Comments: EHRC comments on Scottish Charity Appeal Panel decision

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.

Posted by Interested Observer at Monday, 7 April 2014 at 11:53am BST

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?

Posted by Martin Reynolds at Monday, 7 April 2014 at 4:22pm BST

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 [1995] 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.

Posted by Frank Cranmer at Monday, 7 April 2014 at 7:57pm BST

@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.

Posted by Randal Oulton at Monday, 7 April 2014 at 9:37pm BST

"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.

Posted by Interested Observer at Tuesday, 8 April 2014 at 6:22am BST

Hmmmm, definitely a bad hair day, then .........

Posted by Martin Reynolds at Tuesday, 8 April 2014 at 9:59pm BST
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