The UK and EU Law

Question 1

The Council of Europe (CoE) NOT the European Union (EU)

• The CoE contains 47 member States (28 of which are members of the EU)
• All CoE member States are parties to the European Convention on Human Rights
• The CoE comprises an executive (Committee of Ministers); legislature (Parliamentary Assembly); and Judiciary (European Court of Human Rights)

The European Court of Human Rights (Strasbourg) not the European Court of Justice (Luxembourg)

Answer 1

1949 - Parliamentarians from across 12 member states drafted the European Convention on Human Rights

1950 - The convention was signed in Rome by the newly formed Council of Europe

1951 - The convention was ratified by the UK

1953 - The convention came into force on 3rd September 1953

1966 - UK signs up to the European Court of Human Rights, UK citizens gain the right to petition to the ECtHR

1998 - The Human Rights Act drafted, incoperated into domestic law in 2000 to allow judges time to learn.

Question 2

State must not interfere unlawfully with the exercise of abosolute rights

• ​Article 3 (Prohibition of Torture) (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’)
• Article 4(1) (Prohibition of Slavery and Forced Labour) (‘No one shall be held in Slavery or servitude’)

Aspects of:

• Article 5 (Right to Liberty and Security)
• Article 6 (Right to a Fair Trial)

Question 3

Qualified rights permit restrictions of the freedom that the right protects in favour of the interests of the wider community or state interest.

• Article 8 (Right to Private and Family Life)
• Article 9 (Freedom of Thought, Conscience and Religion)
• Article 10 (Freedom of Expression)
• Article 11 (Freedom of Assembly and Association)
• Article 12 (Right to Marry)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of A, B, or C

Answer 3

The infringment of a right has to be both lawful and must be necessary. Cases that go to the European Court of Human Rights are often concerned with whether or not a particular infringment is in accordance of law.

Freedom of Assembly and Association

(1) Everyone has the right to freedom of peaceful assembly and to freedom of associtation with others, including the right ot form and to join trade unions for the protection of his interests
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police of of the administration of the State.

Question 4

The requirement that a restriction on a qualified right be ‘necessary in a democratic society’ (Article 8-11) is interpreted as meaning that a restriction must be ‘proportionate to the legitimate aim pursued’

proportionality and ‘fair balance’:

“inherent in the whole of the Convention is a search for a fair balance between the demands of teh general interests of the community and the requirements of the protection of the individual’s fundamental rights” (Soering v United Kingdom A 161 (1989); II EHRR 439, [89])

Question 5

Handyside v United Kingdom A 24 (1976) I EHRR 737

‘The applicant, Mr. Richard Handyside, is proprietor of the publishing firm “Stage 1” in London which he opening in 1968. He has published, among other books, The Little Red schoolbook (hereinafter called “The Schoolbook”), the original edition of which was the subject of the present case and a revised edition of which appeared on 15 November 1971’.

Book banned - A claim for breach of Article 10 launched

Mr. Handyside was convicted of possessing obscene publications for gain, under the obscene publications act. The case went to the ECtHR, ‘to what extent was the UK best placed to make decisions as to what may or mau not be obscene’, the court conlcuded the legislations intent was to protect minors, in this case it had measured and precise applications and met the qualifications for a restriction on free speech that was necessary for a democratic society.

Question 6

• The ECtHR gives a margin of appreciation to public authorities in States that are parties to the ECHR
• So; in assessing the proportioanlity of a State’s actions, a degree of deference is given to the judgement of national authorities when they weigh competing public and individual interests
• A degree of deference is also given when there is a lack of consensus amongst State parties as to a certain issue (for example, laws governing abortion)

Identifying a Margin

The Court points out that the machinery of protection established by the Convention is subsidary to the national systems safeguarding human rights.

It is not possible to find in the domestic law fo the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.

State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these reqruiements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them.

Answer 6

Handyside v United Kingdom A 24 (1976) I EHRR 737

‘The applicant, Mr. Richard Handyside, is proprietor of the publishing firm “Stage 1” in London which he opening in 1968. He has published, among other books, The Little Red schoolbook (hereinafter called “The Schoolbook”), the original edition of which was the subject of the present case and a revised edition of which appeared on 15 November 1971’.

Book banned - A claim for breach of Article 10 launched

Mr. Handyside was convicted of possessing obscene publications for gain, under the obscene publications act. The case went to the ECtHR, ‘to what extent was the UK best placed to make decisions as to what may or mau not be obscene’, the court conlcuded the legislations intent was to protect minors, in this case it had measured and precise applications and met the qualifications for a restriction on free speech that was necessary for a democratic society.

Question 7

Tyrer v UK A 26 (1978) 2 EHRR I, [31]:

‘The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field’.

Question 8

The United Kingdom adheres to a dualist understanding of international law = international law and municipal law exist in different realms.

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [55]:

‘The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state… The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law’.

Question 9

Unincorperated treaties in UK law governed by the principle of no direct effect: J H Rayner (Mincing Lane Ltd) V Department of Trade and Industry [1992] 2 AC 418, 500 (Lord Oliver:)

‘Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta, from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also becausee, as a source of rights and obligations, it is irrelevant.’

Answer 9

The Crown, Parliament itself is the source of rights and of obligations in English Law.

Could the ECHR be relied on in British courts, even though not incorporated into domestic law by an Act of Parliament?

YES: to resolve ambiguity in legislation

BUT: presumption applies only where the provision in question is ambiguous

• R v Secretary of State for the Home Department, ex parte Brind [1991] I AC 696, 747-748 (Lord Bridge of Harwhich):

‘But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of meaning which either conforms to or conflicts with the [European] Convention, the courts will presume that Parliament intended to legislate in conformiy with the Convention, not in conflict with it’.

Question 10

The purpose of the Human Rights Act 1998 was to bring the European Convention of Human Rights into british domestic law.

It was difficult to bring a case to the European Court of Human Rights, it took a long time and cost a lot of money. It could take up to 5 years and £30,000. This meant the vast majority of Britons could not enforce their convention rights in a meaningful way unless they had the time and money to participate in having a just outcome. Many were excluded from this process.

“Rights brought home: The Human Rights Bill”

[preface] ‘This white Paper… will give people in the United Kingdom opportuniteis to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case tot he European Human Rights and Commission and Court in Strasbourg.”

Question 11

Section 2:

• Establishes ‘Convention Rights’ - defined by reference to the main articles of the ECHR

Section 3:

• Requires that all legislation must be read, so far as possible, consistently with Convention rights

Section 4:

• Permits courts to declare primary legislation incompoatible with the Convention

Section 6:

• Makes it ‘unlawful’ for a public authority to act incompatibily with Convention rights

Section 19:

• Requires a minister to make a statement of compatibility when proposing legislation

Answer 11

The UK’s adheres to a dualist concept of international law: i.e. the Convention rights and the HRA exist side by side.

The HRA ‘incorperates’ the ECHR indirectly into domestic law (as a schedule to the HRA): the HRA gives ‘further effect’ to the Convention rights but does not establish those rights as domestic rights.]

This means that Convention rights cannot be used directly as the basis for a claim

Question 12

1. Not all rights contained in the ECHR are given ‘further effect’ for the purposes of the HRA
2. Article 13 (right to a remedy) not included as a ‘Convention Right’

Domestically Enforcable

• Article 2-12
• Article 14 (non-descrimination)
• Article 1 Protocol 1 (right to property)
• Article 2 Protocol 1 (right to education)
• Article 3 Protocol 1 (right to free and fair elections)
• Article 1 Protocol 13 (abolition of the death penalty)

Answer 12

Does the HRA 1998 affect Parliament?

A bit. But Parliament is still soverign.

Section 19 HRA:

• (1) A minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill-*
• (a) Make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“A statement of compatibility”); or*
• (b) Make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.*
• (2) The statement must be in writing and be published in such a manner as the Minister making it considers appropriate.*

The Joint Committe on Human Rights (JCHR): joint select committee of the House of Commons and House of Lords which scrutinises all Bills and reports to Parliament on implications for human rights.

Question 13

A decleration from a judge that a statute is incompatible with the ECHR

HRA 1998, Section 4

Before making such a decleration the courts must interpret or give effect to the legislation “so far as is possible…in a way which is compatible with the Convention rights.”

Does not in itself invalidate legislation but is a fast track procedure to ensure Parliament amends it

Question 14

• Individual v Communitarian views on human rights
• Economic, Social and Cultural Rights

1. Right to work
2. Right to an adequate standard of living: right to food, housing clothing
3. Right to healthcare
4. Right to social security
5. Right to education

Not all rights can be equally accessible, or enforced by all people. Freedom of Expression, will be easier to be exercised by university educated columnists vs someone with poor education who is inarticulate will be unable to exercise their right in the same way. In order to have this right (freedom of expresison) in practice, one has to consider the right to education. Rights are linked to one another and must be upheld alongside to support. A minimum standard of provision to make human rights and other rights good.

Question 15

• Justiciablity is the extent to which a right is enforcable in the courts.

Communitarian view: Justiciable social rights represent fundamental moral entitlements, that they spell out minimum conditions for dignified life. They are inextricably linked to wider rights, and once this notion is agreed upon the question is how to secure them. The courts are the most effective means of protecting social rights. Courts are effective, independant, disciplined forum for evaluating evidince and adjudicating upon claims. They are very good place to measure the extent to which the accesibilty of rights are fair and just. They don’t allow for the same sense of exclusion that one might have in the political sphere.

Answer 15

“[I]t is possible to identify at least four concerns common to all justiciability doctrines: (1) the concern for judicial economy, efficency and effectiveness, (2) then concern for disputes being adequately argued in an adversarial forum, (3) the concern not to immunize laws and government actions from judicial review, and (4) the concern not to deny worthy parties and issues, both present and furture, a proper judicial resolution. These concerns arise out of two central principles which underly the law of justiciability: first, that courts not adjudicate cases beyond their institutional capacity; and second, that courts not adjudicate cases beyond their legitimacy to resolve dispites…“ ~Sossin, Boundaries of Judicial Review (1999)

Question 16

• Having the liberty to do something means that it is lawful to do it because the law does not prohibit it
• If someone has a right to do something then the law specifically provides that can lawfully be done
• Liberties: restrict type of protection afforded to an individual and are at risk of erosion.
• Rights: model is clearer and the scope of lawful conduct is fixed so can only change if the right itself is amended.

Question 17

Discrimination under the ECHR

“In many ways the msot important word in the European Convention on Human Rights is ‘everyone’. Most of the substantive articles of the Convention begin with the word ‘everyone’. The real challenge is to take that word seriously and accept that it means what it says” ~ Rabinder Singh QC

Article 14 - Prohibition of discrimination

The enjoyment of the rights and freedoms set forth oin this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Answer 17

What needs to be present for Article 14?

Two things are needed:

• Inability to enjoy a Convention right;
• Based on discrimination in relation to a protected characteristic

If either of these are missing, there is no discrimination under the ECHR.

This means that an action can only be brought if ANOTHER right has also been breached. You cannot bring a standalone claim for a breach of Article 14: it is not a ‘freestanding’ right.

Question 18

Article 8

Right to respect for a private and family life

1. Everyone has the right to respect for his private and familyt life, his home and his correspondance
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety of the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protections of the rights and freedom of others.

Question 19

Article 9

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Question 20

Article 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Question 21

• Article 14 is claimed ‘in conjunction’ with another right
• It is usually raised in the second part of the Article:
  
  • EG: A state may attempt to ‘qualifiy’ the right in a way which is discriminatory
  • discrimination is similar to a kind of ‘proportionality’ test

Discrimination, Proportionality and Equality are all closely linked. If a state introduces a measure that is disproportionate in that it does not achieve its stated aim, in that others in analogous situation are treated differently, ‘comparator’, and that is linked the infringment of a protected characteristic that will be discriminatory.

Question 22

Equality Act 2010

• Discrimination occurs when you are treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified
• Discrimination can also occur if you are disadvantaged by being treated the same as another person when your circumstances are different (for example if you are disabled or pregnant)
• The HRA 1998 protects individuals from discrimination in relation to rights set out in the Convention
• The Equality Act 2010 offers more general protection

The Human Rights Act 1998 can play a vital role in plugging the ‘protection gap’ in domestic law. Everyone living in our jurisdiction can claim rights under the Human Rights Act and that would apply to non-citizens and Asylum seekers, which would not be available under our domestic law. So it is very important that the Human Rights Act exists alongside the Equality Act 2010.

Question 23

Equality Act 2010

Protected characteristics:

Age, Disability, Gender reassignment, Marriage and Civil partnership, Pregnancy and Maternity, Race, Religion and Belief, Sex and Sexual orientation

• Under the Act people are not allowed to disciminate, harrass or victimise another person because they have any of the protected characteristics
• The Act also protects against discrimination where someone is percieved to have one of the protected characteristics or where they are associated with someone who has a protected characteristic.

Answer 23

Who has responsibility under the Act?

• Government departments
• Service providers
• Employers
• Education providers (Schools, FHE colleges and Universities)
• Providers of public functions
• Associations and membership bodies
• Transport providers

Question 24

Direct Discrimination:

• Where the rule specifically and expressly excludes a member of a protected class

Indirect Discrimination:

• Where a rule does not specifically exclude a member of a protected class, but members of a protected class would be disproportionately affected by a rule. In practice this often means people are on the face of it being treated equally but it has a disproportionate impact upon certain groups

Question 25

• Direct Disability Discrimination
  
  • A business is looking to hire a personal assistant. In the job application form, there’s a question asking if the applicant has any disabilites that will make doing the job difficult. This is a protected characteristics so the question is against the law; the employer has a duty to make reasonable adjustments
• Direct Sex Discrimination
  
  • A manager asks a female employee working from home to check in with him more than a male employee becuase of an assumption that the woman is more likely to be distracted by her children.
• Direct Race discrimination
  
  • An employer decides they will no longer recruit candidates from any ethnic minorty to front-line roles after finding out some ethnic minorities are disproportionatley impacted by coronavirus (COVID-19).

Question 26

• Indirect Religious Discrimination
  
  • A shop manager requires that every employee words two Saturdays each month. This rule could indirectly discriminate against employees who are practising Jews since Saturday is a religious day in Judiasm.
• Indirect Racial Discrimination
  
  • A school bans cornrows and dreadlocks on pupils. This rule is more likely to affect certain racial groups.
• Indirect Sex Discrimination
  
  • An employer advertises a new position but requires employees to be at least six foot tall. Height is not releveant to being able to carry out the duties in that post. As women are typically shorter than men thios could indirectly discriminate against them.

Question 27

Legitimate Aim

• The Equality Act 201 does state that if you have a legitimate aim behind indirect discrimination, the discrimination can be justified
• The legitimate aim cannot be discriminatory and it must be a genuine reason. It must be “appropriate and necessary”. For example:
  
  • For the health, safety, and welfare of individuals;
  • To run an efficient service;
  • For the requirement of a business.

Answer 27

Example of Legitimate Aim

• The fire service requires applicants to complete various physical tests. On the face of it, this might seem like age discrimination, given that an older person is likely to be less physically capable than a younger person.
• However, since the role of a firefighter is physically strenuous for the purposes of protecting the health, safety, and welfare of individuals, it is a legitimate aim.

Discrimination - Further Examples

• Pregnancy discrimination: The law says that it is pregnancy discrimination to treat a woman unfavourably on the grounds of her pregnancy or because she wants to take or has taken maternity leave (Equality Act 2010 s.18).
• To show discrimination a woman does not have to compare herself to how a man might have been treated but she needs to show that the treatment was because of her pregnancy
• Employees are also protected against automatic unfair dismissal and detrimental treatment becuase of prregnancy, childbirth or maternity leave (Employment Rights Act 1996 section 47C and section 99 and the Maternity and Parental Leave etc Regulations 1999, regulations 19 and 20)

Question 28

There are three kinds of equal work:

• Like work
  
  • ​This is where the works involves similar tasks which require similar skills, and any differences in the work are not of practical importance. For exmaple, a woman cook preparing lunches for directors and a male chef cooking breakfast, lunch and tea for employees
• Work rates as equivalent
  
  • ​This is where the work has been rated under a fair job evaluation scheme as being of equal value in terms of how demanding it is. For example, the work of an occupational health nurse might be as equivalent to that of a production supervisor when components of the job such as skill, responsibility and effort are assessed by a fair job evaluation scheme.
• Work of equal value
  
  • ​This is work which is not similar and has not been rated as equivalent, but is of equal value in terms of demands such as effot, skill and decision-making. eg a clerical assistant and a warehouse operative.

Question 29

BBC presenter Samira Ahmed recently claimed Jeremy Vine was paid six times more for requal work and reached a settlement Ahmed had been paid £440 per episode of Newswatch and Vine £3,000 per episode of Points of view.

Gender Pay Gap

• Current Pay Gap aggregate pay gap stands at 18.4%
• Discrimination:
  
  • Women still being paid less than men for equal work. Discrimination, particularly around pregnancy and maternity leave, remains common, with 54,000 women forced to leave their job every year after becoming a mother
• Unequal caring responsibilities:
  
  • Women play a greater role in caring for children, as well as for sick or elderly relatives. As a result mroe women work part time, and these jobs are typically lower paid with fewer proression opportunities
• A divided labour market:
  
  • Women are still more likely to be in low paid and low skilled jobs, affecting labour market segregation. 80% of thoise working in the low paid care and leisure sector are women, while only 10% of those in the better paid skilled trades are women
• Men in the most senior roles:
  
  • Men make up the majority of those in the highest paid and most senior roles - for example, there are just seven female Chief Executives in the FTSE 100
    
    • Source: Fawcett Society

Answer 29

Harassment: S.26 EQUALITY ACT

• Harassment is unlawful discrimination under the Equality Act 2010 where it is connected to a protected characteristic
• E.g. harassment related to the protected characteristic of sex: unwanted conduct towards a worker by an employer or another worker; because of that worker’s actual or percieved sex, or association with someone of a particular sex.
• This applies to any conduct that violates a worker’s dignity or creates an intimidating, hostile, humiliating, degrading or offensive enivornment, even if it was not intended as such.

Question 30

Coleman v Attridge Law

Developed within the wider concept of direct discrimination with similarities to the notion of indissociability is the notion of ‘associative discrimination’, stemming orginally from a European Court of Justice ruling in Coleman v Attridge Law.

In this case a legal secretary had been treated less favourbly by her employer because of her son’s disability.

This case extended the protections of direct discrimination to cover situations where a claimant has been treated less favourably because of the protected characteristic of someone conntected to him or her.

Question 31

Ladele v Islangton Borough Council

One of the difficulties for religious claimants over many years has been the seemingly unsympathetic way that their claims have been treated.

In this case a registrar of births deaths and marriages failed to establish indirect religious discrimination when she was designated, against her religious convictions, a ‘Civil Partnership Registrar’, despite the fact it was common ground that the Council, at a practical level, could easily provide services in support of Civil Partnership without her involvment.

Answer 31

The first decision for the Claimant in this case was reversed on appeal; and a number of sympathetic tribunal decisions on Sunday working were effectively overturned by the Court of Appeal decision in Mba.

Examples:

• Williams-Drabble v Pathway Care Solutions Ltd and anor (2005)
• Edge v Visual Security Services Limited (2006)

Question 32

Mba v Merton Borough Council

In this case, a Christian residential care worker was told she must be available to work Sunday shifts after two years of tacit agreement that she would not do so which, it might be argued, had illustrated that the accomodation was practicable.

The Court found in favour of the Borough Council on the basis of the cost of providing cover and the apparent disruption to staffing which the accomodation of Ms Mba would involve.

Question 33

Ewedia v British Airways

In this case, the Courts did not find indirect discrimination when Ms Ewedia was refused permission to wear a visible cross in contravention of a dress code, on the basis, firstly, that wearing a cross was not mandatory tot the Christian religion and, secondly, that the employer could justify its stance on the basis that the comployer wished to project a certain corporate image.

Both limbs of this judicial reasoning were ruled incompatible with Article 9 ECHR when the case reached the European Court of Human Rights.

Question 34

Westeney V East London NHS Foundation Trust

A senior occupational therapist was unsuccessful in her claim for direct discrimination and hasassment on the grounds of religious discrimination following her employer’s decision to suspend her and issue a disciplinary warning following allegations that she had harassed a more junior Muslim staff-member by inviting her to various church activities; praying with her; and providing her with a book about a Muslim woman’s conversion to Christianity.

Sometimes first instance courts and tribunals have shown more sympathy and found for religious claimants (Mbuyi v Newpark Childcare (Shephards Bush) LTD 2015), but where these decisions have been appealed, they have tended to be overturned.

Question 35

Mbuyi v Newpark Childcare (Shephards Bush) LTD 2015

A Claimant was found to have been less favourbly treated (and unfairly dismissed) by her employer because of her Christian beliefs about homosexuality, which she had articulated in the workplace.

Question 36

Eweida and Ors v United Kingdom

This European Court of Human Rights case, filled a purpose in setting a marker. In this case the marker was threefold: the removal of a requirement that a religious requirement should be mandatory to that religious belief to qualify for protection; the acceptance that Article 9 rights apply in the workplace; and, perhaps most importantly the recognition that desire for a uniform image is insuffieicnt justification to rebut an indirect discrimination claim.

Question 37

Bull and Bull v Hall and Preddy

In this, the Equalities and Human RIghts Commission (EHRC) financially supported a gay couple who brought a claim against Christian Bed and Breakfast owners, who (due to their Christian Convictions) had refused to provide them with a double room, and offered no support the latter.

At an earlier stage, when the Christian bed and breakfast owners lost their case at first instance, iut was the EHRC who, apparently of its volition and wihtout the support of the gay couple making the claim, decided to cross-appeal for further damages (an appeal it subsequently discontinued describing it as an ‘error of judgement’).

Answer 37

The Supreme Court unanimously agreed that the Appellants had unlawfully discriminated against the Respondents and dismissed the appeal. By a 3-2 majority the court found that the treatment amounted to direct discrimination, albeit with differing reasoning. Lady Hale gave the leading judgment.

By virtue of (Equality Act; goods, facilites and services) regulation 3(4), Mr and Mrs Bull could not legally assert that they treated Mr Preddy and Mr Hall differently because they were not married for, in law, they are to be regarded as the same as a married couple. On that account the only remaining basis on which they were treated less favourably was their sexual orientation. After regulation 3(4) is applied, the only differential between a married couple and Mr Preddy and Mr Hall is that the latter couple is of the same gender.

the court unanimously agreed that the appeal be dismissed as both the minority and the majority agreed that any indirect discrimination could not be justified. The appellants’ rights under article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which protects the manifestation of religious belief, were engaged. However, the legislation’s interference with those rights is justified as a proportional means of achieving a legitimate aim, namely making sure that those of homosexual orientation are treated equally.

Question 38

Access to Justice

“The value to society of the right of access to the court is not confined to the cases in which the courts decide questions of general importance. People […] need to know, on the one hand, that they will be able to enforce their rights if they have to do so and on the other hand, that if they fail to meet their obligations, there is like to be a remedy against them.

~ R (UNISON) v Lord Chancellor [207] UKSC 51, [66]-[71]

Answer 38

• Awareness of rights, entitlements, obligations and responsibilities
• Awareness of procedures for resolution
• Ability to effectively access resolution systems and procedures
• Ability effectively to participate in resolution process in order to achieve just outcomes and effective remedies

Question 39

Proportionality

Is there a legitimate aim?

Is there a rational connection between the means and the aim?

Could the aims be achieved by a measure which would intrude upon less fundamental rights in a question?

Has a fair balance been struck between the ends and the means?

Question 40

R (Tigre) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57

Issue: Is a rule requiring applicants for student loans to have indefinite leave to remain (ILR) unjustified? (Right to Education in A2P1 and Article 14 ECHR

Outcome: The Court held that a right to non-discriminatory access to education should be upheld

Reasoning: Education plays an important part in a democratic society and is central to core values. Denying student loans has a very severe impact on those it affects and as such is an unjustifiable infringement of a Convention right.

“The reality is that even though she does not yet have ILR, her established private life here means that she cannot be removed from the UK unless she commits a serious criminal offence and she will almost inevitably secure ILR in due course. She is just a ss closely connected with and integrated into the UK society as are her settled peers. She has no obvious alternative.” ~ Lady Hale [35]

Question 41

Law and Society Actors

• Affected Individuals
• Community Groups
• Local Law Centres / Advice Agencies
• Equality and Human Rights Commission
• Religious Organisations
• Frontline Charitites and NGO’s
• Grassroots Campaigners
• Institutions: Schools, Universities

Answer 41

Human Rights in the UK

“The position is different in relation to those bodies, most obviously the UK Parliament, capapble of enacting primary legislation. However, while Parliament is in orthodoxy legally free to do as itpleases, this does not mean that it is necessarily able, in practice, fully to eplot that legal freedom by disregarding Convention rights with Impunity”

~ Elliot Chapter 18 p.3.4.8

Question 42

Role of the HRA 1998

1. Makes the enactment of the ECHR-incompatible legislation less likely in the first place;
2. Permits legal values t infuse and shape political discourse; and
3. Emphasises the constraining effect of the UK’s obligations in international law.

Possible reform?

• UK withdrawing from the ECHR;
• UK remaining a party to the ECHR but repealing the HRA;
• UK remaining a party to the ECHR, repealing the hRA and enacting a UK Bill of Rights