A sledgehammer to crack a nut?

football player in white and blue jersey shirt
Photo by Ryan Snaadt on Unsplash

Today, I was talking to a group of students about the fact that cultural factors can sometimes be a much more powerful driver towards changing society’s attitudes about certain issues.

Sometimes when Governments take a very legalistic approach to societal issues e.g. equality and discrimination, they can end up being accused of overkill or using a sledgehammer to crack a nut. A good example of a current controversy is the Hate Crime and Public Order (Scotland) Bill making its way through the Scottish Parliament.

The Bill is about to embark on Stage 2 of the legislative process

Lord Bracadale, a retired Scottish judge, was commissioned by the Scottish Government in 2017 to review the state of Scotland’s hate crime laws and many of his recommendations are to be found in the Bill.

A link to Lord Bracadale’s Report can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

Now, most reasonable people are going to say hate crime is an issue which should be tackled, but when you ask how it should be tackled that’s when things get controversial.

Critics of the Hate Crime Bill say that it will stifle free speech, but it’s supporters say that it will clarify the law. Who is right and who is wrong?

A link to a recent article on the controversy surrounding the Hate Crime Bill can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-53580326

The Scottish Government, of course, has been criticised in the past for passing laws to combat discrimination – think the Offensive Behaviour at Football and Threatening Communications etc (Scotland) Act 2012 which was eventually repealed on 20 April 2018.

The Scottish Government also had to put its proposals on the back burner  to make it easier for transgender people to self-identify in the face of opposition within the SNP and in society more widely. 

These are just some examples of the difficulties faced when you decide to go down the legal route. You can pass a law, but will people respect it and, more importantly, obey it?

Conclusion

When I was discussing the significance of culture versus the law this morning, what I meant by that is that organisations and individuals can often drive change in society much more profoundly – even when there is no legal duty to do so.

One example at the organisational level is that of Glasgow University’s recent attempts to confront and make reparation for its historical links with the Trans-Atlantic Slave Trade.

Individuals such as Glasgow City Councillor, Graham Campbell, have done a lot of good work to highlight the City’s historic links with the Slave Trade. Councillor Campbell has also taken a lead in pushing for the creation of a National Museum in Scotland to commemorate the victims of slavery.

Links to these stories can be found below:

https://www.facebook.com/BBCScotland/videos/glasgows-links-to-slavery-frankie-boyles-tour-of-scotland/514455532785635/

https://www.bbc.co.uk/news/uk-scotland-glasgow-west-49435041

Copyright Seán J Crossan, 6 January 2021

The long and winding Irish road?

A winding Irish road – Photo by Seán J Crossan

Could supporters of independence for Scotland succeed in their objective without the need to hold a second independence referendum or IndyRef2?

Joanna Cherry, a leading Scottish National Party MP and QC certainly seems to think so and, as a highly competent member of the Scottish Bar, she has a legal precedent to hand.

A link to an article in The Scotsman about Joanna Cherry’s views on the Anglo-Irish Treaty can be found below:

The precedent in question is the Anglo-Irish Treaty of which led to the creation of the 26 County Irish Free State and the 6 County State of Northern Ireland. Coincidentally, it was actually the 99th anniversary of the Treaty being ratified by the Irish Parliament on 7 January 1922.

https://www.scotsman.com/news/politics/scotland-could-skip-referendum-and-follow-irish-route-independence-says-joanna-cherry-3089669?itm_source=parsely-api

As a precedent, the Treaty is not, however, entirely unproblematic: it is an error to believe that a truly, independent Irish Republic was created in 1922 as a result of the Treaty. It was, in fact, not until 1949 that Éamon de Valera, Prime Minister (Taoiseach) of the Irish Free State felt sufficiently confident to break decisively with the United Kingdom. By this point, Britain had lost its position to the United States of America as the leading global power and former British Imperial possessions such as the Indian Empire (modern day Bangladesh, India, Pakistan and Sri Lanka) had been granted independence.

More controversially, the Treaty was the direct result of Irish Republicans pursuing an armed struggle against the United Kingdom between 1919 and 1921 (the War of Independence) which had forced the British to come to the negotiating table. Although many members of the United Nations gained their independence fully or partially as a result of armed struggles.

Arguably, in 1918-19, the United Kingdom was still the pre-eminent global power – it had emerged as a victor in the First World War and with an enlarged Empire.

That said, this situation hid considerable political and economic weaknesses on the part of the British and Republican commanders, like Michael Collins and Éamon de Valera, recognised this and were determined to take full advantage in order to further Irish independence. The Anglo-Irish Treaty from the British perspective in any case was, therefore, a considerable concession to Irish nationalism.

Where Collins and de Valera parted company was in their reading of where the Treaty might eventually lead in the immediate aftermath of the War of Independence. The Pro-Treaty Republicans were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans felt that one more push would secure the Irish Republic for which they yearned.

Michael Collins, de Valera’s comrade and later bitter enemy, made a pragmatic choice to back the Treaty (he had, after all, put his signature to the document).

Collins’ principal argument was that, although the Treaty fell far short of Republican demands, it provided the space to obtain greater freedom for Ireland. His beliefs would ultimately cost him his life, but his Pro-Treaty stance would prevail and would define the Island of Ireland politically and geographically for the next 100 years (the Island of Ireland is still split to this day).

As we shall see, de Valera and his supporters were outraged because the Treaty represented a humiliation and a betrayal of their purist nationalist vision of a united Republic of Ireland comprising all 32 Counties.

In modern constitutional terms, Collins would be regarded as a gradualist. As a matter of political necessity, de Valera too would be forced to adopt a gradualist approach in his quest for the Holy Grail of Irish independence, but this would only come about following a crushing military defeat of the Anti-Treaty camp at the hands of Free State Forces.

The repentant revolutionary

In 1926, de Valera made a significant decision by abandoning the armed struggle by entering Irish constitutional politics when he established Fianna Fáil. Until that time, de Valera and his Republican supporters had followed a policy of absentionism whereby they refused to take seats in the Irish Parliament. For the nearly the next quarter of a century, de Valera and Fianna Fáil would work towards the creation of an Irish Republic using the constitutional apparatus of the Free State.

A constitutional anomaly?

According to the eminent Irish historian, Tim Pat Coogan*, the Irish Free State was something of a constitutional anomaly in the sense that it had an imprecise legal status when compared to the other self-governing Dominions of the British Empire such as Australia, Canada, New Zealand and South Africa.

According to David Lloyd George, Prime Minister of the United Kingdom and one of the signatories of the Anglo-Irish Treaty, the term ‘Dominion’ was “something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly.” (Mansergh, 1934**)

Irish people would not share Lloyd George’s confident assertion: they knew what the Free State was not i.e. the free and independent Irish Republic for which many of them had fought. Lloyd George and his British co-signatory, Winston Churchill, were fiercely opposed to the creation of anything resembling an Irish Republic.

In any event, whatever its precise legal status, the creation of the Irish State had come about in profoundly different (not to say stark) circumstances from the other Dominions of the British Empire. These other Dominions had come into existence by way of an evolutionary process marked by incremental change. There can be no doubt that the Irish Free State had been created as a result of a violent revolutionary struggle.

The territory of the Free State would initially comprise all 32 Irish Counties, but the 6 Northern Counties with their Protestant and Unionist majorities speedily exercised their right to secede from the new State. The partition of the Island of Ireland, of course, continues to this very day.

Equally distasteful to Republican sentiments was the fact that King George V and his successors would continue to be King in Ireland (the Irish Head of State). Still more galling for Irish Republicans, those elected members of Dáil Éireann (the lower House of the Irish Parliament) and Seanad Éireann (the upper House of Parliament) would have to take a personal oath of allegiance to George V and his successors:

Article 17.

The oath to be taken by members of the Oireachtas [Irish National Parliament] shall be in the following form:—

I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.

Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.

The King and his successors would be represented at official functions by a Governor General. It is not an understatement to say that the British Crown was an anathema to Irish Republicans – irrespective of their views on the Treaty.

There would also be a continuing British military presence on Irish Free State territory, namely, the 3 naval bases of Fort Dunree (County Donegal) and Bere and Spike Islands (County Cork). The Free State Government would eventually gain control of these bases in 1938 – a fact which made Winston Churchill, then a backbench Conservative MP, apoplectic. He would argue, not without justification, that these bases would be vitally important for Britain in the event of any future hostilities with Nazi Germany.

Fort Dunree on Lough Swilly, Donegal and its superb, natural anchorage – Photo by Evan McMenamin on Unsplash

All of the above represented significant obstacles to the creation of an independent Irish State and it is often now forgotten that it was the genius of de Valera who used the constitutional architecture of the Treaty to undermine British influence in the 26 Southern Irish Counties.

Conclusion

In 1922, the prospects of the creation of an Irish Republic were by no means certain. The Irish Free State, created by the Anglo-Irish Treaty, was undoubtedly a constitutional anomaly.

Éamon de Valera was forced to make the long journey from revolutionary firebrand to establishment politician. This was due, in a large part, to his defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.

It would take considerable skill and patience on the part of de Valera and his supporters in Fianna Fáil to achieve the goal of an Irish Republic. It should be recalled that it was only in 1949 that an Irish Republic (minus the 6 Northern Counties) came into existence.

These are factors which supporters of Scottish Independence who are attracted to Joanna Cherry’s argument would be well advised to study in detail. Cherry advances an interesting precedent, but it is not without its problems.

Further reading:

The Irish Civil War by Tim Pat Coogan and George Morrison (Weidenfeld & Nicolson, 1998)

The Irish Free State: Its Government and its Politics by Nicholas Mansergh (George Allen & Unwin, 1934). Available at:

https://archive.org/stream/irishfreestate032460mbp/irishfreestate032460mbp_djvu.txt

A link to the Free State Constitution can be found below:

http://www.irishstatutebook.ie/eli/1922/act/1/enacted/en/print

Related Blog articles

https://seancrossansscotslaw.com/2019/12/15/law-or-high-politics/

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Copyright Seán J Crossan, 18 January 2021

What kind of Europe do we want?

Photo by Waldemar Brandt on Unsplash

The title of this Blog article is really addressed to the U.K. Government of Prime Minister Johnson.

In part, we now have an answer since the announcement of the Agreement which has finally been negotiated between the European Union and the U.K. on Christmas Eve.

Bear in mind that the British had full access to the European Single Market with its four fundamental freedoms – free movement of goods, people, services and capital. This will end on 31 December 2020 when the transition period expires – the period following Brexit where the U.K. continued to follow EU rules in order to minimise disruption and uncertainty.

For young, talented and ambitious people, the end of Britain’s EU membership represents a narrowing of their horizons (unless they are fortunate enough to claim citizenship of another EU state e.g. the Republic of Ireland). No longer will they have unlimited opportunities to travel, study (e.g. the Erasmus Scheme) and work in EU member states. Curtailing freedom of movement was, after all, a key demand of the Brexiteers.

From 1 January 2021, British holiday makers will face visa requirements for stays longer than 90 days in any 180 day period (a problem if you are a pensioner and want to decamp to the Spanish Costas for the winter). Roaming charges for mobile phone use in the EU and the loss of the European Health Insurance Card (EHIC) are two further issues with which British citizens will have to deal.

It was only last week that I learned that, if I want to take the family dog to Ireland, I will have to comply with additional, bureaucratic and health requirements. Previously, I merely had to inform the ferry companies that I intended to travel with our much loved canine family member.

Mutual recognition of driving licences may also no longer be a given. This changing landscape might prove to be something of a shock for a lot of people. In nearly 50 years of EU membership, travel abroad has become much easier for British people.

Furthermore, British citizens may soon learn that they can suffer discrimination on the grounds of nationality (quite legally) when their Article 19 rights (Treaty on the Functioning of the European) disappear. After all, British citizens are no longer EU citizens.

Yes, legal action before the EU’s Court of Justice is currently in the offing about the stripping away of EU citizenship rights principally brought by those individuals who did not vote for Brexit but, at the time of writing, it is anyone’s guess as to the probable outcome of the case.

The pre-eminence of the City of London as a global financial centre has been put at risk. This has arisen because U.K. domiciled financial firms and companies will no longer have an automatic right to sell their products or establish branches within the Single Market – the so called Passport Rights.

When you consider that, in 2019, over 80% of the total output of the U.K. economy was represented by the services industries, the obsessive defence of the British fishing industry by the U.K. Government seems laughable if it wasn’t so serious.

In any event, it looks as if Prime Minister Johnson has sold out the British fishing industry to secure a deal. This should come as no surprise – just ask his former allies in the Democratic Unionist Party of Northern Ireland who were told by the PM that there would be no border down the Irish Sea post-Brexit.

According to The Economist (in its edition of 24 October 2020), “Thousands of jobs and well over £1trn ($1.3trn) of assets have already been shifted to continental Europe as City firms confront this new friction.”

If you are still in any doubt about the importance of financial services to the U.K. economy, please click on the link below:

https://www.cityoflondon.gov.uk/assets/Business/city-of-london-jobs-factsheet.pdf

A cartoon which appeared in the Toronto Star captures the moment perfectly (see below):

Conclusion

Yes, a no deal situation has narrowly been avoided, but don’t believe the hype: unlike John Lewis where nothing is never knowingly undersold, Prime Minister Johnson always knowingly oversells his achievements.

The U.K. (with the exception of Northern Ireland) is leaving the Single Market and the Customs Union and, despite what Mr Johnson may claim, this will lead to British businesses having to deal with a much higher level of red tape if they wish to sell goods and services to the remaining 27 EU member states.

We have already had a foretaste of problems at frontiers during Christmas week with the shambles at the Port of Dover where hundreds of lorry drivers were prevented from crossing the Channel to enter France.

When the dust finally settles on the EU/U.K. deal, we might contemplate that what we had was much preferable to what we’re going to get (a bird in the hand is worth more than two in the bush …).

A link to the text of the EU/U.K. Agreement can be found below:

https://ec.europa.eu/transparency/regdoc/rep/1/2020/EN/COM-2020-857-F1-EN-ANNEX-1-PART-1.PDF

References

The Economist

https://www.economist.com/britain/2020/10/24/what-brexit-will-do-to-the-city-of-london

The Commons Library

https://commonslibrary.parliament.uk/research-briefings/sn02786/

Copyright Seán J Crossan, 26 December 2020

Been there, done that, got the T-shirt …

Match Day at Celtic Park, Glasgow (Photo by Amadej Tauses on Unsplash)

A debate I’ve been having this last week with both my First and Second Year students has concerned the tension between the rights to free speech and freedom of expression and the right not to suffer discrimination – all of which are protected under the European Convention on Human Rights.

Can you say and do what you want even if such actions cause offence to another person? Up to a point, yes, but there are limits to freedom of speech and freedom of expression even in a democratic society which highly prizes such important examples of human rights. If you cross the line which divides acceptable from unacceptable behaviour you may well find that you are accused of a public order offence or, more seriously, hate crime.

To some extent, a case heard last week by the Criminal Division of the Sheriff Appeal Court in Edinburgh indirectly touched on some of these issues (see the Appeals of Daniel Ward, Martin Macaulay and Ryan Walker v Procurator Fiscal, Glasgow [2020] SAC (Crim) 006).

The appeals were submitted by three men who had attended a European Champions’ League qualifying tie at Celtic Park, Glasgow on 19 July 2017.

The background

Celtic FC, which has a predominantly Roman Catholic fan base, was playing against Linfield from Belfast, a Club which is mainly supported by Protestants in Northern Ireland. The men had worn T shirts with Irish Republican imagery to the match – undoubtedly a provocative gesture on their part.

To say that the potential for sectarian unrest at this fixture was very high would be something of an understatement. There had, in fact, been trouble between the opposing fans at the first leg of the tie in Belfast the week previously.

Proscribed not prescribed

The complaint issued by the Procurator Fiscal against Messrs Ward, Macaulay and Walker was set out in the following terms:

On 19 July 2017 at Celtic Park Football Stadium, Glasgow G40 3RE you
MARTIN MACAULAY, DANIEL WARD and RYAN WALKER did conduct yourselves in a disorderly manner within said Celtic Park Football Stadium in that you did attend at a regulated football match there whilst wearing a shirt which displayed an image of a figure related to and in support of a prescribed (sic) terrorist organisation namely The Irish Republican Army (IRA) and commit a breach of the peace.

It is worth highlighting a particular error in the above Complaint issued by Glasgow Procurator Fiscal’s office: there is a very important difference between the words prescribed and proscribed (the correct term which denotes an organisation e.g. a terrorist group which is banned by the State). Whether this error was a typo or ignorance on the part of someone at the Fiscal’s office, I’m unsure.

At the conclusion of their trial at Glasgow Sheriff Court in February 2020, Messrs Ward, Macaulay and Walker were convicted of a breach of the peace.

A large part of the prosecution’s evidence against the trio relied on the testimony of three Police Officers who were on duty at the match. Two of the officers (Constables Stirling and Taylor) served with Police Scotland and the third officer (Constable Nixon) served with the Police Service of Northern Ireland.

Now, you would have been forgiven for thinking that the Crown had met the requirement of corroboration – which is a fundamental principle of Scots criminal law. Corroboration is the duty placed on the Crown prosecutor to produce at least two independent sources of evidence which will prove beyond reasonable doubt that the accused is guilty.

The Sheriff at Glasgow certainly thought so as all three officers were able to describe the imagery displayed on the T-shirts worn by the three co-accused i.e. a man with aviator sunglasses wearing a black beret and a camouflage scarf with the Irish tricolour as a background.

As one of Scotland’s leading criminal defence lawyers, Donald Findlay QC interviewed as a participant in BBC Scotland programme Too young to die – Crime Scenes Scotland: Forensic Squad (first broadcast in 2014) observed:

The trial system that we have – whether you like it or not – is an adversarial system and it is for the Crown to overcome every legitimate hurdle that we put in the way of them proving their case. Thereby we hope that, if someone is convicted, the conviction is justified.

Mr Findlay goes on to remark that:

My part in the law is to say to the Crown that if you want to prove guilt, you’ve got to prove it beyond a reasonable doubt and we’ll do our best to make sure that you do. I can live with that – whatever the outcome.”

Appeal against conviction

The three co-accused appealed on a point of law in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995 that the Sheriff had been wrong in his failure to consider their arguments, namely:

1. That the T-shirts did not convey support for a proscribed terrorist organisation (the IRA); and

2. Their behaviour at the football match was not a breach of the peace.

The testimony of each of the officers on the question of the imagery displayed on the T-shirts was highly consistent, but was it safe to say that the value of the evidence presented by each witness should be treated equally?

Alas for the Crown, this is where a major problem emerged. Absolutely no disrespect to the two Scottish Police officers, but they were not in a position to speak with authority on whether the three men by wearing these T shirts were expressing support for a proscribed terrorist organisation.

Significantly, the Sheriff Appeal Court drew specific attention to the decision in Smith v Donnelly 2002 JC 65 which emphasises that “it has been clear beyond doubt that a charge of breach of the peace requires to specify the conduct involved.

Only Constable Nixon with his direct experience of policing in the febrile environment of Northern Ireland was capable of validating the charges laid out in the complaint. Unfortunately, Constable Nixon’s testimony alone was not sufficient to meet the requirements of corroboration. In a criminal trial, the prosecution case requires certainty not probability.

Reference was made specifically to Lord Kirkwood’s remarks in Fox v HM Advocate 1998 JC 94:

It is a cardinal principle of our common law that no one can be found guilty of a crime upon the uncorroborated evidence of a single witness, however credible or reliable that witness may be. There must be evidence from at least two separate sources which is capable of establishing the facta probanda beyond reasonable doubt.

Consequently, the Sheriff Appeal Court quashed the convictions of the three men. This does not mean that the Sheriff Appeal Court is giving the green light to football fans to display such imagery on T shirts and other garments. Far from it: as the judges commented:

In the particular circumstances which pertained in this case, we would have regarded the wearing of a T-shirt which depicts an image in support of a proscribed organisation, such as the IRA, as so flagrant that the necessary inference could be drawn from it, in the absence of evidence of alarm or annoyance. It is difficult but to conclude that the wearing such T-shirts amounted to a deliberately provocative gesture directed towards the Linfield support. The wearing of such T-shirts in near proximity to the opposing supporters within or around a football stadium is conduct which, if proved, would in our view present as genuinely alarming and disturbing, in context, to any reasonable person.

Had the prosecution focused on corroborating the element of the charge which emphasised support for a proscribed terrorist organisation, the convictions of the three men might well have been upheld.

Football fans would do well to remember that their right to freedom of expression or freedom of speech could be severely restricted by the Authorities in order to prevent the commission of a crime, such as hate crime or public order offences. If you are still in any doubt, let me point you in the direction of the decision in an earlier appeal judgement of the High Court of Justiciary which reminds us that wearing a T shirt with paramilitary imagery can constitute a breach of the peace (see Maguire v Procurator Fiscal, Glasgow [2013] HCJAC).

A link to the judgement of the Sheriff Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/saccrim006.pdf?sfvrsn=0

Copyright Seán J Crossan, 29 November 2020

No problem here?

Photo by James Eades on Unsplash

In the second of two articles for Black History Month, my friend and colleague, Tony Adams reviews No Problem Here: Understanding Racism in Scotland (Luath, 2018) Neil Davidson, Minna Liinpaa, Maureen McBride and Satnam Virdee (eds.). This article originally appeared in The Scottish Left Review (Issue 106 July/August 2018).

Racism in Scotland is often relegated to the back burner. Even when the issue of racism is broached by anti-racists campaigners the stock responses they are met with is that ‘Things aren’t as bad as all that, you exaggerate; you’re indulging in special pleading or you must be paranoid’. Little wonder there is this widely held view both by politicians and academics that ‘there is no problem here’. Ethnic minorities are congratulated for integrating better and there is a welcoming attitude towards refugees and migrants.

Meanwhile research into the historical record and contemporary reality tells a different story. The racialized outsider faces discrimination in education, jobs, housing and at the hands of the police and criminal justice system. Racism in Scotland is, therefore, not a side issue and it is not peripheral either. It is central to the way things work. The question of racism in Scotland and the interplay, of race class, nationalism and other intersecting issues are very focal to this edited book. It brings together the views of academics, activists and anti-racism campaigners who argue that it is vital that the issue of racism be brought into public discourse.

In contrast to England, there has been relatively little public discussion about the historical or contemporaneous structuring power of racism in Scotland. ‘We wish to dig beneath the ‘race
blind’ narrative that Scotland and its elites have crafted for many years, to perhaps unsettle them a little, so that we might begin to open up space for writing a historical sociology of racism in Scotland’ the book says. Its contributors ‘contend that the narrative of an absent racism in Scottish history and that the Scots are more egalitarian, more likely to place an emphasis on collectivism over individualism and on government intervention over self-reliance reinforces the myth that Scotland does not have a serious racism problem’. Instrumental to the consolidation of this powerful myth that ‘there is no problem here’ is that memorable Scottish phrase, ‘We’re a’ Jock Tamsin’s bairns’.

Such myth making has the effect of deflecting attention away from the disproportionate role that Scots actually played in the British Empire. It occludes any discussion of racisms in the country. Empire is central to the union. TheAct of Union, 1707, opened up English colonial markets to Scottish merchants and made it possible for Scots to play
a role in the construction of the British Empire. But when we think of the British Empire our minds often drift to England rather than to Scotland. Yet Scotland was complicit in the slave trade and had colonies predating the joining of the union. It is significant to note here that slavery or the slave mode of production was central to early capital and racism became its justification. Thus racism has evolved entwined with capitalism over the last three centuries.

There is a level of amnesia that clouds the history of empire. Glasgow was the second city of the empire and, by the end of the Victorian era, Scots firms had attained a controlling position in key sectors of the economy of British India. Rather than sanitizing its past in order to re-imagine a post-union future, perhaps we need to look back at Scotland’s imperial history and connect it to a broader understanding of the British empire and Britain’s colonial past.

This perception that Scotland has less of a problem with racism than other areas of the UK is not borne out by the statistics either. In 2013-14 there were 4,807 racist incidents recorded by police
in Scotland, the equivalent of 92 incidents a week without accounting for the many cases that go unreported. And lest we forget that there has been racist murders here many of which have still not been formally acknowledge as racist – Nuer Mohamed, Hector Smith, Shamsie Din Mohamed, Imran Khan, Sanjit Singh Choker and Sheku Bayoh to name a few. The growth of far right parties and the rise of Islamophobia across Europe and the US has to be challenged and driven back. Scotland is not immune from this.

The book explores the different modalities of racism in Scotland and the ways in which cultural racism has become central to the experiences of particular social groups. It also seeks
to locate the contemporary debates on racialization and racism in their appropriate context in Scottish history. As the late historian E H Carr once put it: ‘There is no more significant pointer to the character of a society than the kind of history it writes or fails to write’. No Problem Here is a welcomed and important starting contribution that will invigorate the debate of what kind of Scotland we live in and what kind of Scotland we want it to be.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal.

Black sailors and the battle of George Square

Photo by Soviet Artefacts on Unsplash

To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.

The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.

At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.

Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.

Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.

It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.

During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.

The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.

The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

The American approach

Photo by Claire Anderson on Unsplash

Equal justice under law?

On Monday 15 June, 2020, the US Supreme Court issued a very important ruling (Bostock v Clayton County, Georgia (Case 17-1618)) that there can be no discrimination on the grounds of a person’s sexual orientation or that they have (or are undergoing) gender reassignment. An attempt by an employer to dismiss a gay person or a transgender person will be an example of unlawful discrimination.

Surprise, surprise you might say: what took the Supreme Court so long?

Such discriminatory behaviour, the US Supreme Court has now declared, is a breach of Title VII of the US Civil Rights Act 1964 (which was enacted by Congress as part of President Lyndon B Johnson’s Great Society programme).

And this is where the American approach to the issue of discrimination on the grounds of a person’s sexual orientation differs quite markedly from the UK.

Title VII of the Civil Rights Act 1964 states that it is:

unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.

From a British legal perspective, the word “sex” in Title VII of the American legislation is problematic when applied to discrimination involving a person’s sexual orientation.

Why?

Quite simply, in the UK, we would understand the word “sex” in discrimination law as applying to an individual’s gender whether they are male or female; or identify as being male or female.

A link to the US Supreme Court’s judgement can be found below:

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

A link to an article on the BBC website about the judgement can be found below:

US Supreme Court backs protection for LGBT workers

Readers of this blog might not regard the US Supreme Court’s decision in Bostock v Clayton County, Georgia as in any way unusual. After all, in the United Kingdom and across the EU 27 member states, laws have been in place for a considerable period prohibiting unlawful discrimination on the grounds of sexual orientation.

Although the UK has now left the EU, the legislation protecting the LGBTI communities remains very much in place – by way of the Equality Act 2010 and other legislative instruments such as Article 19 of the Treaty on the Functioning of the European Union (primary legislation) and numerous Regulations and Directives (secondary legislation). The provisions in the Equality Act are, of course, an example of Westminster legislation and will remain hardwired into our legal system – for the time being at least.

The continuing status of European Treaty Articles, Regulations and Directives (in relation to the laws of the UK) will, of course, be up for debate when the Brexit transition period ends, as expected, on 31 December 20020.

The Equality Act 2010

Section 12 of the Equality Act 2010 addresses the issue of a person’s sexual orientation. This is a protected characteristic under the Act and means a person’s sexual orientation towards:

  • persons of the same sex
  • persons of the opposite sex
  • persons of either sex.

Sexual orientation discrimination: the historical perspective

Before 1 December 2003, in the United Kingdom, it was not unlawful to discriminate against an employee or potential employee by reason of that person’s sexual orientation. The situation changed dramatically with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003. The relevant law now being contained in the Equality Act 2010, which prohibits less favourable treatment on the grounds of a person’s sexual orientation generally and such protection is no longer confined to the field of employment.

It should be noted, of course, that the Employment Equality Regulations were primarily brought into force to introduce protection for gay, lesbian and bi-sexual people. If, on the other hand, you were heterosexual, you were very unlikely to face discrimination in the work place due to your sexual orientation. 

The primer for this change to the law in 2003 was the European Union’s Employment Equality Directive (as a result of the Treaty of Amsterdam 1999) which meant that the UK, as a member state, had to introduce legislation in order to guarantee that people who had suffered less favourable treatment in relation to employment had a form of legal redress. The Employment Equality Regulations 2003 (and now the Equality Act) implemented this duty on the part of the UK.

Employment Equality Directive was limited in its scope because it applied (unlike the more expansive Racial Equality Directive) to just two sectors: employment and vocational training.

Sexual orientation not sex

It is perhaps now instructive to examine the failure of UK laws to provide protection to individuals who suffered sexual orientation discrimination prior to the Employment Equality Regulations coming into force.

In Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School [2003] UKHL 34, the House of Lords held that discrimination on the grounds of a person’s sexual orientation was not covered by existing UK equality laws (specifically the area of sex or gender discrimination then contained in the Sex Discrimination Act 1975).

Macdonald was dismissed from the Royal Air Force because he was homosexual or gay. Pearce, a teacher, had suffered an ongoing campaign of harassment while working at Mayfield School because she was a lesbian. Both Macdonald and Pearce claimed that the treatment that they had suffered was an example of direct sex discrimination. 

Both claims failed because the treatment suffered by both individuals was an example of direct discrimination on the grounds of their sexual orientation – not because of their sex or gender. At the time of this appeal to the House of Lords, discrimination in employment on the grounds of a person’s sexual orientation was not prohibited by UK equality laws.

In its judgement, the House of Lords drew attention to the ironic fact that a new equality law prohibiting sexual orientation discrimination would soon be introduced, but this admittedly would be too late for Macdonald and Pearce! Small comfort indeed!

Had the cases occurred today, the employers would be liable for direct discrimination on grounds of sexual orientation in terms of Section 12 of the Equality Act 2010.

The perspective of the Court of Justice

Before the European Union’s Employment Equality Directive, the Court of Justice had been reluctant to lay the basis for greater legal protection in relation to a person’s sexual orientation.

In Case C-249/96 Grant v South West Trains Limited [1998] ECR I-621, Lisa Grant had argued that the failure by her employer to extend a concessionary ttavel scheme (worth £1,000 per year) to Gillian Percey, her same sex partner, with whom she had been in a stable relationship for more than 2 years, was an example of unlawful, less favourable treatment. The employer permitted heterosexual spouses (including common law spouses of more than 2 years standing) to enjoy the benefit of the travel scheme. Grant’s predecessor in the post had been male and his female partner had benefited from the travel scheme.

Grant chose her male predecessor as her comparator as part of an equal pay claim. It is important to appreciate that Grant was bringing her claim as a sex or gender discrimination legal action. Although Advocate General Elmer was broadly supportive of the couple’s claim that they had suffered discrimination under what is now Article 157 of the Treaty on the Functioning of the European Union and the Equal Treatment Directive, the Court of Justice decided not to follow this Opinion.

The Court stated that two men in a same sex relationship would have been treated in exactly the same way as Grant and Percey by the employer. South West Trains did not wish to extend concessionary travel to same sex partners of employees and, currently, there was nothing unlawful about this policy as neither UK or EU equality laws prevented discrimination by reason of a person’s sexual orientation. At the time that this case was decided, it should be appreciated that same sex relationships in the UK were not legally recognised in terms of civil partnership or marriage – such legal recognition was still some way away.

To come back full circle, the European Union would, of course, later redress the situation with the Employment Equality Directive which led to the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 into UK law. Had these Regulations been in force when Lisa Grant commenced her legal action against South West Trains, these would have given her and Gillian Percey significant legal protection from the discriminatory action of her employer. Admittedly, this was scant consolation for them and thousands of other same sex couples who experienced less favourable treatment in employment.

The European Convention on Human Rights

The provisions of the Convention have been implemented into Scots law via the Human Rights Act 1998 and the Scotland Act 1998 which means that an individual will enjoy substantial legal protection in relation to his or her sexual orientation. Article 8 of the Convention places a duty on a public authority to have respect for a person’s private life. Fuirthermore, Article 14 of the Convention confers a general right on individuals not to be subjected to discrimionation. Employers who are defined as a public authority will have to ensure that they comply with these provisions. Private employers will also have to be aware of these provisions because there is nothing to stop an employee bringing a discrimination claim against the UK Government if some loophole exists which permits the employer to behave less favourably towards them on the grounds of their sexual orientation.

Interestingly, in Macdonald v Advocate General [2003] (discussed above), the employee did attempt to argue that his dismissal by the Royal Air Force, by reason of his sexual orientation, was a breach of the European Convention, but this argument failed because the Convention had not yet been implemented by the Westminster Parliament.

Today, of course, Macdonald would have a very strong claim against his employer for the treatment that he had suffered. Although the war may ultimately have been won, this was a battle that the unfortunate Macdonald would lose.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/05/25/the-love-that-dared-not-speak-its-name/

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 16 June 2020

When Black lives didn’t matter …

The Slave Ship (1840) by JMW Turner

When Black lives didn’t matter … that much – except perhaps merely as a commodity – is something that British society is having to confront in June 2020. Humans could be property to be bought and sold – quite legally.

Statutes of historical personages have been torn down or defaced in this country because of the death of George Floyd, an African American, in Minneapolis, USA. Unless you have been living in a vacuum, Mr Floyd died at the hands of a Minneapolis Police Officer on 25 May 2020.

Black Lives Matter

The protests that have kicked off around the world in the wake of the death of Mr Floyd have stirred memories of Britain’s murky past in the matter of race relations. It is not something at which this country can take pride.

Some readers may recognise the picture by JMW Turner at the top of this Blog, but if you don’t it relates to a particularly egregious and shocking incident in British legal history – but more about that later.

I’m thinking, in particular, about Britain’s role in the Trans-Atlantic Slave Trade. It may come as a surprise to many Britons that this country was an active participant in the mass enslavement and trafficking of our fellow human beings to the plantations, factories, mills and mines of the New World or the Americas.

It seems almost unthinkable today that such practices were allowed to flourish when we have strong laws in place prohibiting slavery (e.g. Article 4 of the European Convention on Human Rights as implemented by the Scotland and Human Rights Acts 1998).

Sir John Hawkins, Elizabethan Merchant Adventurer (1532-96)

Sir John Hawkins, the National Maritime Museum, London

As far back as 1562, Sir John Hawkins, cousin of the more famous Sir Francis Drake, had sailed to West Africa on trading voyage when he captured a Portuguese slave ship. After securing his human cargo, Hawkins then set sail for the Caribbean – then part of the Spanish Empire – to find buyers for his merchandise. Although England and Spain were in an effective state of war, the Spanish colonists were more than happy to do business with Hawkins.

And so began, the lucrative trade in human beings from the British perspective: Hawkins would carry out another two trading voyages to the Spanish Empire. On his third voyage (1567-69), he nearly came to grief when he tangled with a Spanish naval squadron at the Mexican harbour of San Juan de Ulúa (near Vera Cruz), narrowly escaping death. Many of his men were not so lucky, but that’s another story.

Although Hawkins was responsible for the enslavement and trafficking of hundreds of Africans – and by the way, the English Crown also got its cut from these enterprises – his activities were really minuscule when compared to what would come later.

An image of John Hawkins’ coat of arms (complete with the image of an enslaved African or a Moor- the name generally given to inhabitants of North Africa) can be seen below:

The coat of arms of Sir John Hawkins, part of whose wealth was derived from slave trading activities

The Asiento

British participation in the Trans-Atlantic Slave Trade would really hit its stride as a result of the Treaty of Utrecht 1713-1715 which ended the War of the Spanish Succession. Under the terms of the Treaty (Part X), the British gained possession of the naval fortress of Gibraltar and the Island of Menorca. More significantly and, from a purely profitable point of view, the British also took control of the Asiento for an initial period of 30 years.

The Asiento was the hugely lucrative contract or monopoly to supply Spain’s American Empire with African Slaves. Queen Anne (1702-14), the last Stewart monarch of the British and Irish Isles would hold a 22.5% stake in the company which administered the Asiento according to Hugh Thomas in his magisterial The Slave Trade: History of the Atlantic Slave Trade, 1440-1870 (Simon Schuster: 1997; First edition).

For nearly the next century, British vessels would carry millions of enslaved African (men, women and children) via the horrific Middle Passage to destinations in the Americas to be brutalised and exploited by their White masters.

By this time, of course, Scotland and England had entered into political Union in 1707 and this meant that Scottish merchants and financiers could take full advantage of what became known as the Triangular Trade. Ships would sail from British ports, laden with trade goods, heading for the coast of West Africa; they would pick up their human cargoes and take the Middle Passage to the Americas where the slaves were sold; then the return voyage could begin with the ships laden with tobacco, rum, cotton etc for sale in Britain.

Image available at: https://www.historyonthenet.com/black-peoples-of-america-the-triangular-trade

Altogether it was a very profitable enterprise and vast wealth flowed into Britain.

Needless to say, the conditions which the slaves endured was horrific, with them being crammed into the holds of the ships for up to six weeks. Many slaves would not survive the passage, succumbing to disease and infection.

A depiction of conditions on a slave ship can be seen below:

A depiction of the horrifically overcrowded conditions endured by African Slaves on the slave ship, Brookes (1781)

The Zong Massacre

This is where JMW Turner’s picture (The Slave Ship) heaves into view. It is the depiction of a shocking event which involved the crew of a British ship called the Zong. In 1781, the Zong, which belonged to a Liverpool merchant syndicate, was carrying slaves from West Africa to the Americas. The lives of the slaves were insured, but not in the way that we think of modern life insurance: they were cargo or excess baggage; pure and simple. Slaves were goods or beasts of burden.

A depiction of the Massacre on the Zong

The Captain, Luke Collingwood, or another crew member had made what would turn out to be a fatal error (for some) in their navigational calculations and the Zong was way off course from Jamaica. With supplies of drinking water becoming evermore scarce, a fateful decision was made: a large number of slaves (over 130) would be thrown overboard in order to conserve supplies. Murder? Not quite … jettisoning excess baggage/livestock? This was an acceptable practice on slave ships and insurance had been developed to cover such eventualities.

The owners of the Zong would later attempt to recoup their losses by claiming under their policy of insurance. In the infamous case of Gregson v Gilbert [1783] English Reports 83, the syndicate would be forced to take legal action against the insurers who were refusing to pay compensation. Before anyone misunderstands matters here, this was purely a commercial question of liability for lost cargo, not human lives, certainly not a question of human rights.

At first instance, the court found for the syndicate owners and the insurers were ordered to pay compensation to cover the losses. On appeal, however, the syndicate would ultimately lose the case as Lord Justice Mansfield and his fellow judges would rule that the Captain and the crew had been negligent.

Lord Mansfield had been the judge in an earlier case – Somerset v Stewart (1772) 98 ER 499 – in which the issue of the freedom of an enslaved African, James Somerset was at stake. For abolitionists, this case represented a victory because Somerset was allowed to go free, but whether it represented a general proposition that English common law did not permit slavery within the territory of England has always been the subject of some debate.

Hardly a resounding victory for human rights, but this case would serve as a rallying call to arms for British anti-slavery activists, like the ex-slave, Olaudah Equiano (born in modern day Nigeria) and Granville Sharp.

Sharp later attempted to have crew members of the Zong charged with murder, but the Solicitor General for England, John Lee made a very telling statement:

What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder… The case is the same as if wood had been thrown overboard.

Other losses


A rebellion aboard a slave ship. Available at: https://www.abolitionseminar.org/slave-resistance-and-abolitionism/

Insurers also covered losses (within limits) incurred by slavers who had to kill rebellious slaves while in transit. I well remember the late Professor Robert Burgess regaling the class with the tale of a failed rebellion where the owners of the ‘cargo’ successfully claimed from the insurers the value of the slaves who had been killed by their captors. The sting in the tale was that compensation was not payable for the slaves who had committed suicide following the failure of the rebellion. The policy did not cover such eventualities (see Jones v Schmoll (1785) 1 Term Rep 130n). A human tragedy reduced to an interpretation of the wording in an insurance document.

You can read more about insurance and slavery by accessing the link below:

https://hull-repository.worktribe.com/OutputFile/1152979

From active slavers to ardent abolitionists

From 1788 until 1833, the Westminster Parliament would pass legislation chipping away at the edifice of slavery in the British Empire. The practice of enslaving one’s fellow human beings would not be achieved overnight, but the road to eventual abolition would be under construction via the following statutes:

  • Regulated Slave Trade Act 1788 (or Dolben’s Act)
  • Abolition of the Slave Trade Act 1807
  • Slavery Abolition Act 1833

The Act of 1788 did not abolish the practice of slavery, but it laid down limits on the numbers of slaves that could be carried in accordance with the vessel’s tonnage. It was the first British Act of Parliament which attempted to curtail some of the worst practices of the Slave Trade.

More significantly, in 1807, the trade in slaves in the British Empire was abolished. Britain was not the first European country to do this – the Kingdom of Denmark had done so in 1792, although this law did not come into force until 1803. It is important to note that neither the Danes nor the British prohibited the ownership of slaves – this was still a perfectly legal practice.

Eventually, in 1833, the Westminster Parliament passed the law which would abolish slavery – eventually – as a legal practice in the territories of the British Empire. I say eventually because the institution of slavery would not be abolished at the stroke of the Royal Assent. Compensation for loss of property rights would have to be paid to slave owners (great and small) and there would be a transitional period (from 1838 until 1840) in which the slaves would migrate to their new legal status of freed men and women.

In total, it is estimated that the British Government established a fund of some £20 million (£16/17 billion in today’s values) which would be used to compensate soon to be former slave owners.

Ironically, the British would become ardent opponents of slavery throughout the world and they would use their considerable global influence to eradicate the trade and the institution whenever they could.

That is perhaps the problem which has contributed to a sense of collective amnesia amongst the British. Yes, considerable pride is taken when it comes to the abolition of slavery, but memories are extremely hazy when it comes to activities of British mercantile interests which made fortunes from the opportunities afforded by The Asiento.

For more information about the background to the abolition of slavery in the British Empire, please find a link below to an article in The Guardian:

https://www.theguardian.com/world/2015/jul/12/british-history-slavery-buried-scale-revealed

An entry showing compensation of nearly £40,000 in today’s values paid to a slave owner (£329 and change in 1830s’ money) can be seen below:

Compensation paid to Catherine Sweeney or Sweeny, who owned 22 slaves on the Caribbean Island of Montserrat

You can search the database of the records of the Slave Compensation Scheme managed by University College London by using the link below:

https://www.ucl.ac.uk/lbs/

Conclusion

As the events of the last week have shown, reminders of Britain’s links to the Trans-Atlantic Slave Trade are everywhere: Edward Colston’s statute in Bristol; Henry Dundas’ statute in Edinburgh (who delayed the abolition of slavery by some 15 years); and Robert Milligan’s statute in East India Docks, London. Furthermore, British Street names reflect connections with prominent slave traders and their interests in the West Indies: Cochrane Street and Jamaica Street in Glasgow. The legacy of slavery is all around us, but for so long we have been wilfully blind or forgetful about this.

In 2020, it is difficult for us to appreciate how pervasive the institution of slavery was. It had been around since the earliest human communities and it still exists. Great scientists such as Sir Isaac Newton (1643-1727) invested heavily (and ultimately unwisely) in the infamous South Sea Company which traded in slaves (amongst other goods). From the British Royal family all the way down to ordinary individuals, investing in slavery could be a profitable financial activity.

Anti-Slavery International estimates that, today, there are more people (some 40 million individuals) living in conditions of modern slavery or unfree labour than there were when the Slavery Abolition Act 1833 was passed by Parliament.

If anything positive comes from the death of George Floyd, hopefully it will make us more aware of the fact that there was a time when Britain was not a beacon of civilised values and although Britannia undoubtedly ruled the waves, but many people could be slaves.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

Copyright Seán J Crossan, 10 June 2020

Face the consequences!

Photo by Tim Bennett on Unsplash

By Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini (Editor: SJ Crossan)

Introduction

Privacy is a human right and both the Scotland Act 1998 and the Human Rights Act 1998, implemented provisions of the European Convention on Human Rights (Article 8) directly into national. The employment contract, consequently, is not in any way exempt from human rights issues (see the judgement of the European Court of Human Rights in Bărbulescu v Romania 5 September 2017 (Application no. 61496/08). The European Union (EU) has also had a major influence on the development of privacy laws e.g. General Data Protection Regulations.

Privacy has become a major issue in recent years, particularly due to the rise of social media use. The increasing use of IT systems and the internet by organisations and their employees are key factors in the expansion of laws regarding privacy. In Bărbulescu, the employer had violated the employee’s rights to privacy in terms of Article 8 of the European Convention in the way that it had monitored the company’s email system. Privacy in the work-place is a major issue for both employers and employees. Some of the most important areas of law that govern privacy are to be found in the areas of human rights, data protection, and freedom of information.

It is very important to establish from the outset that employees do not have an absolute right to privacy and there may be situations within and outwith the work-place where the employer has a legitimate interest in the activities of their employees – especially if such behaviour could amount to gross misconduct.

Gross misconduct

Gross misconduct relates to serious behaviour on the part of the employee that is deemed so bad that it destroys any relationship or trust between the employer and the employee. Gross misconduct warrants instant dismissal without any notice or pay.

Section 94 of the Employments Rights Act 1996 states that an employee has the right not to be unfairly dismissed.

Section 95 of the Employment Rights Act 1996 states that an employment contract can be terminated by means of the company through purpose of the employee’s conduct. Such a dismissal or termination of contract should be viewed as a fair dismissal (Section 98: ERA 1996).

Acts or omissions by the employee which would be classified as misconduct, such as theft, alcohol or drug use, poor discipline, continually missing work without justification or poor performance are all potential exceptions to this right.

Sexting

Matt Simpson former officer in the Cumbria police force is one of many who have been caught out due to things such as inappropriate text messages. In 2020, PC Simpson was dismissed from the force after he was found to be having a secret, sexual relationship while on duty. It first came to light after the new partner of the female, with whom Simpson was involved, found text messages that had been sent to her. The new partner of Simpson’s lover then went to the police authorities with this information to make a formal complaint.

A hearing was held to establish if PC Simpson was guilty of any wrongdoing. The panel found that this was a dereliction of Simpson’s duties and he was guilty of gross misconduct – not only due to having this relationship during the time when he was meant to be working but also due to him using confidential police system to uncover information about the women purely because he was “curious”. As well as this Mr Simpson also visited the female around 20 times when on shift and had vital police equipment with him while visiting such as a body camera and a taser device. The fact that this whole affair had come to light via Simpson’s private text messages was neither here nor there: this was an aspect of Simpson’s private life in which his employers had a legitimate interest and he had been carrying out his romantic activities during his employment.

A link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cumbria-51136711

In PC Simpson’s case, he clearly performed his duties inadequately and was guilty of very poor discipline. He was aware of the consequences of his actions. By involving himself with the female, he was making himself unavailable at times such as an emergency. Dereliction of duty is defined as the failure to fulfil one’s obligations. Here, PC Simpson clearly failed to do his job in a proper and professional manner and he could have been potentially negligent should an emergency have risen.

A further example of an employee committing acts of misconduct occurred in Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22. Mr Adesokan was hired by Sainsbury’s as a Regional Operation Manager when he was in charge of ‘Talkback Procedure’, a key company policy which involved all members of staff giving information in confidence about their working environment and relationships with other colleagues. Mr Adesokan discovered that his HR manager had tried to manipulate the Talkback scores within his region by sending an email to five store managers telling them to seek feedback only from their most enthusiastic colleagues. Mr Adesokan asked the HR manager to “clarify what he meant with the store managers”, but the HR manager never responded. Mr Adesokan failed to follow this matter up and he was later dismissed by his employer for not taking action to confront the HR manager’s deliberate “manipulation” of the survey data.

A subsequent investigation into the matter led to Mr Adesokan’s eventual summary dismissal for “gross negligence on his part which is equivalent to gross misconduct”. Mr Adesokan brought a claim for breach of contract with regard to his notice period. The English High Court found that although he was not dishonest, his failure to take active steps to remedy the situation had damaged Sainsbury’s trust and confidence in him, which was sufficient to warrant the sanction imposed. The English Court of Appeal subsequently affirmed the decision of the High Court.

The Adekosan case was remarkably similar to that of PC Simpson where no other option was available to the employer as there was a complete loss of trust.

Activities outwith working hours

What individuals do with their own time is largely their choice (as long as they stay on the right side of the law). It is exceedingly difficult, however, for many people to do much these days without using social media or a mobile phone. Activities which used to be very much private are, consequently, at a much greater risk of public exposure in the virtual world in which we find ourselves living in 2020.

Employees can carry out many activities in private that may get them in trouble with their employers and have serious consequences for them. This might include, for instance, acts of gross misconduct committed in private which result in reputational damage to the employer. Consequently, the employer may have no alternative but to contemplate dismissal of the employee.

There is a lot of case law with regard to employees being dismissed from situations that have happened outside the workplace, an example would be the well-known case of X v Y [2004] EWCA Civ 662.

The facts of the case are as follows:

A charity employee who worked with young offenders committed an indecent act with another male in a public toilet at a motorway service station. He was put on the Sex Offenders’ Register as a result of receiving a police caution. The worker had not been straightforward with the Police when they asked questions about his job and, compounding this, he failed to inform his employer about the situation. Later, his employer decided to terminate his contract and the dismissal was once deemed to be fair. The reputational harm which the employer suffered due to the fact of the employee’s failure to be completely honest about what had happened was an enormous element of the decision to dismiss.

The English Court of Appeal was firmly of the view that the employee’S argument that he had a right to privacy (on grounds of his sexual orientation) in terms of Article 8 of the European Convention on Human Rights was not applicable here as the indecent act was not of a personal nature due to the fact it had been carried out in a public toilet.

Doctor Beck

In some cases, however, it may be problematic to dismiss the ‘offending’ employee who may be involved in activities which come under the protected characteristics of the Equality Act 2010 e.g. philosophical beliefs or freedom of speech laws in terms of the European Convention on Human Rights.

One example of this was reported by The Independent regarding Dr Gunnar Beck, a German national and a candidate for the Alternative for Germany (AfD), a far right political party.

Dr Beck was employed at School of Oriental and African Studies (SOAS), (part of the University of London) as a law lecturer. A number of his students and colleagues were enraged after discovering that he was an AfD candidate for a German seat in the European Parliamentary Elections in 2019.

Students and fellow lecturers organised protests arguing that Dr Beck should be fired from his position and for his employer to justify its part “in facilitating his far-right politics”. His colleagues from the School of Law stated that they vehemently oppose the AfD and its policies and wished to dissociate themselves completely from the people who support and advocate the Party.

The members of AfD are well-known for making provocative remarks concerning the actions taken by the Nazis. They targeted climate change activist, Greta Thunberg as part of their attempts to deny climate change.

Employees at the University of London went on to say that they were making their views public since they “recognise the importance of not being complicit in the normalisation of reactionary, right-wing populism.” A declaration by the students’ union at the university asked why Beck chose to work at a university “who hold and support so many of the identities he wants to see diminished”.

The Acting General Secretary of the University and College Union, Paul Cottrell stated that:

The AfD is an extreme right-wing, racist, anti-immigration party that has no place on UK campuses. We are shocked that a member of academic staff from SOAS could be involved with a party like this which stands for policies utterly incompatible with the values of diversity, tolerance and internationalism at the very heart of SOAS as an institution.

Dr Beck informed The Independent that his reason for supporting the AfD was because “there is no other Eurosceptic conservative party in Germany”.

He also went on to say that the AfD are “not a Nazi nor a fascist party.” Dr Beck stated that he was an advocate for freedom of speech and would defend anyone’s rights to it and any claims of him being a white supremacist, Islamophobe or fascist were outrageous.

Subsequently, Dr Beck was elected as 1 of 10 German MEPs from the AfD Party, but he was not dismissed from his position at the university.

A representative of SOAS stated:

We find the policies of the AfD on a range of matters to be abhorrent. They conflict with the fundamental values we hold as an institution. We recognise the anxiety caused to staff and students as a result of this situation.”

However, they added that: 

As an academic institution, we are committed to the rights of academic freedom of speech within the law, despite the painful choices to which it gives rise. We encourage members of our community to tackle these issues through robust debate.

This story regarding Dr Beck’s private affairs is an excellent illustration of employers not being able to fire an employee for acts committed in private due to protected characteristics (i.e. political beliefs) of the Equality Act 2010.

Both Dr Beck and the University of London have undoubtedly suffered reputational damage. Beck has suffered reputational damage in the eyes of his fellow lecturers and students because he is a member of AfD; and the university has suffered reputational damage for employing him in the first instance and subsequently for not dismissing him after the revelation about his political activities came to light.

That said, the University of London was in something of a difficult position because Dr Beck would probably have launched a legal challenge in terms of the Equality Act 2010. He would doubtless have protested that his political activities were a protected characteristic (philosophical beliefs). It would then have been up to an Employment Tribunal and, potentially, the higher courts to determine this issue. There was also the possibility that the university would have been accused of suppressing the right to freedom of speech.

A link to the story in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html

Using social media outside work

As previously discussed, reputational damage is a big concern for organisations. Employers have also had valid fears about risks to their’ reputation as a result of work place misconduct that becomes widely publicised in e.g. the media. These fears have been increased with the surge in social media use today.

Employees are now far more likely to be found behaving in questionable ways or making offensive remarks online, which can attract a large audience or readership very quickly. Social media platforms, such as Facebook, Instagram, Twitter and WhatsApp (where responses can be instant) can represent something of a nightmare for an employer. It is important to remember that social media, if abused, can have a significant impact on relationships within the work place and could result in serious legal consequences.

Social media misuse by employees has become a frequent and complicated issue for employers to address. Although social media can be an extremely valuable resource for organisations, it can also pose a serious challenge to both employees and employers. Inappropriate social media misuse e.g. racial or sexual harassment could lead to employers being held vicariously liable for their workers’ misbehaviour.

When an employee misuses social media, firms need to know how to respond and handle it. Therefore, it is vital for companies to devise a clearly defined social media policy by which employees abide. It is important that employers notify workers about the nature of these policies and the potential ramifications of any violations.

So, when employers want to act against employees who make offensive remarks, such disciplinary action should come as no surprise. Such remarks can cause embarrassment, at best. At worst can hurt a firm’s reputation and lose them customers. Even if the remarks were posted years ago, they can still come back to haunt the employer and the employee.

The difficulty of dealing with social media use by employees for organisations can be seen in the case below.

Creighton v Together Housing Association Ltd ET/2400978/2016 Mr Creighton was dismissed for tweets which were made three years earlier. He had made negative remarks about colleagues and his boss on Twitter. The claim that Mr Creighton posted offensive remarks on Twitter resulted in his dismissal for gross misconduct even though he had worked with the organisation for 30 years.

Held: The Tribunal further clarified that the disciplinary policy of THA included “defaming the company or undermining its image by the use of social media” as an example of gross misconduct. The appeal panel rejected Mr Creighton’s appeal to the decision, arguing that he was aware or should have been fairly aware of the implications of his conduct as the disciplinary policy of the company. 

There are more and more cases of social media defamation – which emphasises a need for extremely specific social media rules and regulations in the terms and conditions of an employer. 

Employees are going to be very foolish if they assume it’s a credible argument to claim that social media comments happened outside working hours, were believed to be posted on an account that is supposed to be “secret” or posted years earlier, which Mr Creighton found out.

The importance of having a social media policy

As previously mentioned, establishing a solid social media policy is vital for an organisation. From the workers’ viewpoint, it is important that they are aware of the existence of such a policy, understand its substance and also recognise any potential consequences for failing to follow its rules.

Employers are also urged to review and update social media policies on a routine basis. New platforms and technology continue to be developed at a quick pace today and to maintain the knowledge of social media is simply made part of induction and training methods.

It is extremely necessary for an employer to make clear to its employees the kind of conduct which may justify dismissal. Usually, this may be done via a section in the employee handbook which addresses the consequences of misconduct in the workplace.

Additionally, an acceptable induction technique for new personnel may centre on the kinds of behaviour which the corporation would not condone. Regular refresher training for current and long-term personnel may be beneficial and, in large organisations, this would be a necessary function of the Human Resources Department.

Panera Bread

There was a huge news outbreak when a Panera Bread employee leaked a video of a man laughing hysterically that’s racked up almost 1 million likes (now that’s a lot), as a plastic packet of frozen macaroni and cheese is dropped into a boiler, burst open and then poured into a bowl geared up to serve to customers. The lady who posted the clip offers a thumbs-up in the hat that marks her as a worker of Panera Bread.

A link to the video can be found below:

https://www.youtube.com/watch?v=9yGSQ1BULWg

The clip introduced a wave of complaints in October 2019 from dissatisfied clients of a chain recognized for “fast casual” eating commonly perceived as a step in quality above other quickly made or fast food meals. Commenters stated they expected more than warmed-from-frozen dishes, or — as one critic put it — “glorified hospital food.”

Unfortunately for the employee she later posted on Twitter stating, ‘lol I lost my job for this’. The employer was clearly very unhappy at the negative media attention and being ‘outed’ for lying to its customers and providing them with low quality food.

Conclusion

In conclusion, employees should be incredibly careful of what they are doing or how they areusing social media during or outwith their working hours as their employers will have the right to investigate any implications arising from employees’ misconduct.

One of most likely repercussions arising from employees’ misconduct in privacy cases, is that the business and those involved will experience reputational damage. Whether this reputational damage is a result of offensive language in a tweet, forms of bullying in a Whatsapp groupchat or even now a TikTok exposing behind the scene practices of a company – there can be significant consequences. The preponderance of evidence shows that how employees conduct themselves in what they may consider private, has a major effect on workplace relations.

References

Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22

Bărbulescu v Romania 5 September 2017 (Application no. 61496/08)

Chartered Institute of Personnel and Development (CIPD), (2020) ‘Employment law’ Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law [Accessed: 28 April 2020]

Creighton v Together Housing Association Ltd ET/2400978/2016

Crossan, S. J. (2019a) ‘It happened outside work … (or it’s my private life!)’ Available at: https://seancrossansscotslaw.com/2019/02/07/it-happened-outside-work-or-its-my-private-life/ [Accessed: 28 April 2020]

Crossan, S. J. (2019b) ‘I’m a political activist: don’t sack me!’ Available at: https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/[Accessed: 29 April 2020]

Group, E., 2004. X v Y, CA, 28 May 2004, EWCA Civ 662 – Personnel Today. [online] Personnel Today. Available at: https://www.personneltoday.com/hr/x-v-y-ca-28-may-2004-ewca-civ-662/ [Accessed 29 April 2020].

Knowles, H., 2019. [online] Available at: https://www.washingtonpost.com/food/2019/10/14/woman-says-she-was-fired-over-tiktok-video-exposing-panera-breads-use-frozen-mac-cheese/ [Accessed 29 April 2020].

Legislation.gov.uk. 2020. Employment Rights Act 1996. [online] Available at: http://www.legislation.gov.uk/ukpga/1996/18/section/95 [Accessed 29 April 2020].

startups, (2019) ‘Employee privacy and employee confidentiality: Know the laws’ Available at: https://startups.co.uk/employee-privacy/ [Accessed: 28 April 2020]

Sterling Law, (2018) ‘Privacy in the Workplace’ Available at: https://sterling-law.co.uk/en/privacy-workplace/ [Accessed: 28 April 2020]

Team Employment, 2017. Employment Law Case Update: Creighton V Together Housing Association Ltd. [online] Warner Goodman. Available at: https://www.warnergoodman.co.uk/site/blog/news/employment-law-case-update-creighton-v-together-housing-associat [Accessed 28 April 2020].

The Independent, (2019) ‘Campus outcry as teacher stands for German far-right party in European elections’ Available at: https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html [Accessed: 28 April 2020]

X v Y [2004] EWCA Civ 662

Copyright Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini, 28 April 2020

The impact of UK Law on sport

By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)

Introduction

Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.

The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).

However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?

Is an Athlete an employee or a worker?

Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status

The question of an individual’s employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).

However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.

Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.

In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she ‘should be considered an employee of British Cycling or of the funding agency, UK Sport.’(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.

Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.

The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:

“I want to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.”

She added:

I continue to think it’s unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in.” (McGowan, 2019).

In response to her statement, a British Cycling spokesmen added:

We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics.” (McGowan, 2019).

Employment rights: employees vs workers

Determining the question of Jessica’s Varnish’s employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).

True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to ‘whistle-blowing’ actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)

Section 230 of the Employment Rights act 1996 defines an employee as “an individual who has entered into or works under a contract of employment.”

Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual’s employment status (Crossan, 2017). These include:

  • Mutuality of obligation
  • The control test
  • The economic reality test
  • The organisation or integration test

The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:

an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.’(CIPD, 2020).

Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.

As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish’s original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.

Athletes in the world of social media

Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.

This is completely understandable from the point of a view of an employer or sponsor because an athlete’s online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes’ contracts may contain certain restrictions on what they can and can’t post on social media. However, these restrictions may or will vary from specific social media targeted polices (“blackout” before during and after games), to more general restrictions which cover wider aspects of an athlete’s behaviour (Social Media In Sport: Top Tips, 2020).

Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.

Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.

In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.

In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan ‘#makeitcount’. The two athletes failed to make it clear that the tweets were in fact from Nike’s marketing communications. For an athlete or any individual using social media for promotional purposes, they must add ‘#spon’ or ‘#ad’ to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).

A delicate balancing act

Guidelines for athletes to follow for social media may vary from each profession. It’s no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.

It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their “role model” status? Could my post effect sponsorship for them or the sport?

These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it’s all about having respect for your audience and yourself.

Maternal/paternal rights for athletes

Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.

Maternity rights

Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes’ rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.

UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete’s return.

Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).

Paternity rights

In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).

Denly’s story is a happier example than the experience of former Manchester United’s French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).

Sporting success is valued more than family. The famous one liner,“winners never quit and quitters never win” is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner’s funeral in order to continue playing a game (Anderson et al, 2019).

These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).

How has Coronavirus has affected sport?

Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.

Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)

The lockdown laws which come as part of the pandemic haven’t just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).

The halting of sporting activities isn’t the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.

In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees’ wages up to a ceiling of £2500 a month (HMRC, 2020).

This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)

In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)

Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting ‘virtual’ Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).

The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)

The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of ‘Stade Toulouse’ would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).

The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.

Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).

Conclusion

COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn’t the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.

It is clear that UK employment law needs to do more in determining an athlete’s employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.

References

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UK Health Protection Regulations 2020

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Copyright Stephanie Crainey, Ross Codona and Briege Elder, 22 April 2020