LaPSe of Reason

Blogging from the School of Law, Politics and Sociology at the University of Sussex

Extra EU Nulla Salus? Why a Hard Post-Brexit Transition Was the Only Credible Outcome of Brexit

[Republished with permission from the blog of Sussex Law School’s European Law and Policy Research Group]

By Giovanni Zaccaroni

The post-Brexit transition is a complex process with multiple variables, affecting horizontally a number of different sectors, from the environment to pharmaceuticals and – of course – finance.  The result of the US elections brought to power the 23rd US president-elect of Irish descent, raising questions about how and whether the incoming president will change approach to international trade with the EU and the UK.

The narrowing end of the post-Brexit transition was a short-living truce between the EU and the UK, and the result of the US election is likely to have accelerated the rush in favour or against a deal.  In this short piece I will try to explain why, until recently, a hard post-Brexit transition was the only reasonable outcome of the Brexit process and how this approach might be affected by the post-Brexit isolation that the UK is likely to live.  Three main scenarios were likely to have appeared in the minds of those advocating for leaving the EU in 2016.

Scenario 1: the UK as a rule-taker in an increasingly Franco-German centred Union

This scenario, which arguably dates back to 2001, has seen the UK becoming increasingly disinterested in EU economic and monetary integration, remaining outside of the Banking Union and outside of the expensive post- economic crisis as well as, more recently, the post-pandemic recovery mechanism. The UK has also been incapable of reacting to the Franco-German alliance that seems to drive the current process of European integration.  The growing gap between EU and non-EU Member States, as well as the absence of valuable techniques of differentiated integration, also played a part in this.  This scenario has been mentioned by Sir Jonathan Faull as the likely reason for the UK’s disengagement towards the EU that culminated in the 2016 referendum.

Scenario 2: the UK as a rule-taker with a deal that respects the EU market rules

This second scenario would have seen the UK outside the EU with a softer process, after an exit referendum and a smooth transition phase, with the UK negotiating a horizontal deal and perhaps even various sectorial agreements in line with the EU Internal Market. The UK would have been ultimately driven under the influence of the EEA and EFTA EU satellite market integration systems, where, with the notable exception of Switzerland, the other partners (Lichtenstein, Iceland and Norway) behave as rule-takers of the EU system with only a limited influence on the process in Brussels. This would have at least given the possibility to the UK to opt out of the EU agricultural policy but would have eventually transformed the UK into a satellite country of the EU with the aggravating circumstances that the UK is not in the same position as Norway (whose economy relies largely on oil) and Switzerland.

Scenario 3: the UK outside the EU without a deal

The third scenario is the closest to the one we are currently living.  The UK completed the withdrawal from the EU after a troublesome process and several extensions to the final Art. 50 deadline. It negotiated a Withdrawal Agreement and a Political Declaration that largely compels both sides to find a horizontal or several sectorial deals in EU terms. However, there is not enough time to negotiate any of these deals and the likely outcome is that from the 1st of January 2021 EU law will simply stop applying to the UK.  Aware of that, the UK government approved a UK Internal Market Bill that unilaterally derogates from several parts of the Withdrawal Agreement and the Political Declaration. This looks more like an attempt to resonate with EU law. In the meantime, the UK is attempting to reach deals with other international partners, such as Japan, to try to compensate for the lack of participation into EU international trade policy. This scenario was the only reasonable outcome of the withdrawal process as it is the only one where, even without a deal at the end of the transition period, the UK would have hoped to ‘take back control’, perhaps in a ten years time-frame, with sectorial international agreement based on the Swiss model, i.e. relying on the power and influence of its massive baking sector.

This last scenario, however, seems to have lost much of its original appeal. The attempt of unilaterally derogating from several provisions of the Withdrawal Agreement and of the Political Declaration, that was embodied in the UK Internal Market Bill, was largely an attempt to buy time to set the stage in the event of a shrinking WTO system under the lead of a second Trump presidency.  It was also, simultaneously, an attempt to adjust the UK devolution system, prioritising and strengthening the needs of the Union (intended as the United Kingdom) over the regional needs of the devolved nations.  It seemingly ended up damaging the devolution system and leaving all the regional partners, including Wales, feeling disgruntled.

The result of the US presidential elections is also not so reassuring for the UK government in the post-Brexit transition.  Even though Joe Biden might not be so pro-EU as many believe, he is a committed social democrat of Irish descent, and has already made clear that under his presidency he would not tolerate a post-Brexit Irish solution that would endanger the Good Friday Agreement.  This was the underlying spirit of the UK Internal Market Bill, a bill that now seems to lack the international support that was needed to bring it to success.  We now know that there were three elements that created the perfect background – and made reasonable – a post-Brexit transition without a deal: a) the disengagement of the UK from the EU integration process since at least 2001, b) the need to re-adjust the UK devolution process and to keep the devolved nations under control and c) an isolationist US political and commercial partner.

Had the UK swiftly completed the Art. 50 process and left the EU without a deal, it might have had enough time to negotiate a deal with the US before the end of the Trump presidency. Now the situation seems far more hazy and very likely to end up with a last minute horizontal ‘skin and bone’ deal that would bring the UK slowly but steadily under the EU-EEA-EFTA influence (thus becoming an EU satellite state) or without any deal, but also without the necessary political support of the new US presidency.  Of course, this is not the end of the world either for the UK or for the EU: both sides will find a way to survive without each other. However, a hard post-Brexit transition was the only reasonable outcome of the Brexit process, to avoid the UK from becoming, one way or the other, a rule-taker.  Now that the possibility to end the transition period without a deal is much less appealing, the UK seems likely to pay the price of its historical isolationism. A last minute deal might therefore still be foreseeable.

Giovanni Zaccaroni is a postdoctoral researcher in EU law at the Brexit Institute, Dublin City University. His first monograph, “Equality and Non-discrimination in the EU: the foundations of the EU legal order”, will be out with Elgar Publishing in February 2021.

The neoliberal university and resistance in the current crisis

Photo of Matthew Evans
Matthew Evans

This post is by Dr Matthew Evans (Lecturer in Law, Politics and Sociology at the University of Sussex and Visiting Researcher in Political Studies at the University of the Witwatersrand). It draws upon and discusses the recent article: Matthew Evans (2020) ‘Navigating the neoliberal university: reflecting on teaching practice as a teacher-researcher-trade unionist’, British Journal of Sociology of Education 41(4), 574-590.

Introduction

Recently I published an article in the British Journal of Sociology of Education (BJSE), entitled ‘Navigating the neoliberal university: reflecting on teaching practice as a teacher-researcher-trade unionist’. The article ‘reflects upon the neoliberalisation of higher education and its effects on teaching practice’ and ‘on the interrelationship of different scholarly identities and practices—as a researcher, teacher and trade unionist’.

In the article I ask ‘whether critical, emancipatory praxis is possible or if complicity in, and co-option by, neoliberalism is inevitable’ in universities. In response, I set out four approaches to navigating disciplinary power in the neoliberal university:

  1. ‘instrumental compliance’;
  2. ‘participation in and pedagogic reflection upon mobilisations such as strikes when they emerge’;
  3. ‘incorporation of critical and emancipatory themes and approaches into teaching’;
  4. ‘reflection upon the ways scholarly identities overlap and inform one another’, and (drawing on Agnes Bosanquet) ‘small targeted acts of resistance’.

Since its publication, I have been struck by how the article is both more relevant than ever and already out of date. I explore these tendencies here. First, I discuss some of the specific reflections which have been superseded, followed by a discussion of ways that the issues identified in the article are increasingly relevant. I then conclude with thoughts on possible future developments.

Specific reflections: already out of date

I wrote the first version of what became the article in mid-2018. Already, several of my specific reflections have been superseded or become out of date.

For instance, in the article, I wonder whether the ‘instrumental compliance’ of ‘submitting works for consideration for the Research Excellence Framework (REF) (even whilst on a teaching-only contract)… might lead to promotion—or contractual recognition of research’. Since writing this, I have been promoted and moved onto a contract that recognises research – so it seems there were indeed instrumental, personal, benefits of compliance in this case. Nevertheless, much as this has personal benefits, such compliance also serves to reinforce the neoliberalisation of higher education which I argue against in the article.

There have, however, also been developments in the more collective (and arguably more hopeful) modes of navigating – and resisting – the neoliberal university such as ‘participation in and pedagogic reflection upon mobilisations such as strikes when they emerge’. The BJSE article included reflection upon participation in the 2018 strike by the University and College Union (UCU) over proposed changes to pensions. At the time of writing this was very recent. By the time the article appeared in print, however, there had been further rounds of strike action in 2019 and early 2020. These build upon and go beyond the activities I reflected upon in the article through, for instance, not only being over changes to pensions but also over pay, workloads, casualisation and equalities.

Furthermore, I wrote the article long before the COVID-19 pandemic. By the time the article was published, however, the pandemic was very much underway and ongoing. The reflections I put forward in the article are of the pre-pandemic era. Nevertheless, many of the issues and trends I identify have continued and intensified.  Moreover, the COVID-19 pandemic has brought issues highlighted in the article to the forefront, which I discuss next.

The neoliberal university: more relevant than ever

Since the onset of the global COVID-19 pandemic, the neoliberal university is perhaps more visible that it was. The scrabble for students (and therefore fees) in the wake of the exam results fiasco, alongside universities’ performance of ‘hygiene theatre’ in a bid to persuade student-consumers of the safety of campuses, highlights the ways in which universities are encouraged (even compelled) to compete with one another, engaging in and promoting neoliberal ideals rather than critical or emancipatory aims.

In the BJSE article I note that ‘meeting the neoliberal university’s expectations is linked, not only to employment, but also to health, wellbeing and—in extremis—survival’. This dynamic is clearer than ever. Staff (and students) contend with:

Implicit and explicit pressures exist to deliver face to face teaching or student support as universities continue ‘selling students the lie that they can have a full university experience in the current crisis’ (as UCU general secretary Dr Jo Grady puts it).

Furthermore, universities have announced cuts, promotions freezes, job losses, and other ‘cost savings’. Along with concerns over the safety and wellbeing of staff and students, all of this has led to responses from trade unions, student unions and their allies. Some of these are grassroots, local and somewhat informal (such as the Crisis Justice at Sussex campaign), whereas others are more formalised and legalistic (such as UCU’s legal action challenging the Westminster government’s decision to ignore advice from the Scientific Advisory Group for Emergencies to move teaching online in English colleges and universities). These point to possible directions for future developments in resistance to the neoliberal university during (and perhaps beyond) the present crisis.

Conclusion

Responding to, and resisting, the effects of the neoliberalisation of higher education can take various forms. In the BJSE article, I focus upon two forms of resistance which are more individual (‘incorporation of critical and emancipatory themes and approaches into teaching’ and ‘reflection upon the ways scholarly identities overlap and inform one another, and small targeted acts of resistance’) and one which is more collective (‘participation in and pedagogic reflection upon mobilisations such as strikes’). I conclude that whilst for individuals ‘[s]ome scope exists to resist neoliberalism in teaching practice’, this is ‘structurally limited’. Therefore, ‘for an emancipatory, critical vision of education to be pursued most fully and most effectively, a broad collective struggle is necessary’.

The COVID-19 pandemic and universities’ responses to it reinforce this conclusion. What happens next is uncertain. However, one lesson I take from the environment that led to my article simultaneously increasing in relevance and becoming outdated between being written and published, is that circumstances are fast-shifting, and it is possible for things to get better as well as worse. To end on a more hopeful note, it is worth emphasising that mobilisations of unions and others in the current crisis suggest that the broad and collective struggles necessary for emancipatory and critical education may yet emerge.

Policies should better support people trapped in long-term refugee situations

Protesters demand rights and housing for refugees and migrants in Greece.
Photo by ANGELOS TZORTZINIS / AFP

Carolien Jacobs, Leiden University and Nuno Ferreira, University of Sussex

People that are forced to live away from their homes for five years or more – such as refugees or internally displaced persons (IDPs) – are said to live in a situation of protracted displacement. In 2018 it was reported that 78% of all refugees live in protracted displacement.

This is a very challenging state. Most are vulnerable and highly dependent on external support from governments, NGOs or relatives. They also have insecure legal statuses and don’t have the ability – or opportunity – to rebuild their lives because of scarce economic resources, the legal framework that regulates their lives or societies that don’t welcome them.

In many cases, they can neither return home nor move on to other countries, nor really integrate in the country of reception.

We’ve been carrying out research that explores the experiences and solutions for protracted displaced populations around the world. Specifically, we examine the rules that dictate people’s ability to work, where they live, options for family reunification, and access to accommodation, education and health care.

We found that international and host country policies don’t adequately address the challenges posed by forced displacement across the world.

The traditional “durable” solutions are return, local integration and resettlement. But these aren’t realistic because of the way institutions and rules restrict refugees’ movement, access to services and rights.

If refugees, for instance, aren’t allowed to work, how can they become locally integrated into the host society? And if only a fraction do get access to resettlement programmes, then resettlement can’t be seen as a sustainable solution to resolve situations that affect tens of thousands of people.

More innovative and long-term approaches need to be developed that recognise the fundamentals of human rights and livelihood security. They must also allow for the freedom of movement, ensuring people reach safe countries when they need to and allow for access to resources and networks in home regions.

Finally, policies can only be developed by including refugees, IDPs and migrants’ own perspectives in policy-making. This creates ownership and ‘buy into’ by those affected.

Wrong focus

Recently, governments have made important strides in addressing refugee issues, putting more emphasis on improving social cohesion, host-refugee relations and promoting broader economic development in host countries.

But there’s been an increasing number of displaced people. This makes the situation more complex and increases populist and racist trends in host countries. It requires more collaboration, coordination and constant improvement between stakeholders.

In many cases, especially in the Global South, national measures addressed to displaced people are strongly ‘upward’ oriented. They look to satisfy the international community – in particular the UNHCR, IOM,World Bank and EU – rather than concentrating on local socio-economic needs.

This is understandable as these international actors often provide funding and demand accountability, but it doesn’t necessarily translate into a sustained focus on displaced people’s actual needs and the realisation of durable solutions.

Waiting for regional initiatives

Another challenge is that regional blocs – such as the European Union, African Union and the Intergovernmental Authority on Development – have policies that can sometimes protract, rather than resolve, displacement situations. For instance their policies could restrict people’s freedom of movement and right to work.

An example of this is the EU’s securitisation and externalisation of control agenda. This prioritises internal security and outsources border control to neighbouring countries. This overrules other agendas such as mobility, rights and livelihoods and could contribute to improving protracted displacement.

Yet studies show that people living in protracted situations rely heavily on
social networks to survive and make a living. They also need to have mobility which allows them to cross borders and find security outside their home countries.

Internally displaced people and refugees should be seen as contributors to social and economic life in a receiving country. Disregard of this potential contribution also harms host–refugee relations. If they can’t work it could protract the displacement situation. Italy and Greece are cases in point.




Read more:
Refugee camps versus urban refugees: what’s been said — and done


New solutions

Looking at the type of policies and programmes in place to support internally displaced persons and refugees, there is an unmistakable focus on humanitarian interventions, especially emergency aid. This almost inevitably competes with longer-term sustainable solutions to protracted displacement as solutions are not geared towards becoming self-reliant but towards addressing immediate needs. This needs to change.

Initiatives such as the Jordan Response Plan for the Syrian Crisis are important steps to bridge the gap. This plan seeks to better integrate and complement humanitarian measures.

Mobility and translocal livelihoods are also significant strategies for displaced people but are often hampered by multiple restrictions.

Solutions do exist.

Humanitarian visas, for instance would allow people to flee from insecurity with temporary travel documents through ‘humanitarian corridors’ but thus far they are not regulated at a European level.

Another possibility is the introduction of private sponsorship schemes whereby private individuals provide financial and emotional support to the displaced. Over the past 40 years, the Canadian government has resettled nearly 300,000 refugees through this program.

These innovative ideas could go to great lengths in addressing protracted displacement around the world.The Conversation

Carolien Jacobs, Assistant Professor, Leiden University and Nuno Ferreira, Professor of Law, University of Sussex

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What Kind of Justice for a ‘Global New Deal’?

[Republished with permission from Critical Legal Thinking]

Delivering the 2020 Nelson Mandela Annual Lecture, the United Nations Secretary General António Guterres recently set out a wide ranging critique of the current global order, characterised by pervasive, institutionalised inequality, and failed, nationalistic responses to the global Coronavirus crisis. In response he has called for the reform and reshaping of global governance structures, for a ‘New Social Contract’ and a ‘Global New Deal’.[1] But what kind of justice is presented in the call for a Global New Deal?

In sharp contrast to the incompetence and the right wing populist bluster of Donald Trump and Boris Johnson the intervention by António Guterres is refreshing. Guterres presents the Coronavirus crisis not in terms of a ‘security emergency’, or a ‘war on the virus’ or a ‘conspiracy’, but starkly in terms of the failure of the post-war global political order which is beset by systematic and structural inequality. Guterres frames this inequality as multifaceted and intersectional, combining inequalities of wealth, gender, race and knowledge and stretching across populations and nations of the Global North and Global South. This is held in place by inequalities of political power within the institutions of global governance, across the UN Security Council and across the Bretton Woods institutions. Such inequality is the legacy of neo-colonialism and globalisation.[2] Guterres argues:

COVID-19 has been likened to an X-ray, revealing fractures in the fragile skeleton of the societies we have built. It is exposing fallacies and falsehoods everywhere: the lie that free markets can deliver healthcare for all; the fiction that unpaid care work is not work; the delusion that we live in a post-racist world; the myth that we are all in the same boat. Because while we are all floating on the same sea, it’s clear that some of us are in superyachts while others are clinging to the floating debris.[3]

In response to the pandemic Guterres calls for the creation of a ‘New Social Contract’ based upon sustainable development, social protection through investment in public services like education and healthcare, affirmative action policies to redress gender and racial inequality, multilateral cooperation on climate change, and policies of corporate taxation and economic redistribution.[4] For Guterres this must go hand in hand with a ‘Global New Deal’, involving the reform of global governance institutions on the basis of ‘inclusive and equal participation’. Such a Global New Deal is to be:

[b]ased on a fair globalisation, on the rights and dignity of every human being, on living in balance with nature, on taking account of the rights of future generations, and on success measured in human rather than economic terms … [5]

Guterres’ call for the renegotiation of a global ‘New Social Contract’ and ‘New Deal’ can be thought in broader terms of Karl Polanyi’s idea of a ‘double movement’ with respect to forms of social struggle and the political and moral regulation of the economy. For Polanyi both social liberalism, and fascism, emerged in the 20th century as starkly differing reactions to the levels of social inequality, deprivation and international instability caused by widespread policies of free market capitalism and European imperialism.[6] The emergence of social democracy and the Keynesian welfare state in Western Europe and North America, such as Franklin Roosevelt’s ‘New Deal’, was one set of responses to this. The mid-20th century social democratic regulation of capitalism in turn provoked neoliberal reaction and the subsequent political ‘disembedding’ of domestic economies and then the global capitalist economy from the 1970s to the present.[7]

Guterres’ response to the rapid rise of global inequality sits then within a broader landscape of social democratic efforts to push back against the human and ecological devastation that has been wreaked by 40 years of neoliberal globalisation. In this respect his call sits alongside domestic proposals of a ‘Green New Deal’ suggested by sections of the left wing of the US Democratic Party and UK Labour Party. Guterres’ call also sits alongside the intellectual traditions of social democratic ‘cosmopolitan’ theory and policy across the fields of development studies, international political theory, international relations, and international legal theory. In this the register and principles of social democratic, Keynesian welfare capitalism developed in Western Europe and North America is drawn upon to rethink in liberal internationalist, cosmopolitan terms the reform and transformation of global social relations and the institutions of global governance and international law. In speaking of ‘fair globalisation’ Guterres’ call echoes key elements of this social democratic cosmopolitan discourse developed by figures like Amartya Sen, Martha Nussbaum, Thomas Pogge, David Held and Jürgen Habermas.[8] Broadly this is a vision of ‘global justice’ in which global capitalism is morally and politically regulated and put to use progressively for the benefit of the whole of humanity.

There is definitely some appeal to Guterres’ call to action, it is sprinkled with flashes of something more radical: the denunciation of the commodification of health and education; the recognition of the gendered nature of care in the home as unpaid work; the acknowledgement of the persistence of neo-colonialism. In this sense such a social democratic, cosmopolitan vision of global justice is more appealing than our current alternative marked by the failure and slow breakdown of the post-war global liberal order, rising nationalism and right-wing populism, and the ‘success’ of the Chinese authoritarian model of capitalist development.

Yet, there remains something fundamentally inadequate about Guterres’ call to action, which shares a set of limits and blind spots with the discourse of social democratic cosmopolitanism. Guterres’ account needs to be understood as sitting within a long tradition of Western scholarship and political action guided by the assumption that the fundamentally unequal and exclusionary idea of private property can be morally regulated, and, that the economic utility of self-interest can be channelled, regulated and made less socially destructive. Such a philosophical and economic narrative runs at least from Aristotle, through Cicero, Grotius, Smith, Keynes and Rawls, its contemporary language is that of ‘capabilities’, ‘socio-economic rights’, ‘corporate social responsibility’ and ‘sustainable development’.

Yet this long and dominant intellectual tradition is marked by far too little awareness of the forms of violence, exclusion and exploitation which sit at the heart of the systems of social reproduction that have underpinned the historical development of private property, the emergence of capitalist economies, and the global political and juridical order that sustains globalised capitalist relations. In ignoring or underemphasising the fundamental forms of violence, exclusion and exploitation that make private property, capital accumulation and capitalist social reproduction possible, the efforts to morally regulate markets and capital consistently become unhinged and plod on by justifying past and contemporary modes of exploitation through narratives of charity, welfare and future progress.

Thought of in this historical sense what is being pitched by Guterres is not so much a ‘new’ deal, but the repackaging of a distinctly old deal of the moral regulation of commercial society and capitalist markets updated with a few more nods to an expanded range of human rights, historical wrongs and a faith placed in environmental technical fixes. In many ways it represents a repackaging of a narrative of post-war Western economic prosperity and peace devoid of the key assumptions and presuppositions that made its brief moment of success possible: the successive waves of violent accumulation and dispossession domestically and through colonialism and empire; cheap resource extraction and environmental destruction; the exploitation of labour wherever it could be found; the exploitation of the unpaid, unrecognised gendered labour of women in the home; the exclusion of non-citizens from a small zone of Western prosperity and peace; and the holding of all of this together through the interventionist violence of US global hegemony.

Pitched against the ravages of neoliberal globalisation and rising tide of authoritarianism and right wing populism the repackaging of the social democratic old deal as a new deal may seem promising, but is this way of thinking truly up to the task of offering the world a plan to get to grips with the current overlapping set of crises facing humanity? The exploitation of the natural environment and biosphere, the exclusionary social relations of private property and capital accumulation, the alienation and exploitation of labour, the exploitation of gendered labour, the predatory operation of financial capital, the commodification of all things and humans, the cultural hegemony of market rationality, consumerism and individualism. All of this is hardwired into the current globalised system of capitalist social reproduction.[9]

To think of reforming and morally regulating contemporary capitalism as some form of global social democratic settlement might cure some of the ills brought by neoliberal globalisation, and might make some forms of poverty a little less severe. Yet it is also incredibly naïve to think that if we continue to gloss over and ignore the fundamental forms of violence, exploitation and exclusion that sit at the heart of contemporary capitalist social reproduction, our world could ever become anything radically different from what it currently is. It is also incredibly naïve to think that the old model of Western social democratic capitalism can be repackaged for the globe absent of the manifold forms of violence which made that slice of Western peace and prosperity possible.

Reflection upon the violence of capitalist social reproduction, and the moral rejection of this, has to inform any idea of an egalitarian and democratic global constitutional settlement.  Anything less, portrayed as ‘global justice’, merely scratches the surface and offers a bit of moral comfort while the exploitation and degradation of the earth and humanity rages on.

[1] António Guterres, ‘Tackling the Inequality Pandemic: A New Social Contract for a New Era.’ Nelson Mandela Annual Lecture, New York, 18 July 2020. https://www.nelsonmandela.org/news/entry/annual-lecture-2020-secretary-general-guterress-full-speech

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, (Boston: Beacon Press, 2001).

[7] For various accounts see: Fred Block, The Origins of International Economic Disorder, (Berkeley: University of California Press, 1977); Michael Mann, The Sources of Social Power, Vol 4: Globalizations, 1945-2011, (Cambridge: Cambridge University Press, 2013); Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism, trans. Patrick Camiller, (London: Verso, 2014); Richard Peet, Unholy Trinity: The IMF, World Bank and WTO, 2nd ed. (London: Zed Books, 2009); Philip Mirowski, Never Let a Serious Crisis go to Waste, (London: Verso, 2013).

[8] Amartya Sen, The Idea of Justice, (London: Penguin, 2009); Amartya Sen, Development as Freedom, (Oxford: Oxford University Press, 1999); Martha Nussbaum, Creating Capabilities: The Human Development Approach, (Cambridge, MA: Harvard University Press, 2011); Thomas Pogge, World Poverty and Human Rights, 2nd ed. (Cambridge: Polity, 2008); David Held, Global Covenant: The Social Democratic Alternative to the Washington Consensus, (Cambridge Polity Press, 2004); Jürgen Habermas, The Divided West, (Cambridge: Polity Press, 2006).

[9] For differing accounts see: Stephen Gill, Power and Resistance in the New World Order, (Basingstoke: Palgrave McMillan, 2003); William I. Robinson, Global Capitalism and the Crisis of Humanity, (Cambridge: Cambridge University Press, 2014); Boaventura De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, (London: Butterworths, 2002); Silvia Federici, Revolution at Point Zero: Housework, Reproduction and Feminist Struggle, (Oakland, CA: PM Press, 2012).

Tarik Kochi, University of Sussex, is the author of Global Justice and Social Conflict: The Foundations of Liberal Order and International Law (Routledge, 2019).

Business as Usual? The Impact of COVID-19 on Access to Family Justice in England and Wales

[This post, by John Jupp, follows up on his previous post ‘COVID-19 and Case Management in the Family Courts: A New Road to Consistency?’ and is republished with permission from Family Law Week]

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, examines the impact of the pandemic on the family justice system and the nature and extent of the challenges faced by family law professionals and court users.

 Photo of Dr John Jupp

John Jupp, Lecturer in Law, University of Sussex, and Solicitor

Introduction

On 19 March 2020, the same day that the Prime Minister announced the introduction of social distancing measures in an effort to contain the spread of COVID-19, the President of the Family Division, Sir Andrew McFarlane, issued instructions that all family hearings should take place remotely, unless fairness and justice required that a court-based hearing should be conducted. According to the President, the transition to remote access processes would enable the family justice system to ‘keep business going safely’ and ensure continued access to family justice.

Complimenting these instructions, a report released by Mr. Justice MacDonald on 23 March confidently reassured the judiciary that remote access systems should render it possible ‘to continue substantially the full operation of the family justice system’. Since then, remote access processes have facilitated continued access to family justice. In the two weeks between 23 March and 6 April audio hearings had increased by more than 500 per cent and video hearings by 340 per cent. Moreover, by 28 April 94 per cent of 932 respondents to a consultation undertaken by Nuffield Family Justice Observatory (‘the Nuffield report‘), which included solicitors, barristers, judges and magistrates, had taken part in a remote hearing. This is testimony to the exceptional effort that has been made by the judiciary and family practitioners to facilitate continued access to justice in the family courts. However, the impact of the pandemic on the family justice system and the nature and extent of the challenges that family law professionals and court users have been facing in order to keep business going remain unclear. This article examines these issues, relying on data from recent consultation reports and interviews with experienced barristers and solicitors conducted between 22 April and 5 June 2020. It finds that the transition to remote processes caused as a result of COVID-19 has had a hugely damaging impact, resulting in court closures, delays to proceedings, disruption to business and inconsistent application of new guidance on remote processes.  These outcomes are discussed below.

Delays to proceedings

COVID-19 has exacerbated the pre-existing pressure on the family justice system and is responsible for causing substantial delays to proceedings. This can partly be explained by the demands of operating remote hearings. The senior judiciary recognised that the necessity for postponing hearings as result of the transition to remote access processes would be ‘inevitable.’ By 9 April only about 40 per cent of all hearings had taken place. It is also the result of a reduced availability of judges. Magistrates stopped sitting in Family Proceedings Courts following the lockdown, increasing the flow of cases referred to district and circuit judges, consequentially reducing their availability to conduct hearings. In order to manage their lists judges were forced in the early weeks of the COVID-19 crisis to reduce the time allocated for hearings listed before the lockdown, vacate scheduled hearings and list only the most urgent cases. Most contested fact-findings or final welfare hearings were adjourned.

Whether or not there are delays to proceedings depends largely on the type of case that is being considered. Public law Children Act cases are trumping private law proceedings as they generally involve more urgent concerns of significant harm to children. Private law Children Act hearings are more likely to be adjourned unless all the necessary evidence had been filed prior to the lockdown or they are considered to be absolutely necessary, taking into consideration the welfare of the child. Those cases which require further expert evidence or await CAFCASS reports following periods of contact are more likely to experience further delays.

One of the additional consequences of reducing social contact is that it has resulted in the closure of contact centres. This has had a huge effect on the progression of cases timetabled for review following periods of supervised contact. Agreements that were previously made for contact to proceed in this way by necessity cannot be honoured and so cases that entailed a review after a certain number of supervised contact sessions are inevitably being delayed. Moreover, the requirements for social isolation have rendered it much more difficult for social workers and experts to meet with and observe those whom they are directed to assess for the purpose of preparing reports and psychological or psychiatric assessments. As a result, judges face particularly difficult challenges administering justice in public law Children Act cases, determining whether it is appropriate for hearings to be conducted remotely, balanced against the delay principle (Children Act 1989, s 1(2)), the welfare of the child and the risk of significant harm.

They are also required to take into consideration the necessity of completing cases within 26 weeks (s. 32(1)). The over-stretched courts are managing unprecedented levels of public law applications, which have doubled in number since 2007. The average time for a disposal of care and supervision applications from October to December 2019 was 34 weeks, an increase of 2 weeks from the same quarter in 2018. However, the COVID-19 crisis has compounded the challenges that the courts were already facing in observing statutory timetables. According to an interviewed lawyer,

a lot of hearings are being adjourned if they are not regarded as urgent. There has been a significant delay in any decisions being made in public law cases.  We are supposed to have a schedule of 26 weeks to conclude a case but this has gone out of the window so access to justice in terms of delays is huge. Decisions relating to children’s futures are being delayed.

Amid these concerns, the current delays to proceedings are likely to have far reaching implications for the administration of family justice, capable of extending beyond the current crisis. Increases in the number of adjourned hearings are resulting in an accumulation of cases yet to be resolved, clogging judges’ lists and delaying access to justice not just for those families engaged in adjourned cases, but also for those who wish to refer their disputes to the court for resolution in the future. Any decision to adjourn a hearing now will therefore have resonance for access to family justice for some time to come after the current social distancing measures are relaxed and normal court hearings can resume.

A further unwelcome consequence of increased delays to family proceedings is that they have contributed to a significant loss of business in the legal services sector. Far from keeping business going, some family practitioners have struggled to keep any business going at all. Research conducted independently by the Law Society and the Bar Council warns that 71 per cent of High Street firms risk closure and more than 50 per cent of self-employed barristers may not be able to survive financially in the next six months. Furthermore, in reaction to the immediate crisis, a number of law firms, including the UK’s top 60 and smaller High Street family practices, have been forced to furlough staff. These developments can have short and long term damaging consequences for family access to justice. In the short term, the furloughing of family solicitors has increased the workloads of those colleagues who remain at their firms. In some instances they are inheriting long-running family cases involving clients they have not met and timetables with which they are unfamiliar, leading to missed deadlines and an increased risk of negligent practice. In the longer term, any substantial reduction in the number of specialist family solicitors and barristers will inevitably have a negative impact on the ability of the public to access professional legal advice, assistance and representation on family-related issues in the future.

Remote hearings: technological complications and challenges to representation

The adoption of audio-visual technology for conducting hearings is not new to courtrooms in the United Kingdom. In the Family courts the adoption of technology has for some time offered a pragmatic solution to overcome difficulties presented in particular cases in adducing live evidence. In Re S (Relocation: Parental Responsibility) [2013] EWHC 1295 (Fam), for example, leave was granted for a witness based in Colombia to give evidence via Skype. Similarly, in Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) the court was satisfied that the Nepalese parents of an 11-year old child had freely consented to her adoption to a British couple following the witnessing via Skype of their signing consent forms by the guardian and the child’s solicitor.

At the time that social distancing measures were introduced the family justice system had been undergoing reform as part of the Ministry of Justice’s £1billion modernisation programme, initiated in September 2016, which aims to employ digital technology to improve efficiency and expand access to justice (Ministry of Justice, 2016). As part of this programme, the Cloud Video Platform (CVP) had been integrated into some courts by HMCTS. However, as this was still unavailable in most courts by March 2020, HMCTS encouraged the judiciary to choose from a ‘smorgasbord’ of IT and communication technologies to conduct remote hearings, including Skype for Business, Zoom, BT MeetMe, Microsoft TEAMS, Lifesize and FaceTime (MacDonald, 2020).

Although this was an understandable solution to the challenge posed by the necessity of quickly implementing remote access processes, the ‘smorgasbord’ approach to technology selection is capable of undermining the administration of justice in the family courts. Firstly, selecting from a wide range of technology reduces the ability for capturing data from a centralised court system. Secondly, it increases the potential for technological problems interrupting proceedings. Lawyers, judges and court users are required to be proficient users of a range of IT platforms and to be competent trouble-shooters when problems arise, failing which hearings have to be aborted. Litigants and their representatives are occasionally unable to access the required technology, there is no clear guidance as to whether the court, the parents, the lawyers or the local authority is responsible for arranging access and there are regional variations in connectivity and the availability of necessary equipment. An interviewed barrister complained of ‘struggling with dialling in and with confidentiality issues’ in relation to a local court’s chosen IT platform, highlighting security concerns over litigants recording hearings and allowing other people who are not party to the proceedings to listen, including children who are the subject of proceedings. Thirdly, it promotes inconsistent access to justice in the courts. Currently, according to one interviewee, all private law hearings are being conducted by telephone, as are public law proceedings before district judges, although video-conferencing is adopted for public law proceedings before circuit judges. The employment of a diverse range of IT-platforms, and of video conferencing for some hearings and telephone conferences for others, while understandable in view of the mixed technological capabilities of the courts and court users, results in contrasting experiences for litigants in terms of the manner in which their hearings are being conducted. Some litigants, therefore, are attending court at hybrid hearings, while other parties attend proceedings remotely; some attend by using IT platforms that enable access by video-conference; and some never see the judge, opposing parties or their representative at all if proceedings are conducted by telephone. As an interviewed expert notes: ‘there are cases where barristers may be appointed to do hearings but they never actually meet the client and so the client does not meet either the solicitor or the barrister – or see them if they do not have video facilities on their phones/computers.’

More generally, the impersonal nature of remote access processes is undermining the public’s trust in the justice system as well as their access to justice. The ability of parties and their representatives to state their case in court is a central component of access to justice. However, some litigants complain of feeling disadvantaged and disconnected from proceedings when hearings are held remotely. An interviewee finds ‘parental participation in proceedings’ to be the main challenge of remote hearings. Litigants are not having the access to the court that they think is necessary to make the points that they want to. According to another expert, ‘clients hate it. They are confused by it, they can’t have their say and they can’t express themselves so they feel that they are not getting justice.’ Lawyers are facing new challenges to effectively putting their client’s case to the court and negotiating with other parties to proceedings. According to one, ‘normally I can meet a client at court, discuss the case with them, see how they are feeling about the case, engage with solicitors conducting the case, gauge how the client is reacting to the evidence in the case and what the other side are saying, the directions and orders they are seeking. It is much more difficult now.’ Furthermore, negotiating with opposing parties during remote hearings is less constructive than would normally be the case. In a similar manner to normal court hearings, remote hearings will be briefly adjourned to allow parties to negotiate on issues that have arisen in a case. However, according to another interviewee, ‘it does require people on the phone being willing to negotiate. Matters are now being negotiated in a much more tapered way. You are lucky if you manage to have a quick chat with the other side. It is not like being at court. Negotiation just disappears and it means that a lot of issues are not raised so judges are being asked to make more decisions.’

Additional concerns have been expressed recently over the impact of the transition to remote hearings on the well-being of professionals. The Nuffield report identified new points of stress that remote working had placed upon lawyers and the judiciary in the family courts, including additional workloads and increased levels of anxiety and tiredness. Remote hearings can be an arduous experience for all involved. One interviewee has found them to be ‘generally more tiring than face-to-face hearings. Video hearings are probably the most tiring because you are staring at the screen for hours. I had a contested ICO hearing recently that lasted 6 hours with no break. Afterwards I was very tired. Another noted that ‘telephone hearings can be very tiring. I had an all-day telephone hearing recently. It is exhausting because you are concentrating very hard to make sure that you have heard everything.’ The fatiguing quality of remote hearings potentially increases the risk of mistakes being made at court, undermining trust in new remote means of administering justice.  Their exacting nature has already contributed to erroneous judicial decision-making. In the recent case of Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, reported on 30 April, the Court of Appeal court set aside an interim care order made by Recorder McCarthy QC at a telephone hearing on 3 April concerning a 9-year old boy who, as a result, had been removed from the care of his grandmother and placed in foster care. Finding the Recorder’s decision to have been ‘unquestionably wrong’, Jackson LJ and Davies LJ observed that it had undoubtedly been influenced by the nature of the Recorder’s workload, which had involved working continuously and mainly by means of telephone hearings for 10 1/2 hours by the time the hearing on 3 April was concluded (para [20]).

There are also serious concerns that remote access processes are having a profoundly negative impact on the manner in which vulnerable litigants are able to participate in hearings and access justice. In 2019 the Family Law Bar Association provided evidence to a Select Committee that parents with literacy, language, cognitive and psychological problems find participation in a digital hearing ‘extremely difficult if not impossible’. The Committee concluded that the steps HMCTS had taken at that stage to address the needs of vulnerable users of digital justice services had been insufficient. These needs have now been accentuated by the transition to remote processes forced upon the family courts by COVID-19. According to an interviewee:

‘I am often representing parents who are very vulnerable. They may have drug or alcohol addiction issues and they are not having an opportunity to meet their lawyers. Often they don’t have the technology required, they have not met the lawyer representing them and they may not have video technology so they can’t see who they are talking to and the lawyers representing them who they are giving intimate details to.’

The limited access to technology and poor digital skills of many vulnerable court users present worrying obstacles to the ability of the family courts to ensure fairness and equality of arms. While intermediaries can help to alleviate these problems, unfortunately some had yet to receive training on how to provide remote intermediary support when the lockdown was initiated. As a consequence there are not enough professional intermediaries available to assist with proceedings. This, in turn, is contributing to delays to proceedings.

The ability of vulnerable litigants to access family justice should not be undermined by an increase in the use of technology that has been necessitated by COVID-19. Bearing in mind the Justice Committee’s finding of insufficient action taken by HMCTS to address the needs of vulnerable court users prior to the pandemic, there is an urgent requirement for it to commission research to examine their needs, the additional support they require and how it should be facilitated to ensure that they can fully participate in proceedings and access justice in the new remote age.

Conclusion

It is approximately three months since social distancing measures were implemented in the family courts. There is little doubt that new technologies have facilitated access to family justice during these difficult months. Crucially, they have enabled the courts to continue to manage cases and conduct hearings. In the longer-term it is likely that the responses to the challenges that have been faced to date will yield positive benefits for the family justice system, expediting the integration of CVP, fast-tracking the development of practice guidance and protocols for remote access processes, and supporting their increased adoption, leading to greater efficiency in the administration of justice. In the shorter-term, the rapid changes that have had to be implemented as a result of COVID-19, and the transition to remote processes, have had profound consequences for the administration of and access to family justice. The changes have resulted in delays to proceedings and disruption to business and they have challenged the ability of litigants to participate in proceedings and advocates to take instructions from clients, negotiate on their behalf and represent them. In spite of the best efforts of all of those who contribute to the running of the family justice system it has not been possible to substantially continue its full operation. Nor has it been possible to meet the aim of the President of the Family Division and keep business going without reducing access to and the quality of family justice. It has certainly not been business as usual. What is necessary now, however, is independent research to carefully examine the impact of COVID-19 on access to family justice and to evaluate continuing technological, training and support needs for family practitioners, the judiciary and court users.

23/6/20

 

COVID-19 and Case Management in the Family Courts: A New Road to Consistency?

[Originally published by Family Law Week under the title ‘Case Management and COVID-19: A New Road to Consistency?’. Republished with permission.]

 

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, considers whether family judges are making consistent case management decisions during the pandemic.

Photo of Dr John Jupp

 

John Jupp, Lecturer in Law, University of Sussex, and Solicitor

On 9 June the President of the Family Division published a ‘road map’ for the operation of the Family Courts in which he confirmed that he did not intend to issue prescriptive guidance on case management while social distancing measures remain in force (the ‘Road Ahead’). It remains the President’s view that decisions about whether or not hearings should take place remotely and, if so, how they should be conducted should not be contingent upon any formal national protocol but instead should be left for judges to determine on a case by case basis. In this regard, judges have been able to refer to a number of publications, including a Protocol for Remote Hearings dated 23 March, Mr Justice MacDonald’s report on ‘The Remote Access Family Court’ issued on the same day, a letter from the Lord Chief Justice dated 9 April (‘LCJ’s letter’), and now, the President’s Road Ahead document. Designated Family Judges have also issued regular directives to local judiciary and family lawyers on remote processes.

The President’s concluding remarks in the ‘Road Ahead’ paper referred to the lyrics of the song ‘He Ain’t Heavy’, which offer that ‘we’ll get there’. However, in getting to where we are at the moment, it is clear that not all of the judiciary have been singing from the same hymn sheet. Interviewed practitioners have noted a ‘post-code lottery’ of inconsistent decision-making in different courts as to whether or not cases should be listed for hearing. Moreover, respondents to a recent consultation undertaken by the Nuffield Family Justice Observatory involving judges, solicitors and barristers raised concerns over ‘the high rate of adjournment in cases that could have gone ahead and avoided unnecessary delay’. This suggests that there has been some uncertainty in the courts over interpreting and applying guidance received from the senior judiciary to determine whether it is suitable for a case to proceed to a remote hearing. Indeed, respondents to the Nuffield consultation complained of the ‘unrealistic,’ ‘confusing’ and ‘overwhelming’ nature of the information received from the senior judiciary following the lockdown. It is now apparent from the three appeal cases of Re P (A Child: Remote Hearing) [2020] EWFC 32, Re A (Children)(Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re Q [2020] EWHC 1109 (Fam), which came before the High Court and the Court of Appeal between 16 April and 6 May 2020, that the lack of clarity in the information provided by the senior judiciary, and the fast-changing advice that was circulated in them, contributed to early judicial uncertainty over case management and the conduct of remote hearings.

The case of Re P, which came before McFarlane P sitting at the High Court on 16 April concerned an appeal by the mother of a 7-year old daughter to vacate a final hearing listed for 20 April. The local authority sought a care order following allegations that the daughter had suffered significant harm as a result of fabricated or induced illness (FII). At a pre-trial review hearing on 3 April the judge determined that the matter should proceed to a final hearing, scheduled to be conducted remotely over 15 days with 16 witnesses, as well as the child’s parents, giving evidence. It was planned that the mother would engage in the process alone at her home and access the hearing by Skype, with regular breaks for telephone and Zoom conferences with her representatives (para [10]). Allowing the mother’s appeal and vacating the final hearing, Sir Andrew McFarlane referred to more recent guidance issued in the LCJ’s letter on 9 April which indicated that ‘where the parents and/or other lay witnesses are to be called, the case is unlikely to be suitable for remote hearing.’ Given that the parents would be giving evidence it was clearly not suitable for listing for a final contested hearing. He also noted that the earlier decision to allow the hearing to proceed remotely had been influenced by guidance in the document circulated by Mr Justice MacDonald, its positive message that the family justice system should be able to operate substantially relying on remote processes, and its reference to previously successful remote hearings in the week commencing 16 March. This had been, according to the President, ‘a misunderstanding’ (para [8]). Notably, this earlier decision to proceed to a final hearing had been uncontested, so not only the judge but all parties to the proceedings, including the parents, guardian and local authority, had clearly also been misled by the guidance from Mr Justice MacDonald’s report.

The decision of the High Court in Re P contributed to further judicial confusion over whether or not hearings should be listed to take place remotely.  Its reference to the unsuitability of remote hearings in situations where parents are to give evidence, as inferred from the LCJ’s letter, was erroneously understood to apply not just to final hearings but also to interim Children Act hearings. Moreover, it was quickly interpreted by practitioners as appearing to establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called, increasing the potential for hearings being unnecessarily vacated and proceedings delayed (Re Q, para [24]). A barrister interviewed on 29 April 2020 noted that ‘in terms of the impact of COVID-19 it is causing significant delays and cases are being put back as a result. They can’t be decided and final hearings can’t take place – perhaps due to technical difficulties or now the decision in Re P.’.  Furthermore, in the private law case of Re Q, reported on 6 May 2020, counsel for the father of a six-year old daughter noted the  ‘chilling effect’ (para [24]) that Re P had had in influencing the order of the deputy district judge in an earlier review to vacate a remote final hearing in which the parents, an expert psychologist and a guardian would be required to give evidence, a decision which the High Court overturned on appeal.

The case of Re A, reported on 30 April, is also indicative of judicial uncertainty over the guidance on remote hearings. This matter concerned contested proceedings in which the local authority sought orders placing two children aged 3 and 20 months for adoption. At a directions appointment on 3 April HHJ Dodds listed the matter for a 7-day final hearing to be conducted in hybrid form, whereby the parents of the two children would attend court separately to give evidence with the expectation that their counsel would join proceedings remotely. While concerns were raised about the father not being able to access a remote hearing due to dyslexia and unsuitable technology at home, HHJ Dodds reasoned that the final hearing could still proceed in a fair and just manner in hybrid form with the parents attending court (para [19]). At that stage, it is likely that the judge was influenced by the guidance from Mr. Justice MacDonald. At a review hearing on 17 April the local authority objected to this arrangement arguing, based on guidance from the LCJ on 9 April, that it would not be suitable for a remote hearing as the parents would be giving evidence (para [26]). HHJ Dodds nevertheless distinguished between a fully remote hearing and hybrid hearing and determined that it was possible to have a fair trial along the lines he proposed, ordering the matter to proceed to final hearing listed for 27 April, a decision which the Court of Appeal overturned on appeal.

Both Re P and Re A indicate that the early guidance issued by Mr Justice MacDonald in March 2020 was less than comprehensive. In both cases its positive message about the ability of the family justice system to continue to operate remotely influenced erroneous decisions in the lower courts to proceed to remote access final hearings in contested care proceedings in which parents would be giving evidence. A similar accusation of inadequate advice can be levelled at the letter from the LCJ. HHJ Dodd’s decision to proceed with a contested final hearing at the review hearing on 17 April in Re A suggests that the information in the letter dated 9 April from the senior judiciary failed to provide sufficiently clear guidance about whether or not any distinction should be made between fully remote and hybrid hearings. Moreover, its indication that it was unlikely that matters would be suitable for remote hearing in cases where the parents and/or other lay witnesses are to be called to give evidence failed to stipulate whether this applied to final hearings only, causing it to be quickly interpreted as also applying to interim hearings. These omissions ultimately necessitated resolution by the Court of Appeal in Re A on 30 April. In fact, in all three cases the appeals were successful and therefore earlier decision-making based on information and guidance received from the senior judiciary was erroneous or had been superseded by new instructions. Even making allowances for the speed of the crisis and the unprecedented nature and scale of the transition to remote hearings, more comprehensive and all-inclusive guidance at the early stages of the lockdown may have prevented the confusion and inconsistencies that necessitated referrals to appeal in these cases and the emergence of a ‘post-code lottery’ as to whether or not courts hearings would direct that hearings should proceed remotely.

Nevertheless, these cases have provided valuable lessons for remote working in the family courts.  An interviewed barrister noted their constructive outcomes, observing that ‘Re A has steadied the ship.’ According to the President of the Family Division the clarification that has been established through these cases, coupled with the guidance issued on 19 March and 9 April, is now sufficient to enable the judiciary and lawyers to make informed case management decisions. Contested final hearings in public law proceedings are still normally being adjourned in light of this collective guidance. However, the new ‘road map’ guidance issued on 9 June amends that of 9 April to allow for consideration to be given for conducting a hybrid or full hearing in cases where the parents and/or witnesses will be called to give evidence, noting that the court can proceed to hold a remote hearing where it is necessary to do so giving consideration to the child’s welfare. While this is a necessary adjustment in order to support the progression of as a high a volume of cases as possible, it remains to be seen whether sufficient clarity has now been provided to ensure that judges are ‘in tune’ and making consistent case management decisions. At a time of rapid fluidity and change caused by uncertainties surrounding COVID-19 continuing research is necessary to gauge the manner in which the courts are interpreting and applying the guidance from senior judiciary.

24/6/20

What Do They Call Me?

Photo of Ms Neemah Ahamed
This post critically compares Audre Lorde’s poetry to Nina Simone’s lyrics to ‘Four Women’ in order to underline the urgent need for the tales of black women to be heard and for intersectional oppression experienced in relation to race, gender, socioeconomic status and identity to be addressed. It is written by
Neemah Ahamed, a Doctoral Researcher at Sussex Law School currently investigating how the #MeToo Movement has influenced the ways in which black women who have been sexually harassed in the workplace seek access to justice in England and Wales.

 

I am not free while any woman is unfreeAudre Lorde

 

Audre Lorde, born in 1934, was a black writer, feminist and civil rights activist whose writings advocated what is now called intersectionality, a word coined by black feminist, Kimberle Crenshaw in the 1980s to recognise that social identities are multiple, and oppressions overlap. Lorde’s wordsbecause I am woman, because I am black, because I am a lesbian, because I am myself – a Black woman warrior poet…’ highlight this intersectionality and the different features that shape us as women. Lorde’s words can be contrasted with Nina Simone’s lyrics to ‘Four Women’, where the key message lies between the lines, and what remains unsaid about the women is a powerful portrayal of how much more women are, and their struggle to define themselves. Simone, just one year older than Lorde, was as a jazz singer-pianist celebrated as the ‘priestess of soul’ and famously known for ‘Ain’t Got No, I Got Life’ from the 1968 musical, Hair. She used her gospel, blues and jazz to express her views about black feminism, love, self-reflection and intersectionality. Her lyrics vocalised the mistreatment and pain of her people and this was felt through her performances. Simone demonstrated that an artist’s duty was to ‘reflect the times’, and both she and Lorde achieved this. Their words underline the urgent need for the stories of black women to be heard and for the oppression experienced in relation to race, gender, socio-economic status and identity to be addressed.

 

Simone’s song, ‘Four Women’ not only articulated the history of black women in America during the civil rights movement but was also a potent emission of pent up breath, expressing the repressed and mounting anger which is currently being unleashed in the protests taking place in the US. As Professor Akwugo Emejulu writes in The Conversation, the protests are a gathering of ‘the ghosts of our past, present and future’ and what is being witnessed is an exhalation of fire. ‘Four Women’ was a form of civil rights protest and a feminist anthem. While Lorde wrote for ‘women who do not speak, for those who do not have a voice because they were so terrified’, Simone sang for the unheard wrath of women over their economic and sexual oppression.

 

The song is divided into four verses and compresses two centuries of black history. Each verse describes a black woman archetype of her period, telling the story of the women’s suffering and by naming them, humanising them. The first, Aunt Sarah, who has ‘black’ skin and ‘woolly’ hair and is ‘strong enough to take the pain inflicted again and again’, represents the loyal and resilient servant working in a white household. The second, Saffronia, has ‘yellow skin’ and is the daughter of a ‘rich and white’ man who ‘forces (her) mother late one night’, symbolising the history of rampant rape by white men of black women. The third, Sweet Thing, has skin the colour of ‘tan’ and ‘hips that invite’, and portrays the image of a sexually arousing jezebel which can be traced to slavery in the Southern states. This exploitation was further advanced by European colonisers who saw these women ‘not only as easy sexuality but laziness, bestiality, savagery and violence. The fourth woman, Peaches, whose parents were slaves, has ‘brown skin’ and would ‘kill the first mother (she) sees. Her fearlessness and rage represent the ‘sassy black woman’ who it seems, is the most similar to Simone herself.

 

The bold lyrics highlighted the struggles faced by women who had no control over their bodies, sexuality or fate, not because they were black or women but as Crenshaw suggests, because they were ‘black women’. Simone’s song conveys how black women were defined in conflicting terms. Aunt Sarah is the robust mammy. Saffronia’s ‘long hair’ differentiates her from Aunt Sarah, and she belongs to ‘two different worlds’ because of her white father. Sweet Thing’s ‘mouth like wine’ suggests her supposed promiscuity. And Peaches shocks with her ‘unremorseful honesty’.

 

The lyrics resonated with black women at the time, reflecting what they thought about themselves and in particular, as Simone points out, ‘their complexions, their hair and what other women thought of them. For Simone the purpose of the song was to emphasise that ‘black women didn’t know what the hell they wanted, because they were defined by things they didn’t control and until they had the confidence to define themselves, they’d be a mess forever’. Her words can be compared with those of Lorde who said that she had to ‘define myself for myself’, and for this reason Simone’s lyrics reverberated through the lives of black women as an exhortation to assert their entitlement to power.

 

When the song was released in 1966, it was wrongly interpreted by some black audiences as offensive to women and radio stations banned DJs from playing it. The song exposed a truth that many people including black men weren’t ready to accept at the time. The ban caused more outrage than the song had generated, and was eventually lifted. However, the controversy around the song did not stop Simone from performing it to other audiences, following the spirit of Lorde’s words, ‘I have come to believe over and over again that what is most important to me must be spoken, made verbal and shared, even at the risk of having it bruised or misunderstood’. The poetry and music of these two 20th Century artists remains as relevant today as ever and reminds us of the on-going struggles of black women as reflected in the Black Lives Matter Movement.

What do we do?

[This post is by Alison Phipps (Professor of Gender Studies at the University of Sussex) and discusses her most recent book, Me, Not You: the trouble with mainstream feminism. Republished with permission from Genders, Bodies, Politics]

‘What do we do?’ is the question I’m most frequently asked by readers of Me, Not You, and this question has become louder and more urgent in the past two weeks. Massive protests in the US and elsewhere against the police murders of George Floyd, Breonna Taylor, Tony McDade and countless others have brought the idea of abolition into the mainstream, and many white feminists are newly interested in fighting sexual violence without criminal punishment.

I am also at the beginning of a (life)long journey towards what Angela Davis calls ‘abolition feminism’, and the final chapter of my book shares what Davis and other Black feminists have taught me so far. For instance, there’s a thought experiment imagining a world without sexual violence (which would, of course, be a world without police and prisons), and some practical suggestions on how we could use that as our guide. This would be via what abolitionists call ‘non-reformist reforms’ – interventions that get us closer to, instead of further away from, our ultimate goal. I give examples of what these might look (and not look) like. The chapter also offers a ‘toolkit’ of questions white feminists can ask ourselves, to evolve our political action away from some of the problems identified in my book.

But despite this, the ‘what do we do?’ question persists – which suggests that perhaps readers are looking for more. What is this ‘more’, and why do some people want it? I’m not sure I would give it, even if I could. My book was intended to help readers understand the dynamics of mainstream feminism, not to offer a panacea (because one does not exist). It is not a set of instructions – I am not in charge of feminism, and as a middle-aged white academic I am definitely not interested in taking up that mantle. Bourgeois white women like me dominate mainstream feminism, but I am also struck by the fact that ‘what do we do?’ is most often asked by fellow privileged white feminists. I have several thoughts about why.

Whiteness and (the) social order

As I explore in my book, political whiteness both seeks authority and defers to it. The white will to power I write about can be satisfied by proxy, demanding an authoritarian response. We see this in white feminist calls for more police and longer sentences; we have also seen it during Covid-19, as while some white people have protested lockdown measures, others have informed on their neighbours for failing to observe them. Whiteness creates deep desires for both individual liberty and social control, and the impulse to call the manager or police to enforce the rules we need to feel safe sits beside our own need to be told what to do. The material and symbolic benefits we derive from the existing order also make it difficult and threatening to imagine anything different. As a result, we can get defensive: and demanding solutions are given to us can be a way of shutting down discussion of things we cannot face. It is what the CEO does when his staff bring him problems he does not want to have to fix.

The demand for pre-made panaceas also shows how neoliberal capitalist mentalities have permeated white feminist consciousness. We want instant gratification, something off the shelf. This is dangerous on many levels: grabbing at immediate answers can stop us from wrestling with important questions, and quick and easy actions are often ineffective. As I write in Me Not You, performative outrage, and calls to get rid of ‘bad apples’ from institutions or communities, are usually just forms of pressure release that enable oppressive systems and dynamics to continue. So is white self-analysis, if this is where we get stuck: Alison Whittaker and Lauren Michelle Jackson are among those who examine how white anti-racism more often constitutes navel-gazing, hand-wringing, and attempts to ‘renounce privilege’ and assuage guilt rather than work towards structural change. This is a re-centring of the self, not a genuine engagement with the Other.

As I say in my book, white feminists can – and should – take our lead from Black feminists and other marginalised people who are less attached to the way things are, whose imaginations are not so bounded and who model what Tina Campt calls ‘living the future now’. Black feminists have long tried to tell us that the view from where they are is much clearer than we can comprehend. Patricia Hill Collins famously called Black women ‘outsiders within’; bell hooks has written about her own experience of ‘looking from the outside in and the inside out’. I love Gail Lewis’ description of how, from the margins, it is possible to see across an entire field of vision – whereas from the centre one has to keep turning around and about. This is why many groups located on the margins are already working to formulate the answers white feminists want handed to us on a plate.

But we cannot expect more marginalised feminists to just hand us these solutions: political programmes have to be collective and developed through dialogue. We all need to do this work – and echoing Mariame Kaba, I think perhaps not enough of us are currently doing our small part. I join Kaba in her request that we all ‘work together to think through something different’, adding that white feminists should listen more than we talk, and acknowledging that thinking through something different is a long, hard slog. It is a lot easier to identify problems than to develop ways to tackle them (and I say this to myself as much as to anyone else). As I write in Me, Not You, ridding the world of sexual violence is not going to happen in my lifetime, or yours. But we can all do our own small part to move towards it, not further away.

Doing my small part

For the past fifteen years my main activist focus has been tackling sexual violence in universities. This work has included collaborating with Susuana Amoah and others at the National Union of Students, engaging individual institutions across Europe in research and training, and forming the Changing University Cultures (CHUCL) collective with Liz McDonnell and Jess Taylor. CHUCL aims to help universities reshape their structures and cultures so equality policies can be more meaningful, and so they can deal more effectively, and less punitively, with problems such as bullying, harassment and violence. We have not got very far yet, but we are in it for the long haul.

As we move forward with CHUCL, I am trying to keep an abolition mindset. This means refusing to become what Audre Lorde called the ‘master’s tools’ (in other words, being used to preserve oppressive systems even while we claim to dismantle them). This can happen in various ways. For instance, CHUCL research on structural and cultural problems in universities has been used as evidence they have already been solved (what Sara Ahmed terms ‘non-performativity’). Universities have reacted defensively and demanded we provide instant solutions, thereby absolving themselves of responsibility. They have defaulted to individualised forms of diversity training which are presented as ‘taking action’ but do not address, and instead conceal, the deeper issues we have pointed out. Key questions for us are: how do we help universities take responsibility for and tackle their own troubles? How do we build institutional capacity to deal with unacceptable and violent behaviour? And the big one: how do we push for real structural and cultural change?

We are taking our lead from survivor-led community accountability and transformative justice approaches that have worked in other contexts, but many institutions are a long way from having the capacity to implement these. Complete success would require a collectivist, rather than a capitalist, university. Of course, we are not going to get one soon – but we are thinking hard about ways to work towards it (and whether we even should, especially given universities’ complicity in racial capitalism, neoliberalism, colonialism and slavery and its afterlives). We have a lot of failure ahead of us before we can even imagine something that looks like success. But we are doing our small part.

We all have to do our part, if we want to change the world. So if something has struck you in my book – whether it has inspired you or made you feel uncomfortable – I am delighted, but you must consider if and how you want to act. If you do decide to act, make sure you start small. Reflect on, and work to undo, how your own actions perpetuate systems of oppression (and that includes saviour modes of ‘helping’). Use your privilege and/or your money to do one thing for the benefit of more marginalised people every day (and thanks to Mariame Kaba for this principle, which has been a touchstone in my more chaotic moments during Covid-19). When there is a crisis, step up. Through these actions, educate yourself on issues, think about the better world you want to build, and learn about – and from – those who may already be building it.

Building feminist futures

When your imagination is liberated from what is, when you are better able to visualise what could be, think backwards to something you could realistically work towards yourself sustainably and longer-term. You might be able to find a group of like-minded feminists organising towards the same thing, who you could support with your time and money. If you can’t find one, create one. Your action could be as simple as setting up a neighbourhood collection for your local food bank (it is difficult to eradicate violence while basic needs are not being met). Or you might decide to get involved in action against prison expansion or to free incarcerated survivors. You might even work towards implementing a transformative justice programme in your community, organisation or institution. As you take action, you could use my toolkit regularly to check in with yourself. And although there should not be gatekeepers, seek out visionaries to guide you.

I cite many of these visionaries in Me, Not You – you can look to Angela Davis, Audre Lorde, Mariame Kaba, Ruth Wilson Gilmore and lots of others besides. Our feminist tomorrow is also being envisioned by the young Black feminists and others currently on the streets protesting police murders and demanding abolition. It is being envisioned by the young activists and authors producing resources for the fight. For instance, Lola Olufemi’s new book Feminism, Interrupted offers a manifesto for a different, and truly radical, feminism. Beyond Survival, edited by Ejeris Dixon and Leah Lakshmi Piepzna-Samarasinha, sets out practical strategies for tackling sexual violence without criminal punishment. Molly Smith and Juno Mac’s Revolting Prostitutes is a compelling argument for decriminalising sex work, one legislative advance that would eradicate a huge amount of violence and that we could all be campaigning for. These dynamic young feminists are not going to give you instructions either, but they do provide rich food for thought – and the future of feminism lies with them.

As we move towards this feminist future, there will be no easy answers. The problems with mainstream feminism have been well and truly exposed (and by many others both now and before me), but we are still figuring out how to solve them. And although white bourgeois feminists may need to get our own houses in order first, when we are ready, we will need ongoing conversations between feminists of all positionalities: younger and older, differently classed and raced, trans and cis, differently abled, sex-working and not, lesbian, bisexual, queer, straight, and more. These discussions would be led from the margins but everyone would have a voice; there would be space to question, learn and grow; and most importantly, talk would lead to action rather than being an end in itself. I am deeply invested in doing my part to facilitate this this journey, and will probably be asking some tough questions of fellow white feminists (and myself) along the way. And I will pose one back to you now: what do you want to do?

This blog was originally posted on the Manchester University Press website – if you buy the book from MUP and enter the code OTH583 at checkout, it is currently 50% off (which is £6.50 plus P&P). 

Labour’s Capital and the BDS Movement – by Amir Paz-Fuchs

[Republished with permission from the UK Labour Law Blog]

While the attention of the world was firmly focused on all things Covid-related, the UK Supreme Court published an extremely interesting decision in R (on the application of Palestine Solidarity Campaign Ltd) v the Secretary of State for Housing, Communities and Local Government. The case concerned a claim for judicial review on behalf of the Palestinian Solidarity Campaign against the publication of guidance by the Secretary of State which limits the power of local government pension schemes to ‘pursue policies that are contrary to UK foreign policy or UK defence policy’.

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Image by Nattanan Kanchanaprat from Pixabay

By way of background, the local government pension scheme caters for about five million past and present local government employees, across 89 local authorities. A matter that proved to be of some importance is the fact that, unlike other public pension schemes, a local authority may be required to make increased contributions if the funds available were found to be insufficient to meet the obligations to its pensioners.

In terms of the legal infrastructure, the relevant statutory authority is the Public Service Pensions Act 2013 (the ‘2013 Act’), which authorises the Secretary of State to make regulations for the functioning of the scheme. And, indeed, the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (SI 2016/946) (the ‘2016 Regulations’), which are relevant to this case, replaced earlier regulations, which are not pertinent for present purposes. Pursuant to the 2016 Regulations, the Secretary of State published a guidance document entitled ‘Local Government Pension Scheme: Guidance on Preparing and Maintaining an Investment Strategy Statement’ (‘the Guidance’). The crucial part of the Guidance relates to the manner in which investment policy can take into account ‘social, environmental and corporate governance considerations … in the selection, non-selection, retention and realisation of investments’ (Regulation 7(2)(e) of the 2016 Regulations). The Guidance stated as follows:

Although administering authorities are not subject to trust law, those responsible for making investment decisions must comply with general legal principles governing the administration of scheme investments … [S]chemes should consider any factors that are financially material to the performance of their investments, including social, environmental and corporate governance factors, and over the long term, dependent on the time horizon over which their liabilities arise.

However, the Government has made clear that using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are [sic] inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government. …

Although schemes should make the pursuit of a financial return their predominant concern, they may also take purely non-financial considerations into account provided that doing so would not involve significant risk of financial detriment to the scheme and where they have good reason to think that scheme members would support their decision.

(Emphasis added)

The third paragraph, which concerns the pension schemes’ power to pursue ‘non financial considerations’, and the conditions under which they may do so, is adopted, almost verbatim, from the Law Commission’s Report ‘Fiduciary Duties of Investment Intermediaries’ (No 350, 2014).

Finally, this section of the Guidance is followed by a Summary of Requirements, which states, inter alia, that

In formulating and maintaining their policy on social, environmental and corporate governance factors, an administering authority

                        …

  • Should not pursue policies that are contrary to UK foreign policy or UK defence policy (emphasis added).

The passages highlighted in bold are those which were the subject of the challenge.

 

Previous Proceedings

The claimants – the Palestine Solidarity Campaign (PSC) and Ms Jacqueline Wilson, a member of the PSC’s executive committee as well as an employee of a local authority and a member of its pension scheme – advanced a claim for judicial review. In the High Court ([2017] EWHC 1502 (Admin)) Cranston J upheld the challenge, stating that while the Secretary of State is clearly empowered under the 2013 Act and the 2016 Regulations to issue guidance to pension authorities, this can be done, under the legislation, for pension purposes only. And while non-financial factors can be legitimate pension considerations, a guidance document that distinguishes different types of non-financial factors must be based on a ‘pension purpose’ [32]. In particular, casting one type of non-financial factors (e.g. those impinging on foreign policy) as illegitimate while other non-financial factors (e.g. those concerning health or the environment) are deemed legitimate is unlawful, as this distinction was devised for an unauthorised purpose.

However, on appeal, the Court of Appeal concluded ([2018] EWCA Civ 1284) that the Secretary of State was acting within the remit of the statutory purpose. According to Sir Stephen Richards, if it is accepted that the pension authority can take into account non-financial factors, and that the law confers on the Secretary of State broad discretion to issue guidance on investment strategy [19], then ‘it seems to me to be equally plainly within the scope of the legislation for the guidance to cover the extent to which such non-financial considerations may be taken into account by an authority’ [20]. The Court of Appeal found the language of ‘pension purpose’ or ‘pension perspective’ to be unhelpful, and preferred to ask whether the legislation allowed for ‘wider considerations of public interest to be taken into account when formulating guidance’ [21], finding that there is no reason why this should not be the case.

 

The Supreme Court Judgment

In one of his final decisions prior to his well-earned retirement, Lord Wilson wrote for the majority, and allowed the appeal. In doing so, he relied on the Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997) which limits the discretion awarded to a minister to those actions which would ‘promote and not… defeat or frustrate the object of the legislation in question’ (as explained by Lord Bingham in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 381).

In particular, Lord Wilson (at [29]) took issue with the government’s position, according to which:

  1. Local government authorities are part of the ‘machinery of the state’.
  2. Pension schemes are ‘ultimately funded by the taxpayer’ and hence ‘public money’. Therefore:
  3. Decisions by pensions schemes may be seen as reflecting national policy.
  4. Since foreign and defence policy are reserved for the UK government, pension investment decisions should not undermine national policy through boycotts on non-pension grounds.

In particular, Lord Wilson explained that, as it so happens, central government pension schemes are unfunded, that is: not ring-fenced funds but underwritten by central government. In contrast, Local Government Pension Schemes are ‘funded’, which means that pensions are paid for by contributions from employers and employees. Therefore, and in a manner that applies to the local government pension scheme as well, he concluded (at [30]):

The contributions of the employees into the scheme are deducted from their income. The contributions of the employers are made in consideration of the work done by their employees and so represent another element of their overall remuneration. The fund represents their money. With respect to Mr Milford, it is not public money.

Agreeing with Lord Wilson, Lord Carnwath had additional concerns about the wording and effect of the Guidance. Thus, he explained, whilst the Guidance was clearly concerned with the Palestinian Boycott, Divestment and Sanctions (BDS) movement, would the Guidance not apply to an authority’s decision not to invest, on ethical grounds, in a defence company, an energy company that pollutes air and water, or a company that makes products harmful to health (e.g. tobacco, sugar or alcohol), where such actions may be contrary to UK foreign or defence policy? Whilst the government, in its response, clarified that they would not object to such decisions, it is not clear how the Guidance delineates these cases. Moreover, even if it did distinguish them, how would this distinction be guided by a pension purpose?

In dissent, Lady Arden and Lord Sales found that the language of both the 2013 Act and the 2016 Regulations are broad enough to cover the regulation of the type of non-financial factors that may be taken into account. Further, they found persuasive the argument that the role of the state in facilitating employer and employee contributions, as well as being a guarantor of the fund’s viability, could indeed lead people in Britain and abroad to identify pension schemes with the British state, in turn investing in the government and the taxpayer a legitimate interest in the way these schemes are regulated [78].

 

Analysis: Pensions as Political Mechanisms?

As mentioned, this case raises a number of distinct and interesting issues. The first, which seemed to be the axis of the disagreement between the majority and the minority opinions, is the extent to which the state’s involvement in the regulation and funding of pension schemes grants the government a position of authority in determining the manner in which those schemes are managed. A second issue concerns the uniqueness of the BDS movement, which seemed to be the target of the Guidance, with the government explaining that many other ‘social, environmental, and corporate governance’ non-financial aims could be pursued without government intervention.

Space limits prevent me from engaging too extensively in an analysis of these two issues here. I will thus touch on them only as a gateway to a third matter, on which I would like to focus. This issue, which was not addressed at all in the Supreme Court’s decision, concerns the uniqueness of the pension scheme as a vehicle which brings into effect labour’s voice, enriches democratic debate and balances the financial power of corporate interest.

But before that, as promised, a preliminary discussion is warranted. First, the focus on the extent of the regulatory and financial involvement of government in the management of the pension scheme is a curiously anachronistic one. Scholars have observed that, over the second half of the twentieth century, the welfare state has been transformed into the ‘regulatory state’, that is: the state has moved from providing services directly to a form of ‘regulatory capitalism’, which governs – in some cases, quite heavily – the way private entities do so. Moreover, the involvement of the state does not stop at the rule-setting, or even rule-enforcement, stage. In the aftermath of the financial crisis – in which governments bailed out banks, financial services companies, insurance companies, manufacturers (e.g. the auto industry), housing companies and so much more (all of which were also heavily regulated in various forms) – it is quite peculiar to point to such an involvement as an indication that actions by those companies could legitimately be viewed as representing the government, as the minority decision would have it. And, just to pre-empt: the argument that in one case the ‘bailout’ is agreed in advance, and in the second it is implemented during the course of the crisis, is a distinction without a difference. Thus, for example, after the banks, financial service companies and insurance companies have been bailed out, can we now say that their investment decisions can be taken to represent the British government and taxpayer?

The second preliminary issue concerns the particular issue at stake, namely: the boycott, divestment and sanction (BDS) campaign against Israeli government and companies in which the pension fund decided to take part. The government, in its response, made it clear that this was its main concern, and that other ethical, non-financial decisions would not lead the government to object. However, the majority questioned how the Guidance’s broad wording allows for such distinctions. Environmental issues seem, at the moment, quite uncontroversial, and even appear in the Guidance itself as legitimate concerns. However, one can imagine a scenario in which the UK seeks to strengthen ties with a foreign, oil producing, nation, while a pension fund decides to divest from the oil companies owned by that foreign nation. This would be surely a source of serious inconvenience for the UK government. But would it be enough to instruct the pension fund to retract its decision? If not, why not? Why is BDS such a lightning rod, receiving unique treatment, on both sides of the debate?

Unfortunately, I must leave that question unanswered at this stage, but I will refer to it, tangentially, below. Instead, I turn now to focus on a central issue that did not appear in the decision at all: the particular identity of pension funds as the expression of workers’ voice and power. In this discussion, I rely on David Webber’s recently published The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon (Harvard University Press, 2018).

In the book, Webber follows the path paved by others, such as Stewart Schwab and Randall Thomas, and suggests that it is against the dire background of decreased union power in the United States that ‘shareholder activism’ has found a way to leverage pools of massive capital – about US$4 trillion, or 10 per cent of the US stock market – to buttress labour’s interests for a variety of purposes, and in a variety of ways. With the decline of collective bargaining, union-led pension fund activism offers a crucial, perhaps even sole, vehicle for progressive interests. He explains how, over the past decade, pension funds have: enhanced corporate governance by leading to rules being changed to remedy serious conflicts of interest by company board members; limited CEO pay; pushed companies to refrain from questionable practices to avoid paying taxes; increased the powers of shareholders vis-à-vis corporate boards; and led to divestment from hedge funds and private equity funds in general, and from those involved in privatisation efforts that undercut worker pay and jobs in particular (he cites the horribly ironic case of public school janitors in Massachusetts whose retirement funds were invested by a state-wide trust in Aramark, a private company that then underbid the union for the school custodial contract and offered workers the chance to keep their jobs if they accepted a 56 percent pay cut).

Webber’s focus is on pension fund managers’ ability to operate in a manner that extends beyond the narrow interest of the ‘fund’, a position that seems to be adopted in the US as an extension of the managers’ fiduciary duty, i.e. that pension funds must maximise financial returns, as directed by Section 404 of the Employee Retirement Income and Security Act 1974  (ERISA), which was understood to direct managers to invest primarily with an eye to financial returns (but cf Webber’s discussion with McCarthy here). This interpretation was given added force by a US Department of Labor bulletin from 2015, according to which non-financial factors (such as environmental, social, or governance ones, or ‘ESG’) can be taken into account only ‘as tie breakers when choosing between investments that are otherwise equal with respect to return and rise over the appropriate time horizon’.

Webber rejects this narrow interpretation, and, as he argues in an earlier paper, suggests that the proper interpretation of the fiduciary duty would be ‘member focused’, rather than ‘fund focused’. This would mean, then, that pension funds should act in a manner that benefits workers (one may add – ‘as a class’). Presumably, this would mean – in the interest of workers, as long as it is not to the long-term detriment of the fund (after all, the pensioners who benefit from the fund are also workers), even where there are some negative, short-term, financial costs. This principle goes perhaps slightly further than the line adopted by the Law Commission and the Guidance. However, this may not always be straightforward, as the two may be in tension. Webber himself offers the example of several public employee retirement funds that invested over US$900 million in Wal-Mart, a company that not only actively discourages unionisation itself, but also drives a race to the bottom in the sector as a whole, which includes retailers that include strong unions (i.e. unions whose workers have retirement funds that invest in Wal-Mart…). The reverse is also true, as noted by his discussion of two cases – Brock v Walton (11th Cir) and Bandt v San Diego County (Cal. App.) – in which the courts ruled that trustees did not violate fiduciary duties when they pursued the economic interests of workers beyond investment returns.

Interestingly, however, it is not clear how Webber would have regarded the normative appeal of this particular case. This is because, in Webber’s argument, there is a close alignment between worker interest (pay, job security) and means (workers’ pension schemes). Now, assuming that it is possible to conclude that divesting, or not investing in the relevant companies would indeed not be financially detrimental to workers, would this mean that pension funds should embrace other concerns, such as those casually mentioned in the Supreme Court decision, such as health or the environment? Webber cites the example of the decision taken by the California State Teachers Retirement fund to divest from gun companies following the Newtown school massacre, but also notes that the scheme justified its decision for the (probably inauthentic) reason of foreseeable extensive regulation that is expected, rather than the moral approbation that, one would assume, guided it.

In closing, and returning to the case at hand, we find a far-wider agenda, which is only coherent if one believes in what is often perceived a ‘progressive’ range of causes which aligns workers’ interests with the viability of a strong public sector, alongside racial and gender equality, human rights, localism, environmental causes, and so forth. But, politically, we know well that those causes do not always align – witness the ‘Lexit’ (Left Brexit) argument which, at least for some, brought together a nationalist strain with worker rights. Similarly, Israeli trade unions supported, for over two years, a boycott of Turkey following its support for the aid flotilla to the Gaza strip. They did so by leveraging a different financial power – that of organised vacations for major, unionised corporations, which host tens of thousands of workers.

As Webber rightly notes, for every left-wing divestment decision from oil and gun companies, there may be a right-wing divestment policy that targets companies that produce abortion pills or engage in stem cell research. While the former would probably be attractive for most readers of this blog (alongside previous divestments from South Africa over Apartheid), being part of a pension scheme that divests from women’s health clinics would probably raise some concern. It may well be the case, then, that if one would wish to avoid one controversial divestment decision done in her name, with her money, she may well need to refrain from supporting another, which sits more comfortably with her political agenda. Following through with the metaphor (‘in her name’), another American lesson here is that these investment decisions may be framed in the future in the context of free speech and, in particular, forced speech. This would imply, then, that an employee may raise the claim that her pension is used to advance a cause (e.g. BDS) that she does not support. As Webber describes in a later article, which analyses the American Supreme Court case of Janus, such a challenge risks endangering not only the collective nature of public pension schemes, but unions as a whole.

But what of divestment from soft drink companies, or from notorious energy companies? Is there a way to thread the needle and allow pension schemes to take into account some non-financial factors, such as those in ‘consensus’, but not others? Perhaps one idea would be to revert to the proposal to view workers as a class, whose interests reach beyond their role qua workers. In a society governed by a varied degree of risk, members of the working class are far more exposed to health and environmental risks, as well as the risk of being a victim of gun violence, for example. Taking account of such factors, then, advances the well-being of members of the working class, and thus should be permitted.

 

Conclusion

Webber seems less enthusiastic about the type of divestment decisions which was at the heart of this case, and I would argue that he makes a persuasive case in doing so. The middle ground, in this case, is not a sad compromise. The Supreme Court was, with due respect, right on the law. As Judge Cranston explained early on, in the High Court, the distinctions that the Secretary of State made, between different types of non-financial factors, could not be sustained without necessary legislative backing. Such explicit powers, pace the Court of Appeal, do not exist in the text of the 2013 Act or the 2016 Regulations, and therefore the default position is that the administrative authority may exercise its powers only with regards to the purpose of the legislation, i.e. the pension purposes.

But lurking behind the question of what is legal, is the question of what is right. Broadening the fiduciary duty to allow investment decisions that strengthen worker voice and power (even beyond the slightly-fictitious ‘tie breaking’ scenario) and advance working class interest would be an appropriate, and far from trivial, extension that could have significant consequences. Broadening it to include political factors that have very little, or even nothing, to do with workers’ interests and needs may achieve short term satisfaction for some, but at a cost of sowing division, perhaps at great cost, in the future.

 

About the author:

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Amir Paz-Fuchs is Professor of Law and Social Justice at the University of Sussex, where he teaches Employment Law and is Director of Sussex Clinical Legal Education.

 

 

 

 

(Suggested citation: ‘A Paz-Fuchs, ‘Labour’s Capital and the BDS Movement,’ UK Labour Law Blog, 11 June 2020, available at https://uklabourlawblog.com).

Hating the coronavirus is pointless. But no good will come from turning anxieties and anger against Chinese people

[Republished with permission from the International Network for Hate Studies blog]

By Mark Walters, Professor of Criminal Law and Criminology, University of Sussex, and co-Director of the International Network for Hate Studies

Just over two months ago Mandy Huang was shouted at by a man who told her to “Take your f****** coronavirus back home!” Her friend who tried to intervene bore the brunt of the offender’s rage when she was punched in the head and knocked unconscious. Since then, hate incidents targeted against Asian people, and those who are perceived to be Chinese, have proliferated globally. Violent incidents have been officially recorded in mainland Europe, UK, USA, CanadaAustraliaJapan and Thailand (amongst others). Despite the current resource pressures that the pandemic has brought, incidents of this type have not escaped the attention of the UK authorities. The Crown Prosecution Service for England and Wales has already prosecuted numerous corona-related offences with one offender from Dudley receiving an additional four weeks on his initial 12 week sentence for demonstrating racial hostility that included reference to the coronavirus during the commission of his offence. Chris Long, Chief Crown Prosecutor and CPS national lead on hate crime, said that there have been cases of “hate crime directed at communities based on incorrect assumptions and conspiracy theories”. These have been in addition to the “attacks and racial abuse targeted at our emergency and essential workers who stand at the front line of this pandemic and are working hard to keep us all safe and well.” He added that “be in no doubt, we will not hesitate to prosecute those who seek to attack, abuse or defraud people.”

The incidents that have come to the attention of the CPS are likely to represent just a handful of the thousands of offences involving corona-related hate abuse that have occurred over the past few months. Social media is replete with examples of individuals being verbally and physically abused for looking Asian. In many cases the word “corona” has been turned into an expression of hate itself, with perpetrators simply shouting it at people as a form of abuse. Other individuals are being made to feel uncomfortable as people make visible efforts to physically avoid sharing space with them, making tutting sounds, and glaring or displaying disapproving looks.  Racist behaviour of this type not only affects those who are targeted but can have damaging psychological and behavioural impacts on entire communities of people who fear they too could become the targets of such hostilities.

The upsurge in anti-Chinese prejudice, while extremely troubling, is sadly unsurprising.  Billions of people are feeling highly anxious and fearful that Covid-19 will kill them or their loved ones. Frightened people are likely to act unpredictably.  Yet while many people have turned to stockpiling toilet paper, tins of tomatoes and, as personally witnessed yesterday, attaching a four-metre paddle to one’s waist to ensure social distancing, a minority of others have chosen to express their internal agitations in more violent form.  It is nothing new that in times of a perceived physical threat, increased numbers of people lash out violently towards those that they believe as being, at least symbolically, to blame. This is frequently observed in the aftermath of what criminologists refer to as “trigger events”, such as where the number of anti-Muslim hate crimes spiked directly after events such as the murder of Lee Rigby, the Manchester Arena Bombing, and most recently the Christchurch mass shooting in New Zealand. We have observed too how hate crimes increased after the EU referendum with hostilities directed towards immigrants and BAME groups surging for a more sustained period of time.

The emergence of the novel coronavirus has for many served as an almighty trigger event that has sparked hostilities towards those perceived to be responsible. Research has shown that where individuals perceive a group of people to pose a physical threat to their safety (often referred to as “realistic threats” by social psychologists) this will frequently result in biased behaviours towards members of these groups. In some cases, individuals can react violently as their internal anxieties and fears trigger an aggressive response that aims to suppress the perceived threat. There is certainly no paucity of examples of such incidents in the initial first few months of the outbreak.  The virus has been reimagined as a threat posed, not by a biological pathogen, but by specific racial groups. Like almost all targets of hate, its victims need a face.

Racial animosities have been worsened still by anti-Chinese political rhetoric. We know that when leading politicians make disparaging or biased comments against certain groups that incidents of hate increase. For instance, researchers have shown that when Donald Trump sends anti-Muslim tweets, hate incidents against Muslim people increase directly afterwards. It is likely that Trump’s theatrical press briefings where he has persistently referred to Covid-19 as the “Chinese Virus” will directly translate into anti-Chinese hate crimes. The leader of the free world has strengthened the narrative that the virus has an ethnic face.

Situational contexts are also important to understanding the surge in hate incidents connected to the pandemic. In places where there are more available victims, higher numbers of incidents will be recorded. Given the virus is more likely to spread in confined environments it is unsurprising that initially there were high levels of abuse occurring in enclosed public spaces including on public transport.  However, as the lockdown has been brought into force rail and Tube users have decreased by over 96%, and with this there will be a decrease in the number of hate incidents occurring each day.  Situational theory is important in explaining crime levels more generally. Although social situations do not necessarily explain why people commit crime, they can have a significant effect on the amount, and location of, criminal activity. For example, burglaries have significantly fallen since the lockdown. The historically low levels of burglaries are most certainly not a result of people no longer wanting or “needing” to commit theft. Rather, there are fewer opportunities to successfully commit such crimes while people are indoors. Like most crimes, however, individuals will find new avenues to act out. Consequently, while anti-Chinese abuse and other forms of hate crime may reduce in public spaces (for the time being), online incidents are likely to continue to rise. Zoom bombing, where someone hacks into another’s online meetings, has already resulted in people beaming hateful content into the homes of unsuspecting participants, including one case where a virtual Synagogue service was quickly inundated with antisemitic slurs and symbols.

Conversely, other physical hate-based crimes will flourish while we all spend more time at home. Levels of domestic violence are likely to skyrocket as the tensions of being at home all day exacerbate the underlying causes of these offences. Although people of all identities can experience domestic violence, women, disabled people and young LGBT people are disproportionately affected. Enforced confinement in private spaces where disablist, misogynistic and homophobic attitudes go unchallenged will cultivate toxic micro-environments where violence will likely proliferate.

Given the high levels of domestic abuse experienced each year this is of grave concern. Crime Survey for England and Wales statistics estimate that last year alone 1.6 million women over the age of 16 were the victims of domestic abuse. In the same year 99 female victims were killed in a domestic homicide. Since the lockdown the domestic violence charity Refuge has reported a 49% increase in calls to its helpline. The Home Secretary has responded by announcing a £2 million fund to assist charities working to support victims, and the UK House of Commons Home Affairs Committee has set out a report on steps needed to mitigate the problem.  It remains to be seen whether this will be enough to protect victims. Indeed the charity Counting Dead Women has already calculated that there were at least sixteen domestic abuse killings of women and children between 23 March and 12 April. With the lockdown continuing for the foreseeable future it is likely that many more women will die at the hands of their partners this year.

As knowledge of the virus begins to mature and more and more countries enter into national crises, the nature and dynamics of incidents of hate and hostility will likely evolve in tandem with a changing narrative that accompanies developments in the pandemic.  From the focus of the “Chinese virus” has emerged a commonly stated strapline that the disease is “indiscriminate”, affecting people of all ages and ethnicities (though UK data suggest that minority ethnic groups are being disproportionately affected by the disease, potentially as a result of structural racism). Political and media attention has also been refocused on death rates, trials for new vaccines, a lack of PPE, ramping up testing facilities, and the need to “stay at home”. This second stage of the pandemic has called for new powers and measures of social control to be enforced in order to reduce the rate at which the virus is spreading. While of crucial importance to “flattening the curve”, this has given some governments the chance to roll back human rights protection in the name of public protection of health. Sweeping new powers have been brought in by governments across the world giving them unfettered powers to surveil citizens and greater authority to police the boundaries of acceptable behaviour and identity.  Last month Viktor Orban’s government in Hungary granted the prime minister the power to rule by decree for an unlimited period of time. His new powers include suspending the enforcement of certain laws, not only those related to the crisis. One day after the new law was passed the Hungarian government submitted a bill to parliament that will make it impossible for transgender people to legally change their gender. The old adage of “never let a good crisis go to waste” is a pertinent reminder that critics and human rights observers cannot take their eye off the ball during these frenetic times.

Even seemingly benevolent measures to protect the public can have discriminatory outcomes. Take for example measures by South American countries that only allow women and men out of their homes at different times. This has resulted in some transgender people being stopped and questioned by police, such as in Panama where one trans woman was fined for leaving the house on a day designated for women only.  Other social distancing measures will undoubtedly disproportionately affect individuals from other marginalised groups, such as sex workers who won’t be furloughing anytime soon.

In the coming months of the pandemic, recriminations about the causes of the virus will no doubt be vociferously made as other issues that have captured media attention begin to wane. From the initial anxieties and fears of catching the virus will emerge feelings of anger and rage about its devastating impacts. There are likely to be two salient avenues through which hate and hostility will evolve at this stage. The first, which has already begun, is the propagation by some state representatives and religious leaders of malicious antisemitic conspiracies that Israel is responsible for developing and spreading Covid-19 virus in order to decrease the non-Jewish population and to control the world. Indeed, UN Special Rapporteur on freedom of religion or belief, Ahmed Shaheed has recently stated “I am extremely concerned to see that certain religious leaders and politicians continue to exploit the challenging times during this pandemic to spread hatred against Jews and other minorities.” No doubt these pernicious lies will continue and strengthen over time.

The second and perhaps more mainstream narrative that is likely to form is that “China” is to blame for the devastating global social and economic ills caused by the virus. In racialising the cause of the pandemic, its saviour will likely be equally racialised, with the US and UK institutions racing to find a cure. The cultural chasm between West and East will be entrenched further as US and European governments reel from the impacts of the pandemic and as each seek to control the narrative of who is fixing it.  President Donald Trump has already suggested that China will need to pay compensation to the USA. The Chinese government will no doubt fight back by spreading misinformation about the origin of the virus and by threatening economic retaliation for those who dare to criticise the State’s own actions. A fine balancing act is required here, where recriminations about the factors that may or may not have led to the initial spread of the disease, including the use of live-animal markets, unethical treatment of animals, and secretive governments that withhold or manipulate important public information, need to be fully investigated. However tough this process might be, it must be conducted without the additional mantra of “Chinese viruses” and “Chinese people” as being to blame for the spread of the virus. The actions of governments are not the actions of people. The heroic efforts of doctors and scientists in China must be at the forefront of our learning from this pandemic. Many of them have already died trying to save others.  Each of them deserves our thanks. There will be many state actors, on the other hand, that will deserve our ire.  Governments often act badly and they rightly deserve our anger. Let us resist the temptation to tar an entire nation of people with their misdeeds.

In the aftermath of this global crisis there lies a dangerous risk that the community fissures exposed by the pandemic will leave lasting social scars. Policing of hate crimes will be crucial to combatting any upsurge in public hostility. Paul Giannasi, the hate crime advisor to the UK police said “we know that fear and hostility are never far apart. Those who stir up ideological hatred have seen it as an opportunity to peddle their existing bigotries, through misinformation and bizarre conspiracy theories. We are working closely with communities to encourage victims to come forward and bring offenders to justice.” Beyond the thin blue line, much more needs to be done to prevent hate incidents from compounding the broader socio-economic effects of the pandemic. Political leaders must now start working with social scientists and community groups to develop strategies to enhance social cohesion and to find ways to repair the social disadvantages that entire communities of people have endured for too long. Indeed, the social justice of the future is not just about creating a fairer economic system that adequately recompenses essential workers, it involves recognising and readjusting structural inequalities that expose specific groups of people to hate and hostility in the first place.