G20 Hamburg Protest – looking beyond the violence

 

Kufre reduced
Kufre-Obong Medo

The ‘Welcome to Hell’ anti-capitalist demonstration took place on 6 July where Hamburg played host to the G20 Summit in Germany and police officers and protesters were left injured after violent clashing took place. People threw glass bottles and stones, vehicles and shops were set on fire and the police responded with teargas and water cannons. About 180 protesters were detained with over 200 in custody while roughly 470 police officers suffered injury.

Much of the civil movement literature tends to conceptualise resistance as an opposition of power, and this dichotomy of power and resistance is more pronounced when discussing protests. Protests are performative, involving chants and banners usually seen as a form of resistance in direct confrontation with the power they oppose. But analysing this demonstration through the lens of Foucault’s power relations would reveal a different narrative, one which sees this movement not as a complete rejection of government, but a counter-conduct, a diffused form of resistance whose behaviour simply says ‘we do not want this truth’. This shift from sole focus on the actions of the protester allows us see G20 protesters as rejecting the way in which they are being conducted through capitalism, and the way they are told to resist. Things they see as catalyst for the ongoing refugee crisis and the innocent lives lost following the war on terror. Instead, Foucault allows us to focus on how protesters actually act within the field of power relations amongst themselves, and the government, without judging the merits of their behaviour.

 

Street demonstrations are one of the few tactics available to communities or groups with little formal power. Foucault provides a more nuanced contribution to the traditional understanding of power. He brings an instrumental shift from the idea of power as a means of coercion towards the idea of power as dynamic and exercised from multiple standpoints. Power relations exist everywhere wherever people interact; we are continuously subjecting it and being objects of it. Thus, this avoids an ‘actor-centric’ approach which narrows the scope of evaluation when trying to comprehend the dynamics of power and government. Rather than focusing then on the protester, Foucault allows us to consider the effect and contribution of power on the protest itself.

 

For Foucault, governmental forms of power attempt to regulate the ‘conduct of conducts’. This covers shaping actions and norms through tactics and technologies of the State such as schools, prisons, police force and many others. Counter-conduct is the struggle against the processes implemented for conducting others, resistance to the processes of governmentality. Rather than simply a rejection of government power, it rejects a particular governmental direction. It is ‘the art of not being governed quite so much’. The counter-conduct approach looks within government to see how forms of resistance rely upon the techniques, strategies and power relations they oppose. Reading protests this way allows us look beyond simply resistance to see the G20 protests as counter-conduct.

 

The violence that erupted outside the G20 Summit – the burning cars, the smashed store fronts, the water cannons and the tear gas – marked the latest manifestation of Black Bloc protests, a European resistance that recently surfaced in American political demonstrations. The one thing both ends of the spectrum regarding Black Bloc protests agree, is that it is a tactic, not a group. Participants wear black masks and hats covering their face and heads as they engage in protest. As University of San Francisco associate professor Jeffery Paris has written, there is no formal network or ideology. What they share is a belief that peaceful demonstration is not as effective as rage. For Foucault, this embodies counter-conduct at its core. It represents a rejection of the perceived right way to protest that we have been fashioned to accept as the only acceptable way.

 

Because of the somewhat inherent violence associated with Black Bloc protests, they have been accused of hijacking what would ordinarily have been peaceful protests and are often described as anarchists. The question then becomes in the context of the Black Bloc movement, to what extent was the police force used justifiable when there are just a few violent individuals?

 

In the Hamburg protests, the police chief Ralf Martin Meyer expressed concerns of imminent violence, and the interior minister Thomas de Maizière announced that 15,000 police would be on duty at the summit. From the summit venue at Elbphilharmonie hall to the tourist area of Pferdemarkt, protest marches were met with a plethora of armed police presence responding with the use of force. The strong presence of police in riot gear as police helicopters circled above, the water cannons and the tear gas used on the protesters exemplify that. The military tactics used only fed the chaos few violent anarchist individuals sought. Rather than suppressing the rally, the heightened police presence created an atmosphere of viewing demonstrators as criminals, suppressing the resistance to governmentality by rejecting how the protester actually acts. This type of modality depoliticises the policing of radical protesting by tagging it as a crime. The implication being, that protesters not only become criminals, but are also seen as posing a threat warranting heightened police response. A telling example is the German Justice Minister Heiko Maas labelling the protesters ‘extremist criminals’ , much like Donald Trump’s recent characterization of the Charlottesville demonstration and attack on demonstrators as a display of hatred, bigotry and violence ‘on many sides’. This brands the protesters as violent and disruptive by virtue of their march. The story then becomes a rebuttal of a sort of conducting power defining the right way to resist, which outlaw’s behaviour that does not fit within this label.

 

Violent protests during G20 summits have become almost routine since the first G8 summit in Genoa whose heightened police presence caused a number of fatal incidents. Thus, one should not overstate their transformative potential in terms of law and social policy. For Foucault, because counter-conduct functions within the boundaries of governmental forms of power, it may reinforce established ways of doing things. In this case, the forms that violent protests took reinforced the established attitude by the authorities when dealing with such demonstrations. This shows the limited extent to which one can practically apply Foucault to demonstrations resulting in violence. The question then becomes whether this alternative perspective can ever shape the way the law treats protests and demonstrations and what change it can bring. Counter-conduct allows us begin a conversation about an alternate view of demonstrations without judging the merits of their behaviour. Perhaps with time, law and social policy will begin to reflect this.

Kufre-Obong Medo is a graduate student at the Nigerian Law School in Abuja, and a former undergraduate in law at the University of Sussex.

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Employment Law Faces Reality on the Supreme Court

aamir fuchs
Amir Paz-Fuchs

Two important employment law cases that reached the Supreme Court in 2017 seem to have very little in common, apart from their engagement with matters of employment rights, and employment relations. In Essop v Home Office, the Supreme Court confronted the contours of indirect discrimination. In Unison v the Lord Chancellor, the issue was the legality of Employment Tribunal Fees and their impact on access to justice.

Both claims were rejected in the lower courts, and in both cases, the appeals were accepted by the Supreme Court. But what is striking (to me) is that the similarities between the cases run far deeper, as the Court went well beyond legal doctrine and into the weight that courts should accord to social and economic reality when interpreting and constructing the law.

When one notes the impact of social and economic reality on legal decisions, the association is, almost immediately, to legal realism, the theory and paradigm developed in the early 20th century which provided the backdrop and foundations for Critical Legal Studies, Legal Feminism, Critical Race Theory, Postmodern Legal Theory, and more. For the basic tenets of legal realism allow the observer, scholar, critique and, indeed – judge (one of its foremost proponents was Oliver Wendell Holmes, Chief Justice of the U.S. Supreme court) to take the legal text as (at most) a starting point; to reflect on the effect of the law as it stands on different segments of society; that law is political, in the broad sense; to take into account the difficulties in realising formal rights and consideration of access to justice; to embrace, rather than be terrified of, the indeterminacy of law. All of the above were impressively present in the two judgments.

The Cases

In Essop, the Court was asked to determine whether a Home Office requirement to pass a Core Skills Assessment as a condition for promotion within the civil service constituted indirect discrimination. The issue was raised following a report, commissioned by the Home Office and produced by a firm of occupational psychologists, which determined that the BME candidate pass rate was 40.3% of that of white candidates; and that of candidates aged 35 and older was 37.4% of the pass rate of younger candidates. The claimants were black, over 35 or, in some case, both black and over 35. They failed the test, and claimed that it constituted a discriminatory ‘provision, criterion or practice’, and thus – indirect discrimination. The Employment Tribunal and the Court of Appeal (unlike the EAT) did not agree, stating that, notwithstanding the report, to establish indirect discrimination, the claimants had to establish the causal relationship between their personal characteristics and their failure to pass the test. In other words, each claimant had to show that they failed they test because they were black or over 35. Of course, no claimant was able to establish that.

In Unison, the background is more straightforward, from a legal perspective. In 2013, the Coalition Government imposed fees in respect of claims to Employment Tribunals (ETs) and Employment Appeals Tribunals (EATs). The ‘Fee Order’ distinguished between two types of claims: Type A claims, which covered over 60 types, demand £160 as an issue fee and £230 as a hearing fee. Type B claims, which are deemed more complicated (examples include unfair dismissal and discrimination claims) require £250 as an issue, and £950 as a hearing fee. Challenges to the Fee Order failed in a previous round, immediately after the fees were imposed, with the court holding that the effects were not yet established, so the challenge is premature. Then the evidence became difficult to ignore, and Unison initiated a second judicial review.

This followed a report the Parliamentary Justice Committee (which I discussed in a previous post) that criticised government policy, noting that the imposition of fees had dramatic effect: an overall drop of 70% in employment tribunal claims, spread across all claim ‘types’. Moreover, and unsurprisingly, the effect was particularly significant in claims where the expectation of a substantial reward was lower. Thus, working time claims saw a 78% drop and breach of contract – a 75% drop. Moreover, even within Type B categories, a disparity was noted as the proportion of successful race discrimination claims resulting in awards of less than £3,000 is recorded as having fallen from 34% in 2012/13 to 8% in 2015/16. For awards of less than £5,000, the fall was from 52% to 19%. The logic is simple, of course, if your claim is not considerable, the fee barrier renders it irrational to pursue.

And yet, the Divisional Court and the Court of Appeal dismissed the claim, holding that it cannot conclude that the decline in the number of claims does not consist “entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to” ([68], emphasis in the original).

Enter Legal Realism

A sensitive reader may already have found the thread that links the two cases. Micro vs macro; individual vs social; personal circumstances vs statistics. In other words – what are the ‘relevant facts’ that should lead a court to its decision?

The Court of Appeal in both cases asked for evidence from the individual claimants: show me that you failed the test because you’re black, or because you’re over 35; show me that you can’t afford the fees, and not that you simply had other priorities. The claimants in both cases referred to the social evidence, to statistics: black and over-35 applicants have far less chances of passing the test; there is a 70% drop in applications, and low-value claims (which correspond to workers with low wages) have all but disappeared.

The Supreme Court agreed with the claimants, following a fundamental insight of legal realism: it’s not only that facts matter, they are often the only thing that matters. To be precise: deciding what the ‘relevant facts’ are, is the most important thing a court does. Often, this is done at the hearing stage, where witnesses are heard, and not on appeal. But in these cases, the Supreme Court was asked (albeit not phrased as such) to determine which facts will rule the case. If only personal circumstances are relevant – both (and similar, in the future) claims will fail. If statistics govern – then the path to success is paved. The Supreme Court in Essop addressed the matter directly (per Lady Hale): unlike cases of direct discrimination, “it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence … Statistical evidence is designed to show correlations between particular variables and particular outcomes and to assess the significance of those correlations” [28].

From here to a second precept of legal realism: rights that have no effect are merely ‘paper rights’. In Unison, Lord Reed does not waste much time to clarify the importance of this premise: “In order for the rights conferred on employees to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice” [6]. Moreover, His Lordship later offers an even deeper understanding of the importance of the possibility of pursuing a claim, to wit – its value lies not only for those who would pursue it, but on the behaviour of those who, in the absence of remedy, would have no qualms denying individuals of their rights. He says: “Parliament does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights” [72]. Or, in the words of Oliver Wendell Holmes, in his seminal article The Path of Law, we have to look at rights from “the view of our friend the bad man”.

So now the ground is set. But a further question emerges: what should be the weight of the evidence supplied? What if we find a black claimant who passed the test, or one who failed because he didn’t prepare? What if it’s not clear if all 70% of the decline in claims can be attributed to the fees or to the impossibility to pay them? Lady Hale clarifies that it is a salient feature of indirect discrimination that “there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage … The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates. If they had all failed, it would be closer to a case of direct discrimination” [27]. As for unmeritorious candidates ‘coat tailing’ claims of deserving ones – it is open for the respondent to show that there is no causal link between the PCP and the disadvantage suffered. In other words – the burden of proof is reversed. Lord Reed in Unison puts the point even stronger: “While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: … , it is sufficient in this context if a real risk is demonstrated … The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded” [91, 93, emphasis added]. This, we should immediately note, is not a necessary legal principle. It is a political one, and in this case (if we may) – the right one.

Conclusion

Legal realism is a broad church. It has been argued, with some justification that “we are all realists now”. And yet, in the vast majority of cases, courts (especially lower courts) simply apply the law in an uncomplicated manner. A driver is over the speed limit – sanction. Principled cases, that eventually reach higher courts, often offer more ‘meat’ for a realist analysis. But it is truly rare for a Supreme Court to explicitly embrace legal realism – politics and theory – and more so, in two cases, a few weeks apart, in the same field of law. In doing so, it offers students and scholars a more honest vision of the law, and hopefully – one that sheds a different light on other cases as well.

Amir Paz-Fuchs is a Senior Lecturer in Law at the University of Sussex.