2020: same old sexism (yes, equal pay again)

Photo by Artur Tumasjan on Unsplash

We’re still in the month January and the issue of serious disparities in pay between the sexes raises its ugly head once again. I’ve said it before; but I’ll say it again: we’ve had over 40 years of legislation in the UK (first the Equal Pay Act 1970 and now the Equality Act 2010, not to mention EU primary and secondary legislation) which should have put the issue to rest.

The Equality Act 2010 incorporates an equality clause into contracts of employment which means that employers have a duty to ensure that men and women are paid on equal terms for carrying out like work; work rated equivalent; and work of equal value.

It’s hard to believe that the groundbreaking decision of the Court of Justice of the EU in Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455 was in the 1970s and here we are, entering the second decade of the 21st Century, still talking about the issue of equal pay – or the lack of it.

There is a depressing familiarity to stories in the UK media about the lack of progress regarding this issue. This is surprising because successful equal pay claims can be be very costly in financial terms for employers. In 2019, after Glasgow City Council female employees won their battle for equal pay, there was much speculation about how the employer was going to pay the bill. One of the (seemingly) more dramatic predictions was that the City Council would have to sell Salvador Dali’s world famous painting Christ of St John of the Cross in order to meet its legal obligations to its underpaid female employees. Susan Aitken, the City Council leader, was forced to issue a denial that this was a possibility. When you realise that the estimated value of Dali’s painting starts at £60 million you begin to get an idea of the scale of the problem.

https://www.glasgowtimes.co.uk/news/16594318.glasgow-city-council-wont-be-flogging-off-famous-dali-painting-to-cover-equal-pay-claims/

That said, some years ago, Birmingham City Council was forced to sell its share in the National Exhibition Centre in order to meet the (awesome) financial burden of thousands of equal pay claims . The price achieved was £307million – although 3 years later, the asset was sold once more for an eye watering figure of £800 million (allegedly).

https://www.ft.com/content/da429608-9d8e-11e4-8946-00144feabdc0

Recent research carried out by the English law firm, Slater+Gordon, suggests that women fail to gain pay increases because they are not negotiating with their employers about this issue. Campaigning groups, such as Close the Gap, are firmly of the opinion that the onus should not be placed on women to push for equal pay; rather it should be the responsibility of the State and/or employers to achieve this goal. There has to be real cultural change in society and women need to be valued more if the gender gap is to become a thing of the past.

Links to articles in The Independent about the equal pay research that Slater+Gordon Solicitors carried out can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304961/index.html

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304901/index.html

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304016/index.html

Postscript

And if you remain unconvinced about ingrained gender bias in the corporate world generally, you will find a link below to research carried out by The Independent which demonstrates how many leading tech companies suffer from the lack of women in leadership roles:

https://edition.independent.co.uk/editions/uk.co.independent.issue.200220/data/9344746/index.html

Copyright Seán J Crossan, 30 January & 20 February 2020

So long to EU?

Photo by Olia Nayda on Unsplash

Just when the UK Government thought it was coming out of an area of turbulence with all things EU related, the Europeans strike back.

Things were going splendidly: the European Union (Withdrawal Agreement) Bill had passed through the Commons with a “stonking” majority. Only the House of Lords to go and Brexit will be achieved by 31 January 2020.

Then the consequences of the Flybe affair hit the fan. Flybe is a British, regional airline and is in financial difficulty (again). The UK Government backed an emergency rescue plan which involved a tax break for the airline i.e. a temporary exemption from Air Passenger Duty.

Good old fashioned state interventionism? Yes, but legally problematic in today’s world of competitive markets. Lest we forget, the UK remains an EU member state until 31 January and, even then, the Johnson Government has committed itself to follow the organisation’s rules until December 2020.

Arguably, by backing Flybe’s rescue plan, the UK Government has given the company a form of State Aid (or subsidy). In terms of Article 107 of the Treaty on the Functioning of the European Union (TFEU) this is potentially unlawful. Such support is also a potential breach of Articles 101 and 102 of the Treaty (the competition provisions). The UK Government, of course, disputes these interpretations of its actions.

It’s not just other British airlines that will object to this support (British Airways has already done so), Michael O’Leary, CEO of Ireland’s Ryanair has entered the fray by declaring that he will launch a legal challenge. In essence, what the UK Government is doing is a distortion of the Single European Market; the intervention has more than just national ramifications.

Even the World Trade Organisation (of which the UK is a member) forbids the provision of State Aid in terms of its Agreement on Subsidies and Countervailing Measures.

There is a wider (and harder) lesson for the UK Government to learn: if it wants this country to have some sort of continued access to EU markets, it will have to play by EU rules. The UK, despite Prime Minister Johnson’s ongoing bluster, is the weaker party in the negotiations which will lead to a trade deal with the EU. It is very unlikely that the EU will allow the UK to gain a competitive advantage by ignoring the rules of the Single Market. Norway, which is not an EU member but which enjoys some access to European markets, could probably give the UK Prime Minister some sound advice on this matter:

https://ec.europa.eu/trade/policy/countries-and-regions/countries/norway/index_en.htm

https://www.politico.eu/article/norwegian-pm-uk-cannot-cherry-pick-eu-membership/

https://www.irishtimes.com/news/world/europe/brexit-explained-what-is-the-norway-model-and-is-it-an-option-for-the-uk-1.3712387

That said, Mr Johnson is not alone this morning in believing that EU rules can be ignored, his Chancellor Sajid Javid is telling UK businesses to expect increasing divergence or non-alignment:

http://news.sky.com/story/pm-to-give-brexit-day-speech-as-chancellor-tells-businesses-to-adjust-11911290

Ironically, taking back control (one of the Brexit campaign’s mantras) has never seemed so hollow. On 31 January 2020, be in no doubt, the UK will lose its status as a rule maker and become a rule taker.

Expect the European Commission to investigate the intervention by the UK Government and enforcement action for breach of EU rules in terms of Article 267 TFEU to follow. Welcome to Global Britain!

Links to the Flybe affair can be found below:

http://news.sky.com/story/flybe-disappointment-as-struggling-airline-scraps-newquay-to-heathrow-flights-11910413

https://news.sky.com/video/share-11910076

Copyright Seán J Crossan, 18 January 2020

Cash flows?

Photo by Didier Weemaels on Unsplash

Here, in the United Kingdom, the Brexit saga seems to be drawing to the end of stage 1 i.e. ratification of the withdrawal agreement that the EU and British Government of Boris Johnson have negotiated. The European Union (Withdrawal Agreement) Bill is likely to pass through the House of Lords this week or early next week.

Meanwhile in the rest of the EU, business seems to be going on fairly normally and, it was with some relief this week that I read about a forthcoming decision of the Court of Justice concerning the operation of the Single European Market – and not about Brexit.

The Republic of Hungary, a fellow EU member state – for the present time anyway, may be on course to lose this case which, at its heart, addresses the free movement of capital. Essentially, Hungarian law may well be incompatible with the operation of the Single European Market and, as well we know, EU Law enjoys primacy over domestic law:

  • Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1
  • Case 6/64 Costa v ENEL [1964] ECR 585, 593
  • HP Bulmer Ltd & Anor v J. Bollinger SA & Ors [1974] EWCA Civ 14
  • Case 148/78 Pubblico Ministero v Ratti (1979) ECR 1629
  • Defrenne v Sabena [1976] ECR 455, [1976] ICR 547, [1981] 1 All ER 122
  • C-106/77 Simmenthal [1978] ECR 629
  • C-106/89 Marleasing [1991] ECR I-7321

‘Stop Soros’

In 2017, Hungary passed a law which compelled non governmental organisations (NGOs) to declare their sources of funding to the Government (this information would then be available via a publicly accessible website). If a group received funding from a foreign individual or organisation above the value of 500,000 Hungarian Forints (or €1500 euros), this had to be made public. Furthermore, groups finding themselves in receipt of such funding had to declare themselves as ‘organisations in receipt of support from abroad’ on their websites and in their official communications.

The measure became popularly known in Hungary as the ‘Stop Soros’ Law – a reference to the antipathy of the Government of Hungary towards George Soros, the Hungarian-American billionaire. Soros is an energetic supporter of liberal social values which are often at complete odds with the right wing and ultra conservative views of the Hungarian Government.

A link to a story about the background to the Law can be found on the Reuters’ website below:

https://uk.reuters.com/article/uk-hungary-orban-ngos/civil-organisations-in-hungary-brace-for-government-crackdown-on-ngos-idUKKBN1HW1ZL

The Advocate General’s Opinion

Advocate General Campos Sánchez-Bordona has just issued an Opinion about the legality of Hungarian law in this respect. The controversial Hungarian Prime Minister, Viktor Orbán, has long been hostile to groups in civil society who are opposed to his Government’s aims and objectives and which receive funding from abroad.

According to the Advocate General, Hungarian law potentially breaches the free movement provisions of the Single European Market in relation to capital – as well as data protection, freedom of association and privacy rules contained in the European Charter of Fundamental Rights (see Case C-78/18 European Commission v Hungary).

A link to the Advocate General’s Opinion can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=222223&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=15406

This Opinion is not the end of the matter because it is always worth remembering that the Court of Justice may not approve it when it makes its decision on the matter. As the Advocate General currently sees things, Hungarian law disproprotionately discriminates against those individuals and organisations who are not Hungarian. It is a barrier to the legitimate, free flow of capital across the borders of EU member states.

Project 1992

The Single Market (or Project 1992) came into existence on 1 January 1993. The Project saw the 12 member states of what was then the European Communities (the Coal and Steel Community, Euratom and the EEC collectively) implement ambitious plans to ensure frictionless trade. It was said that British businesses would find it as easy to sell goods or to provide services in Madrid as they presently were able to do so in Manchester.

The Single Market was based on 4 fundamental principles:

  • Free movement of persons
  • Free movement of goods
  • Free movement of services
  • Free movement of capital

Over the years, a huge amount of case law has built up around free movement of persons, goods and services, but it is rarer to see a decision of the Court of Justice regarding free movement of capital or money. Yet, free movement of capital is an essential corollary to the smooth operation of the Single Market.

How, for example, would consumers of goods and services in one member state pay for these if legitimate or honest money cannot flow back and forth across borders? Please note that I am not advocating the removal of all barriers to free movement – I am all too aware of the necessity to combat the money laundering activities of organised crime. Anyone who has read Misha Glenny’s excellent and terrifying book, McMafia: Seriously Organised Crime (2017: Vintage), will appreciate the real challenges that free movement of capital represents for law enforcement agencies across the EU.

Put simply, the 3 more prominent freedoms of the Single Market would grind to a halt if money was subject to all sorts of unrealistic barriers e.g. member states being able to impose very restrictive limits on the amount of money citizens could move in and out of the country. With the globalisation of financial services, many of us will either have forgotten these types of restrictions – or never experienced them.

When speaking to younger people, it often strikes me that many of them, who do travel regularly to Europe, have any real concept about things like tariff barriers, currency restrictions or passport controls. Brexit (and all its ramifications) may well be something of a wake -up call.

Admittedly, the original founding Treaty of the European Economic Community or the EEC (the Treaty of Rome) did envisage free movement of capital.

One of the first cases that I remember from my studies in EEC Law was Case 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR -00377. At that time, Italy operated currency restrictions which meant that its citizens were limited to the amount of money that they could take out of the country. Luisi and Carbone were both fined by the authorities for taking more money out of the country than they were permitted under current domestic law. They argued that Italian law was in breach of the Treaty of Rome because it prevented them from going to another member state in order to receive services (and to pay for these). The Court of Justice was of the view that the restrictions imposed by Italy were unduly excessive.

Conclusion

In the 21st Century, we often forget that restrictions on movements of people, goods, services and capital were very common place. It is the direct influence of the European Single Market that consigned many of these barriers to trade to the status of historical curiosities.

Copyright Seán J Crossan, 15 January 2020

Banning smoking in the streets of Paris …

Photo by Paul Gaudriault on Unsplash

If anyone or anything wanted to ban smoking in the streets of Paris, you would think that (logically), this would be a matter for the French National Assembly or even Paris City Council (Conseil de Paris).

… And you would be quite correct.

You might be thinking what relevance does this have to Scots or indeed English law?

The supremacy of Parliament (or its limits)

The constitutional lawyers amongst the Blog readership, however, might guess where I’m going with the title. When studying the area of Westminster parliamentary sovereignty many, many years ago, I was struck by the words of Sir Ivor Jennings QC, a very famous British constitutional lawyer.

Jennings was explaining that the Westminster Parliament, as the supreme law making body in the UK, had the power to pass any law – even making it unlawful to smoke cigarettes or cigars in the streets of Paris. Now Jennings fully appreciated that this was a slightly absurdist statement; that wasn’t his point (to which I shall return shortly).

Would our French neighbours obey such an Act of the Westminster Parliament? They would not; quite rightly recognising that such a law lacked any legitimacy in their eyes.

So, what was Jennings driving at when he uttered his remark about the scope of the law making powers of the Westminster Parliament? He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.

The English have placed great emphasis on the notion of parliamentary sovereignty. This principle, of course, can be challenged. The American colonists who participated in the protest popularly known as the Boston Tea Party in 1773 were directly challenging Westminster parliamentary supremacy. Several years later, with the successful conclusion of the American Revolution, it would be the new legal order of the United States of America that would supplant the British parliamentary tradition and thus make it a matter of history.

In 1919, Irish Republicans refused to send Members of Parliament to take their seats at Westminster following the UK General Election of 14 December 1918. Instead 27 Sinn Fein MPs chose to sit in Dáil Éireann (effectively an embryonic Irish National Assembly) in Dublin. Highly unconstitutional in British eyes; yes but it spelled the beginning of the end for Westminster parliamentary sovereignty in 26 of the 32 counties comprising the Island of Ireland.

More recently, in 1965, the White minority Government of the former British colony of Southern Rhodesia (under the leadership of Premier Ian Smith) declared independence unilaterally from the mother country. There was very little that the Westminster Parliament and British Government could do to prevent this situation. The Rhodesian Government would ultimately be brought crashing down to earth because of the armed struggle of the Black majority liberation movement. This would eventually lead to independence and majority rule for the territory (to be known as Zimbabwe).

Brexit

To return to Sir Ivor Jennings, his remarks about smoking in the streets of Paris were brought home to me today when reading about the remarks made by Simon Coveney, the Irish Deputy Prime Minister and Foreign Minister about Brexit.

Mr Coveney was being asked about the implications of the European Union (Withdrawal Agreement) Bill – introduced in the House of Commons by UK Prime Minister Boris Johnson shortly after his Conservative Party won the General Election of 12 December 2019.

This Bill will has just passed through the Commons and will now go on to the House of Lords (where it will pass) and receive the Royal Assent in the next week or two. The exit of the UK will happen by 31 January 2020.

Mr Coveney was not taking exception to this development: in fact he was pointing out some hard realities for the British Prime Minister. The easy part of Brexit will have been completed, but the harder part remains: concluding a trade deal between the UK and the EU by the British Government’s self-imposed deadline of December 2020. Needless to say, but this has not been accepted by the remaining 27 EU member states.

Mr Coveney noted that a provision of the European Union (Withdrawal Agreement) Bill (currently Clause 33) prohibits the UK Government from extending negotiations with the EU 27 in order to obtain a trade agreement if one is not concluded before the end of 2020:

“I know that Prime Minister Johnson has set a very ambitious timetable to get this done. He has even put it into British law, but just because a British parliament decides that British laws say something doesn’t mean that that law applies to the other 27 countries of the European Union and so the European Union will approach this on the basis of getting the best deal possible – a fair and balanced deal to ensure the EU and the UK can interact as friends in the future. But the EU will not be rushed on this just because Britain passes law.”

Conclusion

When Sir Ivor Jennings made his oft quoted remark about parliamentary legislative powers, he was acknowledging the theoretical supremacy of Westminster. I also believe that he used the particular example of banning smoking in the streets of Paris to demonstrate the clear limits of Westminster supremacy: practical and political realities will often combine to frustrate the will of Parliament.

In speaking today in the terms that he did, the Irish Deputy Prime Minister clearly recognises this reality.

Does the UK Government?

A link to an article on the Sky News website about Simon Coveney’s remarks can be found below:

http://news.sky.com/story/eu-will-not-be-rushed-in-post-brexit-talks-irish-deputy-simon-coveney-warns-11907060

Copyright Seán J Crossan, 12 January 2020

Presumption of innocence?

Photo by Kay on Unsplash

A deeply embedded principle?

Should the accused in a criminal trial enjoy the presumption of innocence?

This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.

Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.

Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.

Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.

Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.

The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.

Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.

The Carlos Ghosn Affair

So, why am I reflecting on this area this dull and rainy second day of the New Year?

The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.

Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.

A link to an article about Mr Ghosn’s escape in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.020120/data/9266461/index.html

A link to a YouTube film about the Affair can be found below:

https://youtu.be/BAxwWW5Ldqo

What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.

The Japanese criminal justice system

Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.

I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.

As Owen Matthews notes:

Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]

Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?

I decided to investigate …

… what I discovered was something rather more subtle.

The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).

There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.

Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA [2010] UKSC 43).

Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.

That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.

Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.

Links to articles about the Japanese legal system from the local media can be found below:

https://www.nippon.com/en/japan-topics/c05403/at-the-mercy-of-the-system-criminal-justice-and-capital-punishment-in-japan.html

https://mainichi.jp/english/articles/20190109/p2a/00m/0na/015000c

https://www.japantimes.co.jp/community/2003/12/09/issues/burden-of-proof-impossible-to-bear/#.Xg456i-nyhA

https://www.japantimes.co.jp/news/2019/01/05/national/media-national/international-scrutiny-japans-criminal-justice-system-fair/#.XhUY0S-nyhA

Conclusion

The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.

Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.

Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.

* “An Impeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)

Copyright Seán J Crossan, 2 January 2020