Tackling hate speech aimed at Gypsies, Travellers and Roma

Marc Willers QC explores the hate speech targeting Roma, Gypsies and Travellers and the power to prosecute perpetrators for incitement to racial hatred.

On 27 January 2015 we commemorated the 70th anniversary of the day when Soviet troops liberated the Nazi death camp at Auschwitz-Birkenau. Quite rightly we reflected upon the terrible fact that the Nazis murdered 6 million Jews in the Holocaust. Yet there was little mention of the hundreds of thousands of Romani Gypsy and Sinti[1] people that were also murdered by the Nazis during World War II in what has become known as the Porrajmos (the ‘Devouring’). Continue reading

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Judge rules that Mr Pickles unlawfully discriminated against Gypsies and Travellers

Marc Willers QC explores the recent High Court judgment in which it was found that the conduct of Eric Pickles, the Secretary of State for Communities and Local Government, constituted indirect discrimination against Romany Gypsies and Irish Travellers.

Meeting the accommodation needs of Gypsies and Travellers should be relatively simple, but it has always been a contentious political issue because of widespread prejudice amongst the settled population and nimbyism. Planning permission is required for use of land as a caravan site and permission for sites in the Green Belt will only be granted in very special circumstances. Continue reading

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Is the Cart-threshold being set too high?

Desmond Rutledge and Zubier Yazdani consider the hurdles facing welfare benefit claimants seeking to use the Cart test.


Speaking generally, a First-tier Tribunal (‘FtT’) has a wide discretion when making case management decisions, such as whether to adjourn, so long as it has regard to the overriding objective of dealing with cases fairly and justly (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008, SI No 2685, rule 2(1)).  There is no specific definition in the Rules as to what ‘justly and fairly’ means.  However, rule 2(1) is informed by the common law rules on natural justice and the right to a fair hearing enshrined in article 6(1) of the ECHR. In  R (MM & DM) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565, the Court of Appeal upheld a finding that claimants with mental health problems suffer a ‘substantial disadvantage’ within the meaning of the Equality Act 2010, s.20(3), compared to other claimants in the assessment of their eligibility to Employment and Support Allowance. The substantial disadvantage point and how it was taken in into account by the Rules was at the heart of the legal challenge described below. Continue reading

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Challenging a Refusal of Permission to Appeal by the Upper Tribunal (Administrative Appeals Chamber) in a Welfare Benefits Case – A Practice Note

Desmond Rutledge provides a practice note on challenging a refusal of permission to appeal by the Upper Tribunal (Administrative Appeals Chamber) in a welfare benefits case.

  1. What options do claimants have if the Upper Tribunal refuses permission to appeal?

If permission to appeal against a decision of a First-tier Tribunal in a welfare benefits case is refused by the Upper Tribunal (Administrative Appeals Chamber), then the claimant will not be able to appeal that decision.  This is because it is an excluded decision under s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal has no jurisdiction to review its refusal of permission by virtue of  s.10(1) and s.13(8)(d)(i) of the 2007 Act.  This means the only remedy available is by way of judicial review (Samuda v Secretary of State for Work and Pensions [2014] EWCA Civ 1).  The deadline for applying for judicial review against a refusal of permission by an Upper Tribunal is 16 days. CPR rule 54.7A(3). Continue reading

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How to be a feminist lawyer

Elizabeth Woodcraft and Alison Diduck, a Professor at University College London, speak about what it means to be a feminist barrister.

More and more women are going into the law as solicitors, barristers, legal executives, academics. Indeed, in England and Wales more women than men now qualify as barristers. But far fewer women get promoted to the highest levels. There is only one woman, Brenda Hale, on the UK Supreme Court.

Around the world, feminists have been developing an important critique of legal systems and the assumptions underpinning law making. Continue reading

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Are welfare benefits exempt from bank charges under section 187(1) of the Social Security Administration Act 1992?

Desmond Rutledge considers whether the protection conferred on welfare benefits under Social Security legislation continues once those benefits have been paid into a current bank account.

Are welfare benefits protected from recovery of a debt owed to a bank?

Welfare benefits are paid to cover the recipient’s essential living expenses and, where applicable, to contribute to their housing costs (see Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629, at [32]-[33], [50] and R (MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) at [48]).  Where, however, welfare benefits are paid into the claimant’s current account, the bank or building society can use the money in that account to make repayments towards bank loans or credit cards, and where the  account goes into debit, on interest payments and bank charges, even if this results in the claimant having insufficient funds to cover essential payments.  Continue reading

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Why Scotland’s independence would be good for migrants

There are strong socialist arguments against Scottish independence but “no borders” isn’t one of them, writes Taimour Lay.

Here lies our land: every airt
Beneath swift clouds, glad glints of sun,
Belonging to none but itself.
We are mere transients, who sing
Its westlin’ winds and fernie braes,
Northern lights and siller tides,
Small folk playing our part.
‘Come all ye’, the country says
You win me, who take me most to heart.

Kathleen Jamie

In a recent thought-provoking post against Scottish independence, a Chambers colleague argued that “we can all hope that a new Hadrian’s Wall will not be built by politicians present or future, but any strengthening of the current border will inevitably discourage free movement across it and divides rather than unites.” In doing so, he warned against a narrative which ignores the dangers of nationalism and a “new hard border”.

But an independent state of Scotland is, though it might appear paradoxical, very likely to lead to more, not less, free movement; and any fear on the left of strengthened borders in the wake of independence is misplaced.

While a new state would be born following the referendum on 18 September, and any such sovereign and democratic polity would inevitably define the reaches of its territory (on and offshore), the reality is that an independent Scotland would raise no higher bar to migrants from outside – indeed, as a new country committed to welcoming migrants and operating a fairer and freer border, it could undermine the toxic politics of “immigration” in the rUK (residue/rest of the UK) and is likely to contribute to higher net migration across, and into, our “islands” as a whole.

First, as regards free movement within the current UK, the white paper on Independence makes clear that “there are no circumstances in which the Scottish Government would countenance any measure being taken that jeopardised the ability of citizens across the rest of the UK and Ireland to move freely across our borders as they are presently able to do. It is for this reason that following independence Scotland will remain part of the Common Travel Area (CTA), which dates back to the 1920s.” In short, the new state of Scotland will not be building a wall to run the length of Hadrian’s.

Secondly, Scotland will almost certainly continue to be a member of the European Union and therefore European citizens with existing (qualified) free movement rights will be as free as today to live and work here. Again, Scottish independence is likely to increase the freedom of that movement. It remains the express policy of Westminster to add more and more qualifications to European free movement, most recently by undermining social welfare protections and family rights. The Immigration (European Economic Area) Regulations 2006 move ever further away from genuine compatibility with the UK’s Treaty obligations.

Scotland is likely to pay more than lip service to Treaty rights and the principle of European citizenship. (While a commitment to the Common Travel Area is likely to mean Scotland, like the rUK and Ireland, opts out of the Schengen Agreement, under which there is passport-free travel across 26 European countries, this would preserve the status quo within the CTA rather than raise a new border post.)

Finally, Scotland and extra-European immigration. There is a growing political consensus in Scotland strikingly at odds with that in rUK; namely, that the country needs foreign students and economic migrants from outside Europe to develop the economy and fund future pension liabilities; and at the same time takes seriously its moral obligation to welcome refugees and those seeking international protection. But, trapped within the borders of the UK, progressive forces in Scotland have no power to loosen and remove the existing border restrictions imposed by London.

Post-independence it is perfectly plausible that at a time when the UK will continue to put up its barricades (and may even leave the EU), and maintain its attempt to limit refugee numbers, our immediate neighbour to the north will be operating a freer and more humane immigration system to its own benefit. It may even lead by political example, taking the sting out of Tory and UKIP scaremongering.

True it is that Scotland, as a new country, will have borders and a system of immigration control. But the political endgame of “no borders”, a position shared by many at the radical bar, should not blind us to other competing values and how borders can be minimised and ameliorated in the medium term. Nor can it bind (Scottish) citizens into a contigent and dysfunctional construct (“the UK”) in perpetuity. By voting “yes”, Scots will not be creating or strengthening borders in any real sense. But they will be making a democratic choice to self-determine their own affairs (though the hard political work of challenging class power, land ownership and concentration of wealth will remain). There are compelling socialist/internationalist arguments against Scottish independence but “no borders” isn’t one of them.

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