Having your cake and eating it? Reflections on the UK Supreme Court’s decision in the ‘Belfast gay marriage cake’ case

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Photo: QueerSpace

On 10 October 2018 five judges on a panel of the UK Supreme Court unanimously held that the owners of Ashers bakery in Belfast, Mr and Mrs McArthur, had not violated the rights of LGBT activist, Mr Gareth Lee, by refusing to supply a cake decorated with Sesame Street characters Bert and Ernie, the logo of the campaign group ‘QueerSpace’, and the slogan ‘Support Gay Marriage’. The bakery had initially accepted Mr Lee’s order but declined to complete it and returned his money on the grounds that the proposed message conflicted with the deeply held religious convictions of the proprietors, that the only form of marriage consistent with the Bible and acceptable to God is that between a man and a woman. Supported by the Equality Commission for Northern Ireland, Mr Lee brought a claim against the bakery and the McArthurs (‘the appellants’) for direct and indirect discrimination on grounds of sexual orientation and/or on grounds of religious belief and/or political opinion contrary to relevant legislation. In March 2015 a county court judge held that Mr Lee had been the victim of direct discrimination on grounds of sexual orientation, religious opinion and political belief. The Northern Ireland Court of Appeal subsequently upheld the sexual orientation complaint and decided there was no need to settle the other issues. Having earlier been joined as party to the appellate proceedings, on 28 October 2016, the Attorney General for Northern Ireland referred the matter to the UK Supreme Court where it was heard together with the appeal by the McArthurs and the bakery (more…)

How (not) to counter extremism

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).*

The ‘Peace Window’ memorial to Dag Hammarskjøld, by Marc Chagall

Earlier this year, the Government fulfilled one of its General Election Manifesto commitments by appointing Sara Khan as the first chair of a new Commission for Countering Extremism. The Commission’s task is not an enviable one, since if not exactly an admission of failure, its establishment represents at least a significant pause for thought. Its job will be to support society in countering extremism and to advise the Government on new policies and powers. We have some idea of what it aspires to achieve, and how it will work, but as yet no concrete proposals have emerged.

The creation of the Commission is the latest stage in a fairly rapid process of policy development. In its current guise, the idea of countering extremism first emerged in the 2011 version of Prevent, the counter-terrorism strategy. Extremism was defined there as ‘vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’. It was identified as a problem because, it was claimed, extremist ideologies can lead to terrorism – the use or threat of serious violence or other damaging attacks on the public to advance a political, religious, racial or ideological cause. However, at that point the only thing the Government suggested should be done about it was ‘challenge’ – in other words the use of informal social and political pressure to reinforce liberal values in the face of illiberal ones.

In October 2015 – after the ending of the Conservative/Liberal Democrat Coalition – the Government’s counter-terrorism policy took another turn. A new counter-extremism strategy identified extremism as a harm in its own right, requiring new legal responses and new Government powers. Ever since, the Government has been trying to work out what these should be. (more…)

Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School), Prof Janneke Gerards, Chair in Fundamental rights law (Utrecht University), and Miss Rose Slowe, Barrister (Middle Temple) and Honorary Research Fellow (University of Bristol Law School).

In our experience the general public, some of our students, and even some of our colleagues, are confused about the differences between the 47-member Council of Europe, the parent body of the European Court of Human Rights, and the 28 (soon to be 27)-member European Union, in human rights and other fields. Confusion about the differences between the two organizations has also been compounded by increasing interaction between them, particularly over the past decade or so. The human rights-related literature is also dominated by separate studies, largely concerning their respective legal systems. As a result, more integrated accounts are increasingly required. This is the primary objective of our recently-published book – S. Greer, J. Gerards and R. Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press, 2018). (more…)

Six myths about the ‘Prevent duty’ in universities

By Prof Steven Greer, Professor of Human Rights, and Dr Lindsey Bell, Lecturer in Law (University of Bristol Law School).

The Counter-Terrorism and Security Act 2015 (CTSA) has aroused great controversy by imposing a legal duty upon schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’ (the ‘Prevent duty’). However, in an article published in the current issue of the academic journal Public Law, ‘Counter-Terrorist Law in British Universities: A Review of the “Prevent” Debate’, we argue that the campaign against the Act and the duty in higher education rests largely upon myths, six of which are particularly prevalent. In this blog, we provide a summary of those myths (you can also watch a short video outlining the main arguments). (more…)

Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).

By Patrick Marioné

A cardinal axiom of international human rights law is that the prohibition against torture, cruel, inhuman and degrading treatment is absolute in the sense that no exception can be accepted, defended, justified, or tolerated in any circumstance whatever. Yet, for several reasons this is deeply problematic. For a start, since absoluteness is not an express, inherent, self-evident, or necessary feature of the provisions in question, this status is a matter of attribution rather than, as the orthodoxy holds, inherent legal necessity. Other non-absolute interpretations are not only possible, but expressly underpin similar prohibitions in some celebrated national human rights instruments. It does not follow either, because the term ‘cruel, inhuman or degrading treatment’ is typically included in the same clauses which prohibit torture, that each of these very different types of harmful conduct must necessarily share the same status. The much-repeated claim that the prohibition is absolute in principle but relative in application is also unconvincing. Finally, it is not merely morally or legally, but also logically impossible for each of two competing instances of any ‘absolute’ right to be equally ‘absolute’ in any meaningful sense. The prohibition against torture, cruel, inhuman and degrading treatment in international human rights law can, at best therefore, only be ‘virtually’, rather than strictly, absolute. It applies, in other words, in all but the rarest circumstances but not, as the received wisdom maintains, to the exclusion of every possible justification, exoneration, excuse, or mitigation.

S Greer, ‘Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?‘ (2015) 15 Human Rights Law Review 101–137.

‘Paid work’ or underpaid labour? The labour exploitation of detainees within immigration detention

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School) and Dr Lucy Mayblin, Assistant Professor in Sociology (Department of Sociology, Warwick University).*

© Chloe Juyon

In June 2017, ten immigration detainees launched a judicial review action against the Home Office challenging the payment of ‘slave’ like wages for labour undertaken within immigration detention.

This practice, termed ‘paid work’ by the Government, is remunerated at a rate of £1.00 or £1.25 per hour and includes work as cleaners, cooks, hairdressers, gym orderlies and gardeners – roles that are essential to the running of the immigration removal centres. In 2014 this practice resulted in 44,832 hours’ worth of work.

In this blog, we argue that this work is exploitative and ‘unfree’. In recognition that many detainees wish to work however, we do not call for an end to this practice; rather we highlight the structural conditions that render detainees more likely to accept exploitative conditions of work (including but not restricted to low pay), and argue that, at the very least, detainees should be provided with the national minimum wage. (more…)

Challenge to ‘Prevent duty’ in universities rejected in judicial review proceedings

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).

On 3rd August 2017 it was announced that, a week before, the High Court had rejected a claim, brought in judicial review proceedings by Dr Salman Butt, that the inclusion of his name in an official press release about tackling extremism in universities and colleges was unlawful and in breach of his human rights (Salman Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin)). Relying on information provided by the Home Office Extremism Analysis Unit (EAU), which had opposed the publication of any names, the press release referred to 70 events on university premises in 2014 featuring ‘hate speakers’. However, as the result of an ‘oversight’, six people including Dr Butt, were also identified as ‘expressing views contrary to British values’ on campus. The judgment in this case is the first significant judicial contribution to the debate about the ‘Prevent duty’ created by s.26 of the Counter-Terrorism and Security Act 2015 (CTSA) which requires schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’. (more…)

Abortion rights in Northern Ireland

A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. (more…)

Hostages and Human Rights at the European Court of Human Rights: The Tagayeva and Others v Russia Case

By Dr Sofia Galani, Lecturer in Law (University of Bristol Law School).

On Thursday, 13 April 2017, the European Court of Human Rights released one of the most anticipated decisions in the Court’s history – the Tagayeva and Others v Russia case. The judgment concerned the siege of the Beslan School, North Ossetia by Chechen fighters in September 2004 and the ensuing rescue operation by the Russian forces. During these tragic incidents, 330 people lost their lives, including more than a hundred children. Almost 180 of the victims were burnt to an extent that the identification of the remains and establishment of the cause of death were impossible.

The purpose of this blog is to summarise the key findings of the Court’s 239-page decision and provide a brief overview of the human rights obligations of states in the context of hostage-taking as discussed by the Court. Although this hostage-taking incident was of an unprecedented scale, terrorist groups have never stopped taking hostages within or outside Europe, and as a result European states have been involved in a number of rescue operations. Therefore, this judgment can help clarify the obligations that states have before, during and after a hostage-taking incident occurs. (more…)

The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case

By Prof Christopher Bertram, Professor in Social and Political Philosophy (University of Bristol School of Arts) & Co-Director of the Bristol Institute for Migration and Mobility Studies;
Dr Devyani Prabhat, Lecturer in Law (University of Bristol Law School) and Dr Helena Wray, Associate Professor (University of Exeter Law School).

For thousands of British citizens and residents separated from loved ones by the onerous financial requirements in the immigration rules, the headlines after the Supreme Court decision on 22nd February 2017 in the case of MM v SSHD were disappointing.[1]

The case concerned the entry criteria for a non-EEA national to join their British citizen (or long term resident) spouse or partner (“the sponsor”) in the United Kingdom. These include a requirement that the sponsor has an income of at least £18,600 per annum or substantial savings, with additional sums needed for dependent non-citizen children (“the minimum income requirement” or MIR).

As the press reported, the Supreme Court did not find the MIR incompatible with article 8 of the European Convention on Human Rights (the right to respect for private and family life) and therefore unlawful. However, hidden behind the government’s reported “victory” is a more complex legal and political picture which offers hope to at least some of those affected. (more…)