Is the Supreme Court Calling Time on Social Housing Managerialism?

 

In cases involving social housing, English courts have traditionally taken what we might call a ‘managerial’ approach: their starting-point for analysis has not been the tenant or applicant for housing as a rights-holder, but the need of local authorities to distribute their scarce resources effectively. In Burrows v Brent LBC [1996] 1 WLR 1448, for example, where a tenant who was permitted to remain after a possession order was held not to have been impliedly granted a new tenancy, Lord Browne-Wilkinson said that ‘housing authorities try to conduct their housing functions as humane and reasonable landlords’ (at 1455). The tenant might be forgiven for wondering why this should count against him, but clearly the implication is that as ‘humane and reasonable landlords’ local authorities should be left to manage their housing stock with as little interference from the courts as possible. More recently this attitude led to the courts’ extreme reluctance to enable a public sector tenant to rely on article 8 ECHR in possession proceedings. When the Supreme Court finally acceded to pressure from Strasbourg, it nevertheless drew the teeth from the human rights defence by agreeing with the Secretary of State’s submission that ‘a local authority’s aim in wanting possession should be a “given”’ (Manchester CC v Pinnock [2011] UKSC 6, per Lord Neuberger at [53]), so that ‘there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order’ (Hounslow LBC v Powell [2011] UKSC 8, per Lord Hope at [37]). The local authority is simply assumed to be acting in a way which benefits the general welfare; this assumption is then taken to justify the effect of its actions on individuals in all but the most extreme of cases.

However, in three cases decided by the Supreme Court this year, we can see what might just be the beginnings of the turning of the tide. In each of Aster Communities v Akerman-Livingstone [2015] UKSC 15, Nzolameso v Westminster CC [2015] UKSC 22 and Johnson v Solihull MBC [2015] UKSC 30, we see the Court of Appeal take the traditional ‘managerial’ line, only to be reversed by a Supreme Court newly willing to subject local authority decision-making to a much more rigorous scrutiny.

First came Aster, in which a housing association, acting on instruction from a local authority, sought to evict a severely mentally ill tenant from temporary accommodation after he had rejected an offer of permanent accommodation. The tenant argued that the eviction would amount to disability discrimination under section 15 of the Equality Act 2010, in that (a) his rejection of the offer of permanent accommodation was ‘something arising in consequence of [his] disability’ and (b) eviction would not be ‘a proportionate means of achieving a legitimate aim’. The question on appeal was whether the Pinnock approach of taking the presence of a legitimate aim as a ‘given’ applied where the defence was based on discrimination rather than on violation of article 8. The judge at first instance decided that it did, and so struck out the defence as failing to disclose a seriously arguable case. The Court of Appeal agreed with him, with Arden LJ stating that there is ‘no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination’ ([2014] EWCA Civ 1081, at [29]).

The Supreme Court, however, were unwilling to extend the deferential Pinnock approach to discrimination cases, and, rather than allowing a generic reference to the importance of managing the social housing stock to stand as justification for a potentially discriminatory act, instead insisted on a detailed consideration of the disabled tenant’s personal circumstances:

‘When a disability discrimination defence is raised, the question is not simply whether the social landlord is entitled to recover the property in order to fulfil its or the local authority’s public housing functions, but also whether the landlord or the local authority has done all that can reasonably be expected of it to accommodate the consequences of the disabled person’s disability… These are questions which a court is well equipped to address.’ (per Baroness Hale of Richmond DPSC, at [32])

Nzolameso concerned a single mother of 5 children whom Westminster City Council owed a duty to house under Part VII of the Housing Act 1996. Westminster purported to discharge this duty by offering her a house in Bletchley, near Milton Keynes, about 55 miles northwest of Westminster and over an hour away on the train. The letter offering her the property contained a standard form paragraph which read:

‘There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.’

Nzolameso appealed the council’s decision on the basis that the accommodation was not ‘suitable’ for her and her household as required by s. 206(1) of the 1996 Act.

The Court of Appeal ([2014] EWCA Civ 1081) were willing to assume that, in reaching its decision that the accommodation was suitable, the local authority took into account the appropriate law and guidance, considered possible alternative options and had good reasons for their conclusion that it was not practicable to offer accommodation closer to Westminster. All this rational decision-making could go on behind closed doors: ‘It was not necessary for [the local authority review officer] to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered…’ (per Moore-Bick LJ at [25]).

This did not wash with the Supreme Court, who were unprepared simply to assume that the local authority had reached its decision by weighing up the relevant considerations in a rational way. Viewing the applicant not merely as an object of social welfare but as a bearer of legal right, they held that she was entitled to have the reasons why she had been offered this particular property communicated to her. Save a vague invocation of a ‘severe shortage of accommodation’, the authority had failed to indicate why accommodation in Westminster, or even the whole of Greater London, had not been offered, nor had they given any indication of how the applicant’s personal circumstances had been taken into account. It followed that the authority was not able to show that the property that they had offered was suitable for the applicant.

Interestingly, Baroness Hale went on to lay down guidelines as to how local authorities should approach this kind of decision-making in future ([38]-[42]). They should have a policy for procuring adequate temporary accommodation to meet anticipated demand, and a further policy for how units are to be allocated to individual homeless households. The latter should explain the factors that will be taken into account in offering placements ‘in borough’, and the circumstances under which it would be considered suitable to make offers further away. This part of the judgment represents a marked shift away from previous judicial reticence to interfere with the way in which local authorities go about allocating properties to the homeless, and a new-found concern to ‘enable homeless people, and the local agencies which advise them, to understand what to expect and what factors will be relevant to the decision’ [40].

Finally, Johnson concerned the proper approach to be taken when determining whether an applicant for housing is ‘vulnerable’ for the purposes of s. 189(1)(c) of the 1996 Act. I have commented more fully on this case elsewhere; here I would like to focus on the specific issue of the relevance of the local authority’s scarce resources to the vulnerability assessment. In the Court of Appeal, Arden LJ stated that, when deciding on the question of vulnerability, a local authority is ‘bound to discharge its obligations by taking into account its own burden of homeless persons and finite resources’ ([2013] EWCA Civ 752, at [6]). The local authority’s decision is accordingly seen as one of prioritisation of resources, in respect of which the authority is, presumably, relatively expert. Again, the Supreme Court flipped the focus from the authority as bureaucratic manager onto the applicant as rights-bearer. Since Part VII entitles applicants who satisfy certain requirements to accommodation as a matter of right, the question of whether those requirements are met is not to be determined by a discretionary balancing of competing needs; in Dworkinian terms, it is a matter of principle, not policy. A local authority’s shortage of resources cannot be a justification for depriving an individual of his legal rights. ‘In so far as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament when enacting Part VII’ (per Lord Neuberger at [39]). (Note that Lord Neuberger’s discussion here was restricted to assessing priority need under the Housing Act 1996: there was no mention of the vexed question of whether resources are relevant to the local authority’s assessment of community care needs under section 2 of the Chronically Sick and Disabled Persons Act 1970. Despite Lady Hale’s doubts expressed in two recent cases (see here and here), the distinctly managerialist decision in R v Gloucestershire CC, ex p Barry [1997] AC 584 would appear, for the time being at least, to remain good law.)

It is too early to say whether these cases mark a sea change in the attitude of the Supreme Court towards social housing law, but if decision-making in this area is to be held to a more exacting degree of scrutiny by the courts, then in a sense this couldn’t come at a worse time for local authorities. As David Cowan notes in his blog post, the number of homelessness applications has been steadily rising since 2010, and there is no sign of this trend abating. At the same time, of course, local authorities are facing huge cuts in funding from central government, and are unable to make up for the shortfall by increases in council tax without triggering a local referendum under Schedule 5 of the Localism Act 2011. In such circumstances, it takes a bold court to ramp up the standards to which the decisions of under-pressure housing officers are expected to comply. However, the courts cannot allow austerity to function as a cloak to shield authorities from accountability for their decisions. Nor – as Michael Adler’s piece persuasively argues – is austerity a reason for abandoning the rule of law. Accountability requires public bodies to give proper reasons for their decisions, and the rule of law requires that the individuals’ legal rights are not to be sacrificed for the sake of balancing a budget.

The MP for Witney believes that the shortfalls in local authority budgets can be met without making significant cuts to ‘frontline services’. If he is right, then that is good news for the homeless and for those living in social housing. If he is wrong, then his government will have to face this problem head on, either by providing local authorities with extra funds, or by introducing legislation into Parliament to do away with some of the rights that those in need of housing currently have. The alternative – quietly eroding rights de facto without accepting the political cost of abolishing them de jure – is austerity by stealth, and is offensive both to democracy and to the rule of law. The Supreme Court is right to stand up against it.

The article is reposted with permission and gratitude fromt he UK Constitutional Law blog, where it is part of a series on Austerity and Public Law. Past posts in the series may be accessed here.

Alex Latham is Lecturer in Welfare Law, University of Sussex

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Sexism and violence in the neoliberal university

This is the text of a keynote speech delivered at the Sexual Harassment in Higher Education conference at Goldsmiths on December 2nd 2015. Content note for sexually violent language and descriptions of traumatic experiences.

Alison Phipps
Alison Phipps

I want to talk about markets. Education markets, institutional markets, sexual markets: brought together by similar modes of assessment and audit. University league tables; module evaluation forms; ‘sex charts’ in student residences. Hierarchies of performance (which are often hierarchies of masculinity) at national, institutional and individual levels.

Rate your university. Rate your lecturer. Rate Your Shag.

2013 saw the emergence of a number of Facebook pages under the latter slogan, linked to universities across the country. They offered a space for students to give sexual liaisons marks out of ten based on any criteria, and were ‘liked’ by about 20,000 users of the social network in the first 72 hours. The activity was supposed to be anonymous, but privacy quickly evaporated under the instruction to ‘name them, shame them and if you must, praise them.’

Name them and shame them. All the pages were rapidly deleted by Facebook, deemed to contravene its policies on bullying and harassment. Unsolicited evaluation is bullying and harassment. Unsolicited evaluation is also very often gendered – women are appraised, men do the appraising. Although students of all genders had been encouraged to post, much of the Rate Your Shag content consisted of men rating women on criteria drawn from heteronormative and objectified constructions of femininity.

‘Was like shagging her mouth, best blowjob in [the city]. Eight out of ten.’

‘Nought out of ten. Shit body and one heavy dose of Chlamydia. Get checked love.’

Rate Your Shag forms part of a whole lexicon of activities which in the past few years have been grouped under the banner of ‘lad culture’. Sports initiations, ‘pimps and hos’ parties, the ‘fuck a fresher’ frenzy, for example. Such pursuits express traditional forms of sexism and male entitlement, but they are also inflected with something else. ‘Sex charts’ are appearing in student residences, to quantify and assess conquests. Women are being given grades and ratings for their physical appeal. Men are scoring ‘points’ for sexual ‘achievements’ – such as ‘slipping a finger in on the dance floor’, and ‘bedding a virgin – with blood to prove it.’ These forms of sexual audit evoke our contemporary marketised environment. ‘Lad culture’ and neoliberal culture are natural bedfellows.

Unsolicited evaluation is bullying and harassment. Constant evaluation is bullying and harassment. Contemporary ‘lad culture’ was defined by one of my research participants as a ‘hostile environment where everyone is judging everyone else.’ This also describes cultures amongst higher education staff, alienated by institutional and sectoral frameworks that constantly measure them against each other and against the curve. This evaluation is gendered: men continue to hold most of the positions of power in the sector, definitions of ‘success’ prioritise research (coded as masculine) over teaching and admin (coded as feminine), and criteria for assessment exercises such as the REF favour modes of scholarship and impact which reward the confidence, time and freedom to take risks and consistently self-promote.

A UCU survey in 2012 found that bullying and harassment between staff in universities was rife. This reflects both traditional hierarchies and abuses of power, and newer forms of competitive individualism which lack empathy and ethics. The university has become a dog-eat-dog environment; this is reflected in both staff and student communities. We know less about the prevalence of staff-on-student harassment, due to the institutionalised power relations which work against it even being named. However, we know it exists: and high profile examples, mostly from the US, give a sense of how these modes of violence work.

Consider the case of famous Berkeley astronomer Geoff Marcy, a potential Nobel laureate who persistently violated the institution’s sexual harassment policies between 2001 and 2010. According to one student’s account, she was at a department dinner when Marcy slid his hand up her thigh and grabbed her crotch.

For many women, this entitlement to touch is familiar. Such ‘everyday’ boundary-crossings are also central to ‘lad culture’, although more often performed in public as part of group one-upmanship. Many of my research participants described such ‘casual groping’ as part and parcel of a normal night out. Indeed, such behaviours have become so commonplace that they are often invisible: instead, the aspect of ‘lad culture’ which has captured the media and public consciousness is its cruel and shocking ‘banter’. This laddish language taps both the violence of hypermasculinity and the callousness of the neoliberal climate.

‘Uni Lad does not condone rape without saying ‘surprise.”

Non-consensual sex is ‘fun for one.’

I’m going out to ‘get some gash.’

The marketised university is a culture based on ‘having’ or ‘getting’ (grades and/or jobs), in which education has become a transactional exchange. This is reflected in the rather estranged ‘lad cultures’ I have studied, with older ideas about ‘having’ women augmented by newer notions of accumulating sexual capital. The principle of maximum outcomes for minimal effort which now underpins educational consumption also animates the quest for an ‘easy lay’.

I’m going out to ‘get some gash’.

In laddish ‘banter’, ancient expressions of woman-hating co-exist with more modern sexualised consumerism, packaged up in postmodern claims to irony. Such ‘banter’ has also been observed amongst some faculty cultures – for instance, the Being a Woman in Philosophy blog, a repository for stories of sexism in the discipline, recounts a comic containing a rape joke being sent to a junior faculty member by a philosopher at another institution, copied to all the other members of her department. In another entry, a recent philosophy graduate recalls a conversation about a job application essay with her previous head of department, in which chose to illustrate a point about how two people’s wills could conflict with the example of him raping her. Finally, in a post entitled ‘a sampling of minor incidents’, another student describes a faculty member stopping his lecture to ask her, ‘did you just flash me?’ because she adjusted her cardigan, and a famous professor discussing with male students which female students were ‘hot’ and which were ‘dogs’.

In this context, it’s perhaps unsurprising that University of Miami philosophy professor Colin McGinn, said to have subjected a female doctoral student to months of unwanted innuendo and propositions, defined the relationship as ‘warm, consensual’ and ‘full of banter’.

Don’t worry – it’s just banter.

What is the line between ‘banter’ and sexual harassment? In my research on ‘lad cultures’ amongst students, and also in media debates, the second has often been reduced to the first. There has also been a refusal to engage with how speech itself can be harmful, and how the realm of the symbolic can frame structural and embodied violence – instead, we often find ourselves on the back foot in debates about men’s rights to ‘cause offence’. Women are always getting offended by something or other.

In 2012, the Imperial College newspaper Felix published a ‘joke’ article providing male students with a recipe for the date rape drug rohypnol, as a ‘foolproof way’ to have sex on Valentine’s Day. The previous year an Exeter University society printed a ‘shag mag’ including an article speculating about how many calories a man could burn by stripping a woman naked without her consent.

When the Facebook page ‘Holyland Lad Stories’ (currently ‘liked’ by almost 30,000 users) was criticised on Twitter, its curators responded ‘get a fucking grip – we’re having a bit of harmless banter.’ Amongst the content highlighted as problematic was a post describing an incident in which a man had knocked a woman ‘clean out with one smack’ and left her for dead on the side of the road.

Get a fucking grip – it’s just banter.

To ‘offend’ with impunity is a function and exercise of privilege. This applies to the invisibilising and excusing of sexual violence perpetrated by middle class white men, and the insistence of all privileged groups that their ignorant, hurtful and harmful comments about marginalised people are ‘just my opinion’ or ‘just a joke.’ It is a cruel irony that only those with the social, cultural and political power to hurt other groups get to evade responsibility for it. This irony was recently painfully apparent when Goldsmith’s Welfare and Diversity Officer Bahar Mustafa was arrested and charged for allegedly tweeting on the #killallwhitemen hashtag. The discrepancy between the punitive treatment of Bahar and the amused indulgence of laddish ‘banter’ is a stark reminder of the ways in which ‘free speech’ is the property of some and not others.

Kill all white men.

It’s not rape if you shout ‘surprise’.

Structural relations of gender and race inequality render one of these a much more credible threat than the other. Indeed, they make the first statement an understandable expression of frustration about a racist and misogynist society, while the second is evidence of it. Nevertheless, the political hyperbole of ‘killallwhitemen’ became a crime, while laddish banter is defended as an exercise of freedom.

Oh, get a fucking grip – it’s just banter.

The privilege to offend is often wielded in response to privilege being threatened: in this, contemporary ‘laddish’ masculinities are marked out from working class laddism, which has been seen as more to do with alienation. The main players in the recent theatre of student laddism in the UK are middle class and white, progeny of the 1990s ‘new lad’ and the Bullingdon Club toffs. These rugby players, drinking and debating society ‘bros’ are also siblings of the frat boys in the US who are central to debates there about campus violence.

The aggressive sexism these privileged men perpetrate in student social spaces can be defined as a ‘strategic misogyny’. Sexual harassment very often functions to preserve masculine power and space. Our ‘uni lads’ enact the backlash against feminism, embodying populist and policy concerns about the ‘crisis of masculinity’ and the ‘feminisation’ of HE. Feminism has gone too far.

Contemporary laddism is a defensive strategy by those accustomed to topping the ranks, threatened by both the reality and the hyperbole of women’s achievement, the idea and practice of ‘widening participation’ and the increasingly blurred lines (no pun intended) of gender and sexuality amongst student and youth cultures. Laddism is an equal-opportunity offender, rooted in sexism but often incorporating racism, classism, transphobia and homophobia as well.

Feminism has gone too far.

Boys need to be protected.

There is evidence that in reaction to these ideas (and also in fear of their ‘disruptive’ working class and black contemporaries), white middle class boys are being hothoused by parents who see them as frail and imperilled. Boys need to be protected.

This propensity to feel threatened is palpable in both ‘lad culture’s unmistakable ‘woman rage’ and the way critics of laddish behaviours have been vilified as censorious, creepy and a menace to freedom. We must catch the grain of truth here – feminist initiatives, especially in the area of anti-violence, have sometimes been co-opted by prevailing moral panics and carceral projects. However, first and foremost laddish defensiveness is part of the anti-feminist backlash, and a dialectic between student communities perceived as excessively ‘politically correct’ because of their advocacy for the marginalised, and the privileged who experience this liberatory politics as oppression. They are not to be evaluated.

They just can’t say anything any more.

Oh, get a fucking grip – it’s just banter.

A similar reformulation of critique and resistance as oppression has been identified by Sara Ahmed in the way that some male academics have responded to equality initiatives in higher education. Anti-discrimination, sexual harassment and other diversity policies can be resisted alongside more problematic new managerialist reforms which threaten scholarly autonomy. Elite male professors become the victims within narratives of restricted freedom and nostalgia for a ‘simpler time’ when their rights to do as they wished were not curtailed. Feminism has gone too far. Political correctness is out of control.

As Ahmed argues, these critiques often settle on ‘complaining’ students who are seen as entitled and demanding, even in their appeals for equality. This location of neoliberalism in the consumerist student serves to hide the fact that, as Whitley and Page contend, academics also benefit from new bureaucratic regimes which cement their power over students and make it difficult for students to speak out.

The costs of speaking out are illustrated in a heartbreaking post by a PhD student on the Being a Woman in Philosophy blog:

I just want to caution those of you out there who are thinking about coming forward to report sexual predators. Expect your department to turn on you; expect your department to retaliate against you. Expect to be bad mouthed at every PhD program to which you apply. Expect to lose your committee. Expect to lose your letter writers. Expect your department to withdraw all support from you. Expect to become persona non grata. Expect to be de facto barred from all opportunities in your department. Expect to be gas-lighted. Expect people to be thrilled to watch your fall from grace. And, then, when you succeed, against all odds, and despite the prodigious efforts of your department to the contrary, through sheer force of will and talent, expect your department to exploit your success at every opportunity. Expect to watch as your success is used to further the career of the predator. Expect them to ignore your pleas to stop. Expect this.

In an article about being sexually harassed by her PhD supervisor, Susan Gardner writes that once she changed supervisors she was disappointed to find that her new one was not keen to support her or even discuss what she had been through, ostensibly for fear that it might impact on her ability to get tenure. In this country, similar structures of probation and performance management can make colleagues reluctant to step out of line. Furthermore, the developing ‘pressure-cooker culture’ for senior colleagues and fears about casualisation for junior ones have created an individualism which may mean that academics turn a blind eye to difficult issues while trying to keep our jobs (at best) and advance our careers (at worst).

I began my research and activism on sexual violence against students around ten years ago, and was immediately struck by how difficult it was to get colleagues (of any gender) to show interest in, let alone take action on, issues which did not directly affect them. I have vivid memories of giving a talk to a meeting of mostly senior women, in which the customary noises of outrage failed to materialise as action. In contrast, shortly afterwards I was inundated with input and offers of help as I drafted a consultation document around maternity leave and the REF.

I am not taking the moral high ground or pointing the finger; there are plenty of issues I have overlooked. Individuals are not to blame for this, especially not women and academics from other marginalised groups for whom university life is still a struggle. The constant evaluation of the neoliberal regime makes it difficult for us look up from our desks, let alone take on the institution in what is usually a losing battle. Constant evaluation creates silence.

Higher education markets, epitomised by league tables, ensure that bullying, harassment and violence are minimised and rendered invisible. They become a PR issue, hushed up for the sake of recruitment and reputation. In a context of widespread denial, nobody wants to risk their campus being defined as ‘unsafe’. In the US, despite a legislative framework mandating the publication of campus crime statistics which is more than 20 years old, institutions continue to be criticised for covering these up, or encouraging students to drop complaints, in order to preserve their market position.

The result of this is what Ahmed has pointed out: bringing a problem to institutional attention frequently means becoming the problem. This operates at multiple levels, from departmental micro-politics to the rather grandiose idea of ‘bringing the university into disrepute.’ Feminist killjoys and whinging women are bringing the university into disrepute – as if the prevalence of violence in the higher education sector has not brought us all into disrepute already.

We are all in disrepute already!

Amidst this denial and silencing, it is not surprising that only 4 per cent of women students experiencing serious sexual assault report to their institutions. Whitley and Page add that the stress and opacity of complaints processes is also a deterrent to reporting, and the demands of student support systems can make it difficult for victims not to just drop out.

Furthermore, trends towards the outsourcing of essential services such as campus security and student support threaten student safety and the quality of pastoral care. Commercial service providers tend to offer one-size-fits-all solutions, set within cost-cutting business models. This is a particularly bleak picture in relation to student counselling, already outsourced in Northern Ireland, where burned out practitioners on depressed wages are offering a reduced range of services in a context of growing psychological demand.

In the neoliberal university though, it’s all about the bottom line. Supporting students costs money. Complaining students cost reputation (and threaten income streams). There is a cost/benefit equation here.

But whose cost counts?

Sexual harassment and violence in higher education are situated within cost/benefit frameworks which prioritise the welfare of the institution. Incidents must be hushed up lest they jeopardise our recruitment. Incidents must be hushed up lest they damage our reputation. ‘A Star Philosopher Falls’ was the way Colin McGinn, who resigned after allegations of ongoing sexual harassment, was described.

Allegations of sexual harassment and violence pose a cost to the institution. But who pays the price?

Victims and survivors do: most of them women. This price is high. It could be the loss of departmental support for research, the breakdown of a supervisory team, or the inability to go on to campus for fear of running into the perpetrator. Often, the price is so high that it is less costly to leave. There is a term for this – institutional betrayal – and it has been shown to hugely exacerbate trauma. That’s the bottom line – we are betraying our students.

In an article in Time Magazine, Emma Sulcowicz, the Columbia University student who carried her mattress around campus for 8 months to protest against the handling of her rape complaint, described her experience as follows:

Every day, I am afraid to leave my room. Even seeing people who look remotely like my rapist scares me. Last semester I was working in the dark room in the photography department. Though my rapist wasn’t in my class, he asked permission from his teacher to come and work in the dark room during my class time. I started crying and hyperventilating. As long as he’s on campus with me, he can continue to harass me.

We are betraying these students.

Institutional betrayal does not just refer to responses to sexual assault, but the fact that universities actively create conditions which are conducive to it. This can be experienced as a betrayal more acute than the lack of institutional response. As Sulcowicz said of Columbia: ‘they’re more concerned about their public image than keeping people safe.’

We are definitely betraying these students.

We are also shirking our legal responsibilities – according to the End Violence Against Women Coalition, the Public Sector Equality Duty and Human Rights Act both mandate universities to deal with gender-based and sexual violence.

How do we move forward? The student movement in this country is consistently showing us the way – under the leadership of and inspired by the NUS Women’s Campaign, we now have consent education initiatives, bystander intervention training, awareness-raising projects, ‘zero tolerance’ pledges, and an effort to develop better policies and procedures. However, most of this activity is student-run: many institutions have yet to take any action at all.

In September this year, the Business Secretary asked Universities UK to convene a task force to tackle ‘lad culture’ and violence against women on university campuses. This task force has been tasked with developing a code of practice for institutions to support cultural change.

Support cultural change. This is a big idea. We need to think big on this.

Sexual harassment and violence in the higher education sector is primarily about gender. We need to think big about gender, confronting misogyny and male entitlement in our university communities, and connecting them with gendered norms and inequalities in society at large. We need to think big about how gender intersects with other power structures and oppressions: the racism, classism, ableism, homophobia and transphobia of ‘lad culture’ are evidence of this. Thinking big about gender also requires us to acknowledge that although women are very often its victims, sexual and gender-based violence affects students of all genders. There is evidence from the US suggesting that transgender, genderqueer, gender non-conforming and gender questioning students who do not identify as women face high levels of risk: this is a gender issue.

We also need to engage with neoliberalism, as it shapes the higher education sector in general and institutions in particular. Sexual harassment and violence in higher education is situated within the culture of constant evaluation. Gender relations are practised via the marketised and managerialist structures of the university, which aggravate inter-group resentments, exacerbate the abuse of hierarchies, and intensify the silencing of victims.

We cannot tackle sexism and violence in the higher education sector properly without looking honestly at neoliberal values and how these shape dysfunctional and harmful communities. Constant evaluation facilitates bullying and harassment. Constant evaluation is bullying and harassment.

Finally, we need to be aware of the risk that anti-violence initiatives will get caught up in, and depoliticised by, that culture of monitoring and evaluation. Let’s set a target. Let’s tick that box. Let’s run a workshop and put it in the Annual Report. We need to resist the temptation to get our house in order, to perform what should shake the institution to its core. Although effective advocacy often involves compromise, women have been put in enough compromising positions already. It will take more than this.

Let’s not just get our house in order. Let’s tear the whole damn building down. Who’s with me?

Alison Phipps is Reader in Sociology at the University of Sussex

Muting the Founder of a Nationalist Organisation: France vs. Freedom of Expression

Lily Parisi
Lily Parisi

The European Court of Human Rights (ECtHR) case of Bidart v. France (Application No. 52363/11) concerned whether the obligations placed on the applicant by the French courts were in violation of Article 10 of the European Convention on Human Rights.

The applicant argued that the restrictions imposed upon him to prevent his disseminating of inflammatory information and from speaking publicly had infringed upon his right to freedom of expression, as protected under Article 10. The question presented to the court was whether the domestic courts had overstepped their margin of appreciation in regards to Article 10.

 

FACTS AND BACKGROUND

The applicant, Philippe Bidart was a French national from Béziers, France. Bidart was the former leader of the Basque separatist organisation Iparretarrak, responsible for operating various nationalist paramilitary organisations.

In 1988 he was convicted of conspiracy to commit a terrorist attack, premeditated murder in connection with terrorist activity and armed robbery.

On 1ST February 2007, the Sentence Execution Division of the Paris Court of Appeal granted his release on license for a period of seven years. His release was conditional upon the following of obligations:

  1. To notify any changes of his address and employment;
  2. To obtain authorisation when travelling abroad;
  3. To continue payments in compensation for the victims of terrorism;
  4. To not possess or carry a weapon.

On 24th December 2007, the applicant participated in a peaceful demonstration in front of a prison, with the intention to support Basque prisoners being held there. Bidart’s intention for a peaceful demonstration was misinterpreted, and the media subsequently reported the incident as having violent intentions.

As a result of Bidart’s recent actions, including the demonstration at the prison, the Paris Sentence Execution Court decided to impose further obligations, including the obligations to reform from:

  • Appearing in front of any prison to express his support for individuals detained for the commission of terrorist acts; 
  • Disseminating any work or audio-visual production authored or co-authored by him concerning, in whole or in part, the offences of which he had been convicted; and 
  • Speaking publicly about the aforementioned offences.

However, the judgment was temporarily quashed on 10th June 2009 on the basis that only the Sentence Execution Judge, not the Sentence Execution Court, had the power to alter obligations.

The matter was subsequently referred to the Sentence Execution Judge of the Paris Tribunal de Grande Instance where the enforcement of the further obligations was permissible.

It is interesting to note here that the Judge did not appear to explicitly base the obligations on any particular measure.  Furthermore, the failure of the Judge to mention the genuine risk to the public seems somewhat unusual when considering the severity of the applicant’s conviction

The judgement was later upheld by the Paris Court of Appeal on the 31st August.

 

THE EUROPEAN COURT OF HUMAN RIGHTS

The applicant complained that the decision against him had breached his right to freedom of expression (and was thus in violation of Art. 10 of the ECHR) and applied to the ECtHR. The application was lodged on the 16th August 2011.

The Judges unanimously held that there had been no violation of Article 10.

Accordingly, the domestic courts have not overstepped their margin of appreciation.

However, the Court was concerned that the French Sentence Execution Judge had based his decision on hypothetical rather than actual comments made by the applicant. The Court also found it regrettable that the Judge had not weighed up the interests at stake and not fully established the risk to the public order.

The Court based their findings on the fact that the obligations were limited in their nature:

  • Limited in time: they were only applied up until the end of the period of release on licence;
  • Limited in terms of the subject matter: The obligations only affected freedom to talk about the offences committed by Bidart. This suggests that the applicant would have been allowed to express his views on the Basque question, so long as he did not mention the offences he had been convicted of.

Significantly, the Court noted the justification for the restriction on Philippe Bidart’s freedom of expression; namely the fact that Bidart was found to have been connected to the release of the founder of a well-known terrorist organisation.

 

COMMENTS

I strongly agree with the decision that there had been no violation of Article 10 of the Convention in this case. In my opinion it was difficult for the Court to reach a different conclusion considering the severity of the applicant’s convictions and the potential hysteria surrounding the organisation he had founded. The danger the applicant poses to the public, in my opinion, is most likely the fundamental basis of the Court’s decision. Further, it might be deemed ‘morally and socially wrong’ in the public eye to admit violation of Article 10 to a convicted murderer.

It appears that the Court also made this decision with the intention of providing a deterrence factor.

On the other hand, one may argue that the obligation which prohibits the applicant to express his personal support for individuals contained detained for the commission of terrorist acts does not serve a public interest.

Furthermore, the Court made it clear that the obligations were limited in terms of the subject matter. The applicant would be able to express his views on the Basque question so long as he does not mention the offences he has been convicted of. Surely one would assume that the intention of the obligations enforced by the French court was to prevent Bidart’s further involvement in the Basque question. The limited nature of the restrictions, however, still allowed a certain degree of Bidart’s involvement. In light of Bidart’s ability to be involved in these activities regardless of the restrictions, the question arises as to why the French court applied the obligations upon Bidart at all, as they appear to fail to achieve the court’s intention and serve little purpose.

Lily Parisi is a second year undergraduate at the School of Law, University of Sussex

Liberty v Freedom: The European Failure to Protect Free Speech

Alexander Thompson
Alexander Thompson

The European Court of Human Rights has held against Dieudonné M’Bala M’Bala, commonly known as Dieudonné, a French comedian and political activist in his application that France had breached his human rights under Art.10 ECHR. This is the second time in recent weeks that the ECtHR has considered the limits of Art.10 in respect of discussion of acts of genocide. In each of the two cases the court reached a different decision through markedly different reasoning. In Perinçek, the ECtHR ruled that prosecution for the denial of the Armenian genocide by the Swiss government constituted an illegitimate infringement of freedom of speech.

In the present case, one of several that Dieudonné has been involved in over the last ten years, arose from a performance he gave in 2008 at the Zenith in Paris. Towards the end of the performance, he invited on stage the academic and ‘holocaust denier’, Robert Faurisson, awarding Faurisson with his own prix de l’infréquentabilité et de l’insolence (outcast and impertinence – all translations in this post are my own) . The award and the tenor of the performance were mocking of the Holocaust and, it was argued, anti-Semitic. Dieudonne was subsequently fined 10,000 Euros by a Paris court under an amendment to the Loi du 29 juillet 1881 sur la liberté de la presse.

  The Law: France

 France is one of those countries which have laws prohibiting Holocaust denial. The French law (Art.24 bis) is in fact more encompassing than Holocaust denial; it forbids the questioning (contesté) of crimes against humanity. It was under these amendments to the 1881 Law that Dieudonné was fined, as Faurisson similarly has been in the past. Dieudonné was further charged under Art.23 (incitement to racial hatred) and Art.29 (damage to honour or reputation of a person or group).

Several anti-Semitic and anti-racist organisations were joined as co-parties against Dieudonné. The court found that Dieudonné was guilty of ‘délit d’injure’ towards the Jewish people; injure being the French term of art for offensive language. The ECtHR quoted extensively from the French decision which noted, inter alia, that: ‘le droit à l’humour connaît des limites, et spécialement le respect de la dignité de la personne humaine’ (the limits of the right to make jokes are particularly relevant to the dignity of human beings). The court held that Dieudonné, in his deliberately provocative or coarse way (délibérément provocantes ou grossières), had exceeded the bounds of what was acceptable (le prévenu a très largement excédé les limites admises du droit à l’humour).     

  

The Law: ECtHR

 Dieudonné argued that his rights under ECHR Art.7 (no punishment without law) and Art.10 (freedom of speech) had been breached. The French government submitted (para.26) that the application was inadmissible under Art.17 ECHR, which prohibits the ‘abuse of rights’. It was also submitted (para.27) that, pursuant to necessary and legitimate objectives in a democratic society (la loi, orientée vers un but légitime et nécessaire dans une société démocratique), it was right to bring the case against Dieudonné, whose words and actions were not legitimate criticism but mere offensive insult (injure).
Dieudonné’s argument (para.28) was that the political class and the press set the limits of freedom expression so low that they amounted to making ‘Jewish martyrdom’ sacred, (pour la presse et la classe politique, extrêmement réduites puisqu’elles ne peuvent en aucune façon atteindre la sacralisation absolue du martyre juif) and that his recognition of Faurisson was an illustration of this fact.
The court held that the relevant domestic law was a matter for the French state (para.30) and considered only Arts.10 and 17 ECHR. The court held (para.39) that, with the appearance of Faurisson, the evening had ceased to have the character of an entertainment and had become a meeting (la soirée avait perdu son caractère de spectacle de divertissement pour devenir un meeting). In this context, the ‘cover’ of satire and humour had been lost and the evening had, in the view of the court, become a ‘demonstration of anti-Semitism and hatred’ (la Cour voit une démonstration de haine et d’antisémitisme). Because of this the court held that Dieudonné had lost – in part because of Art.17 – (para.42) his Art.10 rights to protection of free speech.   

Freedom of Speech

That both the Paris court and the ECtHR found Dieudonné and his views repugnant is clear. The judgment of the ECtHR almost reads as if it were delivered at arm’s length for fear of contamination. The reasoning of both courts was at times curious and contradictory. The French court interpreted domestic law to suggest that jokes may not be made at the expense of the dignity of others, whereas the ECtHR found that Dieudonné had stopped making jokes by the time of the problematic section and that he was then speaking in deadly earnest. Perhaps the most astonishing sentence in the judgment however was at para.41, where the ECtHR held that:
La Cour considère que le requérant tente de détourner l’article 10 de sa vocation en utilisant son droit à la liberté d’expression à des fins contraires au texte et à l’esprit de la Convention et qui, si elles étaient admises, contribueraient à la destruction des droits et libertés garantis par la Convention.
Here the court appears to suggest that freedom of speech can only be recognised under Art.10 when what is said does not run contrary to either the words or the spirit of the ECHR. To enjoy the protection of the law only when speaking in support of what the law (or the ‘spirit’ of the law) deems appropriate seems hardly like any freedom of speech at all and makes the ECHR akin to a form of holy writ.   

Freedom v Liberty

The two words are not synonymous. Art.10, with its exceptions and limitations grants only liberties (the First Amendment to the US Constitution – ‘Congress shall make no law… abridging the freedom of speech, or of the press – respects unqualified freedom of speech’). The decision of the ECtHR limits this liberty further still.

Dieudonné is in most respects a highly unsympathetic character with repugnant views and is deliberately and provocatively offensive. Yet it cannot be healthy for the law to proscribe speech that is ‘merely’ offensive, an inchoate and highly subjective test. Art.10 is already so replete with exemptions that it already offers poor protection of freedom of speech. Further, and in an environment where senior lawyers can seriously propose using international courts to shut down scientific debate and where hair trigger sensitivity to offence creates an ever-narrowing range of what is ‘acceptable opinion’, the question has to be asked whether the true danger to European societies lies in the rantings of Dieudonné or the further circumscription of freedom of speech. The ECtHR and France have made clear which they regard as the greater danger.

 Alexander Thompson (LL.M Sussex) is a barrister