RELIGIOUS BELIEFS

July 13th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

The freedom to (1) manifest religious belief AND (2) express views relating to that belief are essential rights in a democracy and are protected by the ECHR and the Equality Act 2010. The question on manifestation is whether there is a sufficiently close or direct nexus between an individual religious beliefs and any particular expression of views. In HIGGS v FARMOR’S SCHOOL (2023) EAT 89 the President of the EAT, from paragraph 79 in the Judgment reaffirms that in considering disciplinary action against the individual it is necessary to determine whether the reason for taking the action is (1) because of, or related to, the manifestation of beliefs, which renders the action prohibited, OR (2) because the manner of the manifestation was objectionable, which may make the action permissible. The freedom to manifest belief is not absolute. It is a qualified right. It can be limited to the extent that the limitation is prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. A proportionate balance has to be struck between an interference with fundamental rights and the legitimate interests of others.

 

PSED

June 29th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

“ The PSED is primarily directed at policy decisions not at the application of policy to individual cases “ : so says the Supreme Court in R ( MAROUF ) v SSHD (2023 ) UKSC 23 at paragraph 62. The Court holds that Section 149 of the Equality Act 2010 does not require public bodies to have due regard to the need to promote the goals there listed when exercising their functions in so far as that exercise affects the lives of people living outside the UK.

 

DISCRIMINATION

June 7th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

Section 390(1) of the Education Act 1996 provides that a local authority in England shall constitute a Standing Advisory Council on religious education for the purposes mentioned in Section 391(1). Section 390(2) provides that such a Council shall consist of such groups appointed by the authority as representative members ( representative groups ) as are required by subsection (4). Subsection (4)(a) states that the representative groups so required are, in the case of an area in England, a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area. In R ( BOWEN ) v KENT COUNTY COUNCIL (2023) EWHC 1261 ( Admin ) Constable J holds that the County Council’s refusal to consider a humanist for membership of its Standing Council was unlawful. It was discriminatory, pursuant to ECHR Article 14, in conjunction with Article 9 and Article 2 of the First Protocol, to exclude someone from membership solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, in accordance with Section 80 of the Education Act 2002, was a non-religious, rather than a religious, belief.

 

ECHR ARTICLE 3

May 22nd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

The appeal in AB v WORCESTERSHIRE COUNTY COUNCIL and BIRMINGHAM CITY COUNCIL (2023) EWCA Civ 529 concerned circumstances in which a local authority may be held liable for a breach of the human rights of a child under ECHR Article 3, inhuman or degrading treatment, when the child is said to have been subject to neglect or ill-treatment by a parent, and that authority did not take effective operational measures, steps under the Children Act 1989, to provide protection by seeking a care order to remove the child from the care of the parent. Lewis LJ observed at para 13 that the principles governing Article 3 are well established in the case law, and are usefully summarised in X v BULGARIA (2021) 50 BHES 244 at para 177/178. Lewis LJ continued:-

“14. Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as “the operational duty”). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the “investigative duty”).

15. This appeal concerns only the second of those obligations, that is the positive obligation to take operational measures to protect specific individuals against the risk of being subject to treatment contrary to Article 3 of the Convention.”

See also paras 56-64 inclusive, especially as to the four components to the positive operational obligation and principles governing its interpretation and application. In this case there was no realistic prospect of breach of the operational duty on the part of either local authority being established: paras 71, 79 and 87-89 inclusive. The evidence did not establish that there was any “real and immediate risk” of there being treatment by the mother that would fall within Article 3. Moreover, judged reasonably, neither authority failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a care order.

 

ECHR ARTICLES 8 & 10

May 22nd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

There can be a tension between the  Article 8 right to private life under Article 8 of the ECHR  and the right to freedom of expression under Article 10. This is addressed by the Court of Appeal in STOUTE v NEWS GROUP NEWSPAPERS (2023) EWCA Civ 523. The basic principle is that a claim for misuse of private information will succeed only if both of two conditions are satisfied : (1) the claimant has a reasonable expectation of privacy in respect of the information; and (2) the right to privacy outweighs the defendant’s right in the circumstances to freedom of expression.

Various circumstances are relevant to whether a reasonable expectation of privacy exists. Various criteria have been established as relevant to the balance between the rights.

The circumstances and criteria include that (i) photographs require special consideration, because they are particularly intrusive, 9ii) a person is less likely to have a reasonable expectation of privacy with respect to a photograph taken in a public place, but that is not an absolute rule, and (iii) such a claim is more likely to succeed if the photograph involves the depiction of something private.

 

ECHR ARTICLES 2 AND 8

March 23rd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (ANGELL) v SOS for HEALTH and SOCIAL CARE (2023) EWHC 495 (Admin) is concerned with whether there is a breach of the ECHR by failing adequately to inform the public about potential health risks. Stacey J states that Judicial Review is not an appropriate vehicle for determining contested scientific matters: paras 59 and 60. She further states that ECHR Article 2 requires the establishment of a framework designed to provide effective deterrence against threats to the rights of life: paras 62-66 inclusive, and for the purpose of Article 8 severe environmental pollution could affect private and family life: paras 48, 49 and 67. State authorities have a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives: paras 50 and 76. In certain circumstances that duty can extend to providing such information, rather than merely providing access to it: para 51.

 

ECHR ARTICLE A2P1

January 5th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Isherwood ) v Welsh Ministers (2022) EWHC 3331 ( Admin ) Steyn J considered the case law on the interpretation of Art A2P1 and summarised the points emerging from them : Paras 169-198 inclusive. She also stated ( at para 129 ) that common law constitutional rights can be abrogated by legislation expressly or by necessary implication, but only if it is crystal clear that the legislature intended to override the fundamental right. A reasonable implication will not suffice. The implication must be one that truly necessarily follows from the express provisions of the legislation, construed in their context.

 

Irrationality

April 28th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Gardner v SoS for Health and Social Care (2022) EWHC 967 (Admin) a Divisional Court dismisses claims under the Human Rights Act, but upholds common claims in respect of documents that set out an “irrational” policy in “failing” to advise that where a Covid asymptomatic patient was admitted to a Care Home, he or she should, as far as practicable, be kept apart from other residents for 14 days. At para 139 the Court stated that it cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have now been repeated is always academic or a hypothetical exercise in the context of judicial review.

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PSED & ETOs

April 5th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (SHEAKH) v LAMBETH LBC (2022) EWCA Civ 457 a challenge to the authority’s discharge of the PSED failed in relation to 3 Experimental Traffic Orders relating to Low Traffic Neighbourhoods. At para 10 the. Court of Appeal emphasized 5 points: (1) Section 149 of the Equality Act 2010 does not require a substantive result; (2) Nor does it prescribe a particular procedure; (3) It does however imply a duty of reasonable enquiry; and (4) It requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; (5) Courts should not engage in unduly legalistic investigation of the way in which an authority has assessed the impact of the decision on the equality needs. See also paras 11-18 inc for an update on the BRACKING Principles.

 

Article 8

February 24th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Craig v Her Majesty’s Advocate (2022) UKSC 6 the Supreme Court consider the “in accordance with the law” element within Article 8(2) of the ECHR. An interference with Article 8(1) guaranteed respect for private and family life is capable of being justified under Article 8(2). Such interference can be justified only if (1) it is “in accordance with the law”, (2) pursues a “legitimate aim”, and (3) is “necessary in a democratic society”.  The Supreme Court explains at paragraph 49 that in order to satisfy the first of those three requirements, the interference must be in accordance with domestic law and the domestic law must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. The Supreme Court states at paragraph 50 that this is an absolute requirement. There is no margin of discretion in meeting it.