Tuesday, 14 February 2012

Equality & Diversity News No.2: February 2012

In this issue:
  • Human Rights – what relevance for Equality & Diversity? A personal perspective 
  • Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court 
  • Basic home care for elderly breaches human rights? 
  • Court of Appeal: Hotel owners discriminated against Gay couple 
  • Lawyer wins Gay discrimination claim against law firm 
  • Appeal Court rules that disabled air travellers not protected from discrimination 
  • Events and activities in March
Human Rights – what relevance for Equality & Diversity? A personal perspective
Human rights protections enshrined into British law by the Human Rights Act 1998 (which incorporated the European Convention on Human Rights – ECHR - directly into UK legislation) is increasingly under attack by both the populist media and some politicians. If one believed such sources human rights are nothing more than:
  • An attack on “British values and culture” by Europe (usually, mistakenly, seen as another intrusion by the European Union)
  • A “criminal’s charter” – that protects “their” rights at the expense of “our” rights – and specifically the rights of victims
  • Undermines democracy in the UK and supports “terrorists”
  • Is another example of “red tape” and intrusion into our lives by “out of touch” judges and specifically out of touch European judges who don’t understand the “British people”.
It is possible to see in some of these views at least an undercurrent of anti-European sentiment and xenophobia, which in itself should be a cause for concern to those working around issues of equality and diversity. But putting aside this consideration for the moment, the inconvenient facts (for those who are hostile to human rights and the ECHR) are:

  • the ECHR was drawn up well before the European Union even existed (it was written immediately after the second world war and drew on the experience of the holocaust)
  • British lawyers were at the heart of this development from the start – and still are
  • the current head of the European Court of Human Rights is a British judge - and all judges are elected to their position
  • all UK based human rights cases are decided by the British courts by all-British judges. Only exceptional – and often the most controversial and difficult - cases go forward to a full hearing by the European Court and even there many cases uphold the UK court's decisions or reject cases before a full hearing.

There is also a deep (is it a deliberate?) misunderstanding of human rights principles at the heart of some of these debates. Human rights do not belong to “us” and not “them”, or “criminals” but not “victims”, but to all of us. That is the essence of a human right. They are rights that protect all of us (because we also share a common humanity) vis-à-vis the actions or lack of action, of government and States, rather than, the actions of individuals or non-state organisations. An example may illustrate this.
If an individual murders another person, this is clearly a breach of the victim’s “human right” to life (enshrined in Article 2 of the ECHR). But this is not a legal breach of the Human Rights Act per se or the ECHR unless the government or State (a) has acted in some way in failing to protect the individual who was killed when they could have acted to prevent it (this is why we have health and safety legislation for example. It is also why we have a law against murder), or (b) the State fails to properly investigate the crime and/or acts in such a way that the victim and/or their family fail to get justice. In this sense, victims only have human rights that are legally enforceable if government/States fail to protect them after they have already been murdered or fails to investigate and prosecute the alleged perpetrator.

On the flip side, the allege perpetrator of a murder has human rights only in the sense that the ECHR says that all human beings charged with a crime should be treated by the State as innocent until proven guilty, not be tortured or improperly treated during the investigation and they must have a fair trial. These rights are not rights that “belong” to alleged criminals, but are there to ensure that all of us are treated properly and fairly by the State when we are accused of something (such as murder or any other crimes).

OK, so what’s this got to do with Equality and Diversity you may be asking? Well, firstly, the ECHR ensures specific protection from discrimination (Article 14) – and this existed well before we had any home-grown legislation about this. In reality current UK legislation - such as the Equality Act 2010 – now gives much wider protection than the Human Rights Act or the ECHR for acts of discrimination as a breach of Article 14 can only be claimed where there has also been a breach of another Convention right.

Secondly, human rights principles can help us view equality and diversity issues differently – especially when there are so-called “equality conflicts” (often presented in simple terms such as “Gay rights” versus “rights of religious groups”). Such “conflicts”, when seen in a human rights context as well, can give fresh insights.

Article 17 of the ECHR states:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Putting this another way: no one, in the name of their “human rights”, can claim protection when advocating the removal of another person’s human right. Does this help when it comes to so-called “equality conflicts”? Do some religious people, in the name of their religious belief, have the right to deny others their rights because they are Gay? Or vice-versa: can some Gay people call for the removal of the rights of religious people to practice their religion because some religious people are homophobic? The answer taken by the UK court on these issues to date is “No, they cannot”. Human rights law protects both the rights of Gay people and religious people from generalised discrimination because they are gay or religious. It does not, however, support one group or the other in advocating the removal of the rights of the other. In short: human rights principles are a package – you cannot pick and choose which human rights are important simply on the basis of what is in it for me or my group!

Another aspect of the populist debate around human rights in the UK is that they tend to concentrate on the most controversial and difficult cases – where even liberal-minded people, like me, struggle. Take the recent case of Abu Qatada. A UK court ruled (in the light of an earlier ECHR ruling) that he would have to be released from detention in the UK as he could not be lawfully returned to Jordan to face charges because the evidence against him was obtained by torture and there were no charges that could be brought against him in the UK.

Abu Qatada is probably not a very pleasant person; it is likely that he may have in the past supported acts of terrorism. Such cases therefore test the very limits of our commitment to human rights principles. But, the rights that are being protected here are not rights for Abu Qatada alone, but rights that we all need: – we are innocent until proven guilty, no one should face a trial that involves evidence obtained by torture and, if there are no charges that can be legitimately brought, then no one should be imprisoned.

It must also be said that it is in such difficult and trying circumstances when we need to uphold human rights principles the most – precisely because it is difficult. It is precisely those people we, and Governments “don’t like”, or even detested, that are most at risk of human rights abuses – especially minorities of all kinds (not just alleged “terrorists”). If we believe in higher values of human rights, they are needed both in the good and the hard times – but especially in the hard!

Human rights laws and principles are like a social contract – we may not like all the terms, we may find them inconvenient, we (or governments) may find them stopping us doing what our prejudices would like us to do (or popular opinion calls for) – but they are an essential part of the glue that keeps our society, at least in some way, decent.

Governments in particular find human rights principles difficult – not least because it is the actions of government that are most likely to be scrutinised by the courts and the popular (or populist) will of the majority may not always be right. Aren’t such protections, though, worth defending? Protecting and enhancing the human rights of those in society who are the least powerful, sometimes the least cared for, the most vulnerable to abuse, “illegal immigrants”, asylum-seekers, Gypsies, or other people “we” don’t like very much, is at the heart of why we have human rights protection. It helps to keep in check our, and governments’, baser instincts to do harm to others. Those who want to ensure we have a society that is respectful and cohesive, need to understand and defend human rights principles and law even when it is difficult to do so.

For regular updates on human rights legal cases and current discussions and debates, see: http://ukhumanrightsblog.com

Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court
A human rights case that has received less publicity than it should, which illustrates my article above, is the case of Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2. The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under Article 2 (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

The failure by the hospital to take reasonable precautions to protect the patient from themselves was deemed to have breached their “right to life”.

Basic home care for elderly breaches human rights?
The Home Care Review undertaken by the Equality & Human Rights Commission and published before Christmas claims that basic care for the elderly at home breaches their human rights. The review found that whilst many were satisfied and pleased with the care they received others complained of:

  • Not being given enough support to eat and drink, with some staff arguing health and safety restrictions prevented them preparing hot meals
  • Neglect because care workers stick rigidly to their tasks, such as a case when a woman was left stuck on the toilet because staff were too busy
  • Financial abuse, including money being systematically stolen over a period of time
  • Chronic disregard for privacy and dignity, such as leaving people unwashed and putting them to bed in the afternoon
  • Patronising behaviour, with cases highlighted including staff talking on mobile phones while they tended to clients
  • Physical abuse involving pushing and rough handling
The Commission said such problems could be said to be in breach of various parts of the European Convention on Human Rights. In particular, it highlighted Article 8, which guarantees respect for dignity and personal autonomy, Article 3, which covers the prohibition of inhuman and degrading treatment, and Article 2, governing the right to life. I would also suggest that Article 14 and the Equality Act 2010 may be also be relevant (protection from discrimination on grounds of age).

Court of Appeal: Hotel owners discriminated against Gay couple
The Equality and Human Rights Commission has successfully defended an appeal in the Court of Appeal against a ruling in the County Court which found that hotel owners had directly discriminated against a gay couple.

Mr and Mrs Bull appealed against the County Court’s decision that they were wrong to refuse Mr Preddy and Mr Hall a double room for the night in their hotel. The owners said that their hotel rule, based on their Christian faith, was that no unmarried couples could share a double room.

The Court of Appeal agreed with the County Court that the hotel’s rule directly discriminated against civil partners Mr Preddy and Mr Hall. The couple were treated differently because of their sexual orientation as it is not possible for a gay couple to marry.

In the appeal ruling the judges noted that both sides recognised the strongly held views of the other, and the Commission went to great lengths to reassure Mr and Mrs Bull that their beliefs were not under question.

The judges ruled that religious belief does not offer an exemption from laws that everyone running a business has to follow. Equality law already has exemptions for religious organisations, which the judges noted the hotel was not. The court dismissed the Bulls’ claim that their right to a private life would be compromised by allowing gay couples to sleep in a double room. The Bulls could manifest their beliefs in many ways outside of their business interests, including in their home which is separate from the hotel.

See also: http://tinyurl.com/6qpo6ra

Lawyer wins Gay discrimination Claim against law firm
An Employment Appeal Tribunal has upheld that law firm Bivonas LLP discriminated against lawyer Mr Bennett on the basis of sexual orientation. The Equality and Human Rights Commission funded Mr Bennett’s defence against the law firm’s appeal.

The lawyer’s discrimination claim focused on a memo from one of the firm’s partners. It falsely implied that Mr Bennett only selected gay barristers and said he should be sacked. After lodging a grievance, Mr Bennett says the firm tried to intimidate him into withdrawing his claim.

The Employment Appeal Tribunal agreed that the content of the memo was “a professional slur of the utmost gravity”. It also agreed that the conduct of his grievance was discriminatory.

The tribunal considered if a ‘reasonable’ worker would think the memo had put them at a disadvantage. It decided that other people would have been insulted if the memo had been about them.

The Employment Appeal Tribunal found no evidence that heterosexual men had been insulted in the same way as Mr Bennett. Nor could the law firm provide justification for treating Mr Bennett differently to other employees.

Appeal Court rules that disabled air travellers not protected from discrimination
On February 7th three Appeal Court judges ruled that international rules on air travel (the Montreal Convention) takes precedence over domestic and EU law on disability discrimination after travellers have boarded the plane. This follows two cases pursued by Christopher Stott and Tony Hook after complaining of "injury to feelings" as a result of a "failure to meet seating needs pursuant to promises made at the time of booking". Mr Stott sought damages from Thomas Cook Tour Operators and Mr Hook from British Airways. Both applicants were supported by the Equality & Human Rights Commission, who plan to appeal the ruling.

A web-site to support and advise disabled air travellers is extremely useful. See: http://www.flying-with-disability.org/

Events and Activities in March

March 8th is the United Nations (UN) International Women’s’ Day and there are a variety of activities and events around the UK. The theme for 2012 is “Connecting Girls, inspiring futures”. For further information see: http://www.internationalwomensday.cm/

March 21st is also the UN International day for the Elimination of Racial Discrimination. For a full list of UN days go to: http://tinyurl.com/785j8cy

Comments and Suggestions
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