Freedom of Expression

July 21st, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In McNally v Saunders (2021) EWHC 2012 (QB) summary judgment is granted to the defendant, an online blogger, in respect of a claim against him under the Protection from Harassment Act 1997. The claim was brought against him by a local authority’s Director of Public Health with the support of the authority. It concerns a series of personally critical blog articles and tweets. The Judge balances on the one hand  the public interest in the Director being able to fulfil her role without being subjected to conduct which undermines her ability to do so, and on the other hand freedom of expression.

 

 

Discrimination

July 9th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In A&B v CICB (2021) UKSC 27 the Supreme Court reaffirmed that ECHR Art 14 does not cover differential treatment on any ground, but only on a ground of status: para 40. This has a broad meaning and must be generously interpreted : paras 42 and 57. However, the basis of discrimination of which complaint is made must have an existence independent of the measure under attack: para 59. Relevant status cannot be defined solely by difference in treatment: para 66. The Supreme Court also reaffirms that discrimination may arise where the State fails to treat differently persons whose situations are significantly different: para 69.

 

Human Rights

July 9th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (SC) v SoS for Work & Pensions (2021) UKSC 26 a Seven Justices Supreme Court holds that (1) it is not appropriate for domestic Courts to determine whether the UK has violated its obligations under unincorporated international law : paras 74-96; (2) in approaching proportionality under ECHR Art 14 a nuanced approach is required, which is not fully captured by a “manifestly without reasonable foundation” standard of review, and which in some circumstances calls for mush stricter scrutiny : paras 97-162; and (3) only limited use can be made of Parliamentary material in considering whether primary legislation is compatible with ECHR rights: paras 163-185.

 

Misconduct in Public Office

July 7th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

Article 7 of the ECHR relates to no punishment without law. It provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time that it was committed. In Norman v UK (2021) ECHR 601 the ECtHR holds that the common law offence of misconduct in public office  carrying a maximum sentence of life imprisonment and not defined in statute, and subject to a Law Commission recommendation for abolition, does not infringe Article 7.

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PSED

June 28th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

R ( SHEAKH ) v LAMBETH LBC (2021) EWHC 1745 (Admin) concerns an unsuccessful challenge to Orders under the Road Traffic Regulation Act 1984 ( the ROTRA ) restricting the movement of traffic within Low Traffic Neighbourhoods (LTNs). The challenges that failed included that the Orders were not experimental, Tameside, failure to have regard to matters set out in Section 122 of the ROTRA, inadequate consultation, and the PSED. AS regards the PSED, Kerr J said : the function being exercised was the function of initiating an experiment, not introducing the LTNs on a permanent basis : para 145; the duty is to have regard to the need to fulfil the ambitions set out in Section 149 of the Equality Act 2010 to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between the relevant groups : para 146; if the equality objectives are properly considered and put in the balance, it is for the decision-maker to decide how much weight they should carry : para 147; the duty is not a duty to carry out an assessment, assessment is the tool used to create the evidence base to show performance of the duty, it is not the performance of the duty itself, there is no necessary breach of the duty where no formal assessment has been done : para 148; there is noting in section 149 which prevents, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a “rolling” basis : para 163; the more “evolutionary” the function being exercised, the more readily a rolling assessment may be justified : para 164; where the function being exercised is to initiate an experiment, as in the case of a decision to make an Experimental Traffic Order, it may or may not be sufficient, depending upon the facts, to conduct the equality impact assessment on a rolling basis : para 165.

 

Interim Relief

June 11th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Steer  v Stormsure Ltd (2021) EWCA CIv 887 the Court of Appeal holds that the lack of provision in the Equality Act 2010 for interim relief in discrimination or victimisation claims, as compared with dismissed whistleblower claims, does not breach Article 14 of the ECHR in conjunction with any of Article 6 on procedural fairness (paras 31-33), Article 8 or Article A1P1. The status of being a litigant in a particular type of case is not a protected status: paras 36-42.

 

Religion or Belief Discrimination

June 11th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Forstater v CGD Europe , UKEAT/0105/20/JOJ, the claimant holds the belief that sex is immutable and not to be conflated with gender identity. The EAT holds that this a philosophical belief within Section 10 of the Equality Act 2010. It is protected by Articles 9 and 1 0 of the European Convention of Human Rights. The relevant principles are that (1) freedom of expression is one of the essential foundations of democratic society, (2) the paramount guiding principle in assessing any belief is that it is not for the Court to inquire into its validity, (3) the freedom to hold whatever belief one likes goes hand-in-hand with the State remaining neutral as between competing beliefs, and (4) a belief that has the protection of Article 9 is one that needs to satisfy only very modest threshold requirements.

 

Trade Union Rights

June 7th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

Mercer v Alternative Future Group Ltd, UKEAT/0196/20/JOJ, concerns trade Union activities, participation in industrial action, and ECHR Article 11.  EAT President Choudhury J states the principles from para 32. . Article 11 confers a qualified right to freedom of association and assembly. This includes the right to participate in trade Union activity. Restrictions on the exercise of the right are permitted where these are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. The obligations of the State under Article 11 include both the negative one not to commit any act amounting to an infringement of the right and the positive one to secure the enjoyment of the right. The right to take industrial action and to strike is an essential element of the right and is protected by it. Any restriction, however minimal, on the right to participate in a trade Union-sanctioned protest or strike action amounts to an interference with Article 11 rights. When there is an interference with the right the question is whether such interference is justified. That involves a consideration of proportionality. When there is an infringement of the right Section 146 of TULRCA 1992 should be read as encompassing participation in industrial action.

 

Child Protection

May 19th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

Even in relation to child protection and safeguarding,, the European Convention of Human Rights does not give rise to any exception to the immunity of members of a diplomatic mission where their children are concerned. Diplomatic privilege limits what a local authority can do and prevents a Court from acting. So held in Barnet LBC v AG (2021) EWHC 1253 (Fam) by a Divisional Court.

 

ECHR Discrimination

January 26th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

The ambit of an ECHR right is wider than its “ scope”. Treatment will fall within “ scope “ if it potentially infringes an ECHR right. In an Article 14 discrimination case however the treatment will fall within the “ambit” of another Article provided that the treatment merely has a more than tenuous link with the core values protected by the other Article(s). This is a less exacting test. So reaffirmed by Bourne J in R (IJ) v SSHD (2020):EWHC 3487 ( Admin) at para 82.