This is a relatively short article about today’s major constitutional law story which relates to the future of the United Kingdom as a unitary state.
The U.K. Supreme Court has finally ruled that the Scottish Parliament does not have the legislative power to hold a referendum (either a legally binding one or a purely advisory one).
This clearly represents a significant set back for supporters of independence for Scotland and the casual observer may arrive at the lazy conclusion that the matter is decided for the foreseeable future.
I think this is somewhat premature. The judgement of the Supreme Court contains difficulties for the U.K. Parliament and the Government of Prime Minister Rishi Sunak in the sense that the Union of the Scottish and English Parliaments in 1707 is clearly not one of a voluntary nature.
By implying this, the judgement may represent something of a red rag to the bull for many pro-independence Scots. It will certainly give the SNP/Green Government in Edinburgh a rather large stick to beat whichever British Government happens to be in power over the next few years.
In any event, there are legal precedents for dissolution of the union of nations within the framework of the British and Irish State (as I have previously argued in The Long and Winding Irish Road).
It should not be forgotten that 26 Irish counties (now the sovereign state of the Republic of Ireland) are obviously no longer in union with the United Kingdom. In fact, the original Acts of Parliament which led to the Union of Great Britain and Ireland stated:
The First Article of the Act of Union (Ireland) 1801 (above)
This piece of legislation (and it’s Westminster counterpart) contained the (very) ambitious statement that Great Britain and Ireland were to be united for ever. The ancient Greeks had a word for this type of mindset – hubris. This word means an excess of pride or over confidence.
Unfortunately, for the parliamentary draftsmen of both pieces of legislation, they could not possibly foresee that this permanent union would be seriously undermined by the Government of Ireland Act 1920. I shouldn’t have to say this, but 119 years is self evidently not aunion for ever.
It is also worth highlighting that the remaining six counties of the North of Ireland are still part of the political framework of the United Kingdom, but it is not a racing certainty that this will continue. The rise of Sinn Fein as the largest political party in the Northern Ireland Assembly has raised huge question marks about the constitutional status of the six counties. I don’t think it’s a stretch of the imagination to say that the future of the United Kingdom of Great Britain and Northern Ireland looks very uncertain.
Even the Soviet Union (the USSR) explicitly gave its constituent Republics the right to secede in its 1977 Constitution (a right which had existed in previous versions). This right, of course, was more apparent than real as long as the Cold War endured. With the fall of Communism in the late 1980s and early 1990s, the political space was created for the Soviet Republics to chart their own courses. Admittedly, this hasn’t always been plain sailing as the current war in Ukraine and other conflicts in Armenia, Azerbaijan and Georgia amply demonstrate).
Interestingly, when the Brexit Referendum of 23 June 2016 produced a narrow majority in favour of the U.K. leaving the European Union, there was no clear constitutional process for a member state to secede. Yet, on 31 January 2020, the U.K. became a former EU State.
This really leads me to the conclusion of this very short article: independence for Scotland is a political question rather than a legal question. The Supreme Court has answered a relatively easy question in the sense that the architecture of the Scotland Act 1998 does not currently permit the Scottish Parliament to hold a binding or non-binding referendum. As with the Irish Question over a century ago, permanent unions between countries or political units tend to be anything but.
One door closes and another opens …
The link to my previous article, The Long and Irish Winding Road can be found below:
Recently, I have been discussing with my students the creation of statutory criminal offences i.e. those created by Parliament (whether the U.K. or Scottish Parliaments). In particular, the group discussions have centred around the issue of whether the offence requires the accused to have mens rea (criminal intent or the guilty mind) when carrying out or attempting the actus reus (the wrongful act). Alternatively, the offence may be one of strict liability where mens rea is largely irrelevant. Strict liability offences include non-payment of a TV licence and some road traffic offences.
In relation to strict liability offences, the Crown (the prosecutor) merely has to prove beyond reasonable doubt that the accused committed the actus reus.
These issues were particularly pertinent because the Queen’s Speech had just taken place at Westminster on Tuesday 10 May 2022 (delivered by Prince Charles this year in his mother’s absence). This is a ceremonial occasion in the life of the U.K. Parliament, but it isn’t just for the tourists to come and gawp at. It’s the occasion where the U.K. Government sets out its legislative or law making proposals for the next year.
It used to be a very important occasion for Scotland, but since the Scottish Parliament was set up in 1999 (the Devolution process), it has become less so. Many laws for Scotland are now made in Edinburgh.
That’s not to say that the U.K. Parliament can no longer pass laws for Scotland. That would be giving you a totally false impression: the U.K. or Westminster Parliament remains the supreme law making or legislative authority in Scotland, England, Northern Ireland and Wales. That is a legal fact.
One of the Bills that was mentioned in the Queen’s Speech this year was the Public Order Bill. This is a very controversial Bill because it aims to target and control the conduct and extent of public protests – particularly protests by environmental groups such as Insulate U.K. and Extinction Rebellion.
The section of the Queen’s Speech referring to the Public Order Bill
A link to the text of this year’s Queen’s Speech can be found below:
When I was speaking to the students several days after the Queen’s Speech, I was saying that I would have to go and look at the text of the Public Order Bill in order to establish a number of things:
a) Does it apply to Scotland? The answer would appear to be no as the text of the Bill mentions England and Wales only.
b) Does it create strict liability criminal offences in relation to the practice of ‘locking on’; ‘obstruction etc of major transport works’; and ‘interference with use or operation of key national infrastructure’?
For locking on offences, the intention of the accused still seems to be critical, but regarding obstruction etc of major transport works, there could possibly be an element of strict liability.
Some screenshots from the text of the Public Order Bill can be seen below:
Front page of the Public Order Bill 2022 The proposed offence of locking on. Note the use of the words intend and reckless which are underlined in red
When the language of a Bill or an Act of Parliament uses words such as ‘wilfully’, ‘recklessly’ or ‘intentionally’ in connection with a criminal offence, it’s a fairly safe bet to conclude that the Crown must be able to demonstrate that the accused had the necessary mens rea when the actus reus occurred.
Some of the media commentary around the Public Order Bill was misleading to say the least – particularly in relation to the proposed offence of ‘locking on’. I picked up from several media outlets that this proposal involved the creation of a strict liability offence and, yet, the language of the Bill seems to suggest otherwise.
Section 2 (the proposed offence of being equipped for locking on). Note that the word intention appears in the text. Section 3 of the Public Order Bill 2022. Note that the text does not contain any words or phrases which suggest that the mens rea of the accused is essential.
That said, Section 3 of the Bill (obstruction etc of major transport works), lacks clear references to the intention of the accused and this might suggest that Parliament intends to create a strict liability offence. Further clarity can, of course, be sought by studying the explanatory notes which accompany the Bill. It is worth pointing out that, even if this is an attempt by Parliament to create a strict liability offence, it could be blocked or amended as the Bill makes it way through the Commons and the Lords.
Sweet v Parsley [1969] UKHL 1
In the above (and often quoted) decision of the House of Lords, Lord Reid (in paragraph 6 of the judgement) made the following observations regarding statutory offences which require mens rea and those which are ‘absolute’ or ‘strict’:
“Our first duty is to consider the words of the Act: if they shew a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”
A link to the decision of the House of Lords can be found below:
The Public Order Bill must now pass through the House of Commons and then the House of Lords before receiving the Royal Assent. Once the formality of the Royal Assent has taken place, the Bill becomes an Act of Parliament i.e. part of the law of the land (for England and Wales in any case).
I am jumping the gun somewhat: the Bill might have a stormy passage through Parliament. As if to prove my point, please see a recent Tweet from Caroline Lucas, the Green Party MP:
We’ll just have to wait and see how matters develop.
Last weekend (more specifically Saturday 29 January 2022) saw a really significant overall of the UK’s Highway Code which means that pedestrians and cyclists will be given far greater protection.
I was originally going to entitle this Blog either Code of Silence or Code Unknown, purely on the grounds that the changes seem to have crept up without any real awareness on the part of the British public. The reason I say this is because I was listening to BBC Radio 2 during the week running up to the changes. Jeremy Vine, the host of the eponymous show, was discussing the impending reforms with a panel of interested parties. One of the guests, Leo Murray, from the climate charity Possible, basically remarked that the UK Government had been remiss in failing to publicise these important changes.
I have to admit that I had only become aware of these changes a few days previously when I happened to come across an article from a Scottish regional newspaper which had appeared on social media.
As a pedestrian, cyclist and motorist, I’m pretty glad that I did find out in time. I also have more than a passing interest in this area as someone who has been knocked off my bike twice in less than 18 months by motorists (who were both at fault). Drivers ,who don’t cycle or walk that much, often forget how vulnerable pedestrians and cyclists actually are.
The main outcome of the new rules is the creation of a hierarchy of road users where the most vulnerable individuals – pedestrians, followed by cyclists, and then horse riders will be given priority over motorists, buses and heavy goods vehicles.
This past week alone, I’ve had to make a conscious effort to slow down when turning my car left into junctions in order to give pedestrians priority. I also take greater care when I’m turning right into junctions or leaving roundabouts. I’m quite happy to do this because as an occasional pedestrian and, as a more regular cyclist, I understand that I will benefit from the changes to the Highway Code?
One of the features of the new Code – which I particularly support – is the right of cyclists to use the middle of the road in order to avoid potholes (and other debris), enjoy greater visibility and making it easier to turn right. There are also new rules about giving cyclists greater space when being overtaken by motorists.
Some driving commentators such as the former BBC presenter, Alan Douglas (speaking to Radio Clyde) , have expressed their misgivings about the new rules saying that they are great in theory, but less so in practice. We’ll just have to wait and see.
I do think, however, that this is a timely reminder to the (pure) motorist community ( i.e. those individuals absolutely wedded to the idea of the car as being the sole, legitimate form of road transport) that our highways are a shared space. I often enjoy debunking the old myth or chestnut when talking to (pure) motorists that cyclists do not pay vehicle excise duty. As a driver who also happens to be a cyclist, I do pay several hundred pounds a year in vehicle excise duty for the privilege of using the roads. As a matter of fact, a lot of motorists who drive electric cars and lower emissions vehicles are exempt from this form of taxation. In any case, the sum collected from vehicle excise is not used to pay for road building and maintenance. This comes from general taxation (see link to article below):
When motorists use the term of abuse “bloody cyclists!”, they are actually falling into a false dichotomy or “them and us” mindset because many cyclists are in fact car drivers.
Heading towards stricter liability?
The new rules will certainly be the go to reference point in both criminal prosecutions for careless and dangerous driving (Sections 2 and 3 respectively of the Road Traffic Act 1988) and for civil claims in delict and tort involving personal injury and property damage.
Personally and professionally speaking, I’m more interested in the civil aspects of road accidents. In the second, more serious road accident that I was involved in, the driver was charged with careless driving (which was not contested) and probably received a fine and penalty points. I, on the other hand, was left with injuries – necessitating a lengthy course of physio – and a racing bike which had to be written off.
An out of court settlement with the driver’s insurance company eventually followed after my solicitors had raised the prospect of a civil claim. This outcome to the matter was much more satisfying for me than any action taken against the driver under the criminal law.
One area of controversy that surrounds the burden of proof in relation to delictual liability occurs in road traffic accidents involving pedal cyclists and motorists.
Currently, a cyclist who is injured in a road traffic accident must prove that the vehicle driver was at fault or to blame. Most European countries have reversed the burden of proof so that a motorist involved in a collision with a cyclist must prove that s/he was not to blame or at fault for the accident.
Only the United Kingdom, Cyprus, Malta, the Republic of Ireland and Romania operate a system whereby the cyclist must prove fault. This proposed reform, supported by many cycle organisations, has ignited passions and it remains to be seen whether it will find favour with British legislators.
Conclusion
Although the reforms to the Highway Code are certainly revolutionary in some respects, I would hesitate to say that we have arrived at a destination of strict liability in relation to road accidents. The changes do represent a new philosophy in road use whereby whoever you are you should always be thinking about those individuals who are more vulnerable than you.
A guide to the main changes brought in by the updated Highway Code can be viewed by clicking on the link below:
In April 2022, Neil Greig, Policy and Research Director at IAM Roadsmart, claimed that:
“An alarming number of motorists are driving on British roads without awareness of key changes which fundamentally shift the dynamics of shared use.
… This is a serious safety risk which could actually see the updated code causing more conflict on our roads rather than less.”
A survey carried out by Mr Greig’s organisation concluded that one in five drivers was not aware of the recent changes to the Highway Code. A large reason for this ignorance was the fact that the U.K. Government had failed to advertise adequately the changes to the Code. Apparently, a new information campaign to be carried out in the Spring will hopefully rectify this unfortunate situation.
A link to the IAM Roadsmart’s website can be found below:
Sex or gender: which term do you prefer? Can they be used inter-changeably?
These questions have now come into sharp focus as a result of an amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.
Our understanding of the terms “sex” and “gender” may now have to evolve as a result of the debate surrounding aspects of the Bill, but before we discuss this Bill it’s worth looking at the current legal position surrounding gender recognition issues.
The Equality Act 2010
Section 11(1) of the Equality Act 2010 defines a person’s “sex” in the following terms:
In relation to the protected characteristic of sex — a reference to a person who has a particular protected characteristic is a reference to a man or to a woman
In other words, current UK equality law means that your sex is determined at birth when you will be categorised as ‘Male’ or ‘Female’ and this will be entered on your birth certificate. We, therefore, do not have a choice about our sex when we are born. It is a matter of biology.
What about a person’s gender? Section 7(1) of the Equality Act 2010 provides us with guidance on this matter:
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
The Gender Recognition Act 2004
In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.
Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.
The Scottish Government was intending to reform the 2004 Act, but in the teeth of strong opposition within the Scottish National Party, such proposals have been dropped for the time being.
Self-identification
Under the Scottish Government’s proposals, an individual would have been permitted effectivelyto self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.
This meant that an individual wishing to undergo gender reassignment in Scotland would have to have met the following criteria:
A statutory declaration to the effect that they have decided to change gender or sex;
The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).
Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill
This Bill has proved to be another flashpoint in the often fierce debate over gender recognition.
The Bill, which passed Stage 3 in the Scottish Parliament on Thursday 10 December 2020, has reignited the debate about the terms “sex” and “gender” and their use in legislation.
The Bill passes Stage 3 in the Scottish Parliament
The purpose of the Bill is set out below:
“… to improve the experience, in relation to forensic medical services, of people who have been affected by sexual crime. It does this by providing a clear statutory duty for health boards to provide forensic medical examinations to victims and to ensure that an individual’s healthcare needs are addressed in a holistic way in the context of any such examination (or where such an examination is not proceeded with). As well as placing a duty on health boards to provide forensic medical examinations when a victim is referred for such an examination by the police, the Bill allows victims to “self-refer”. Self-referral means that a victim can request a forensic medical examination without having reported an incident to the police. The Bill provides a statutory framework for the retention by health boards of samples obtained during a forensic medical examination, which may support any future criminal investigation or prosecution. In self-referral cases, this allows the victim time to decide whether to make a police report.”
A controversial amendment?
At first glance, no one could possibly object to the aims of the Bill, but Johann Lamont MSP, a former leader of the Scottish Labour Party, saw an opportunity to introduce an amendment to the Bill.
Such a development is not an unusual practice for parliamentarians to introduce amendments to Bills proceeding through Parliament. The introduction of amendments to Bills often permit reform to earlier pieces of legislation. In this case, the Lamont amendment was directed towards changing the wording of Section 9(2) of the Victims and Witnesses (Scotland) Act 2014.
As things currently stand, Section 9(2) of the 2014 Act states that:
Before a medical examination of the personin relation to the complaint is carried out by a registered medical practitioner in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person.
This could mean, under current law, that a victim of a sexual assault e.g. a biological or cis woman might have to undergo an examination by a medical professional who is a transgender female.
The Lamont amendment (which has now been accepted overwhelmingly by the Scottish Parliament) will ensure that the word “gender” will be replaced with the word “sex”.
Johann Lamont’s amendment will remove an anomaly in the law which currently permits a transgender person who is a medical professional to examine a victim of a sexual assault.
Further controversy
When one flashpoint is resolved, another disagreement about sex and gender is never far away in Scotland.
An organisation called forwomen.scot is raising a legal action in the Court of Session in Edinburgh for the express purpose of challenging the Scottish Government’s attempt to redefine the word ‘woman’ (see below):
“… We are challenging the Scottish Ministers over the redefinition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 which we believe is outside the legislative competency of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers’ duties under equality legislation… The new definition includes some men, while, remarkably, excluding some women. This cannot be allowed to stand… The Equality Act 2010 states that a woman is “a female of any age” and maintaining this definition is key to maintaining women’s rights and protections in law…”
forwomen.scot describesrationale on its website in the following terms:
– sex is immutable and is a protected characteristic; – women are entitled to privacy, dignity, safety and fairness; – women’s rights should be strengthened.
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:
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.
You’re a 22 year old man living with your mother in a terraced house in Coventry. You have been diagnosed with Autism Spectrum Disorder since childhood. You have no criminal convictions. So far, completely unremarkable.
You get yourself into serious trouble with the law. You have been purchasing quantities of chemicals online for the purpose of converting these into Hexamethylene Triperoxide Diamine (“HMTD”), which is a high explosive compound and, it should go without saying, very dangerous.
In these days of heightened awareness of terrorism and the threat from these types of activities, your behaviour is not very sensible. It is perfectly understandable that you might be viewed as a serious threat to national security – as well as a more immediate threat to the safety of your neighbours (you have been causing small explosions in your back garden).
Following a search of your home by Police (who are in possession of a warrant), you are charged under Section 4(1) of the Explosive Substances Act 1883 (legislation which also applies in Scotland).
Section 4(1) states as follows:
“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence …”
You claim you’re not a terrorist, but why on earth would someone like you want to manufacture a high explosive compound such as HMTD? The potential consequences for you are severe if convicted: a maximum sentence of life imprisonment.
By the way, it gets worse, because you are also charged under Section 58 of the Terrorism Act 2000 e.g. because you collect or make a record “of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”
This is exactly what happened to Chez Copeland, who at one point wished to join the Armed Forces, but due to his disability was prevented from choosing such a career.
Defences?
Let’s go back to Section 4(1) of the Explosives Substances Act 1883 and examine its wording: is there any possible defence for your actions?
Perhaps. The suspect must be able to show that he has the substance in his possession or under his control for a “lawful object”.
So, the key question here is why would this young man want to have explosive materials in his possession? We’re asking a question about his mindset: does he have the necessary mens rea (guilty mind) to commit a crime? We know that the actus reus (the wrongful act) is present, but this is not a strict liability crime – it is essential for the prosecution to establish what was the intention of the accused.
In his defence, the accused provides us with some background. He was hugely influenced by the Oscar winning film The Hurt Locker (directed by Kathryn Bigelow) which is about an American bomb disposal unit operating in Iraq. Ever since seeing the film, the accused has been fascinated about the science behind explosives and bomb making. He indulges in role-playing and develops an obsessive interest in this area.
Far from being involved in terrorist or criminal activities, the behaviour of our accused is firmly grounded in good old fashioned (and honest) scientific enquiry. He is, therefore, following the well trodden path of scientific discovery and experimentation.
Preparatory Hearing at the Crown Court
Sadly, for our accused, a preparatory hearing at Birmingham Crown Court does not bode well. His Honour Judge Mark Wall QC is not minded to permit the defence that the HTMD was in the possession or under the control of the accused for a “lawful object”.
Our accused appeals to the English Court of Appeal (Criminal Division) where his proposed defence is also rejected. The Appeal Court judges (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ), like Judge Wall QC, place huge significance on an earlier precedent – R v Riding [2009] EWCA Crim 892. Let us proceed further …
The Riding precedent
In Riding, the accused had made a pipe bomb because, as he stated in his evidence: “I was curious and just experimenting.” As the Court of Appeal noted in this case:
“The judge ruled that the reason that the defendant gave, that is to say curiosity whether he could construct it or not, was not capable of amounting to a lawful object and he so directed the jury.”
According to the Court of Appeal, this was the correct approach taken by the judge in the Crown Court. The defendant (Riding) was therefore guilty of an offence:
“The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally.”
Appeal to the UK Supreme Court
It would appear, therefore, that Chez Copeland’s prospects of avoiding a conviction and possible prison sentence were pretty bleak – if you follow the logic of the Riding precedent.
There was one chink of light for our accused, Mr Copeland, an appeal to the UK Supreme Court (and leave was duly granted by the Court of Appeal).
Lord Sales (delivering the majority opinion of the Court – Lords Lloyd-Jones and Hamblen dissenting) held that Copeland was permitted to use the defence that his possession or control of the explosive substance was for a “lawful object”.
His Lordship then went on to detail the history of legislation which had regulated the personnel possession of gunpowder (and later explosives) by an individual. Significantly, he noted that:
“In fact, there is a long and well-established tradition of individuals pursuing self- education via private experimentation in a range of fields, including with chemicals and explosives.”
Interestingly, the Explosives Substances Act 1875 (predecessor of the Explosive Substances 1883 Act) acknowledged such legitimate purposes. The 1883 Act had been passed hastily to reassure a British public terrified of the actions of militant Irish Republicans.
The new Act was primarily geared towards the creation of additional criminal offences and, from my interpretation of Lord Sales’ historical summary, it’s hard to infer that the Westminster Parliament was breaking with long established tradition and thus making the mere possession of explosive material a criminal offence. If Parliament had intended this, it would have done so.
The practical regulation of the use and storing of explosives is currently addressed by the Explosives Regulations 2014 and, the Explanatory Memorandum which accompanies these, clearly acknowledge that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use. That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force.
Critically, Lord Sales was of the view that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act. A defendant (such as Chez Copeland) will, therefore, be entitled to present this defence at trial, but of course a jury will have to weigh up the evidence presented and arrive at its own conclusions.
Interestingly, Lord Sales observed that in R vRiding [2009], the Court of Appeal had correctly dismissed the defendant’s appeal on the facts – the defendant (Riding) did not have a lawful object in proceeding to build a pipe bomb. Where the Court of Appeal had fallen into error in Riding, was to approach the remark that “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” as effectively a “proposition of law” rather than treating this as a purely factual statement.
The dissentingview
The two dissenting Justices – Lords Lloyd-Jones and Hamblen – were strongly in agreement with Judge Wall (in the Crown Court) and the Court of Appeal:
“Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. For such experimentation to be capable of being lawful it would be necessary to particularise how it was to be carried out so as to avoid any such risk or how it would otherwise be lawful.”
Their Lordships went on to say:
“We consider that the vague and generalised statements referring to personal experimentation and private education, whether considered individually or taken together, fail to provide sufficient particularity of how these claimed objects were to be carried out lawfully.”
That said, the views of Lords Lloyd-Jones and Hamblen did not prevail and Chez Copeland’s appeal was permitted to proceed.
Conclusion
The Explosive Susbtances Act 1883 and the Explosives Regulations 2014 and, the Explanatory Memorandum clearly acknowledges that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use.
In R v Copeland [2020], the UK Supreme Court has now ruled that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act.
That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force which impose upon them a heavy duty of responsibility to take care for the safety of other people and their property.
A defendant (such as Chez Copeland) will, therefore, be entitled to present the defence in Section 4(1) of the 1883 Act at a trial that explosive substances were in his possession or under his control for a “lawful object”. A jury will, of course, have to weigh up the evidence presented and arrive at its own conclusions on the facts.
Links to the Court of Appeal’s decision in R v Riding [2009] and the UK Supreme Court’s decision in R v Copeland [2020] respectively can be found below:
Another day in the toxic debate over proposals to liberalise the Gender Recognition Act 2004. Yesterday’s blog entry (Hate crime?) addressed the issue of limits on freedom of speech and expression in relation to extending transgender rights.
Today, the UK media is focusing on remarks made by Labour leadership contender, Rebecca Long-Bailey MP. In an interview with the BBC’s Andrew Marr, Ms Long-Bailey expressed her support for changes to the current Gender Recognition Act which would permit transgender women to gain access to institutions such as refuges for women who have experienced domestic violence at the hands of men.
As Mr Justice Knowles acknowledged in Miller v (1) The College of Policing (2) Chief Constable of Humberside [2020] EWHC 225 (Admin), the debate over transgender rights can be summarised as follows:
“On one side of the debate there are those who are concerned that such an approach will carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges. On the other side, there are those who consider it of paramount importance for trans individuals to be able more easily to obtain formal legal recognition of the gender with which they identify.”
Knowles J went on to remark:
“Ishould make two things clear at the outset. Firstly, I am not concerned with the merits of the transgender debate. The issues are obviously complex. As I observed during the hearing, the legal status and rights of transgender people are a matter for Parliament and not the courts. Second, the nature of the debate is such that even the use of words such as ‘men’ and ‘women’ is difficult. Where those words, or related words, are used in this judgment, I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experience of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.”
A group within the British Labour Party, Labour Campaign for Trans Rights, has published a 12 point charter to push through changes to UK equality laws. Other women’s groups, such Women’s Place UK and the LGB Alliance, are bitterly opposed to this campaign.
Long-Bailey admitted that her position could set her at odds with many female members of the Labour Party who are deeply resistant to such developments. Many feminist opponents of reform to the current gender recognition rules have been given the acronym, TERF, or Trans- exclusionary radical feminists.
Gender reassignment is a protected characteristic in terms of the Equality Act 2010, but the legislation exempts women only refuges which currently exclude transgender women (i.e. those who were born male, but have undergone gender reassignment to become female). Although excluding transgender women would normally be regarded as an example of direct discrimination in terms of Section 13 of the Act, Parliament has provided the defence of objective justification. This means that permitting women only spaces in this instance – caring for the female victims of male domestic violence – is an example of a proportionate means of achieving a legitimate aim.
Conclusion
Much of the opposition to reform of the Gender Recognition Act 2004 appears to centre around proposals, in both England and Scotland, to permit individuals to self-identify in terms of their chosen gender without the need to go through physical changes. At the moment, anyone wishing to change gender must obtain a gender recognition certificate which will only be granted after the conclusion of the appropriate medical procedures.
It will, therefore, be for legislators in the UK and Scottish Parliaments to determine how far reforms to the Gender Recognition Act 2004 and, by extension the Equality Act 2010, will go. In the months to come, expect plenty of passionate arguments on both sides of the debate to be aired publicly.
A link to an article in The Independent discussing Ms Long-Bailey’s interview with Andrew Marr can be found below:
At 2300 hours GMT today (or 0000 hours CET if you prefer), the United Kingdom will set a precedent and become an ex-member state of the European Union.
The European Union (Withdrawal Agreement) Act 2020 was given Royal Assent on 23 January 2020 and, earlier this week, the European Parliament overwhelmingly ratified the Withdrawal Agreement of November 2019 between the UK and the EU.
Click on the link below for the text of the Agreement:
Job done; back to normal then (whatever that is); the British have taken back control? Well not quite. The Withdrawal Agreement was always going to be the first part of the equation that needed resolving i.e. setting the terms on which the UK would leave the organisation. This has been popularly referred to as the divorce agreement e.g. dealing with the UK’s agreed financial contribution to projects and initiatives to which it had agreed when it was a member state.
The more difficult task will be to figure out what kind of future relationship the EU and the UK will have e.g. about future trading arrangements. UK Prime Minister, Boris Johnson wants such an agreement to be finalised by 31 December 2020; leading figures on the EU side (e.g. Ursula Von der Leyen, the Commission President) have been more cautious.
The fact that Brexit Day has finally arrived does not, however, mean that EU Law will cease to have effect in the UK.
We have now entered what is known as the transition period (31 January 2020 until 31 December 2020) and Article 127 of the Withdrawal Agreement explicitly states:
‘Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.’ [My emphasis]
In any event, as I have previously observed, EU Law is hardwired into the UK legal domestic systems. Areas such as consumer law; employment law; discrimination and equality law; environmental protection law and family law have all been extensively influenced by European legal principles. Any lawyer with some knowledge of EU Law knows this to be a question of fact. After 47 years of involvement with the European Project, this should be blindingly obvious.
Even this last week, documents published by the European Commission demonstrated that there will be import/export checks between the Island of Ireland and the UK. The Court of Justice of the EU will have the final say in relation to any disputes – despite what Prime Minister Johnson believes or says.
As Lord Denning opined many years ago in Bulmer (HP) Ltd v Bollinger SA [1974] 1 Ch 401, [1974] 3 WLR 202, [1974] 2 All ER 1226:
“But when we come to matters with a European element, the Treaty [of Rome] is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”
Or to use another metaphor: perhaps Brexit is a case of building the legal equivalent of the Thames Barrier after the deluge. Too little, too late. Whether the British Government likes it or not, by dint of Brexit, this country is no longer a rule maker and has assumed the status of rule taker.
If anyone or anything wanted to ban smoking in the streets of Paris, you would think that (logically), this would be a matter for the French National Assembly or even Paris City Council (Conseil de Paris).
… And you would be quite correct.
You might be thinking what relevance does this have to Scots or indeed English law?
The supremacy of Parliament (or its limits)
The constitutional lawyers amongst the Blog readership, however, might guess where I’m going with the title. When studying the area of Westminster parliamentary sovereignty many, many years ago, I was struck by the words of Sir Ivor Jennings QC, a very famous British constitutional lawyer.
Jennings was explaining that the Westminster Parliament, as the supreme law making body in the UK, had the power to pass any law – even making it unlawful to smoke cigarettes or cigars in the streets of Paris. Now Jennings fully appreciated that this was a slightly absurdist statement; that wasn’t his point (to which I shall return shortly).
Would our French neighbours obey such an Act of the Westminster Parliament? They would not; quite rightly recognising that such a law lacked any legitimacy in their eyes.
So, what was Jennings driving at when he uttered his remark about the scope of the law making powers of the Westminster Parliament? He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.
The English have placed great emphasis on the notion of parliamentary sovereignty. This principle, of course, can be challenged. The American colonists who participated in the protest popularly known as the Boston Tea Party in 1773 were directly challenging Westminster parliamentary supremacy. Several years later, with the successful conclusion of the American Revolution, it would be the new legal order of the United States of America that would supplant the British parliamentary tradition and thus make it a matter of history.
In 1919, Irish Republicans refused to send Members of Parliament to take their seats at Westminster following the UK General Election of 14 December 1918. Instead 27 Sinn Fein MPs chose to sit in Dáil Éireann (effectively an embryonic Irish National Assembly) in Dublin. Highly unconstitutional in British eyes; yes but it spelled the beginning of the end for Westminster parliamentary sovereignty in 26 of the 32 counties comprising the Island of Ireland.
More recently, in 1965, the White minority Government of the former British colony of Southern Rhodesia (under the leadership of Premier Ian Smith) declared independence unilaterally from the mother country. There was very little that the Westminster Parliament and British Government could do to prevent this situation. The Rhodesian Government would ultimately be brought crashing down to earth because of the armed struggle of the Black majority liberation movement. This would eventually lead to independence and majority rule for the territory (to be known as Zimbabwe).
Brexit
To return to Sir Ivor Jennings, his remarks about smoking in the streets of Paris were brought home to me today when reading about the remarks made by Simon Coveney, the Irish Deputy Prime Minister and Foreign Minister, about Brexit.
Mr Coveney was being asked about the implications of the European Union (Withdrawal Agreement) Bill – introduced in the House of Commons by UK Prime Minister Boris Johnson shortly after his Conservative Party won the General Election of 12 December 2019.
This Bill has just passed through the Commons and will now go on to the House of Lords (where it will pass) and receive the Royal Assent in the next week or two. The exit of the UK from the EU will happen by 31 January 2020.
Mr Coveney was not taking exception to this development. In fact, he was merely pointing out some hard realities for the British Prime Minister. The easy part of Brexit will have been completed, but the harder part remains: concluding a trade deal between the UK and the EU by the British Government’s self-imposed deadline of December 2020. Needless to say, this date has not been accepted by the remaining 27 EU member states.
Mr Coveney noted that a provision of the European Union (Withdrawal Agreement) Bill (currently Clause 33) prohibits the UK Government from extending negotiations with the EU 27 in order to obtain a trade agreement if one is not concluded before the end of 2020:
“I know that Prime Minister Johnson has set a very ambitious timetable to get this done. He has even put it into British law, but just because a British parliament decides that British laws say something doesn’t mean that that law applies to the other 27 countries of the European Union and so the European Union will approach this on the basis of getting the best deal possible – a fair and balanced deal to ensure the EU and the UK can interact as friends in the future.But the EU will not be rushed on this just because Britain passes law.”
Conclusion
When Sir Ivor Jennings made his oft quoted remark about parliamentary legislative powers, he was acknowledging the theoretical supremacy of Westminster. I also believe that he used the particular example of banning smoking in the streets of Paris to demonstrate the clear limits of Westminster supremacy i.e. practical and political realities will often combine to frustrate the will of Parliament.
In speaking today in the terms that he did, the Irish Deputy Prime Minister clearly recognises this reality.
Does the UK Government?
A link to an article on the Sky News website about Simon Coveney’s remarks can be found below:
A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.
Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.
What about a person who declares themselves to be pansexual?
According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.
An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.
Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:
The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.
Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …
Explaining her reason for going public about her sexual orientation, Ms Moran stated that:
“… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”
A link to the story in Pink News can be found below:
Seán Crossan's Scots Law 