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Tag Archives: Equality Act 2010

O’Brien loses Court of Appeal case on judicial pensions backdating

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For latest Supreme Court update on O’Brien, see the note at the end of this piece regarding the reference to the European Court of Justice

A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

University segregation need not be a divisive issue

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UK Prime Minister David Cameron has another bee in his bonnet – sorry: deeply held conviction. This time it is segregation of women from men in talks given by Muslims or in an Islamic context on university premises.

He found guidance issued by Universities UK on this issue (that segregation should only be voluntary and mixed areas be allowed if people want them) to be inadequate given his own passionate belief in human rights especially for Muslim women.

Segregation on grounds of sex is naturally anathema to this product of Eton (where boys all learn together whatever their gender) and the Bullingdon club (girls always welcome in some capacity).

We can’t be sure what Cameron’s exact views are since he has not spoken publicly, but it looks as if he is so opposed to segregation that he rejects UUK’s voluntarist approach and would seem to want to force those attending these talks to sit boy-girl-boy-girl whether they like it or not. Maybe he will draft in some of the police currently suppressing student protests to enforce his emphatic liberal position?

It’s a matter of free speech, according to a Downing Street spokesperson, and Cameron feels very strongly about it. Certainly universities are governed by the 1986 Education (No 2) Act, Section 43(1)  on free speech, which says:

“Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.”

This was Tory legislation to curb students’ “anti-Zionist” and “No platform for fascists” movements. Paradoxically it is now protecting fundamentalist Muslims. But it is very unclear what the segregation issue has to do with free speech as such. Is Cameron suggesting that women in general and Muslim women of western leanings will be put off from going to important talks by ultra-orthodox Muslim speakers? Does “free speech” extend to “free listening to speech”? The talks can go ahead without those women (thus protecting the S.43 rights of “visiting speakers”) and one can’t believe that Cameron really thinks those talks are of such vital significance that the women who opt to boycott them will be missing very much.

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Ken Clarke’s piratical band hijacks judicial appointments inquiry

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What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.

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Make search for ethnic minority and women judges obligatory, Lords Constitution Committee told

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There should be an obligation to look for ethnic minority, women and other minority candidates for judge’s posts, witnesses told the latest session of the Lords Constitutional Committee looking into judicial appointments.

An amendment to Section 64 of the Constitutional Reform Act 2005, should be made to increase judicial diversity. Currently it says:

The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.” (Note: this section is discussed here)

The last few words should become “range of persons available for appointment”, Nwabueze Nwokolo, chair of the Black Solicitors Network, told the ninth session of the committee. Simply looking at the “range available for selection, we have seen, does not lead to appointment of a diverse judiciary”. Read the rest of this entry

Kenneth Clarke: there should be a positive duty to appoint women and ethnic minority judges

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Kenneth Clarke, the Justice Secretary, has announced a plan for “positive action” in judicial appointments to favour women and members of ethnic minorities and promote diversity. He wants to put an obligation into the appointments procedure to choose a person from an under-represented group when there are candidates of equal merit and increase posts for part-time judges.

Clarke told Woman’s Hour: “One of the more straightforward things I’m suggesting is that we enshrine in law for the resolution of doubt that other things being equal when you have two candidates of equal merit, you should prefer the under-represented group . There’s nothing wrong in that.”

The announcement suggests he will go further than Labour’s Equality Act of 2010, which allows employers, if they want, to choose a candidate from an underrepresented group in “tie-break” situations (see guidance note below). He envisages a change in the law for a “tie-break provision” making positive action in such cases obligatory for judicial appointments. Read the rest of this entry

Judicial appointments, diversity and merit – an unsquared circle

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What is it about the concept of “merit” that is causing such problems in judicial circles? Surely any appointments procedure should be a simple matter of assessing candidates’ merit for the job and then appointing the best one. Unfortunately things just aren’t that easy, as the sixth hearing of the House of Lords Constitution Committee into judicial appointments has found.

The previous week the President of the Supreme Court, Lord Phillips, had asserted that judges should be appointed on merit. No story there, you would think. It’s even enshrined in law with simple elegance. Constitutional Reform Act 2005, Section 63, Subsection 2: “Selection must be solely on merit”. Move on to Section 64, though, and you get this:

“Encouragement of diversity: (1) The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.”

But keep going to Subsection 2 and you read this: “(2) This section is subject to section 63”. And we know, because we have come in a circle, that section 63 says: “Selection must be solely on merit”.

It is this virtuous yet apparently inconsistent circle that the Constitution Committee witnesses have been dancing around for several months now. It is accepted that we want more diversity in gender, ethnicity “and I suppose, sexual orientation”, as Lord Irvine put it the other week. More of every type of diversity (or individuals with “protected characteristics” as the Equality Act 2010 uncomfortably calls them.) But we keep coming up against this issue of merit. Read the rest of this entry

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