India: You’re Criminal If Gay

Leila Seth
Leila Seth

The following article appeared in The Times of India on January 26. It had the title “A Mother and a Judge Speaks Out on Section 377.” It then appeared in The New York Review of Books on March 20 issue, with open permission to repost.

My name is Leila Seth. I am eighty-three years old. I have been in a long and happy marriage of more than sixty years with my husband Premo, and am the mother of three children. The eldest, Vikram, is a writer. The second, Shantum, is a Buddhist teacher. The third, Aradhana, is an artist and filmmaker. I love them all. My husband and I have brought them up with the values we were brought up with—honesty, courage, and sympathy for others. We know that they are hardworking and affectionate people who are trying to do some good in the world.
But our eldest, Vikram, is now a criminal, an unapprehended felon. This is because, like many millions of other Indians, he is gay; and last month, two judges of the Supreme Court overturned the judgment of two judges of the Delhi High Court that, four years ago, decriminalized homosexuality. Now, once again, if Vikram falls in love with another man, he will be committing a crime punishable by imprisonment for life if he expresses his love physically. The Supreme Court judgment means that he would have to be celibate for the rest of his life or else leave the country where he was born, to which he belongs, and which he loves more than any other.
seth_1-032014.jpg
Magnum Photos

Varanasi, India; photograph by Raghu Rai

I myself have been a judge for more than fourteen years—first as a judge on the Delhi High Court, then as Chief Justice of the Himachal Pradesh High Court. Later, I served as a member of the Law Commission, as well as the Justice J.S. Verma Committee, which resulted in the Criminal Law Amendment Act 2013 being passed. I have great respect for legal proprieties in general, and would not normally comment on a judgment, but I am making an exception in this case.

I read the judgment of the Delhi High Court when it came out four years ago. It was a model of learning, humanity, and application of Indian constitutional principles. It was well crafted, and its reasoning clearly set out. It decided that Section 377 of the Indian Penal Code infringed Article 14 of the Constitution, which deals with the fundamental right to equality. It infringed Article 15, which deals with the fundamental right to nondiscrimination. And it infringed Article 21, which covers the fundamental right to life and liberty, including privacy and dignity. The judgment of the High Court “read down” Section 377 in order to decriminalize private, adult, consensual sexual acts.

As the mother of my elder son, I was extremely upset. But as a lawyer and a former judge, I decided to reserve my views till I had read the judgment. When I read it, it would be true to say that I found it difficult to follow its logic.

A host of academics and lawyers have critiqued the judgment in great detail, including the nonaddressal of the Article 15 argument, and have found it wanting in many respects. I do not intend to repeat those criticisms. However, I should point out that both learning and science get rather short shrift. Instead of welcoming cogent arguments from jurisprudence outside India, which is accepted practice in cases of fundamental rights, the judgment specifically dismisses them as being irrelevant.

Further, rather than following medical, biological, and psychological evidence, which shows that homosexuality is a completely natural condition, part of a range not only of human sexuality but of the sexuality of almost every animal species we know, the judgment continues to talk in terms of “unnatural” acts, even as it says that it would be difficult to list them.

But what has pained me and is more harmful is the spirit of the judgment. The interpretation of law is untempered by any sympathy for the suffering of others.

The voluminous accounts of rape, torture, extortion, and harassment suffered by gay and transgender people as a result of this law do not appear to have moved the court. Nor does the court appear concerned about the parents of such people, who stated before the court that the law induced in their children deep fear, profound self-doubt, and the inability to peacefully enjoy family life. I know this to be true from personal experience. The judgment fails to appreciate the stigma that is attached to persons and families because of this criminalization.

The judgment claimed that the fact that a minuscule fraction of the country’s population was gay or transgender could not be considered a sound basis for reading down Section 377. In fact, the numbers are not small. If only 5 percent of India’s more than a billion people are gay, which is probably an underestimate, it would be more than 50 million people, a population as large as that of Rajasthan or Karnataka or France or England. But even if only a very few people were in fact threatened, the Supreme Court could not abdicate its responsibilities to protect their fundamental rights, or shuffle them off to Parliament. It would be like saying that the Parsi community could be legitimately imprisoned or deported at Parliament’s will because they number only a few tens of thousands. The reasoning in the judgment that justice based on fundamental rights can only be granted if a large number of people are affected is constitutionally immoral and inhumane.

The judgment has treated people with a different sexual orientation as if they are people of a lesser value.

What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization or, worse, to recriminalize it is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial pusillanimity, for there is no doubt that in the constitutional scheme it is the judiciary that is the ultimate interpreter.

A review petition is now up for hearing before one of the two original judges plus another, who will replace the now retired Justice Singhvi. It will be heard in chambers. No lawyers will be present.

I began by saying that Premo and I had brought up our children to believe in certain values. I did not mention some others that we have also sought to inculcate in them: to open their hearts and minds; to admit their errors frankly, however hard this may be; to abjure cruelty; and to repair in a willing spirit any unjust damage they have done to others.

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Israeli Social Work: between poverty and the occupation

Amir Paz-Fuchs
Amir Paz-Fuchs

The following is the text of a short talk given at the World Social Work Day, 18th March 2014, at the University of Sussex.

Why am I qualified to talk about social work practice in Israel? I probably am not. I am, however, familiar with the work of Israeli social workers through a few avenues. Initially, as a legal academic and activist working on social and economic rights and access to welfare rights, I engaged with many social workers and learned a great deal from their experiences. As my involvement in the field grew, I ended up teaching core undergraduate and postgraduate option modules at the school of social work in Tel-Aviv University. The former offered me an insight into the next generation of social workers in Israel; the latter enabled me to engage with mature social workers, some of whom have been in the profession for over a decade or two. Finally, as relationships evolved and developed, I became increasingly involved in the Israeli social workers’ struggle for a decent living, on which I’ll say more in what follows.

It’s obviously impossible to cover the social, economic and political realities in Israel proper and Israel/Palestine in the time frame allotted, and I shall not even claim to do so. But I would like to give you a taste of the challenges that the social work profession encounters against those realities. A good place to start is the global definition of the social work profession. Just to refresh our memory:

Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work.

My basic argument is that, in the current context, Israeli social work (as opposed to some Israeli social workers) will not live up to this grand aim. Two main forces are in play, and joined together, they have been coined (not by myself), and forgive the historical reference: National capitalism. Let’s start with the capitalism.

A few after Mrs Thatcher and Mr Reagan did their waltz of destruction of the welfare state in their respective countries, a similar process began developing in Israel. To many, this was astounding and, to an extent, much more dramatic than anything that happened in any other country. For while there was never a governing socialist ethos here or across the pond, that was (at least rhetorically – more on that in a moment) quite the case in Israel, which was ruled for the first 30 years by the Workers Party of Israel. The unravelling of this edifice and, moreover, the pace that it unravelled by the right wing Likud party, was unparalleled. A series of swift privatisations and outsourcing initiatives changed the Israeli landscape. But while most of the focus was on the price received for the selling of this national industry, that telecommunication company or the national airline, the real story, not under the spotlight, was the change in social welfare provision. From a country that prided itself as one of the most egalitarian amongst modern capitalist nations in the 1950s and 1960s, it now has the second lowest rate of support to families in need in the OECD, the highest percentage of children living in poverty (35.6%) and among the Arab and Ultra-Orthodox Jewish population – over 50% of household live in poverty.

While these numbers are routinely discussed, and thus relatively well known, to most Israelis, they tend to forget that the individuals who must deal with the ramifications of increased poverty, including physical and mental illness, domestic violence, child abuse and the like, are the social workers. However, it should not be surprising to note that the increase in needs was not met with an increase in resources. In fact, the case was quite the opposite. Social budgets were slashed, local council were deprived of funds, redundancies were prevalent, and perhaps most significantly, the trend of outsourcing ushered in, taking the social work field by a storm. Over 80% of welfare provision in local councils and the Ministry of Welfare is outsourced, and executed by private, often – for-profit corporations. The result is disastrous for the social work profession. Removed from the ambit of collective agreements, privatised social workers have no job security, can be subject to renewable, part time, temporary, zero-hour contracts; and are forced, because of these circumstances, to violate ethical, and sometimes legal provisions. It has become somewhat of macabre humour amongst social workers in Israel who reflect on their own situation and find that it is often not far removed from the situation of those under their care. While many persevere, their emotional and physical resources are dedicated to their own survival and to offering the best care to their clients, under impossible conditions. Many others, excellent, ideologically driven and socially aware social workers exit the profession, leaving it to those who are either less qualified or who have a significantly different motivation. And here I turn to the second element, that of nationalism.

It is probably of no surprise to anyone here that Israel has become increasingly nationalistic in its orientation over the past two decades. This change is visible at the government level, but also in daily interactions with the man and woman on the street. Some of these men and women (actually – predominantly women) are, in fact, social workers. The collapse of the welfare state and the expansion of outsourcing and private provision of welfare brought with them the resurgence of traditional, faith based and localised forms of social work. To an extent, this is retrograde move to 19th century, community-based social work, just without their radical nature. In fact, it is quite the opposite of any radicalism or claim for universal social justice. Many social workers of this new generation are Jewish women who come to address the social ills that are present in Jewish communities. This is probably a good place to mention that critical historians who study Israel would probably view this recent development as an extension of the shaky foundations of the Israeli welfare state. You see, it is somewhat misleading to claim that Israel was established on a socialist ethos, if that implies (as it should) universalist commitments, when Palestinian citizens of Israel were subject to deprivation of liberty from Day One, were denied access to employment and to unions, and denied access to land (indeed – sometimes, denied access to their own land). However, in the first few decades the universalist language of welfare legislation was sufficiently binding to uphold at least some aspects of equal provision. With the devolvement of social work to local councils, and with its privatisation, that commitment to equal provision was thinned down to the point of extinction.

"The poverty line starts here"
“The poverty line starts here”
"The Netanyahu welfare state is in the West Bank", "Bring welfare back to the state"
“The Netanyahu welfare state is in the West Bank”, “Bring welfare back to the state”

Matters became even more extreme after 1967. I mentioned earlier that the Likud governments slashed the Israeli welfare state. In fact, this is only part of the story. Israel has actually developed an incredibly impressive welfare state … in the Israeli settlements in the West Bank (and formerly in the Gaza strip). There you will find fully staffed local councils, with thriving welfare departments, an abundance of resources, full employment (much of it public employment) and no hint of the poverty that is bringing Israeli society to its knees. Needless to say, the social workers who operate in the occupied territories, like almost all Israeli settlers, do not view Palestinians, including those living in dire poverty, without running water and subject to severe deprivation of life and liberty, as their concern. I hope that I manage to convey that my intention is not mobilise yet another call for Israel bashing. Rather, it is (hopefully) the more subtle insight that the occupation also has an effect on the profession, and the way it sees itself. If we return to the global definition, concepts that are within, including ‘empowerment and liberation of people, social justice and human rights’, cannot be more remote from the daily consciousness of Israeli social workers living and working in the occupied territories, or at the very least (and perhaps worse) – these concepts receive a very different interpretation.

But I cannot leave you in such a despondent state. There are reasons for optimism, however light and slight. I can mention here two amazing groups of social workers who operate courageously, vocally and against all odds to oppose these joint forces of Israeli national capitalism. The first is Ossim Shalom, which is a double entrendre: ‘social workers for peace’ and ‘making peace’. The group trains Jewish and Palestinian social workers as agents of change in their communities, and as facilitators in conflict situations.

The second is Atidenu (our future), a group of privatised social workers who work to claw back the outsourcing of public services, including social services, thus struggling for their own employment conditions and their ability to provide better services, but also studying the disastrous consequences of the privatisation of social services in general, and offering a coherent and informed alternative. A testament to their central role in the formation of this alternative is the wide spread and prolonged (over 3 months) strike that they led in early 2011, which preceded and, perhaps, led to the massive social protests in the summer of 2011 in Israel.

The problem, as you may notice, is that each group (qua group) addresses only one half of the foundations of Israeli national capitalism, thus either willfully ignoring the other half of the challenge, or viewing it as overly ambitious to try to tackle both aspects at once. They may be right. In the meantime, these courageous, energetic, bright young women on both fronts see the trees and forest. If there is room for optimism for social work in Israel, it is because of them.

Dr Amir Paz-Fuchs is Lecturer in Employment Law at the University of Sussex

All change in the mens rea of criminal attempt: Khan on the scrapheap?

John Child
John Child

On the 18th February 2014, the Court of Appeal (Criminal Division) allowed the appeal of defendants Pace and Rogers against convictions for attempting to conceal, disguise or convert criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002 (PCA 2002) and section 1 of the Criminal Attempts Act 1981 (CAA 1981). Breaking from previous authority, the Court of Appeal’s judgement has fundamentally changed the core mens rea requirements for attempts liability. 

Pace and Rogers were employees of a scrap metal yard. On the relevant dates, they were approached by undercover police officers and asked if they were interested in buying stolen scrap metal. The metal was accepted, and the appellants were charged with an attempt to commit the section 327 offence (they could only have attempted the offence as the metal purchased, being police property, was not in fact stolen).

In the court of first instance, the law of attempt was set out and applied to the facts as follows. The actus reus of attempt requires the defendant to complete ‘an act which is more than merely preparatory to the commission of the offence’ (CAA 1981, s1(1)). As the metal purchased by the appellants was not stolen in fact, this requirement may appear problematic: there conduct does not go beyond mere preparation to convert actual stolen property. However, in line with section 1(2) and (3) CAA 1981, a defendant may nevertheless satisfy the actus reus where his acts are more than imagesmerely preparatory on ‘the facts … as he believed them to be’.

The mens rea of attempt requires a defendant to act ‘with intent to commit an offence’ (CAA 1981, s1(1)). In line with this, it was clear from the facts that the appellants intended to receive the goods and to convert them within the meaning of the 2002 Act. However, it was maintained by the appellants that they did not intend or know a vital element of the offence: that the goods were stolen. Despite the evidence against them (including covert recordings of the undercover officers describing the metal as stolen), the defendants claimed that they understood this as nothing more than ‘builders banter’.

Even accepting this claim however, their state of mind was still sufficient to satisfy the mens rea of attempt. This is because, in the case of Khan [1990], it was held that criminal attempt only requires a defendant to intend the physical elements of his  (as opposed to the circumstances of the offence). In Khan itself, this allowed the court to find the defendant liable for attempted rape where he intended the act of penetration (the physical part of the offence) and was reckless as to the non-consent of his victim (the circumstance of the offence). Applying Khan in this case, the trial judge directed the jury that the defendants must intend the converting of the property (physical elements), but that the defendant’s mens rea as to the criminal origin of the property need only mirror the mens rea required for the principal offence. Thus, as section 340(3)(b) PCA 2002 minimally requires ‘suspicion’ as to the criminal origin of the property, this is all that would be required for the attempt to commit that offence as well. On this basis, the appellants were convicted in the Oxford Crown Court, and fined £250 and £1,500 respectively.

The Court of Appeal allowed the defendants appeal against conviction, and ordered their acquittal. The court’s reasoning focused on the mens rea of criminal attempt. For the Court of Appeal, reference to ‘with intent to commit an offence’ (CAA, s1(1)) was to be interpreted to require the defendants to intend every element of the principal offence attempted. Therefore, in the present case, the defendant’s ‘suspicion’ as to the criminal origins of the property would not be sufficient for liability. The court outlined several reasons for this interpretation:

  • This represents the most straightforward reading of the CAA 1981 [61];
  • This interpretation is in line with the recommendations of the Law Commission that formed the basis of the CAA 1981 [45];
  • The mens rea for an attempted offence should be different (require a higher degree of determination) than that of a principal offence [64]; and
  • This interpretation provides consistency with the overlapping offence of conspiracy [65].

The court recognised the potential conflict of this interpretation with that in the case of Khan, the approach relied upon by the Crown Court. As Khan was also decided at the Court of Appeal, the court was not free to overrule that case. Therefore, it was distinguished on the following grounds [52]:

  • Khan involved the mental element of ‘recklessness’ as opposed to ‘suspicion’;
  • The court in Khan expressly stated that they were not intending to create a general rule; and most importantly
  • Unlike the present case, Khan was not an impossible attempt case.

Pace and Rogers is well decided. For the reasons given by the court, and others discussed elsewhere, the legal reasoning in Khan is not sustainable. However, the fact that the court is right in its criticism of Khan makes the current state of the law slightly unfortunate. Placing Pace and Rogers and Khan side by side, the law would suggest that for impossible attempts (Pace and Rogers) intention is required; while for standard (possible) attempts (Khan) intention is required only as to acts and results.

This inconsistency was inevitable given the court’s inability to overrule Khan. However, for as long as it lasts, it remains regrettable: the reasoning of the courts in Khan and Pace and Rogers are not isolated to possible or impossible attempts, they represent alternative approaches across the piste, and one should be preferred over the other. It is likely that Pace and Rogers will be appealed to the Supreme Court, where a definitive (and consistent) choice between these interpretations of mens rea can be made. Failing this, it will be interesting to see if future cases take the lead from Pace and Rogers and begin to distinguish Khan on its facts, perhaps even within ‘possible’ attempts.

This is not, however, the end of the story. Although there has been considerable disagreement between academics concerning the legal reasoning in Khan, there has been general agreement that the facts of Khan warranted liability for attempted rape. This leaves us with a problem. If the logic of Pace and Rogers is extended to possible attempts (as I believe it should be) then a defendant like Khan would not be liable for a criminal attempt. Finding an approach to the mens rea of inchoate liability that catches defendants such as Khan, but does so through a coherent scheme, has created some of the most challenging and exciting criminal law scholarship of the last fifty years.

For example:

  • The Law Commission, Conspiracy and Attempts: Recommending that the Khan approach should be clarified and codified, and that the mens rea of conspiracy should be changed to be consistent with it;
  • Irish Law Reform Commission, Report on Inchoate Offences: Recommending (contrary to Pace and Rogers) that attempt and conspiracy should not be thought of as separate wrongs from the principal offences they apply to, and therefore recommending that the mens rea for inchoate offences should be the same as that required for the principal offence;
  • Williams: Recommending that we should reanalyse cases such as Khan as cases of alternative intention (ie, the defendant in Khan intended to sexually penetrate V with her consent and to do so without her consent: his intention was not contingent on the issue of consent);
  • Stannard: Recommending a policy in which D need only intend missing elements of his principal offence, with mens rea as to other elements allowed to reflect that required for the principal offence (eg, the only missing element of rape in Khan was the penetration, so that is all that would require intention);
  • Child and Hunt: Criticising the approaches recommended by the English and the Irish Law Commissions, and recommending an alternative approach based on ‘belief’.

The decision in Pace and Rogers does not answer this debate, but it does remind us that the answer is still missing.

Dr John Child is Lecturer in Law at the University of Sussex

The Danish Prohibition on Ritual Slaughter – Just a Matter of Freedom of Religion vs Animal Welfare?

Stephanie Berry
Stephanie Berry

On 14th February, the Danish Ministry of Agriculture (Fødevareministeriet) amended the Regulations on the Slaughter of Animals (Bekendtgørelse om slagtning og aflivning af dyr) to remove the possibility of a religious exemption from the requirement that animals be stunned prior to slaughter (Chapter 4 §9). The Ministry of Agriculture justified the amendment on the grounds that it was necessary to protect the welfare of animals. Communities belonging to both the Jewish and Muslim faiths believe that the stunning of animals prior to slaughter precludes meat from being kosher and halal. Thus, representatives of the Jewish and Muslim communities in Denmark have argued that the amendment infringes their right to freedom of religion

Denmark is party to both the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which encompass a right to manifest religion ‘in worship, teaching, practice and observance’. Both the UN Human Rights Committee (General Comment No. 22 para 4) and the European Court of Human Rights (ECtHR) (Cha’are Shalom Ve Tsedek v France para 80) have recognised that the observance of dietary regulations constitutes a protected manifestation of religion. Notably, in 2010 the ECtHR found a violation of article 9 in Jakóbski v Poland where the State had failed to provide appropriate meals in prison for the Buddhist applicant (para 54).

However, the extent to which the right to manifest religion under article 9 ECHR encompasses a right to ritual slaughter is questionable. In the case of Cha’are Shalom Ve Tsedek v France, the ECtHR held that restrictions on licencing that prevented the halalultra-orthodox Jewish community from slaughtering animals in accordance with their religious convictions were permissible, provided that adherents were able to access such meat elsewhere (paras 80, 83). Accordingly, the ECtHR has interpreted article 9 ECHR to encompass the right to access religiously compliant food rather than to slaughter animals in accordance with religious requirements. In the Danish case, both Jewish and Muslim communities are able to access kosher and halal meat, albeit meat that has been slaughtered outside of Denmark. Therefore, it seems unlikely that the ECtHR would find a violation of article 9 ECHR, on the basis of the amended Danish Regulations on the Slaughter of Animals.

Although the prohibition of ritual slaughter without the prior stunning of animals does not necessarily amount to a violation of freedom of religion, an important question arises as to why the Danish Ministry of Agriculture decided to amend the law in the first place.  The note accompanying the amended Regulations observes that slaughter without prior stunning had not occurred in Denmark in the ten years preceding the amendment. Thus, religious slaughter had only been permissible if the animal had been stunned beforehand.  This compromise is acceptable to some but not all Muslim and Jewish communities, depending on their interpretation of the requirements of their faith.

While the amendment to the law does not change the previous situation, the Minister for Agriculture, Dan Jørgensen, justified the ban on the grounds that it was better ‘to be on the safe side’. However, as the required dispensation from the existing law had not been granted in the preceding ten years, it is unclear why this amendment was considered necessary.

kosherIn response to the development,  the Chair of the Jewish Community,  (Det Jødiske Samfund) Finn Schwarz, accused the Ministry of Agriculture of pandering to public opinion and victimising minority communities that are unable to defend themselves. Specifically, he expressed concern that this amendment signalled that there was an intention to completely prohibit religious slaughter in the longer term.

The debate surrounding halal slaughter and, more recently, kosher slaughter, has been ongoing in Denmark for the past decade. Concerns have consistently been raised regarding the marking of halal meat in supermarkets, the use of halal meat in hospital and school meals, in addition to the ethical issues surrounding halal slaughter- which seem, as noted in the Guardian, at odds with the treatment of animals during the mass production of meat in Denmark. Irrespective of the legitimacy of the restriction on the grounds of animal welfare, it seems incongruous that the Ministry of Agriculture chose to restrict ritual slaughter, when in reality this had not been problematic. Given the public debate surrounding halal meat in Denmark, it is unsurprising that the affected religious communities have perceived this move to be a political statement. Indeed, the lack of any evidence of the need to amend the law supports this view.

While the prohibition on halal meat may serve a legitimate purpose,  the recent amendment to the law must be observed in the broader context of the treatment of religious minorities in Denmark. Measures taken by politicians which specifically impact the Muslim and/or Jewish community and practices that are perceived to be undesirable by the majority do not take place in a vacuum.

International monitoring bodies, including the Advisory Committee on the Framework Convention for the Protection of National Minorities (AC-FCNM) and the UN Committee on the Elimination of Racial Discrimination have voiced concern at intolerant attitudes to religious minorities in Denmark, in particular those expressed by politicians. Notably, the Committee on the Elimination of Racial Discrimination has heard a number of cases involving racial and religious hate speech by Danish politicians. In its Second Opinion on Denmark, the AC-FCNM expressed concern at ‘the introduction of an anti-immigrant agenda in the political arena’ and the associated ‘upsurge of intolerance particularly against Muslims and Arabs’ (para 77). Specifically, the AC-FCNM considered that ‘that politicians and political parties must live up fully to their responsibility for promoting tolerance while refraining from words or action likely to stoke up any form of racism, xenophobia or hatred’ (para 78).

The prohibition of stunning, prior to slaughter, has not altered the ability of religious communities in Denmark to slaughter animals in accordance with their beliefs. However, this development appears to be a tactical political move which appeals to the majority and further alienates minority communities in Denmark. By legitimising debates taking place within the majority, without the participation of the minority, this measure sends a clear message that these communities must conform, in order to be tolerated in Denmark. This has led to concern amongst these communities that their religious practices will be subject to further restriction in the future. Although the law does not change anything in relation to ritual slaughter, it does further legitimise the victimisation of communities that are already vulnerable to discrimination.

Stephanie E. Berry is a Lecturer in Public Law, University of Sussex