Another day in the toxic debate over proposals to liberalise the Gender Recognition Act 2004. Yesterday’s blog entry (Hate crime?) addressed the issue of limits on freedom of speech and expression in relation to extending transgender rights.
Today, the UK media is focusing on remarks made by Labour leadership contender, Rebecca Long-Bailey MP. In an interview with the BBC’s Andrew Marr, Ms Long-Bailey expressed her support for changes to the current Gender Recognition Act which would permit transgender women to gain access to institutions such as refuges for women who have experienced domestic violence at the hands of men.
As Mr Justice Knowles acknowledged in Miller v (1) The College of Policing (2) Chief Constable of Humberside [2020] EWHC 225 (Admin), the debate over transgender rights can be summarised as follows:
“On one side of the debate there are those who are concerned that such an approach will carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges. On the other side, there are those who consider it of paramount importance for trans individuals to be able more easily to obtain formal legal recognition of the gender with which they identify.”
Knowles J went on to remark:
“Ishould make two things clear at the outset. Firstly, I am not concerned with the merits of the transgender debate. The issues are obviously complex. As I observed during the hearing, the legal status and rights of transgender people are a matter for Parliament and not the courts. Second, the nature of the debate is such that even the use of words such as ‘men’ and ‘women’ is difficult. Where those words, or related words, are used in this judgment, I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experience of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.”
A group within the British Labour Party, Labour Campaign for Trans Rights, has published a 12 point charter to push through changes to UK equality laws. Other women’s groups, such Women’s Place UK and the LGB Alliance, are bitterly opposed to this campaign.
Long-Bailey admitted that her position could set her at odds with many female members of the Labour Party who are deeply resistant to such developments. Many feminist opponents of reform to the current gender recognition rules have been given the acronym, TERF, or Trans- exclusionary radical feminists.
Gender reassignment is a protected characteristic in terms of the Equality Act 2010, but the legislation exempts women only refuges which currently exclude transgender women (i.e. those who were born male, but have undergone gender reassignment to become female). Although excluding transgender women would normally be regarded as an example of direct discrimination in terms of Section 13 of the Act, Parliament has provided the defence of objective justification. This means that permitting women only spaces in this instance – caring for the female victims of male domestic violence – is an example of a proportionate means of achieving a legitimate aim.
Conclusion
Much of the opposition to reform of the Gender Recognition Act 2004 appears to centre around proposals, in both England and Scotland, to permit individuals to self-identify in terms of their chosen gender without the need to go through physical changes. At the moment, anyone wishing to change gender must obtain a gender recognition certificate which will only be granted after the conclusion of the appropriate medical procedures.
It will, therefore, be for legislators in the UK and Scottish Parliaments to determine how far reforms to the Gender Recognition Act 2004 and, by extension the Equality Act 2010, will go. In the months to come, expect plenty of passionate arguments on both sides of the debate to be aired publicly.
A link to an article in The Independent discussing Ms Long-Bailey’s interview with Andrew Marr can be found below:
A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):
‘I disapprove of what you say, but will defend to the death your right to say it.’
Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.
Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).
That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:
it must be prescribed by or in accordance with the law;
it must be necessary in a democratic society;
it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
it must be proportionate.
Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).
Our very own Miller case
In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.
We have just been reminded of this fact by a case which has just been decided by the English High Court.
Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.
Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.
Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.
He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.
Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …”
It was also noted that Lord Bingham in Rv Shayler [2003] 1 AC 247 had stated:
“The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.
A subtle judgement?
It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.
There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.
Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:
provide evidence of a person’s motivation for subsequent hate crimes;
provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.
Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:
“He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.”
In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:
“There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.“
His Honour concluded by stating that:
“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”
A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:
Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:
“The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”
This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.
Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.
The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.
There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).
Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:
UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.
Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.
In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.
The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?
This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).
Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.
There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.
Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.
Is there a better way of doing things? Yes, is the short answer.
In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.
In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.
Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:
The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.
One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).
A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:
Last week I wrote a Blog about Stonewall’s list of 100 most inclusive UK employers for LGBTI people. The article summarised the advances in terms of the range of legal protection that the LGBTI communities now enjoy. From protection against discrimination in employment to same sex marriage, the turnaround in fortunes from a persecuted minority to part of the mainstream has been truly remarkable.
F. Scott Fitzgerald, the author of The GreatGatsby once remarked that “Switzerland is a country where very few things begin, but many things end.”
Today, the Swiss voted in a referendum to introduce laws which would extend protection from discrimination to LGBTI people. The proposal attracted support from 63% of Swiss voters and, finally, begins to bring the country into line with many of its neighbours who happen to EU member states. Switzerland is not part of the EU and, therefore, is not under any obligation to implement European laws which combat sexual orientation discrimination.
Critics of the Swiss proposal stated that the proposal was unnecessary because the country’s constitution already protected LGBTI individuals (and the country is a signatory to the European Convention on Human Rights). There were also concerns about what the proposal might mean for freedom of speech. Clearly, a majority of voters did not share these concerns.
Switzerland has a reputation for being a relatively conservative society (with a small ‘c’). After all, it was only in 1991 that the Swiss canton of Appenzell Innerrhoden finally permitted women to have the right to vote in cantonal elections. In federal (national) elections, woman had been given the right to vote since 1971.
We often forget this has been an incremental or gradual process in the UK and it did not happen overnight. Therefore, it is not advisable to be for British people to be smug or to have feelings of superiority about this issue. It was, after all, as recently as 2003 that the Employment Equality (Sexual Orientation) Regulations 2003 were implemented by the then Labour Government of Tony Blair. For the first time in UK employment law, LGBTI individuals were protected from discrimination in employment and training. This important law, critically, did not cover the provision of services and it was with the passage of the Equality Act 2010 that this area was eventually covered.
A link to an article on the BBC News app about the story can be found below:
It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.
It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)
Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.
In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.
Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see MandlavDowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.
Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?
The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.
Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.
Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.
Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?
It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd[1980] IRLR 64 CA).
Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.
A link to the story on The Independent’s website can be found below:
The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).
Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.
The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.
Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:
A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).
Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.
One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).
Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.
The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.
Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on and the age of consent was firstly reduced to 18 and then eventually to 16.
In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.
In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.
On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).
It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 occurred when the Directive was first transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination. Luckily for them, the Equality Act had since come into force and covered unlawful less favourable treatment on grounds of a person’s sexual orientation with regard to the provision of goods and services.
The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.
The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).
Another massive step forward for the equality of the LGBTI community was the introduction of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):
Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.
This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).
Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):
As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).
Postscript
On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.
A link to the story on the Sky News website can be found below:
We’re still in the month January and the issue of serious disparities in pay between the sexes raises its ugly head once again. I’ve said it before; but I’ll say it again: we’ve had over 40 years of legislation in the UK (first the Equal Pay Act 1970 and now the Equality Act 2010, not to mention EU primary and secondary legislation) which should have put the issue to rest.
The Equality Act 2010 incorporates an equality clause into contracts of employment which means that employers have a duty to ensure that men and women are paid on equal terms for carrying out like work; work rated equivalent; and work of equal value.
It’s hard to believe that the groundbreaking decision of the Court of Justice of the EU in Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455 was in the 1970s and here we are, entering the second decade of the 21st Century, still talking about the issue of equal pay – or the lack of it.
There is a depressing familiarity to stories in the UK media about the lack of progress regarding this issue. This is surprising because successful equal pay claims can be be very costly in financial terms for employers. In 2019, after Glasgow City Council female employees won their battle for equal pay, there was much speculation about how the employer was going to pay the bill. One of the (seemingly) more dramatic predictions was that the City Council would have to sell Salvador Dali’s world famous painting Christ of St John of the Cross in order to meet its legal obligations to its underpaid female employees. Susan Aitken, the City Council leader, was forced to issue a denial that this was a possibility. When you realise that the estimated value of Dali’s painting starts at £60 million you begin to get an idea of the scale of the problem.
That said, some years ago, Birmingham City Council was forced to sell its share in the National Exhibition Centre in order to meet the (awesome) financial burden of thousands of equal pay claims . The price achieved was £307million – although 3 years later, the asset was sold once more for an eye watering figure of £800 million (allegedly).
Recent research carried out by the English law firm, Slater+Gordon, suggests that women fail to gain pay increases because they are not negotiating with their employers about this issue. Campaigning groups, such as Close the Gap, are firmly of the opinion that the onus should not be placed on women to push for equal pay; rather it should be the responsibility of the State and/or employers to achieve this goal. There has to be real cultural change in society and women need to be valued more if the gender gap is to become a thing of the past.
Links to articles in The Independent about the equal pay research that Slater+Gordon Solicitors carried out can be found below:
And if you remain unconvinced about ingrained gender bias in the corporate world generally, you will find a link below to research carried out by The Independent which demonstrates how many leading tech companies suffer from the lack of women in leadership roles:
Sometimes words can kill: the 15 high ranking members of the Nazi Party certainly knew this when they met at a villa in Berlin’s up market suburb of Wannsee. The villa would have had an interesting history irrespective of this meeting: built by Ernst Marlier, a corrupt and violent German industrialist; sold to Friedrich Minoux (another German industrialist and swindler); and finally sold to the Nazi Party’s Stiftung Nordhav (run by the notorious Reinhard Heydrich – one of Adolf Hitler’s henchmen and potential successor).
As Professor Mark Rosen stated, the objective of this ultra secret meeting, which took place on 20 January 1942, was nothing less than a ‘signpost’ on the road to the ‘Final Solution’ regarding the Jewish People (or question as the Nazis would have posited things – language, after all, is important here).
A sobering thought, on this Holocaust Memorial Day in the UK, is that many of the participants were lawyers or had some form of legal education. They certainly knew the meaning of words and that words have meaning.
Lawyers are used to jokes about their lack of integrity, but many members of the profession regard law as a noble profession, a civilising force or a discipline firmly rooted in the humanities. Precious little humanity would be shown to millions of Jewish People following the discussions at Wannsee.
During the summit, there was an almost comical incident: the participants got bogged down in what seems to be an arcane discussion about levels of Jewishness that a person might have. The discussion was deadly serious – quite literally. The outcome would decide who would live and who would die.
This was, of course, to be entirely expected: the Nazi regime (1933-1945) had already started the process of dehumisation of the Jewish People when the Nuremberg Decrees were passed in 1935. This led to the wholesale removal of Jews from the public square in Germany (and later throughout the expanded Reich and Occupied Territories). Jewish businesses and property were confiscated; Jews were forced out of the professions; they were stigmatised and ghettoised. To be Jewish in Hitler’s Germany would simply become unbearable.
The Nuremberg Decrees and the Wannsee Protocol demonstrate that there is a darker side to the law: in the wrong hands, it can be used to stigmatise and oppress certain groups of people.
At the end of the meeting (which had lasted for about 90 minutes), the participants were served Cognac, fine wines, food and cigars. Reinhard Heydrich, the Nazi who chaired the proceedings, ordered that all copies of the minutes be destroyed. Some copies survived as damning evidence of the criminal conspiracy to murder an entire race.
You can find out more about the Nuremberg Decrees at and the Wannsee Conference at the links below:
Wannsee reminds us of the importance of the meaning of words and that words have meaning:
“Poets, priests and politicians Have words to thank for their positions Words that scream for your submission And no one’s jamming their transmission ‘Cos when their eloquence escapes you Their logic ties you up and rapes you”
(Lyrics by Gordon Thomas Matthew Sumner (or ‘Sting’); 1980 taken from the track “De Do Do Do, De Da Da Da”)
Further reading
The Villa, The Lake, The Meeting: Wannsee and the Final Solution by Mark Roseman (Allen Lane/Penguin Press: 2002)
Here, in the United Kingdom, the Brexit saga seems to be drawing to the end of stage 1 i.e. ratification of the withdrawal agreement that the EU and British Government of Boris Johnson have negotiated. The European Union (Withdrawal Agreement) Bill is likely to pass through the House of Lords this week or early next week.
Meanwhile in the rest of the EU, business seems to be going on fairly normally and, it was with some relief this week that I read about a forthcoming decision of the Court of Justice concerning the operation of the Single European Market – and not about Brexit.
The Republic of Hungary, a fellow EU member state – for the present time anyway, may be on course to lose this case which, at its heart, addresses the free movement of capital. Essentially, Hungarian law may well be incompatible with the operation of the Single European Market and, as well we know, EU Law enjoys primacy over domestic law:
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1
Case 6/64 Costa v ENEL [1964] ECR 585, 593
HP Bulmer Ltd & Anor v J. Bollinger SA & Ors [1974] EWCA Civ 14
Case 148/78 Pubblico Ministero v Ratti (1979) ECR 1629
Defrenne v Sabena [1976] ECR 455, [1976] ICR 547, [1981] 1 All ER 122
C-106/77 Simmenthal [1978] ECR 629
C-106/89 Marleasing [1991] ECR I-7321
‘Stop Soros’
In 2017, Hungary passed a law which compelled non governmental organisations (NGOs) to declare their sources of funding to the Government (this information would then be available via a publicly accessible website). If a group received funding from a foreign individual or organisation above the value of 500,000 Hungarian Forints (or €1500 euros), this had to be made public. Furthermore, groups finding themselves in receipt of such funding had to declare themselves as ‘organisations in receipt of support from abroad’ on their websites and in their official communications.
The measure became popularly known in Hungary as the ‘Stop Soros’ Law – a reference to the antipathy of the Government of Hungary towards George Soros, the Hungarian-American billionaire. Soros is an energetic supporter of liberal social values which are often at complete odds with the right wing and ultra conservative views of the Hungarian Government.
A link to a story about the background to the Law can be found on the Reuters’ website below:
Advocate General Campos Sánchez-Bordona has just issued an Opinion about the legality of Hungarian law in this respect. The controversial Hungarian Prime Minister, Viktor Orbán, has long been hostile to groups in civil society who are opposed to his Government’s aims and objectives and which receive funding from abroad.
According to the Advocate General, Hungarian law potentially breaches the free movement provisions of the Single European Market in relation to capital – as well as data protection, freedom of association and privacy rules contained in the European Charter of Fundamental Rights (see Case C-78/18 European Commission v Hungary).
A link to the Advocate General’s Opinion can be found below:
This Opinion is not the end of the matter because it is always worth remembering that the Court of Justice may not approve it when it makes its decision on the matter. As the Advocate General currently sees things, Hungarian law disproprotionately discriminates against those individuals and organisations who are not Hungarian. It is a barrier to the legitimate, free flow of capital across the borders of EU member states.
Project 1992
The Single Market (or Project 1992) came into existence on 1 January 1993. The Project saw the 12 member states of what was then the European Communities (the Coal and Steel Community, Euratom and the EEC collectively) implement ambitious plans to ensure frictionless trade. It was said that British businesses would find it as easy to sell goods or to provide services in Madrid as they presently were able to do so in Manchester.
The Single Market was based on 4 fundamental principles:
Free movement of persons
Free movement of goods
Free movement of services
Free movement of capital
Over the years, a huge amount of case law has built up around free movement of persons, goods and services, but it is rarer to see a decision of the Court of Justice regarding free movement of capital or money. Yet, free movement of capital is an essential corollary to the smooth operation of the Single Market.
How, for example, would consumers of goods and services in one member state pay for these if legitimate or honest money cannot flow back and forth across borders? Please note that I am not advocating the removal of all barriers to free movement – I am all too aware of the necessity to combat the money laundering activities of organised crime. Anyone who has read Misha Glenny’s excellent and terrifying book, McMafia: Seriously Organised Crime (2017: Vintage), will appreciate the real challenges that free movement of capital represents for law enforcement agencies across the EU.
Put simply, the 3 more prominent freedoms of the Single Market would grind to a halt if money was subject to all sorts of unrealistic barriers e.g. member states being able to impose very restrictive limits on the amount of money citizens could move in and out of the country. With the globalisation of financial services, many of us will either have forgotten these types of restrictions – or never experienced them.
When speaking to younger people, it often strikes me that many of them, who do travel regularly to Europe, have any real concept about things like tariff barriers, currency restrictions or passport controls. Brexit (and all its ramifications) may well be something of a wake -up call.
Admittedly, the original founding Treaty of the European Economic Community or the EEC (the Treaty of Rome) did envisage free movement of capital.
One of the first cases that I remember from my studies in EEC Law was Case 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR -00377. At that time, Italy operated currency restrictions which meant that its citizens were limited to the amount of money that they could take out of the country. Luisi and Carbone were both fined by the authorities for taking more money out of the country than they were permitted under current domestic law. They argued that Italian law was in breach of the Treaty of Rome because it prevented them from going to another member state in order to receive services (and to pay for these). The Court of Justice was of the view that the restrictions imposed by Italy were unduly excessive.
Conclusion
In the 21st Century, we often forget that restrictions on movements of people, goods, services and capital were very common place. It is the direct influence of the European Single Market that consigned many of these barriers to trade to the status of historical curiosities.
We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.
Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.
Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.
This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.
Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines). In fact, Ms Larkin was awarded £10,000 in compensation to reflect injury to feelings.
A link to the judgement of the Employment Tribunal can be found below:
A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.
A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:
Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.
Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) whichcampaigns to end the ‘motherhood penalty’:
Seán Crossan's Scots Law 