Author: legalfeminist

Conflict of Rights

Conflicts of rights are not uncommon in discrimination and human rights cases. This is a post on how they can arise, and how they are resolved.

There are nine protected characteristics (PCs) in the Equality Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. All of us have at least some of these characteristics, and sometimes those characteristics will give rise to competing claims.

The most common – or at least, the most litigated – of those conflicts of rights has been where sexual orientation meets religion or belief. For example, the case of Lilian Ladele, the registrar whose beliefs meant she was not prepared to preside over civil partnerships, and the Bulls, the Christian owners of the Chymorvah Hotel who would not accommodate a homosexual couple in a double room [1].

There has been a tendency among some lay commentators to regard the competing rights as a simple contest of morality. Religious beliefs being outmoded and sexual orientation progressive, the reasoning goes, it is proper that the “right side of history” should win.

But this is quite wrong. The resolution of a conflict of rights is not a search for the better, more progressive, or most popular cause. The courts are an arbiter neither of moral certainty nor social progress.

The first question has to be which position each party occupies. As a general rule, the service user can pick and choose their service provider, but the service provider must not discriminate against service users. There is nothing to stop a gay couple opting to shop at the greengrocers owned by another gay couple in preference to that owned by a heterosexual: this is not unlawful discrimination. However, a greengrocers must not refuse to sell vegetables to a gay couple because they are gay.

When it comes to a greengrocers, we are on fairly safe ground. It is extremely difficult to think of a scenario in which a greengrocers might withhold a bag of apples from a customer on the basis of a protected characteristic.

It becomes more complicated when it is the service itself which is in question. This was the subject of the Supreme Court’s decision in the Ashers cake case where Christian owners of a bakery had refused to ice the message “Support Gay Marriage” onto a cake. The Court held that the service was not refused to the claimant because he was gay, but because the bakery would have refused to ice that particular message onto a cake for anybody, regardless of their sexual orientation. The owners also had the right not to be compelled to express a political view with which they disagreed.

Another issue arises where the service provider seeks to restrict a service from one group of people in order to cater to the rights of others. It is permissible to cater a service to a group who share one or more PCs, so a lesbian support group or an over 60s night, for example. Refusing to provide the service to people who do NOT have that PC is permitted by one of the exceptions to the Equality Act – contained at paragraph 30 of Schedule 3 – as long as it is “impracticable” to provide that service to people who don’t share the PC. A lesbian support group is therefore entitled to refuse service to those who are not lesbians. (There are other exceptions, particularly in relation to sex, which will be the subject of a separate post.)

However, what happens when there is a conflict between people who do share a PC? Take a hypothetical example: a lesbian support service includes lesbians who have a religious belief and those who do not. The group may not discriminate by refusing service to those who have a religious belief, but they may refuse service to someone who has persistently evangelised the merits of celibacy for homosexuals, upsetting other members, even though the refusal of service is on the basis of a PC of religion or belief. This is what is meant by a “case by case” basis.

Where a service provider does feel the need to discriminate against a service user on the basis of a PC, the question is then: is it a proportionate means of achieving a legitimate aim? In the example above, the legitimate aim is the ability of the wider group to continue to access the service, and would be proportionate because it does not involve a blanket ban on all those with a religious belief.

In summary,

  • Rights may conflict. This is not unusual, and it is not an automatic indication of bad faith or bad practice on the part of a service provider;
  • Resolution of a conflict of rights is not assessed on who has the ‘better’ or more progressive cause: there is no hierarchy of rights;
  • A key question is whether there any discrimination involved is a proportionate means of achieving a legitimate aim.

[1] Although these cases pre-date the Equality Act 2010, essentially the same considerations apply, and as Hale LJ noted at §40 in the Bulls’ case, the slightly different formulation of the 2010 Act would not have led to a different result.

#ProtectionForAll: migrant survivors of DA excluded from Domestic Abuse Bill

Tomorrow, 6 July 2020, the Domestic Abuse Bill is back before Parliament for further consideration.

It has been heralded as a “landmark Bill” which will offer protection to all women. However, migrant women are notably excluded from it.

When migrant women are inadequately protected from provisions on domestic abuse, they can remain trapped in abusive relationships, unable to leave because of inability to access public funds and for fear of losing the right to remain in the UK. The existing provisions within the Immigration Rules are limited, allowing those on spouse visas to make an application if they have sufficient evidence of abuse, but failing to protect those in other categories, who may have entered as students, workers, or even elderly parents.

We endorse the briefing note from Southall Black Sisters sets out exactly what the legal difficulties with this are, and they have a template letter for contacting MPs.

Marriage: When Two Remain Two

Next week, six couples will take the UK government to court arguing that humanist marriage should be recognised in law. At the moment, humanist marriage ceremonies are not legally recognised, meaning that it is necessary for humanist couples either to remain legally unmarried or to have a second civil ceremony.

The legal history of marriage in the UK is interesting. Originally it was available only as a religious ceremony, in which husband and wife became a single legal entity. “When two become one,” sang the Spice Girls, in what was either a cliched reference to sex or an incisive and damning commentary on the persistence of this doctrine.

In one of the first modern legal texts, Blackstone’s Commentaries on the Laws of England of 1765, a woman was understood to exist either as a femme covert or as a femme sole – a married or an unmarried woman. A femme covert was also said to be in coverture, and the principle of coverture was to establish the legal fiction that a husband and wife were one legal person:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

As one legal being, the woman could not refuse sexual access to her husband, and he was responsible for her financially, and directed any money or property that had been hers. Furthermore, he was often responsible in law for her actions with a presumption that she acted under his direction; it was this principle that led Dickens’ Mr Bumble to describe the law as “a ass, a idiot,” and to add that “If that’s the eye of the law, the law is a bachelor.” Quite. 

However, the principle survived until the surprisingly recent past. The right of women to their own property was first, arriving in 1870 with the Married Women’s Property Act.  The obligation of a woman to provide sexual access to her husband (the entitlement of a man to sexual consent from his wife) was only abolished in the Criminal Justice Act 1994, after the case of R v R [1991] UKHL 12. Until this point it was not legally possible for a man to rape his wife, because as they were one person, he would be seeking consent not from her but from himself. The equivalent common law obligation of a man to provide financial support to his wife was yet more recent, with s.198 Equality Act 2010. An individual of either sex can still not be compelled to testify against their spouse in some criminal cases in England and Wales, and this derives from the same starting point, in that if the spouses are one legal person, the right not to self-incriminate extends to preventing their spouse incriminating them.

Within this model, sex was regarded as part of the contract of marriage, in which sex was an act of labour performed by a woman (wife) in exchange for financial benefit from a man (her husband). The hangover from this model is still alive in rape culture – the belief that expenditure on the part of a male entitles him to sexual access – and in the sale of sexual services.

It is now commonly accepted that sexual consent is not a contractual obligation marked by financial consideration at least as far as marriage goes. The arguments of the last two decades over same sex marriage compelled instead the widespread acceptance that marriage is an arrangement between equals motivated by love. The extension of the idea of a religious marriage to one based on humanist principles, which expressly rest on liberal human values, would underscore that two do not become one, but remain very much two, even in marriage.

Identity, State and Article 8

This is a post about the interplay between a person’s identity, Article 8 ECHR and the role of the state in a person’s identity.

Article 8 is a person’s right to private and family life. It is the most elusive, and most expansive, of the Articles. It reads as follows

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In other words, everyone has the right, although the state may interfere with it in certain circumstances if it is justified. Obvious ways where the state may interfere would be in reading text messages from a suspect in a crime, of refusing entry to the UK of a non-British spouse where the visa requirements are not met, or, currently topical, stopping people from leaving their homes without a reasonable excuse. These are all interferences with our private and family lives, but the state has a justifiable reason for doing so.

What IS this right, though? How do you define a person’s “private life?” Many have tried it, but a comprehensive definition slides through the fingers of the deftest jurist. It has been loosely grouped into three subcategories by the Council of Europe’s guide to include (i) a person’s physical, psychological or moral integrity, (ii) her privacy and (iii) her identity and autonomy. 

We know from case law that it is not restricted to a person’s “inner circle.” A person’s private life can rarely be effective within the confines of their own head or their own home; human beings are, as the House of Lords said in Huang v SSHD [2007] UKHL 11, “social animals.” It is not enough that a person has an ethnic identity or a social identity if they are not allowed to express that. Article 8 “secures to individuals a sphere within which they can freely pursue the development and fulfilment of their personality.”

Identities which are protected by Article 8 include national identity, ethnic identity, religious identity, gender identity, parental identity, and others.

The state, however, treads a fine line between lawful respect for a person’s identity and unlawful intrusion on privacy. It is obvious that where the state keeps records of minority identities, that is capable of being used to no good purpose. Hitler’s Germany is the obvious example, but in modern day Kyrgyzstan, to take another, it is the nationalists who campaign to keep ethnic identity on ID cards, not the minorities who know that it would be an invitation to discrimination. Here in the UK, the requirement that defendants state their nationality as part of their identity is reported to create ‘racialised courtrooms’ potentially breaching the UK’s obligations under Article 8 (and 6).

The protection offered by Article 8 to recognise and respect a person’s identity is vital. As state technology, databases and surveillance expand though, we must ensure that privacy is not trampled under the pretext of protecting identity.

Specialist services: permissible discrimination

Twelve years ago, Southall Black Sisters went to court – not, on this occasion to defend a woman from a violent man, but to defend themselves against the loss of funding from Ealing Council.

Ealing had funded SBS since the mid 80s, but in 2007 had decided that domestic violence provision must not be provided to cater to “all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence.” This pushed SBS outside the scope of funding, because they provided assistance only to BME women.

Ealing argued that this specialist service amounted essentially to discriminatory practice by SBS, and that proper equality meant a service which also catered to men and to white service users – notwithstanding that such a service would be inaccessible to the very community who needed SBS’s support. At one stage they even suggested that the name “Southall Black Sisters” was unlawful as it announced its audience in its name.

Perhaps recognising that “what about the men” was an unattractive argument, Ealing caved on the second day of the hearing, accepting that specialist service provision from a specialist source was not only lawful, but necessary. Moses LJ summarised with the judgment with the comment “Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion.”

The same could be said for services provided to any other group, such as women, or gay people, and s.30 Schedule 3 Equality Act 2010 expressly permits a service to be restricted to people who share a protected characteristic.

The judgment is worth reading, and can be found here.