Equality, Christianity and Who Decides on Human Rights – the Human Rights Roundup

2 December 2013 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular winter wonderland of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney. 

This week, equality issues dominate the headlines, while elsewhere judicial heavyweights throw their views into the ring on the institutional question of who should have the final say on issues involving human rights. 

In the News

Issues of Equality: Christian B&Bs and Segregated University Debates

Several equality issues have made the headlines this week.  Of particular note, is the decision of the Supreme Court in the case of Bull & Anor v Hall & Anor [2013] UKSC 73 (27 November 2013), which dismissed the appeal of two Christian B&B owners (pictured) who refused to allow a gay couple to stay in a double room. The Supreme Court confirmed that they would pay damages.  Following Marina Wheeler’s analysis of the decision of the Court of Appeal, Rosalind English has summarised the decision of the Supreme Court – full analysis to follow.

The Justices of the Supreme Court disagreed over whether the present case was an instance of direct  discrimination, and therefore whether or not the appellants could attempt to justify their policy. All agreed that, if not direct, it was unjustified indirect discrimination.  The question was essentially whether or not the appellants, who prohibited same sex couples and unmarried heterosexual couples from sharing a room in their hotel, were discriminating on the basis of sexual orientation or marital status when they refused a room to a couple in a civil partnership. Furthermore, although the Court found that the Equality Act (Sexual Orientation) Regulations 2007 did engage the appellants’ right to manifest their religion under the Convention, the Regulations constituted a proportionate interference to protect the rights of others and need not therefore be read down compatibly.

In the wake of the decision, speaking to the BBC, Mrs Bull said that the ‘pendulum had swung too far the other way’; while the Christian Institute suggested that the Supreme Court has been a victim of political correctness.  However, writing for the UK Law and Religion blog, Frank Cranmer has argued that the appellants, as service providers, could not feasibly have justified their discrimination.  On the issue of direct and indirect discrimination, he goes on to says that how we classify this case depends on whether or not civil partnership is, as Lady Hale asserted, ‘indistinguishable’ from marriage.  Cranmer suggests that in light of the Marriage (Same Sex Couples) Act 2013 there is a case to be made that they are not one and the same.

In other equality-related news, this week Universities UK published a report which suggested that it was acceptable for universities in the UK to segregate audiences according to gender to accommodate the genuinely held religious beliefs of external speakers.  The Executive Director of the National Secular Society, Keith Porteous Wood, has opposed this policy, saying that while speakers must be able to talk about controversial subjects, they should not be able to impose conditions on how university events are run.

Interpreting Human Rights: Who Decides? 

So, who decides, Parliament or the courts? Delivering the 27^th Sultan Azlan Shah lecture.  Supreme Court Justice Lord Sumption argued that there should be limited scope for courts to adjudicate clashes between human rights and other interests, as such issues are often polycentric and political and are therefore primarily for the legislature to decide. Cambridge University’s Dr Mark Elliott, however, argued against this position, suggesting that UK courts should not treat such issues as ‘off limits’, but should instead develop a more sophisticated doctrine of judicial deference to deal with complicated human rights situations.

The role of the judges of the European Court of Human Rights was also under fire this week, with Sir John Laws arguing in the third of his Hamlyn lectures that national courts, rather than the Strasbourg court, should have the final say in interpreting human rights – thus challenging the so-called ‘Ullah principle’ (derived from the House of Lords case of the same name).   He suggested that the public were concerned with the importation of European legal principles into the English system, from both the Strasbourg and Luxembourg courts.  Writing for the Guardian, however, Joshua Rozenberg has questioned whether or not the public are really that worried about European legal principles, and has argued that the European margin of appreciation doctrine would allow national courts more room to decide.

Finally, recognising the potential clash between the Strasbourg court’s interpretation of rights, and that of national courts, this week Helen Fenwick has used the prisoners’ voting saga to illustrate how the courts could communicate in the future and avoid open defiance by national courts and governments.  In a post on the UK Constitutional Law Group blog, she advocates a subtle use of subsidiarity (the doctrine which suggests that decisions should be taken at the lowest level possible) and greater reliance on a ‘dialogic approach’ to encourage communication between the courts, demonstrating the role that Protocol 15 and 16 may have to play in opening the channels of communication between the courts.

In Other News

• The Home Secretary Theresa May announced that the Independent Reviewer of Terrorism Legislation, David Anderson QC, will review the Deportation with Assurances (DWA) policy, which permits the UK to deport people to other states if those states promise not to breach their fundamental rights, such as the right not to be tortured.  In anticipation of the review, Clive Walker, from the University of Leeds, has traced the development and UK experience of the DWP policy here.

• Colin Yeo, barrister at Garden Court Chambers, has posted a review of recent developments in human rights medical expulsion cases on the Free Movement Blog.

Case Comments

Patel, Alam and Anwar v SHHD [2013] UKSC 72

In a post on the Free Movement Blog, Anthony Vaughan considers how the case has affected the way Article 8 ‘fallback’ decisions – whereby the individual comes close to fulfilling immigration requirements – will be made in the future.  Highlighting a number of ways the decisions is of importance, Vaughan particularly notes that the decision of Lord Carnwath makes it clear that there is no sliding scale, whereby the closer one gets to fulfilling the requirements of the immigration rules, the weaker the legitimate interest of the state in immigration control.  A ‘near miss’ in such cases cannot establish a meritorious case where otherwise there is not one.

Instead, the balance between the legitimate aim and the Article 8(1) interest can be considered at the proportionality stage of the court’s analysis.  Decisions will not turn, therefore, on how close the individual gets to meeting the requirements of the rules, but rather the extent to which his or her case is congruent with the underlying policy reasons.  Vaughan suggests that such arguments should be ‘tied back to the ‘minimum interference’ limb of the proportionality test’ 

Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria (application no. 39534/07 

Hugh Tomlinson QC has commented on this recent decision in which the Strasbourg court found a breach of Article 10 of the European Convention on Human Rights where an NGO had been denied access to information by a public authority.  He notes that, interestingly, the Court equated the role of NGOs with that of the press – with both being described as social ‘watchdogs’.  It is clear, he suggests, that a right to access information has been recognised under Article 10 for the press and NGOs, and it is likely that the Strasbourg jurisprudence will soon extend this to citizens generally.  It will be interesting, therefore, to see whether or not the UK Supreme Court recognises these developments in the case of Kennedy v Charity Commissioner.

In the Courts

• Bull & Anor v Hall & Anor [2013] UKSC 73 (27 November 2013)

Supreme Court dismisses appeal by Christian B&B owners who refused to give gay couple a double room. direct discrimination (3:2 majority) & indirect discrimination (unanimous)

• Zoumbas v Secretary of Sate for the Home Department [2013] UKSC 74

Dismissing an appeal against a negative asylum decision, the Supreme Court said that, while the best of interests of a child must be at the forefront of the mind of the decision maker, the Secretary of State could outline them briefly and was entitled to, firstly, consider if it would be proportionate to remove the parents had they had no children, then secondly, assess if the interests of the child changed this balance.

• Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) (27 November 2013)

High Court overturns coroner’s Public Interest Immunity ruling in Litvinenko inquest. Coroner failed to pay sufficient regard to Secretary of State’s national security assessment.  BBC Reporter, Dominic Casciani, has noted that the decision demonstrates the continued deference of the UK courts on issues of national security. 

Upcoming Events

To add to this list, email Adam Wagner.  Please only send events which i) have their own webpage which can be linked to, and ii) are relevant to the topics covered by this blog.

• UCL CLP: Whither the margin of appreciation? President Dean Spielman (ECHR): Whither the margin of appreciation?, UCL Faculty of Laws Events, Thursday, March 20, 2014 at 6:00 PM

UK Human Rights Blog Posts

• Islamic ‘marriage’ ceremony at home declared invalid by Court of Protection – November 25, 2013 by Rosalind English
• Strasbourg: defaming the dead, football and historical revisionism – November 26, 2013 by David Hart QC
• Supreme Court upholds gay discrimination ruling in hotel case – November 27, 2013 by Rosalind English
• The latest challenge to the badger cull extension – November 27, 2013 by Rosalind English
•  Plebgate and costs budgets – the Sun off the hook for big bucks – November 27, 2013 by David Hart QC
• South African Supreme Court orders police to investigate Zimbabwe torture allegations – November 28, 2013 by Rosalind English
• Welfare of child no longer a trump card against deportation – November 29, 2013 by Rosalind English