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Edinburgh Law School Legal Studies Research Paper Series - June 2021

Sun 20 June 2021

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The latest in the Legal Studies Research Paper Series (Vol. 9, No. 5: Jun 16, 2021) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010

Sean Morris

Sharon Cowan, Edinburgh Law School

Abstract: Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person’s protection from discrimination on the grounds of a protected characteristic – such as sex, sexual orientation or gender reassignment – comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. This article provides a critical account of some of those cases, where claimants have alleged unlawful discrimination relating to ‘gender critical’ views relating to transgender people (and sex/gender more broadly), which they argue constitute protected religious and/or philosophical beliefs. Our aim in this paper is to offer an improved understanding of equality and human rights in employment law, identifying areas where further clarification is needed. We conclude that the courts should maintain a flexible approach, while developing coherent principles that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others.

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Written evidence to All Party Parliamentary Group for Democracy and Constitution Inquiry into Respect for the Constitutional Rights to Free Expression at the Clapham Common Vigil on 13 March and the Bristol Protests in March 2021

Andy Aydın-Aitchison, Edinburgh Law School

Abstract: Key points in the written evidence include:

  • Procedures prior to the 13 March vigil show that law on public assembly during the COVID19 pandemic was subject to misinterpretation suggesting no public gatherings were permissible, rather than the necessity to read regulations through the primary provisions of the Human Rights Act in reaching individualised decisions on a case-by-case basis.
  • Human Rights case law emphasises the importance in democracies of tolerance of non-violent gatherings, including spontaneous gatherings which form an immediate response to circumstances.
  • As key parties to decision on public assembly (e.g. conditions, prior advice on lawfulness, enforcement), police have a conflict of interest in cases of assembly protesting against police or otherwise calling them to account.
  • At Clapham Common a protest emerged after the vigil (somewhere after 1800hrs). Police took a decision on enforcement by 1830 hrs. This does not suggest protestors were given sufficient time to manifest their views and express solidarity.
  • Under principles of horizontal responsiveness, any extension of police powers in relation to public assembly should require an extension and strengthening of powers of other actors to scrutinise police decision making, to hold decision makers to account, and to act as a check against a ‘chilling effect’ of decisions on public participation in protest.

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Key Ethical Challenges in the European Medical Information Framework

Luciano Floridi, University of Oxford - Oxford Internet Institute

Ugo Pagallo, University of Turin, Department of Law

Burkhard Schafer, Edinburgh Law School

Christoph Luetge, Technische Universität München (TUM)

Peggy Valcke

Effy Vayena, ETH Zurich

Janet Addison

Nigel Hughes

Nathan Lea

Bart Vannieuwenhuyse, Janssen Research & Development, LLC

Dipak Kalra

Abstract: The European Medical Information Framework (EMIF) project, funded through the IMI programme (Innovative Medicines Initiative Joint Undertaking under Grant Agreement No. 115372), has designed and implemented a federated platform to connect health data from a variety of sources across Europe, to facilitate large scale clinical and life sciences research. It enables approved users to analyse securely multiple, diverse, data via a single portal, thereby mediating research opportunities across a large quantity of research data. EMIF developed a code of practice (ECoP) to ensure the privacy protection of data subjects, protect the interests of data sharing parties, comply with legislation and various organisational policies on data protection, uphold best practices in the protection of personal privacy and information governance, and eventually promote these best practices more widely. EMIF convened an Ethics Advisory Board (EAB), to provide feedback on its approach, platform, and the EcoP. The most important challenges the ECoP team faced were: how to defne, control and monitor the purposes (kinds of research) for which federated health data are used; the kinds of organisation that should be permitted to conduct permitted research; and how to monitor this. This manuscript explores those issues, ofering the combined insights of the EAB and EMIF core ECoP team. For some issues, a consensus on how to approach them is proposed. For other issues, a singular approach may be premature but the challenges are summarised to help the community to debate the topic further. Arguably, the issues and their analyses have application beyond EMIF, to many research infrastructures connected to health data sources.

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Regulating Restrictive Covenants in English Employment Law: Time for a Rethink?

David Cabrelli, Edinburgh Law School

Abstract: The potentially chilling effects of non-compete covenants on the ambitions and capacities of former employees to forge careers as commercial entrepreneurs have been propelled to the forefront of public debate in recent years. For example, in the US, reports in the press of rank and file employees working in sandwich bars being restrained by post-employment restrictions have sparked outrage. Nor has public debate in the UK been immune to such concerns. For example, the British Government has issued a call for evidence and a separate consultation paper on the future of non-compete covenants. The emphasis in these papers has been on versing the possible adverse consequences of non-compete covenants for the public good, the wider economy and social policy. Taking these ideas in the Government’s work as its point of departure, the concepts of the public interest and economic power are evoked in this article. Ultimately, the claim is made that in deciding whether to enforce non-compete covenants, the courts should afford greater significance to the public interest in the current incarnation of the common law restraint of trade doctrine. And this calls for a much livelier sense of the economic power that such covenants enable employers to exploit in the labour market, as well as the resultant social costs imposed on the public, consumers and society.

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