Administrative Court; Bourne J,  EWHC 3415 (Admin), 16 December 2021
The claimants relied, inter alia, on Articles 14 and 8 in challenging decisions to deny them citizenship. Both were wrongfully prevented from entering the UK at a time when they had or were entitled to indefinite leave to remain in the UK (“ILR”), subsequently applied under the Windrush Scheme and were granted ILR before applying for British citizenship. These applications were denied on the basis that they failed to satisfy Schedule 1 para 1(2)(a) of the British Nationality Act 1981, which requires that a citizenship applicant has been physically present in the UK five years prior to the application (“the 5 year rule”). The question for the Court was whether the 5 year rule could be challenged by reason of the HRA. Bourne J ruled that the absence of discretion or flexibility within the five year rule amounted to Thlimmenos discrimination against the claimants contrary to Article 14 in conjunction with Article 8, but that a Convention compatible reading was possible under section 3 HRA by permitting the defendant to deem that an individual had complied with the 5 year rule..
Queen’s Bench Division (Planning Court): Kerr J,  EWHC 3294 (Admin), 7 December 2021
This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.
 EWCA Civ 1439,  STC 2199
Court of Appeal: Sir Julian Flaux C, Henderson and Nicola Davies LJJ,  EWCA Civ 1439,  STC 2199, 6 October 2021
The Court of Appeal considered a challenge brought by Arron Banks in respect of a finding of the Revenue and Customs Commissioners that donations of almost £1 million made by him to the UK Independence Party (“UKIP”) were ineligible to be exempted from the inheritance tax liability attaching to his estate by reason of being gifts to political parties because UKIP at the material time failed to meet the threshold established in the Inheritance Tax Act 1984 (s24) of having at least two members in the House of Commons or one member plus at least 150,000 votes in the relevant election.” The claimant sought to rely on Article 14 of the ECHR read with Article 1 of the First Protocol to the ECHR, Article 10 and/or or Article 11 (freedom of assembly) of the ECHR and/or on Articles 10 and/or 11. The Upper Tribunal had overturned a decision by the First-tier Tribunal that Mr Banks had been discriminated against on grounds of his political opinion contrary to Article 14 (though no remedy had be granted to him as it was not possible to construe s24 of the 1984 Act in a Convention-compliant manner and it was not open to the tribunal to make a declaration of incompatibility under s4 HRA). The appellant appealed on the grounds, inter alia, that the Upper Tribunal erred in law in failing to hold that s24 directly or indirectly discriminated against him on the grounds of his political opinion in breach of Article 14 taken with A1P1, also that it erred in dismissing his claim that he was discriminated against on the grounds of being a supporter of a party which did not have any MPs following the 2010 General Election, alternatively that he was a victim of discrimination against UKIP on the grounds that it had no MPs following the 2010 General Election. He also claimed that the UT had erred in concluding that any discrimination (which it had not accepted had occurred) was justified. The Court (Henderson LJ with whom the Chancellor and Davies LJ agreed) dismissed his appeal. Continue reading
Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ,  EWCA Civ 1390,  IRLR 993, 24 September 2021
This was an appeal from the decision reported previously in this blog. The claimant was an independent fostering agency which sought to recruit (exclusively) evangelical Christian foster carers whose conduct was consistent with “traditional Biblical Christian” standards of behaviour, which did not include same-sex sex. The High Court rejected its challenge to an Ofsted report which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the EqA 2010 and the HRA 1998, ruling that the policy discriminated unlawfully on grounds of sexual orientation and was not saved by s193 EqA (see further below) or, because it provided services on behalf of a public authority, by para 2 of Sch 23. It required that Cornerstone alter the policy. Cornerstone was granted permission to appeal the High Court’s ruling on direct and indirect sexual orientation discrimination under the EqA and on the application of s193 EqA, though not on on the application of para 2 of Sch 23. It was also permitted to appeal the High Court’s findings that that Cornerstone had breached prospective foster carers’ Convention rights, and that Ofsted had not breached Cornerstone’s Convention rights.
The appeal was dismissed on all grounds. (Peter Jackson LJ, with whom Asplin and Nicola Davies LJJ agreed, ruled that Cornerstone’s recruitment policy involved direct sexual orientation discrimination and was disproportionate to the aims pursued, this with the effect that the statutory defence did not apply, the discrimination by Cornerstone breached foster carers’ rights under Article 14 and 8 and Ofsted had not breached cornerstone’s rights under Article 9 ECHR. Continue reading
Supreme Court  UKSC 26,  3 WLR 428, 9 July 2021
Lord Reed P, Lord Hodge DP, Lady Black, Lords Lloyd-Jones, Kitchin, Sales and Lord Stephens
This is a very important decision of the Supreme Court concerning a challenge brought under Articles 8 and 12 ECHR, read alone and with Article 14, to the restriction of the individual element of child tax credit to an amount calculated by reference to two children. The Supreme Court rejected the challenges under Articles 8 and 12 and, of more relevance to this blog, rejected arguments about direct and indirect discrimination against children, though it accepted that there were prima facie cases of sex discrimination and of direct discrimination against children living in households with more than two children, as compared with children living in households with two or fewer children.
The challenge ultimately failed on justification grounds but the case, which has been cited extensively in virtually every Article 14 decision of the domestic courts since it was decided, is significant because the Court revisited the “manifestly without reasonable foundation” which had been the orthodox approach to Convention challenges to economic/ social policy in the domestic courts since at least 2012. The case was also significant in that it reimposed an orthodox approach to the treatment of unincorporated international obligations (here the Convention on the Rights of the Child) and included extensive consideration of the reliance which might be placed by the courts on Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights.
Supreme Court,  UKSC 40, 16 October 2020
Lords Reed, Kerr, Kitchen and Sales and Lady Arden
The case involved a challenge to Hackney’s allocation of about 1% of its social housing via a charitable housing association (Agudas Israel Housing Association/ AIHA) which prioritized applicants from the Orthodox Jewish Community. The reasons for the priority were, inter alia, that Orthodox Jewish families were disadvantaged in access to general social housing by reason of their tendency to have large families; that they suffered from significant economic disadvantage and discrimination in access to private sector accommodation; and that they needed to live in proximity to each other for religious reasons and because of antisemitism. The decision is an important one in rejecting the argument that a narrow approach should be taken to the parameters of lawful positive action.
Court of Appeal: Sir Geoffrey Vos C, Singh and Simler LJJ,  EWCA Civ 1046, 5 August 2020
The claimant unsuccessfully appealed against the rejection by Lewis J of its challenge to the decision to remove the exemption in the congestion charging regime which had previously applied to private hire vehicles (PHVs). The exemption remained applicable to black cabs and to the 1% of PHVs which were wheelchair accessible. The claimant argued that the removal of the exemption amounted to indirect discrimination against BAME and women PHV drivers, 94% of PHV drivers being from BAME backgrounds whereas 88% of black cab drivers were white. Continue reading
High Court: Julian B Knowles J,  EWHC 1679 (Admin), 7 July 2020
The case was brought by a charitable adoption and fostering agency which sought judicial review of a report by Ofsted which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the Equality Act 2010 and the Human Rights Act 1998, and required that Cornerstone alter the policy. Cornerstone, which had contractual relationships with a number of local authorities, challenged Ofsted’s findings that its carer recruitment policy involved unlawful discrimination because of sexual orientation under the EqA and the HRA, and unlawful discrimination on grounds of religion or belief contrary to Article 8 and 14 ECHR. It also claimed that Ofsted had discriminated against Cornerstone on grounds of religion. Julian B Knowles J accepted that Ofsted had erred in deciding that Cornerstone had discriminated against potential foster carers on grounds of religion in view of the defences provided by the EqA, and because the discrimination was justifiable under Article 14. He otherwise rejected the Cornerstone’s claim. (Note that Cornerstone’s appeal was rejected by the Court of Appeal:  EWCA Civ 1390,  IRLR 993, and see subsequent post.) Continue reading
Court of Appeal: Lord Burnett CJ, Singh and King LJJ,  EWCA Civ 559,  2 All ER 813, 29 April 2020
The Court of Appeal rejected the claim that sex as recorded in a gender recognition certificate determines a person’s status as mother or father of a child. The claimant, who was registered as female at birth but subsequently acquired a gender recognition certificate, wished to be recorded as the father, “parent” or “gestational parent” of the child to whom he had given birth.The Registry Office insisted that the claimant be registered as the child’s “mother”, albeit under his (male) name. His application for judicial review of the refusal to grant a birth certificate in such terms failed and the Court of Appeal rejected his appeal.
Court of Appeal: Singh, Rose and Arnold LJJ,  EWCA Civ 618, 12 May 2020
Note that the decision in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 is no longer good law as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see later post).
The standard of justification in Article 14 cases concerning welfare benefits has been fixed by the Supreme Court as being the “manifestly without reasonable foundation” (MWRF) test. Attempts to unseat this on the basis that it is inconsistent with the approach of the ECHR where protected characteristics such as sex or disability are concerned (see eg R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58,  1 WLR 4550) have failed, even the perennially courteous Lord Wilson insisting in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 that, as regards welfare benefits, “the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.” This approach may fall to be revisited in light of the ECtHR decision in JD & A v United Kingdom (Applications nos. 32949/17 and 34614/17)  HLR 5, in which that Court confirmed that the MWRF applies to discrimination challenged under Article 14 and A1P1 only in “circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality” (such as in Stec v UK (Applications nos. 65731/01 and 65900/01)(2006) 43 EHRR 47). Meanwhile, the decision of the Court of Appeal in TD indicates that even the MWRF test is capable of being breached. Continue reading