Monday, 7 April 2014
EHRC comments on Scottish Charity Appeal Panel decision
See here for our report of the SCAP decision. The regulator OSCR decided not to appeal this decision.
The Equalities and Human Rights Commission has issued a statement on this. As Law & Religion UK reports (scroll down):
St Margaret’s Children and Family Care Society and the EHRC
On 28 March the Equality and Human Rights Commission issued a statement on the successful appeal by St Margaret’s Children and Family Care Society to the Scottish Charities Appeal Panel against the direction of the Office of the Scottish Charities Regulator. The nub of the statement (downloadable from here) is as follows:
“The EHRC notes that OSCR has now decided not to appeal the SCAP decision. The EHRC has no locus to appeal the decision itself, as only OSCR and the relevant charity have a right of appeal. The EHRC has however carefully considered the SCAP decision as it relates to discrimination law. The decision is not easy to follow, but it is the EHRC’s view that SCAP is mistaken in its understanding of the meaning of direct and indirect discrimination.
The Commission has carefully noted SCAP’s finding of fact, based on evidence provided by St Margaret’s Children and Family Care Society during the hearing of the appeal, that: “In principle [St Margaret’s Children and Family Service] would consider an application to be considered as adoptive parents from a couple in a civil partnership.”
The Commission has therefore written to St Margaret’s advising it to ensure that its published policies and practices properly reflect its stated position that adoption applications from couples in civil partnerships will be considered in the same way as those from married couples; and to ensure that such applications are indeed considered equally. This will give gay couples wishing to adopt the confidence that they will be treated without unlawful discrimination”.
And Law & Religion UK adds the following comment:
Posted by Simon Sarmiento on
Monday, 7 April 2014 at 10:58am BST
The EHRC is obviously entitled to its opinion, though we wonder about the propriety of an agency of Government criticising a judicial decision: separation of powers, anyone? More fundamentally, the statement does prompt us to ask why, if SCAP got the law so wrong, OSCR didn’t appeal. And the only obvious answer that comes to mind is that OSCR is a lot less sure of its ground than the EHRC appears to be.
You can make a Permalink to this if you like
It would help if people writing on the UK legal scene could avoid giving away the fact that they've read a lot of American polemics.
The UK has no direct doctrine of "separation of powers", but even if it did, it is entirely reasonable for arms' length agencies to criticise the findings of courts. And not even arms' length: the Home Office robustly criticises findings by immigration tribunals, for example. Even in America, where the phrase originates, the executive is perfectly entitled to criticise courts:
Obama: "I might not be here as President had it not been...I think that the Supreme Court made a mistake in its ruling, but that decision is now here."
It is even more reasonable for them to criticise the findings of things that are not, in any reasonable sense, courts. It's an appeals panel. It's like, oh, the appeals panel convened by your local education authority to hear appears against school allocations. "More fundamentally, the statement does prompt us to ask why, if SCAP got the law so wrong, OSCR didn’t appeal"? Because the SCAP's findings don't form precedent for other courts (or, indeed, courts, as it isn't a court), and SCAP is not bound by its own precedent in any useful sense. And as the charity in question has given undertakings to not repeat the behaviour complained of, what is there to appeal?
It would be like the windmill-tilting that CLC engage in, where they take tendentious statements to courts and ask judges to rule on abstract statements. If the St Margaret's charity appears not to be genuine in its promise to consider couples in civil partnerships, the case can be re-litigated, but as of now, there is very little to appeal.
Interested Observer's observations are thoughtfully made
I strongly suspect the first rate advocate presenting the case for the charity was the reason for the result we have, and it is a decision worth reading for a smile and swift intake of breath - it gives an authority to the Roman dicasteries unknown since the Reformation!
All that being said, Interested Observer's argument is perfect good sense.
There simply was no point. The assurances were given, nothing more was needed, anything further other than to make sure it was the truth, was unwarranted. Equal marriage makes the whole thing redundant.
Unusual for the boys at Law & Religion UK to be so silly .......
bad hair day?
Certainly the UK has no direct doctrine of separation of powers, not least because it doesn't have a written Constitution like the US does. But that doesn't mean that the concept doesn't exist at all, albeit weakly: see, for example, R v Home Secretary e.p. Fire Brigades Union  2 AC 513:
"It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. " [per Lord Mustill at 567].
I would contend (and Interested Observer would presumably agree) that the executive should be respectful of the judiciary - and vice versa.
And no, I haven't read a lot of "American polemics": US law isn't an interest of mine.
@Interested Observer: Ah, but Commonwealth countries do have a doctrine of separation of powers, and superior to that of Americans (or so we were taught). In the Canadian (and British, etc) form of government, the Crown holds all the power but does not exercise it. Parliament exercises the power but does not hold it. Just a minor clarification there but quite fundamental and supposedly our assurance that we'll never be a tyranny.
"I would contend (and Interested Observer would presumably agree) that the executive should be respectful of the judiciary"
I'm not entirely sure I would agree, or at least I'd want to define "respectful" a lot more closely. There is a difference between "accepting the judgements" and "not commenting".
However, that's irrelevant here. The EHRC is not the executive: it's an arm's length public body (a Non Departmental Public Body), accountable to parliament. The SCAP isn't the judiciary, it's again an NDPB (I have now checked its precise standing). So there is no constitutional issue here whatsoever: can one NPDB criticise another? Yes, it can. Talk about separation of powers is entirely besides the point: both organisations are in the same branch.
Hmmmm, definitely a bad hair day, then .........