil” (Eichmann in Jerusalem: A Report on the Banality of Evil published by Viking, 1963)).

Some footage of the Eichamann Trial from Youtube can be viewed by accessing the following link:

http://www.bing.com/videos/search?q=adolf+eichmann&FORM=HDRSC3#view=detail&mid=AAFFED8CDB8ED628A674AAFFED8CDB8ED628A674

Even to this day, the controversy of who should benefit from human rights persists: many of the cases dealing with alleged human rights abuses involve murderers, paedophiles, terrorists and rapists.

Should the law whereby prisoners serving sentences in UK jails forfeit the right to vote in British elections be abolished? (see Hirst v United Kingdom (No. 2) (2005) ECHR 681).
Should a murderer who dismembered his victim have the right to complain about the prison authorities opening his private correspondence with his legal advisers? (see Beggs v The Scottish Ministers [2007] UKHL 3)
Should prisoners have the right to claim damages from the Scottish Government for failure to provide modern and hygienic toilet facilities? (see Napier v The Scottish Ministers [2005] CSIH16)
Should a radical Islamic preacher promoting or condoning Jihad be deported from the UK on the basis of information obtained from terrorist suspects who were tortured? (see Othman (Abu Qatada) v UK (Application No. 8139/09) 12 January 2012)
Should a mass murderer responsible for the deaths of over 70 people in Norway be entitled to complain about the inhumane and degrading conditions of his solitary confinement? (see Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

Opponents of the European Convention will, of course, highlight cases such as the above to attack the principle that human rights should and must have universal application. Why should individuals who threaten the safety and security of the community benefit from the protection of human rights? In 2010, the journalist, Andrew Neill (on The Daily Politics Show) famously challenged John Hirst that he had shown no respect whatsoever for the human rights of the woman that he killed:

https://youtu.be/vjBEcLvPTAA

Supporters of human rights, on the other hand, will have to grit their teeth and argue that decent treatment of individuals such as William Beggs (the “limbs in the loch” murderer) and the Norwegian mass murderer, formerly known as Anders Breivik can and should be justified. They will make the argument that civilised treatment of vile individuals is a guarantee that those of us who are good and decent members of society will also be treated fairly by the State and its agents.

Controversy No 2

Another area which is often a source of discord in relation to the protection of human rights is that there is no universal definition of human rights.

Over the years, issues such as abortion, abolition of corporal punishment for children, access to IVF, euthanasia and same sex marriage have sharply divided opinion.

Advocates of greater abortion rights in Northern Ireland have, for example, argued (only partially successfully) that the Province’s more restrictive Abortion laws are a breach of human rights (see In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland)[2018] UKSC 27).

This is not the end of the debate about Northern Ireland’s abortion law as the following BBC illustrates:

Abortion law: Abortion due to disability ‘prohibited’

Sarah Ewart is trying to change the law with a case based on her personal experience of abortion.

A question of balance?

Determining whether a person’s human rights have been breached can also involve a delicate balancing act as two judgements before the UK Supreme Court this week (week beginning 28 January 2019) have demonstrated:

Case 1

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents) [2019] UKSC 3

Persons convicted of relatively minor criminal offences e.g. not wearing a seatbelt; committing a minor assault; stealing a sandwich; or stealing a book priced 99p should not have to declare these convictions to prospective employers and thus adversely affect their future employment. The current requirement in law for disclosure of relatively minor convictions was a breach of Article 8 of the European Convention on Human Rights (right to a private and family life).

Case 2

R (on the application of Hallam) v Secretary of State for Justice R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2

Hallam and Nealon had been imprisoned (wrongly as it turned out) for 7 and 17 years respectively. Their convictions were quashed (set aside) by the English Court of Appeal. They both sought to claim compensation for wrongful imprisonment. They were refused compensation by the UK Secretary State of Justice who had made the decision (in terms of Section 133 of the Criminal Justice Act 1988) that the new evidence which had led to their release from prison did not demonstrate beyond reasonable doubt that they had not committed the offences. The new evidence made the men’s convictions merely unsafe. The UK Supreme Court by a majority of 5 to 2 decided that the failure of the Justice Secretary to grant compensation in terms of Section 133 of the Act did not breach the presumption of innocence in terms of Article 6 of the European Convention (the right to a fair trial).

In a third case this week, the European Court of Human Rights stated that there was no breach of Article 8 of the European Convention in respect of a man who was being compelled to take a paternity test. His right to a private life had to be weighed against the rights of the other party who wished to clarify her family origins (see Mifsud v Malta 29 January 2019 (Application No. 62257/15)).

Controversy No. 3

Another bone of contention for opponents of human rights legislation is that it can give too much discretion to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention which have been implemented by the UK. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics (see R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5).

When viewing this argument through the prism of Westminster legislation it soon becomes apparent that this is factually incorrect because all that superior court judges can do is to issue a declaration of incompatibility if a particular law or legal provision is found not to comply with the Human Rights Act 1998. The declaration of incompatibility is like a football referee issuing a yellow card: foul play is being acknowledged, but the player remains on the field … for now. It will then be over to the Westminster Parliament (as the highest legal authority in the land) to bring in corrective measures to ensure that the law is changed, but this is Parliament’s decision alone: take note prisoners in UK jails who are still waiting to be given the vote – despite the decision in Hirst v United Kingdom (No 2) (2005) ECHR 681.

The Guardian newspaper did report (in December 2017) that the UK Government had reached a compromise with the Council of Europe which would allow a small number of prisoners to vote:

https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights

Hardly, the resounding victory that John Hirst would have hoped for.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

Scottish Parliamentary Legislation

Admittedly, things are rather different with Scottish Parliamentary legislation which fails to comply with either the Scotland Act 1998 or the Human Rights Act 1998. As a legislature, which derives its authority from Westminster, all Scottish laws must usually be compliant with human rights. This is true for all legislative acts of the devolved institutions throughout the UK.

In 2016, the Scottish Government experienced an embarrassing defeat in the UK Supreme Court when parts of its flagship Named Person scheme was found to breach Article 8 of the European Convention on Human Rights (Right to a privateand family life)(see The Christian Institute and others v The Lord Advocate [2016] UKSC 51). The Named Person scheme had been introduced as part of the the Children and Young People (Scotland) Act 2014. After the UK Supreme Court’s decision, the scheme could not proceed as originally intended by the Scottish Government.

Conclusion

Human rights are undoubtedly problematic for the reasons discussed. As a colleague of mine said: “When emotion comes into the debate it is very difficult to arrive at a balanced judgement.” Yet if we deny that human rights are universal i.e. that only certain people deserve them, are we not on the slippery moral slope?

It is worth recalling that Nazi Germany’s call for a boycott of Jewish owned businesses, the Law for the Restoration of the Professional Civil Service of 1933 and the Nuremberg Decrees of 1935 was a clear statement of intent that some people in Germany (the Jews) were less equal than others. The Jewish community in Germany was gradually marginalised and disenfranchised as a result of these measures.

As Pastor Martin Niemöller*, a prominent opponent of the Nazis wrote:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.“

*Gerlach, Wolfgang – And the Witnesses were Silent: The Confessing Church and the Jews . Lincoln, Nebraska: University of Nebraska Press, 2000, p. 47.

These words might be worth remembering in this week of Holocaust Memorial Day

We might also pause for a moment to look around the world and recognise the fact that we in the West enjoy rights that others can dream about:

‘Why I fled Saudi Arabia and sought asylum in the UK’

Two Saudis who sought asylum in the UK explain why they risked everything.

Saudi woman’s refugee campaign sparks online debate

After Rafah al-Qunun fled Saudi Arabia she turned to social media to campaign for asylum

Five things Saudi women still can’t do

So Saudi women can now drive and watch football, but as Megha Mohan reports, some things are still off limits.