Absolvitor: Scots Law Online

A number of female pupils have been excluded from Grey Coat Hospital School in London in relation to an abusive facebook page about a teacher. The group was called “The Hate Society” and 29 girls
signed up as members of the group.

They were all excluded from school for between 2 and 15 days, and the group has since been removed. The teacher concerned is said to be receiving counselling.

The Headteacher was reported as saying: “We can confirm that a number of pupils have been given fixed term exclusions for between two and 15 days after the school became aware of their involvement in a hate campaign about a member of staff using an open facebook group.”

“While the offending material has been removed from the website, the school’s decision to exclude these pupils temporarily was not taken lightly and has been designed to send a strong message to our whole school community that we do not tolerate such behaviour.”

“The vast majority of parents who have been to see me about this incident are supportive of the school and understand why we have taken firm disciplinary action.”

So, pupils who hate their teachers (an uncommon breed, I understand) would be best advised to keep their thoughts to the playground and not publish them online.

News reaches us from the Christian Legal Centre that Gary McFarlane, a relationship counsellor, has won a claim for wrongful dismissal against Relate Avon. He was sacked because his Christian beliefs prevented him giving sex therapy to homosexual couples. The Employment Tribunal was in December and Mr. McFarlane was represented by religious liberties specialist, Barrister, Paul Diamond.

Gary McFarlane had worked for Relate since 2003. He was disappointed with the hostility he had experienced from Relate. Although Mr McFarlane had never had to provide sex therapy to a same sex couple, he thought that if the situation did arise, he would be able to discuss his Christian views with his supervisors so that his position could be discussed and if necessary accommodated. Any such discussions were, however, pre-empted by unexpected meetings between Mr McFarlane and his manager in October 2007 when he was asked to state his views regarding same sex couples. Despite explaining that he would counsel couples in compliance with Relate’s Equal Opportunities Policy, and that he would raise any issues with his supervisors and manager, as good practice required, Mr McFarlane was suspended in early January 2008 and then dismissed in March 2008.

However, although he won his wrongful dismissal claim, the Tribunal held that his claim of religious discrimination should fail. The Tribunal recognised powerful arguments on both sides, but held that the provision of non discriminatory services was important.

Andrea Minichiello Williams Director of the Christian Legal Centre said : “The law is in a confused state; in the case of Lillian Ladele, the Islington Registrar, the Court held that Christian belief must give way to the rights of same sex couples; but in the case of Gary McFarlane there is a finding of wrongful dismissal. The courts and public are confused; we call on the Government to recognise the legitimate expression of conscience by Christians in the area of sexual orientation and provide protection where necessary.”

She continued: “It is important to note that Mr. McFarlane has never refused to counsel a same sex couple; he merely raised the potential conflict between his Christian faith and homosexual conduct. It is deeply disturbing that the mere expression of religious belief with an inability to give unqualified support to sexual orientation issues means that a Christian can be dismissed with no attempt to provide suitable accommodation for his or her beliefs. The law preventing religious discrimination against Christians is in danger of becoming a dead letter”.

McFarlane v. Relate Avon Limted ET 1401179/08 (Bristol)

The Court of Appeal has ruled that workplace harrassment “on the grounds of” sexual orientation may be unlawful regardless of whether the victim is (or is thought to be) of the sexuality in question.

A Mr. English was married with children and was not gay. His colleagues knew he was not gay. However, since he had gone to boarding school and lived in Brighton, he was called “faggott” and lurid comments regarding him were published in the works’ magazine.

His case for harassment was rejected by the Employment Tribunal – as he was not, in fact, gay.

However, the Court of Appeal held that the behaviour complained of did offend against the Sexual Orientation Regulations. The court stated:

“If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible.”

Sedley LJ opined that the application of anti-discrimination laws should not be dependent on an individual identifying themselves as belonging to one or other strict definition of their sexuality – sexuality being “a nuanced” issue.

School playgrounds up and down the country – take note!

An article from the Nearly Legal housing law blog alerts draws my attention to the imminent (well, 1st April 2009) coming into force of Section 11 of the Homelessness etc (Scotland) Act 2003.

This long awaited jigsaw piece of the legislation will require landlords to notify the local authority before taking action to recover a rented property. It will allow the authority (with the assistance of other agencies) to take early action to assist the tenant and prevent unnecessary homelessness.

Section 11 will put into statutory force the protocols agreed with many local social landlords in Glasgow as part of Govan Law Centre‘s prevention of homelessness project (POHP).

The naked rambler has been jailed for (another) 12 months for a breach of the peace.
He was brought into the dock at Glasgow Sheriff Court already naked, having been arrested at the same court just last month trying to leave the building naked, after being acquitted for breach of the peace.

The naked rambler told the court that if members of the public were offended by his nakedness then the problem was with them and not with him. He has spent most of the last two-and-a-half years in prison at an estimated cost to the taxpayer of almost a quarter of a million pounds.

John McFall MP, who is the chairman of the Treasury Select Committee, has called for a change in the law to help Scotland tackle serious “white collar crime”. He has raised concerns that Scotland has no equivalent body to the Serious Fraud Office which investigates financial crime in the rest of the UK.

The Scottish Government have released a statement saying it had set up a working party to look at the issue.

Law Actually brings us this story of insurance firms using facebook to scupper personal injury cases. So, think twice before posting that video of you limbo dancing while you’re supposed to be recovering from a serious back injury!

Today, 10 December, sees the anniversary of the death (in 1747) of Duncan Forbes, Lord Culloden (1685-1747).

Studying law at Leiden University, he became an advocate and sheriff of Midlothian in 1709. He was elected MP for Inverness in 1722 and was appointed Lord Advocate in 1725.

In 1737 he was raised to the position of Lord President where he was active in the enforcement of revenue laws, and took a prominent part in opposing punishment of Edinburgh for the Porteous Riots.

Like many Scots Forbes supported the Hanoverian cause and used his influence to dissuade a number of clans from joining the Jacobites. However he later tried his best to mitigate the terrible reprisals following the Battle of Culloden.

A unique guide to the rights of parents of school-age children in Scotland was launched today by Consumer Focus Scotland.

CFS have produced a third edition of the highly popular reference book on Scots education law The A-Z of Scots Education Law.

The book tells parents about their legal responsibilities and rights over across a wide range of issues concerning their children’s education. It also makes plain what education authorities and schools must do, and what they needn’t do, to meet their legal obligations.

And it was written by me!

You can even order a copy on Amazon, though I don’t get a commission for extra copies sold.

The High Court today refused the Christian Legal Centre and CORE permission to judicially review the Human Fertilisation and Embryology Authority’s decision to grant research licences which involves creating animal human hybrids. The main concern in this case was that the rule of law was circumvented by the HFEA’s decision to pre-empt Parliament who had not yet decided whether this kind of research should be allowed. CLC had argued that in a civilized society it is vital that no individual or public body is above the rule of law.

Mrs Justice Dobbs ruled that the challenge was not arguable because the HFEA had acted within their powers when granting the licences. She further held that the decision by the HFEA, following their own public consultation, was not irrational because proper consideration had been given to the issues surrounding the grant of the licences.

CORE and CLC argued that under the Human Fertilisation and Embryology Act 1990 the definition of a human embryo prohibited the creation of animal human hybrids (because they are not human) and that even if they were not prohibited, the licenses were neither necessary nor desirable in light of recent developments with adult stem cell research where the real progress in finding cures to serious illnesses is being made.

During the course of her Judgment, Mrs Justice Dobbs said it was possible for a human animal hybrid to be defined under section 1 of the 1990 Act as a human embryo and what is human depends on the facts understood by scientific knowledge at the time – a statement described by the CLC as “chilling” and showing “little regard for the special status and dignity of what it means to be human”.