"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Sunday, 15 December 2013

R (on the application of Edwards and another) v Environmental Agency and others: environmental claims and the rule of law

On the UK Human Rights Blog, David Hart QC has written a number of informative posts about the Aarhus Convention, which governs access to environmental information, public participation in environmental decision-making and access to justice in environmental matters.  He has a helpful introduction to the Convention here.

His most recent post concerns one of the Convention's more important features: the limitation it places on the costs a claimant will incur in an environmental claim where they would otherwise be "prohibitively expensive".  In particular, he discusses the decision of the Supreme Court in R (on the application of Edwards and another) v Environmental Agency and others.

I have no argument with Mr Hart's authoritative analysis of the law.  Rather, my quarrel is with the idea that there should be a protective costs regime carved out for one area of the law.  Accordingly, I have left the following comment:

There is an obvious breach of the rule of law here.  Legislation should be general and apply equally unless there is a good point of principle otherwise.  Carving out a special costs restriction for one type of litigation (Environmental, in this case) is a flagrant breach of that principle.  No doubt environmental claims are important, but so too are medico-legal cases (which determine our quality of life and indeed life itself in some cases), commercial cases (which determine whether we can earn a living) and indeed potentially _any_ form of litigation depending on the circumstances and the limits of your imagination. 

Moreover, once an exception has been carved out, it provides a fertile source for litigation over whether any particular case falls within the exception.  There will no doubt be some cynical cases where an environmental peg is found for what is not really an environmental case at all, or not as intended by the Aarhus draftspeople anyway (see here for a good example of the possibility of litigation over the Aarhus margins). 

Then we have the equally bad problem identified by another commentator to Mr Hart's post: if one removes the risk of proceedings for bringing a claim, then the opportunity for what is at best opportunism and at worse blackmail is obvious.  Exactly this happened in New Zealand environmental law with its Resource Management Act, which allowed objections to planned development to be made by people who would not bear the cost of their objections failing, so a nice little earner (as they don't say in that country) was fashioned by those who figured out that they might have their objections bought off ... 

Of course, the rule of law also requires that citizens be able to bring proceedings to enforce their rights or clarify their legal position.  If the courts are too expensive for all but the smallest fraction of society to use, all the rights they supposedly uphold will be illusory.  But, going back to the first point, this applies to all rights and hence all litigation.  There is no justification for special regimes here and there - employment, family, environment, to name just three we presently have - because indigent but worthy claimants can be found everywhere. (Mrs Donoghue was one, for a start - and her case concerned neither environmental law, nor employment nor family ... )

Wednesday, 4 December 2013

Where is Rosa Parks? Universities and segregation

Last week the Supreme Court predictably dismissed the appeal of a Christian couple who had refused to let a double room to a homosexual couple who were in a civil partnership (Hall and another v Bull and another  [2013] All ER (D) 307 (Nov)).  They insisted that only married couples could stay in such rooms, so the homosexual couple sued under the Equality Act (Sexual Orientation) Regulations 2007 (since replaced by the Equality Act 2010, without material alteration).  The regulations prohibited anyone offering services to the public from discriminating on various grounds, including sexual orientation.

According to the proprietors, they were not discriminating directly on the ground of sexual orientation, but rather on the ground that the couple were not married.  It was accepted that, if so, the policy would have been indirectly discriminatory against homosexuals, since (at the time) they could never get married, whereas a heterosexual couple could. In those circumstances, the proprietors offered two ways in which the policy could be justified or excused.

The Supreme Court held that the policy equated to direct discrimination. Whatever explanation was offered, the blunt truth was that the policy of the proprietors treated homosexual couples differently. At that point the arguments about indirect discrimination fell away (though the Supreme Court held that the proprietors would have lost on them anyway).

Did the result mean that the rights of homosexuals to equal treatment "trumped" those of Christians wanting respect for their beliefs?  No, said Lady Hale, because the result would have been the same in reverse.  That is, had a homosexual couple run a B&B and refused admission to a Christian couple for whatever reason, the Christian couple would have been able to sue them in the same fashion.

The logic is simple: those offering goods or services to the public cannot discriminate on certain grounds, including gender, sexual orientation and religion.

So why then did Universities UK, the representative organisation for the UK's universities, publish guidance suggesting it might be acceptable for a religious speaker at a university - of all places - to demand segregated seating before speaking?  Indeed, such an event occurred recently, though the guidance mentions it only as a hypothetical possibility.  Nick Cohen takes apart the argument in the Spectator.

If a homosexual couple being disallowed to share a room with a double bed is unlawful discrimination, why is it not equally discriminatory to allow two men to sit together at a university event but not a man and a woman (even married)? If the speaker used to belong to the Dutch Reformed Church and demanded that black and white students be separated, they would be sent on their way.  So too a religious bigot who demanded Jews and Gentiles be separated.  And so should anyone trying it on with gender discrimination.

Of course one might also wonder why a university was keen on someone preaching religious-based discrimination speaking there in the first place.  The cornerstone of any university has to be that ideas have to be advanced on the basis of reason and evidence.  All theories have to be subjected to falsification.  If any theory is found inconsistent with counter-arguments and evidence, it should be modified or abandoned accordingly.  Any religious leader showing up to offer his (and it is usually his) theory that men and women should not sit together can and should expect to have to argue the case, not simply declare it and assume there will be unquestioning and even fawning acceptance.  So too any other arguments they might offer on any subject whatever.

It is not too much of an exaggeration to say that all of our present day prosperity and freedom derives from the Enlightenment, and all the hard fights against superstition, obscurantism and intolerance that were fought and won in those times.  It seems all those battles are having to be fought all over again.