Which of these things is not like the others?

  1. Being forbidden to wear a cross at work
  2. Being required to perform a public service without discriminating against gay people

Okay, it’s only a list of two.  But apparently the UK’s Equality and Human Rights Commission thinks they’re alike in at least one important way: the people who fought against them should be supported in taking a legal case to the European Court of Human Rights.

I’m uneasy about this. I understand that part of the EHRC’s role is to support strategic legal cases in order to clarify the law, and I think the European Court of Human Rights is quite bad at protecting the religious freedoms of individuals (particularly the religious freedoms of women). Mrs Eweida was forbidden by British Airways from wearing a cross with her uniform, and she lost her case even though BA subsequently changed their policy to permit at least some religious symbols. That policy change alone suggests the reasons for banning cross-wearing weren’t really weighty enough to justify interference with religious freedom. (I don’t know what to say about the Chaplin case – I’ve no idea if there’s a genuine health and safety risk involved in a nurse wearing a necklace.)

But in McFarlane and Ladele, there’s another really important right at stake in a way it just isn’t in Eweida: McFarlane and Ladele both chose to do jobs which were about serving people in contexts to do with important and very personal areas of private life, respectively relationship counselling and acting as a Registrar of births, marriages and deaths. It seems to me absolutely correct that they should be required to deliver those services in line with the non-discrimination policies of the organisations for which they worked.  I  just don’t think the EHRC should be supporting them – especially when there are Christian legal organisations only too happy to step in (or, indeed, who may have prompted the cases in the first place).

Guidance for UK prosecutors: false or retracted allegations of rape

Haven’t had a chance to read it properly yet, but here’s the new guidance from the Crown Prosecution Service on ‘Perverting the Course of Justice – Charging in cases involving rape and/or domestic violence allegations‘.  To be clear, this is about when it is or isn’t appropriate to prosecute people for making false allegations, for retracting allegations, or for withdrawing a retraction…

The campaign for Equal Marriage in the UK

Today’s equal marriage symposium at Cardiff Law School provided lots of useful information on the campaign for same-sex marriage in the UK. So I thought I’d share some of it.

Sue Wilkinson and Celia Kitzinger talked about the 2006 High Court case in which they tried unsuccessfully to have their Canadian marriage recognised as a marriage in UK law. Thanks to s.215 of the Civil Partnership Act 2004, their marriage is converted into a civil partnership when they step back into the UK, whether they like it or not. They now maintain an equal marriage rights website with background on their case, discussion of the legal issues and regular updates on gay marriage around the world.

They lost their case, but it forced the Court to put in writing its reasons for upholding a discriminatory provision (see especially paragraphs 116-122) – and as Robert Wintemute commented today, judgments like this don’t age well… .

Since then, a Populus poll for The Times in June 2009 suggested that 61% of the UK population agreed with the statement “Gay couples should have an equal right to get married, not just to have civil partnerships.” Stonewall has come on board (mostly). The Equal Love campaign was launched in October 2010. On 2 February 2011 eight couples lodged an application to the European Court of Human Rights challenging the fact that marriage is limited to opposite-sex couples and civil partnership is limited to same-sex couples. Things are changing around the world.

But despite a flurry of excitement in February, the UK Government Equalities Office merely says in a press release,

Ministers have also identified a desire to move towards equal civil marriage and partnerships, and will be consulting further how legislation can develop, working with all those who have an interest in the area.

Doesn’t the enthusiasm just leap off your screen?

But it’s worth keeping up the pressure. In Scotland, the Equality and Human Rights Commission and the Equality Network helped run a symposium on equal marriage, leading to a report which calls for a change in the law. The equal marriage Scotland campaign was started by the NUS and during the 2011 election campaign they’re asking Scottish politicians to pledge their support. In Wales, Stonewall is holding hustings for the May 2011 elections (for instance in Cardiff on 19 April) where candidates can be asked about their stance. And across the UK, people can write to their MPs and MEPs to ask them about their views on equal marriage and urge them to write to David Cameron in support.

Equality Act? that’s just pointless red tape…

In case anyone’s missed it, here in the UK we’ve got a shiny new coalition government, and one of the things they’re really keen on is cutting unnecessary bureaucracy and red tape.  So they’ve started a website, the Red Tape Challenge, where they’re inviting people to comment on which areas of pointless regulation they think should be abolished.  Note, regulation, NOT primary legislation: so this is supposed to be about the kinds of details which get set out in secondary legislation after Parliament has properly debated and decided the principles.

But then we get to the section on ‘Equalities‘.  Unlike the other topic areas, here they’ve put the key piece of primary legislation up for comment, and the first question is: should we scrap it?

Um, no??????

Let’s be clear.  This is the Act which makes discrimination because of sex, or disability, or ethnicity, or pregnancy, or any other protected characteristic unlawful.  It has provisions on equal pay.  It deals with harassment on grounds of a protected characteristic.  And our government is seriously asking whether it should be scrapped?!

Describing equality legislation as ‘red tape’ is outrageous and, frankly, offensive.  Please go to the site – ideally before Wednesday 20 April, when it seems it might close for comments – and:

  • point out that the Equality Act is primary legislation, not a regulation, and that it was supported by all the major parties only weeks before the last General Election;
  • point out how improper this process is, when it appears to be asking about mere regulations but is in fact inviting criticism of the entire Act;
  • explain why it’s important for discrimination to be unlawful;
  • give examples of the difference made in people’s lives by the existence of equality law.

Thanks to the Discrimination Law Association newsletter!

Legal aid and domestic violence

Last December we blogged about the UK government’s proposed cuts to legal aid in divorce and family law cases:

The proposals mean that legal aid will be restricted to cases where forced marriage, international child abduction or domestic violence is proven. According to the Guardian, ‘domestic violence’ for these purposes will only include physical violence, not psychological abuse. They report that the Ministry of Justice believed it had to ‘…restrict the definition of domestic violence to one that could be demonstrated through “clear, objective evidence”.’

According to the UK Supreme Court blog the Court, in its January judgment in Yemshaw v Hounslow, has said that

…[t]he meaning of “violence” in the Housing Act 1996, s 177(1), in the context of “domestic violence”, should be understood as including physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. By the time of the 1996 Act, both international and national governmental understanding of the term “domestic violence” had developed beyond physical contact.

Okay, so I know the legal aid proposals aren’t the same as the Housing Act 1996.  And I’m not a family lawyer.  Or any other kind of lawyer.  But if I were, I’d think this might be a useful and important judgment.

UK legal aid cuts likely to affect women more than men

The Guardian recently reported that proposals to cut legal aid in the UK are likely to have a greater impact on women, according to the Ministry of Justice’s own equality impact assessments.

Take family cases, like disputes about contact and residence of children; injunctions against ex-partners; the division of financial assets; applications for maintenance; and divorce.  The proposals mean that legal aid will be restricted to cases where forced marriage, international child abduction or domestic violence is proven. According to the Guardian, ‘domestic violence’ for these purposes will only include physical violence, not psychological abuse. They report that the Ministry of Justice believed it had to ‘…restrict the definition of domestic violence to one that could be demonstrated through “clear, objective evidence”.’

Another of the most worrying proposals is complete removal of legal aid from education cases, including those where – say – a disabled child has been incorrectly assessed for support, or has been refused admission to a school.  The factors they list in support of this removal are that the importance of the issues is relatively low – “some financial claims; some issues arise from personal choices, e.g. conduct at school” and that people can represent themselves because the tribunals are “accessible to lay people”.

And note that – from what I can tell – withdrawal of legal aid doesn’t just mean no representation, it means no right to legal aid in getting advice, either.