In May of last year, the President of the Israeli Supreme Court, Esther Hayut, delivered a remarkable speech, declaring that “Israel’s judicial branch is under an unprecedented attack that threatens to irreparably damage its independence”. The main cause for this extraordinary claim was an initiative to curtail the courts’ power to strike down laws that have an adverse, and disproportionate, impact on human rights. Speaking after President Hayut, Justice Minister Ayelet Shaked declared that it is Parliament’s duty to map the mutual relationship between the branches of government.
Not for the first time, the Israeli situation raises a number of interesting questions of general importance, for theoreticians and practitioners.
First, whilst I have zero sympathies with the politics of the Justice Minister, is she wrong to maintain that it is Parliament’s duty to map the relationship between the branches of government? After all, the nature of this relationship is the ultimate political question, in the true, unadulterated sense of the word. These are the questions that troubled Aristotle, Montesquieu and Madison. Why shouldn’t they be the subject of open debate within the most political of branches? Of course, the answer is that this very branch has skin in the game. How can it decide the extent of its own power, vis-à-vis other branches, in a manner that is intellectually honest? That is a fair objection, but it is not the one advanced by judges and their supporters. Indeed, every judiciary in the world owes at least some of its power to Parliament. Parliamentary acts tend to establish the courts, regulate their jurisdiction and determine the terms and conditions of the employment of the judges. So the argument is, to be precise, that a change to the status-quo, which changes the balance of power in a manner that is detrimental to the courts, is inherently threatening to judicial independence. But this is not only misguided. In being misguided, it also serves opponents of the courts with ammunition.
When the British courts were granted power, under the HRA 1998, to declare a law as incompatible with the European Convention of Human Rights, this did not increase their independence, but did give them powers that they didn’t have in the past. In contrast, the Israeli courts currently have far more powers than their British counterparts. So much so, in fact, that the most ‘extreme’ version of the current proposals debated, so extreme that it is not even considered seriously, is to adopt the British model, and allow the courts only to declare the unconstitutionality of a law. This proposal is perceived as a death knell to judicial independence. But does that mean that British courts do not enjoy judicial independence? That obviously is not the case. Similarly, if Israeli courts were to lose their existing powers to strike down laws, they would not lose judicial independence, but rather lose some judicial power.
Viewing it otherwise conflates two important, but separately important, issues.
The danger of conflation is evident, somewhat paradoxically, in President Hayut’s rebuke of the recent initiatives. In responding to the claim that the court is too powerful, she indicated that since 1992, the American Supreme Court voided 50 federal laws, while the Israeli court reached the same decision only on 18 occasions, making it one of the least ‘activist’ courts in the world. To paraphrase the President’s argument, perhaps unfairly, she is saying: we’re playing nice, so why are you picking on us? Even more unfairly, one may even find a normative element in her argument: if we promise to continue to ‘respect’ the decisions made by other branches of government, will you preserve our ‘judicial independence’? This is a dangerous path to follow. It is also somewhat paradoxical: for if the court has voided only 18 laws in 27 years, five of which involved two issues which reached the court on different occasions, why is it so important to maintain that power and, moreover, to leverage the threat to judicial independence in the process?
The reason that this is a dangerous path to follow is because judicial independence isimportant, and is particularly important in a country like Israel. There is a reason that this initiative has reached its current height (or depth) following Supreme Court decisions to strike down laws, on three separate occasions, that allowed the administrative detention of asylum seekers (‘infiltrators’, in Israeli government parlance) for three years, in the original version, and up to one year, in the watered down version.
As is the case elsewhere, there are few constituencies with less political backing than asylum seekers and refugees. Therefore, targeting the court for protecting their interests carries, relatively, few political risks. Thus, it may be unsurprising that, following these decisions, a coalition of nationalist forces started to develop, to limit the court’s ability to safeguard the rights of asylum seekers. Realising that such a targeted approach may be politically feasible but legally difficult, this coalition broadened its ambition by introducing, as recently as November 2018, an amendment to the Basic Law: Human Dignity and Freedom, limiting the courts’ ability to hold a law as unconstitutional, through a variety of ‘override clause’ versions. In addition, they managed to make the appointment process of judges to the Supreme Court a highly political affair, by reducing the power of judges in the committee and by forcing through the appointment of a first, and recently – a second, judge who live in a settlement in the Occupied Palestinian Territories.
These factions, who are advocating reform, care very little about high minded matters of separation of powers. They are not bothered, and are probably not aware, of the cases that concern property rights, social security or taxation in which the court has struck down primary legislation. They want to send the court a very low-minded political message: if you want to preserve your powers, you need to align by our nationalist agenda. In a recent visit to Israel, Justice Rosalie Abella Silberman, of the Canadian Supreme Court, addressed this very issue, and hit the nail on the head, saying that:
Independent judges who are not politically compliant are not anti-democratic, they are doing their job; those critics, on the other hand, who think patriotism means doing only what politicians want, are the biggest threat to Israel’s values, because they misconceive democracy as majoritarian rule.
Indeed. This is the issue. The powers of the court are numerous. Its administrative reach, which includes an overview of home office regulations, security measures, health and education guidances and a variety of government dictates, are far more important and effective in Israel’s daily struggle to maintain what is left of a core of democratic and constitutional values. True judicial independence, in other words, lies in the freedom to uphold the rule of law against forces that are growing in power, from one generation to the next. Forces that wish to obliterate minority rights and would regard the tyranny of the majority as a constitutional value.
A country that is steeped in an ongoing national and ethnic conflict since its existence, and for over 50 years – in prolonged occupation – has an uphill battle to uphold and maintain respect for human rights, particularly for Palestinian citizens and non-citizens, but also for others. Those constituencies depend on judicial independence to stand guard against calls that seek to portray them as ‘power grabbing’, ‘authoritarian’ and, indeed, enemies of the people.
If the court is dragged into the political theatre, forced to fight for its own limited power to strike down laws by leveraging the argument of judicial independence, it will lose the battle for its powers; but more importantly, it will lose the war for its own independence.
Brexit has been debated and unpicked to exhaustion. Writing in February 2019, Brexit is beginning to feel like a bad soap opera whose scriptwriter has run out of ideas. The plot is going round in circles.
And yet, most discussions revert one way or another to sovereignty, migration and economy – all with clear nationalistic and imperialistic overtones. Debates about people or ‘the people’ seem to be at the core of these discussion, especially when it comes to migration. All such debates are implicitly or explicitly about ‘us’ and ‘them’. This binary(ies) need challenging. What is also needed is a recognition of the multiple further intersections and subgroups within these binaries of groups of people.
The term ‘people’ disguises radically different groups of individuals and their distinct interests, voices and degrees of power and security. There are people with enough legal security to remain in the UK should they wish to. There are others without, who may have to leave if/when Brexit materialises. There are those who may have to return to the UK despite preferring to reside elsewhere in the EU.
The simple step of starting to interrogate and break down the broad category of ‘people’ is greatly revealing. Undeniably, Brexit will impact very differently on different people, depending on characteristics such as socio-economic context, educational background, age, ethnicity, etc. An intersectional approach also highlights the key role gender and sexuality play in the impact of Brexit on a person.
To explore that possible impact, we have co-edited a collection – Gender and Queer Perspectives on Brexit – whose contributions unpack the various ways in which gender and sexuality may determine how Brexit will affect the lives of people in the UK and elsewhere in the Europe Union (and beyond).
Why a gender and queer perspective?
As we highlight in the introduction to this edited collection, women and gender and sexual minorities have been marginalised throughout history, including in political debates. With that starting point, we were keen to explore how Brexit can change the equality, human rights and social justice landscape in the UK from gender and queer viewpoints. Our collection’s conclusion – unsurprisingly – was that overall Brexit is very likely to impact negatively upon women and gender and sexual minorities in a variety of ways.
Even before the Brexit referendum took place, it was already clear that this was a strongly gendered process. As Achilleos-Sarll and Martill make clear, the campaign for Britain to leave the EU and the subsequent Brexit process have been dominated by discourses of toxic masculinity, linked to language associated with deal-making and militarism, and spearheaded by elite, white males.
This has had four potential (gendered) consequences: setting the UK on the path towards a ‘harder’ Brexit; the consolidation of free-market norms and retrenchment of social policies; the diversion of attention from domestic to international distributional consequences; and the persistent under-representation of women and minority groups in politics.
In the immediate aftermath of the referendum, it also became clear that black and minority ethnic (BME) women were going to be particularly targeted by racist and Islamophobic attacks and assaults, as Gill and Ahmed discuss. This underlines the complex implications of Brexit from the perspective of gender, race, religion and class relations.
This complexity is compounded by the potential implications of Brexit on work-life balance. This is an area in which the EU has not escaped criticism, but where it has also been instrumental in shaping an agenda and creating a policy and normative framework that has enhanced the position of carers and counterbalanced the UK’s neoliberal approach. Caracciolo di Torella argues not only that leaving the EU is likely to jeopardise any achievements in this area in the UK, but that the consequences of Brexit will also be felt by the EU, thus there will be no ‘winners’.
Yet another field of gendered impact of Brexit relates to the UK’s National Health Service (NHS), specifically the health, healthcare and social care available to people with disabilities and illnesses. In this regard, Dyi Huijg situates Brexit in a context of hostility against both disabled people and migrants, and points to the role that health management plays in migration control and the gender dimension of the roles of migrant carer and patients.
Also in relation to cross-border family law one can see the gendered impact of Brexit: Walkerconsiders from a gender perspective the effect that Brexit will have on the relevant procedural rules, affecting areas such as child abduction, divorce, maintenance, domestic violence and parental responsibility. She concludes that post-Brexit there will be gaps in the law, especially in terms of enforcement of judicial orders and that there is currently no solution in these areas.
The situation, as Solanke alerts, seems to be even more dire in relation to Black British children, who may have a primary carer – most commonly a woman – without EU citizenship, and thus classify as ‘Zambrano children’ and lose access to their full rights as British and Union citizens after Brexit.
The gendered impact of Brexit is not, however, limited to women. As Iusmen argues, male unaccompanied minors may be particularly affected by Brexit, in the light of the risk that the UK will reduce children’s rights protections after leaving the EU.
Also in the field of asylum, Querton considers that leaving the EU is unlikely to immediately and significantly have an impact on decision-making in gender-related asylum claims. However, it will entail the loss of a legal framework underpinned by fundamental rights and effective remedies and may contribute to a(n even more) hostile environment towards women claiming asylum.
Lesbian, gay, bisexual, trans, intersex, queer and other (LGBTIQ+) individuals are also very likely to suffer in specific ways as a consequence of Brexit. Danisi, Dustin and Ferreira argue that Brexit will affect SOGI minorities on a range of levels, including likely serious effects in terms of human rights and equality policy, ‘soft law’ instruments, socio-cultural environment, economic resources, regional variations within the UK and civil society vibrancy. Alertness will be required to legal and policy developments that may detrimentally affect SOGI minorities: on the one hand, in the UK, when the EU will stop working as an external ‘standards setting’ actor; on the other hand, in the EU, when the UK will stop supporting the advancement of the EU’s equality agenda.
Dunne also acknowledges how the EU – both symbolically and practically – has helped to re-shape queer intersections with law in this jurisdiction. Nonetheless, he argues that, for many reasons (political and legal), Brexit is unlikely to fundamentally alter existing rights and entitlements.
Devolution has played a considerable role in Brexit debates, and has its own gendered dimension. Weldon-Johns critically examines whether there is, or could be, a distinctly Scottish perspective in the context of work-family rights post-Brexit, particularly from a gender perspective. The conclusion is that the current legal frameworks do not enable Scotland to retain continuity with EU law.
Still in relation to Scotland, Ritch explores how the independence referendum saw the establishment of new women’s organisations and networks to counteract a seeming marginalisation of women’s concerns in the official campaigns, whilst the European referendum saw limited national public engagement by women’s and other civil society organisations, and lacked a particular gender focus even in feminist spaces.
Yet, Scottish feminist policy organisations can continue to engage post-Brexit with pan-European feminist structures like the European Women’s Lobby, to campaign for relevant instruments such as the Istanbul Convention. In relation to Ireland, Galligan outlines the gendered constitutional and policy challenges of Brexit for Northern Ireland, the Republic of Ireland, and the UK-Ireland relationship. The upshot: Brexit necessarily destabilises the hard-won gains of the peace process and will have negative consequences for political and diplomatic relationships across and between the two jurisdictions, with an inevitable impact on women.
Clearly, the greatest impact of Brexit will be internal, but that cannot erase the impact that will be felt outside the UK as well. Barrow, for example, asserts that important policy developments in the EU’s defence and security policy from a gender perspective are at risk and concludes that, whether the UK and the EU negotiate a ‘hard’ or ‘soft’ Brexit, the integration of a gender perspective in defence and security policymaking may be undermined.
Stephenson and Fontana, instead, assess the gendered impacts of the possible trade agreements that the UK will enter into post-Brexit. They focus on the implications of trade agreements for employment, for consumption and for the provision of public services.
A key model referred to throughout the Brexit debates has been Norway. Holst, Skjeie and Teigen discuss the EU influences on four core gender equality policy themes (anti-discrimination law, work-life balance, gender mainstreaming, and gender quotas for corporate boards), concluding that Norway’s affiliation status has been relevant to policy development in this area in Norway. This debunks the idea that Norway’s status leaves it immune from EU’s influence.
Anything to look forward to?
The contributors to the Gender and Queer Perspectives on Brexit collection have offered careful and nuanced analyses to several gendered and queer dimensions of the Brexit debates. There are plenty of causes for pessimism, even if the UK has always, in many respects, had ‘one foot in and one foot out’ of the EU. What the debates on Brexit have brought to light in an acute manner is that women’s and LGBTIQ+ legal and policy conquests are precarious.
Yet, even where Brexit threatens the legal, economic or social gains of women and LGBTIQ+ people, there is a strong sense of resistance and positivity about the potential for addressing some of these risks if only they are identified and publicly recognised. Moreover, this collection makes it clear that leaving the EU will not only affect women and LGBTIQ+ in the UK, but should also be a priority for feminists and LGBTQI+ campaigners across Europe.
Outside the EU, the UK will no longer influence EU law and policy to any significant extent, and this may have negative outcomes for women and LGBTIQ+ people living around the EU, if the concerns of our contributors materialise.
There is still much more to do to fully understand the gender and queer dimensions of Brexit. In particular,regional, urban-rural and socio-economic differences across the UK need addressing through a gendered or queer lens. Only a more comprehensive intersectional approach can do justice to the lived experiences of all those affected by Brexit. In the process, it is essential to highlight all relevant threats. Only then will we be able to address them, not simply with the defensive demand for no regression on rights, but also the inclusive aspiration for an expanding, rather than narrowing, of horizons.
Slowly, but surely, awareness is increasing about the possible impact of Brexit on individuals who identify, or are identified as, members of minorities based on their sexual orientation or gender identity (SOGI).
It is critical to note that these SOGI minorities are far from monolithic, and any potential impact of Brexit for them will be different at a sub-group and even at an individual level.
Broad-brush, abstract policy analyses on this theme – as on any other theme – fail to capture the essentially individual nature of the relationship between SOGI minorities and Brexit, as one of the most divisive and hotly contested topics in British society for many decades.
In this short piece, we wish to delve into that individuality, bringing to the fore just some of the voices within the ‘SOGI minorities’ umbrella and listening to their concerns, fears and hopes in relation to Brexit – both specifically related to their identity and more generally about life after Brexit.
Amongst the respondents to this there were three men who identify themselves as gay, whom we here identify with pseudonyms: Andy, 59, a retired social care manager, writer and life model, who lives in Glasgow and is single; Michael, 75, a retired executive, who lives in London and is single; and Peter, 36, a teacher, who lives in Newcastle-under-Lyme and is single.
The thoughts shared by these three respondents on Brexit are worth exploring for the insights they offer into some of the factors that SOGI minority individuals might find important in the Brexit debate.
All these respondents voted Remain, and were considerably critical of the referendum itself (although it is known that not all members of SOGI minorities are against Brexit).
Whilst Michael did not see the need for the referendum to start with, and Peter asserted that the campaign ‘was full of lies’, Andy considered that ‘the EU referendum was one of the most idiotic and wasteful undertakings the UK government had undertaken in many a long year. I saw it as nothing more than a charter for racism, xenophobia and English right nationalism.’
Peter shared this position by stating that although it may be true that ‘Britain is a complex and capable nation which can, and perhaps should, be able to stand alone’, this ‘pride is more a veiled form of xenophobia in many people.’
Similarly, for these respondents the relevance of immigration in the Brexit debate was patent. Peter, for example, argued that ‘the presence of EU nationals in the UK is a good thing as we need young tax payers to fund our public services. People’s objections to migration are parochial and ill-informed.’
For Michael, in particular, this debate touched him personally, as he had had a same-sex Spanish partner who lived in the UK for many decades and eventually died in the UK.
In his words, ‘[h]ad [his partner] still been alive, he would have undoubtedly have been one of the many thousands of foreign nationals worried about their future life in this country.’
The consequences of Brexit for individual rights was also reflected in the concerns expressed by Andy: ‘Those who wanted [Brexit] to happen will be greatly peeved when they realise that the streets have not returned to a picture of the 1950s.’
‘When they realise they will have to pay more for goods and receive less wages, and as their rights are stripped away and trodden on by a so called respectable face of fascism, the[y] will whinge and moan and throw bricks. Because that’s how they believe you fix a society [,] by tearing it apart.’
Fears of violence on the streets if ‘Leavers’ become seriously frustrated with the outcome of the Brexit process may not materialise, but a good degree of apprehension from both ‘Leavers’ and ‘Remainers’ with regards to the success of the Brexit process – no matter how one may define it – is certainly warranted.
This apprehension is expressed by Peter, who says that ‘we will also be affected in the UK by an upsurge in hatred and prejudice’ and ‘the British working class, and even more sadly many middle class too, has allowed itself to be duped and trapped into a cycle of blame and hatred which really only serves to benefit politicians.’
This inevitably affects SOGI minorities in the mind of Peter, as he points out that ‘the EU referendum vote has encouraged a sleeping conservative and nationalist sentiment to be awoken and given a voice’.
This worries Peter ‘as a gay man who has benefited from the liberalisation of attitudes in society and the greater care with which people often now express themselves. I do believe words have a real power and if we allow people to say what they think without restraint we will see an increase in prejudice and ignorance which will be disadvantageous to people in minority groups.’
What about all other voices?
These respondents’ voices are just an illustration of how some members of SOGI minorities see Brexit. Certainly no firm conclusions can be taken from such a limited sample, which only includes gay men and leaves out so many other SOGI minorities, such as trans individuals who are remembered and celebrated today.
And yet, all SOGI minorities stand to lose in the Brexit game.
Peter recalls a colleague-cum-friend ‘railing about the “myth” of transgender and insisting there are only two genders (…) she made the points vocally. I think this confidence to express such non-PC views has been created to an extent by the sense that Britain is going back to some former state of being.’
SOGI minorities must rally quickly and effectively if such regression is not to materialise.
Let’s start with people. Because law should be about people, not (just) about abstract notions and fuzzy values. F – a Nigerian man – escaped Nigeria and reached Hungary, where he claimed international protection on the basis of his fear of persecution in his home country on grounds of his homosexuality. The authority dealing with F’s claim – the Hungarian Immigration and Asylum Office – decided that to determine whether F was effectively gay, they needed to commission a psychological report. The report in question was based on projective personality tests, and concluded that it was not possible to corroborate the Applicant’s self-declared sexual orientation. This was all the Hungarian authorities needed to feel entitled to deny the Applicant’s claim. It is important to outline from the start four crucial aspects of this case: the report did not deny that the applicant was gay, but simply stated that it was not possible to prove it (if such a proof were at all possible); the Hungarian authorities did not find any fundamental contradiction in the Applicant’s declarations; they did not consider the principle of the benefit of the doubt (as required by para. 203-204 of the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status); and there was no reference to the fact that same-sex activity between men is punishable in Nigeria with imprisonment of up to 14 years, or even the death penalty in the Northern Nigerian states that have adopted Sharia laws.
Against this background, F appealed against the negative decision of the Hungarian authorities, and the appeal court – the Administrative and Labour Court in Szeged – referred several questions to the Court of Justice of the European Union (CJEU). The key point referred to the application of Article 4 of Council Directive 2004/83/EC (on the assessment of facts and circumstances, in the meantime replaced by Directive 2011/95/EU). The CJEU was asked whether this norm, in the light of Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter) protecting human dignity, precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants, even when such tests do not enquire about the applicants’ sexual habits and do not entail a physical examination. Should that possibility be precluded, the referring Court also asked whether asylum authorities are prevented from examining by ‘expert methods’ the truthfulness of such international protection claims.
More specifically, the CJEU was called upon to assess the use of three types of projective drawing tests to assess sexuality, namely the ‘Draw-a-Person-in-the-Rain’ test, the Rorschach test and the Szondi test. These tests are used to obtain information from ‘patients’ where they struggle or prefer not to verbalise their feelings and experiences, in this way helping psychologists to assess personality, emotional well-being and mental health. As we have discussed in a previous blog post, even if these tools are still widely used by psychologists across the world, they are generally contentious and their use to assess an individual’s sexuality has been utterly ruled out by the scientific community. As a consequence, neither the relevant literature nor reputable professionals make any use of such tests for these purposes, and the use of psychiatric and psychological evidence is generally ruled out in sexuality-related asylum cases, for example, in the UK. The fact that the Hungarian Institute of Forensic Experts and Investigators produced a report stating that such tests did not prejudice human dignity and were appropriate – along with a ‘suitable exploration’ of the issues – to indicate an individual’s sexual orientation (see par. 25 of CJEU decision), is an indictment on the professional credibility of the individuals involved in producing the report. Yet, this was not the first time the CJEU has been confronted with highly dubious means of evidence in asylum cases involving sexuality.
The CJEU has had three opportunities so far to deal with sexual orientation asylum claims. The first opportunity was in the joined cases C-199/12 to C-201/12, X, Y and Z v. Minister voor Immigratie en Asiel, which positively outlawed the ‘discretion requirement’, in other words, the possibility of returning asylum claimants to their countries of origin on the basis that they can be ‘discreet’ about their sexual orientation. On a more negative note, however, the Court also determined that for the ‘particular social group’ ground of the 1951 Refugee Convention to be used in such cases, sexual orientation asylum applicants need to fulfil two tests: membership of a group socially recognisable in the country of origin (social recognition test) and recognition of sexual identity as a characteristic so fundamental to a person’s identity that one should not have to renounce to it (fundamental characteristic test). The Court also determined that the criminalization of same-sex conduct does not in itself constitute an act of persecution. Both these points reflect a strict interpretation of EU law that runs against the UNHCR guidelines and commentators’ views.
In the second sexual orientation asylum case brought before the CJEU, the Court deals more explicitly with evidentiary standards: in Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, the CJEU asserted that the sexual orientation declared by asylum applicants ‘constitute[s], having regard to the particular context in which the applications for asylum are made, merely the starting point in the process of assessment of the facts and circumstances’, thus endorsing authorities’ desire to subject asylum applicant’s self-declared sexual orientation to close scrutiny. Although some European Union (EU) Member States circumvent that matter by generally accepting asylum applicants self-declared sexuality, many others are eager – like Hungary in the F case – to closely scrutinise applicants’ self-declared sexual orientation, disbelieve it wherever possible and thus find an easy route to deny the asylum claim. In A, B and C, the Court appropriately refused the use of sexualised evidence or stereotyped assessments in sexual orientation asylum claims, thus precluding medical tests such as phallometric testing and explanation of sexual practices on the basis that the use of ‘evidence’ of this nature violates the dignity and privacy of the claimants (Articles 1 and 7 of the EU Charter). Yet, no positive guidance was offered as to what questions are appropriate in these circumstances. Moreover, questions based on stereotypes may still be asked, as part of overall balanced lines of questioning, thus still leaving much room for ambiguity and opening the door for inappropriate interviewing and decision-making.
The F case brought the matter of sexual orientation asylum claims back into the EU arena and offered the Court an opportunity to improve some of the shortcomings of its two previous decisions on this type of claim. Whether or not the Court would use this opportunity effectively was far from obvious. Indeed, despite recognising that a psychologist cannot determine an applicant’s sexual orientation based on personality tests, AG Wahl argued in his Opinion in this case that the tests in question should be admitted, provided that consent is obtained and the tests carried out in a way that is compatible with the rights to dignity and to respect for private and family life (Articles 1 and 7 of the EU Charter). AG Wahl effectively offered EU Member States an unreasonably wide margin of appreciation and an alarming scope to use ‘fake science’ to undermine asylum applicant’s claims, which deserved our outright criticism. Would the Court do any better?
Third time lucky indeed
In its judgment, the CJEU went further than the AG Wahl’s Opinion suggested and offered a much more cogent statement on the inappropriateness of using projective personality tests in sexual orientation asylum cases. The CJEU adhered to the position defended in A, B and C in terms of applicants’ statements being simply the starting point in the process of assessing the facts and circumstances of an international protection claim, which means that an applicant’s self-identification as LGBTI may be subject to scrutiny as well (para. 28-29). Yet, the Court seems to have tried to offer a bolder position than in its previous decisions.
First, the Court highlights that, according to Article 10(2) of Directive 2011/95/EU, actually possessing the characteristic that allows an applicant to be considered a member of a particular social group (PSG) for the purposes of the international protection claim is, in fact, immaterial, as what matters is that such a characteristic be attributed to that applicant by the actor of persecution (par. 31). What is interesting in this is the emphasis the Court places on this point, which had not been explicitly raised by the referring Court or in the AG’s Opinion and was not strictly relevant in this context. This is a welcome move by the Court, as it stressed that to establish a PSG the characteristic may simply be attributed to the person by the actor of persecution, and not necessarily be possessed by that person. This reading is in line with the spirit of the 1951 Convention and with UNHCR guidance, as provided in its Handbook (par. 66) and Guidelines No. 9 (para. 39 and 41). In the decision under comment, the Court referred to this point to argue that it is not always necessary to assess an applicant’s sexual orientation when dealing with sexual orientation cases – as it would be the case when the non-heterosexual orientation is only perceived/attributed (par. 32). Hence, at the beginning of its reasoning, the Court seems to be sending the message that tests aiming to assess an applicant’s sexual orientation are neither necessarily useful nor can they be used as a ‘magic wand’ to solve asylum cases.
Second, the Court accepts that Article 4(3) of Directive 2011/95/EU does not restrict the use of expert reports in the assessment of the facts and circumstances, but in line with the decision in A, B and C, it also places special emphasis on respect for Article 1 (human dignity), Article 7 (right to respect for private and family life) and Article 47 (right to an effective remedy) of the EU Charter(para. 34-35 and 43). As the Court specifies, this requires that national authorities adapt their methods of assessment to each category of application, including the type of Country of Origin Information (COI) it produces or procures (para. 37-38). Crucially, and contradicting explicitly the position taken by the Hungarian referring court, this also requires national authorities to take ultimate responsibility for the individual assessment of facts and circumstances, rather than (dis)placing that burden on experts (para. 40-42).
Third, the Court addressed head on the issue of consent. When commenting on the AG’s Opinion in this case, we had argued that the CJEU would have to explain how applicants’ genuine consent in such circumstances could be guaranteed, in the light of the inevitable pressure under which applicants must feel to undergo any tests deemed by national authorities as useful, even if not compulsory. We are very pleased to see that the Court has indeed questioned the genuinely free nature of consent from applicants under these circumstances (para. 52-53).
Fourth, in the light of the previous points, the Court considered that such tests constitute an unjustifiable and disproportionate interference with the Applicant’s right to respect for private life and are thus precluded by EU law. This is the case especially owing to the lack of reliability of such tests, the particularly serious interference with private life they entail and their non-essential nature (para. 54-65). It is interesting that to strengthen its argumentation – and similarly to the AG in his Opinion – the Court also relied on Principle 18 of the Yogyakarta Principles (protecting individuals from medical abuses based on sexual orientation or gender identity) (par. 62), which reinforces the legitimacy and legal authority of this tool in sexual orientation related litigation. The CJEU thus points out that national authorities would do better to focus on ensuring that asylum case workers have the necessary training and skills for themselves to assess all personal circumstances pertaining to each case, including sexual orientation matters (para. 66-67).
Importantly, in the light of Article 4(5) of Directive 2011/95/EU, the Court highlights that even in the absence of evidence, an applicant’s statements regarding their sexuality may not need confirmation, especially if the applicant’s statement is consistent and plausible (the provision in question also making reference to the applicant’s ‘genuine effort to substantiate his application’, a ‘satisfactory explanation ha[ving] been given regarding any lack of other relevant elements’, the ‘applicant ha[ving] applied for international protection at the earliest possible time’, and ‘the general credibility of the applicant ha[ving] been established’) (par. 68). Although this still falls short of relying on applicants’ sexual self-identification and makes no explicit reference to the principle of the benefit of the doubt (para. 203-204 of the UNHCR Handbook and Guidelines), such emphasis on an applicant’s overall credibility reflects a genuine and positive effort from the CJEU to promote fair and lawful asylum decision-making procedures at the hands of national authorities.
A light at the end of the tunnel?
In a nutshell, the Court’s message is that it is acceptable for national authorities to commission expert reports in asylum cases related to sexual orientation, but the tests in question in the F case should be precluded. The overall tone of the decision is – we argue – more positive towards asylum seekers persecuted on grounds of their sexual orientation than past decisions of the CJEU have been. One could thus be tempted to think that the idiom ‘third time lucky’ applies here. We share that positive reading of this judgment. Yet, we would also like to point out that, once more, the Court did not offer any positive guidance as to how authorities should deal with evidentiary standards in this context and failed to recognise the importance of self-declared sexual orientation. At the same time, it must be noted that the CJEU preliminary rulings function through requests referred by domestic courts and the CJEU is thus bound by the questions asked by the referring court (although the Court has taken, in certain instances, a more proactive approach: see, e.g. Abdida). Therefore, one way to instigate greater clarity is for domestic courts to shape the questions they refer to the CJEU in a way that allows the Luxembourg judges to actually give positive guidance. On another note, the current CJEU jurisprudence on sexual orientation asylum cases and its related future jurisprudence have the effect of drawing clear lines between what does and what does not respect human rights. This is to say that, little by little, article by article of the EU Charter, the CJEU is indeed shaping the boundaries of sexual orientation asylum cases in the EU asylum acquis.
The best way forward to improve the way sexual orientation asylum claims are decided seems to entail the combination of a series of legislative amendments with a three-pronged non-legislative strategy: training, guidance and quality control. First, much better training needs to be offered to decision-makers who deal with sexual orientation asylum claims. Only appropriately qualified decision-makers who benefit from high-quality training in the field of gender and sexuality will be able to deconstruct and resist stereotyped and Euro/Western-centric views of how a credible asylum claimant should present their story involving persecution on grounds of sexual orientation, and what means of evidence are appropriate in such instances. As for the training, given that the topic is indeed complex and requires a high level of expertise, the focus should not be on its quantity and content (although regular, comprehensive and multidisciplinary training is undoubtedly useful), but rather, perhaps, on methodologies and means of training. In particular, we believe that training on sexual orientation and gender identity asylum claims would benefit from the input of refugee and LGBTQI+ groups more familiar with the issues in question. Moreover, the participation of LGBTQI+ refugees in training curricula could be envisaged at different stages, such as in designing such training courses. Listening to the voices of yesterday’s refugees can help us address more effectively the needs of today’s refugees. Second, comprehensive, effective and readily available guidance needs to be produced and disseminated, as to reach all domestic authorities dealing with sexual orientation cases. Key principles and positive guidance (but not prescriptive lists of questions) need to be established covering what aspects should be discussed, how such interviews should be conducted, and what means of evidence a decision-maker should use. Finally, a reliable and impartial quality control system needs to be put in place, to allow the quick identification of inappropriate evidentiary practices and introduction of improvements. In short, much work still needs to be carried out by domestic asylum authorities, that at an institutional and individual level, consciously or unconsciously, still resist improvements and perpetuate harmful practices. An arduous, but essential body of work lies ahead.
Nuno Ferreira is a Professor of Law at the University of Sussex and SOGICA’s project leader. Denise Venturi is a PhD Student in International Law and Human Rights at Scuola Superiore Sant’Anna and KU Leuven. The authors wish to thank the useful comments provided by Carmelo Danisi, Moira Dustin and Nina Held on previous drafts of this text. This post first appeared on the EDAL – European Database of Asylum Law blog.
On 13-14th January 2018, the Sussex Crime Research Centre (CRC) and Sussex Addiction Research and Intervention Centre (SARIC) hosted a major conference titled Intoxication, Addiction and the Criminal Law. The conference brought together international experts from across law, philosophy and neuroscience to discuss intoxicated and/or addicted offenders. In particular, the aims of the conference were 2-fold: 1) to consider and critique existing laws relating to intoxicated defendants (Ds) who cause harm, but lack criminal ‘mental fault’ at the time they cause harm due to their state of intoxication, and 2) to explore and evaluate potential routes to law reform in this area. The following ‘position document’ focuses on the legal questions relating to intoxicated harm-causing. The aim of the document is to reflect discussions and debates from the conference and to highlight points of consensus.
Contributors(listed alphabetically): Prof A. Badiani (University of Sussex, UK); Dr J.J. Child (University of Sussex, UK); Dr H. Crombag (University of Sussex, UK); Prof V. Curran (University College London, UK); Prof J. Dalley (Cambridge University, UK); Dr S. Demetriou (University of Sussex, UK); Dr R. de Visser (University of Sussex, UK); Prof S. Dimock (York University, CA); Prof A. Duff (University of Stirling, UK); C. Duffy (Magistrate, UK); Prof D. Duka (University of Sussex, UK); I. Dulcu (University of Sussex, UK); Prof R. Fortson QC (Queen Mary, University of London and 25 Bedford Row, UK); Prof M. Gur-Arye (The Hebrew University of Jerusalem, ISR); G. Higgins (9 Bedford Row, UK); D. Hughes (Formerly of the Law Commission of England and Wales, UK); Prof D. Husak (Rutgers University, USA); Q. Jahangir (University of Sussex, UK); Prof R. Mackay (De Montfort University, UK); Prof S. Marshall (University of Stirling, UK); Dr K. Oorsouw (Maastricht University, NL); Prof P. Robinson (University of Pennsylvania, USA); N. Sinclair-House (University of Sussex, UK); Prof D. Stephens (The University of Sussex, UK).
1. The Current Law: Outline and Critique;
2. Alternative Approaches;
3. Areas for Further Study.
The Current Law: Outline and Critique
Discussion at the conference focused on the approach to intoxication outlined in Majewski, developed in England and Wales, and applied (with some variation) across much of the common law world, including parts of Australia, Canada and USA. The current law operates in the following manner:
Example of intoxicated harms
Approach within the current law
I. D commits a criminal offence, with the appropriate mental fault (such as intention or recklessness), but claims she only did so because of her intoxicated state.
D’s intoxication is irrelevant to her liability (but may be relevant at sentencing). This is the case regardless of whether her intoxication is voluntary or involuntary.
II. D becomes intoxicated in order to commit an offence (eg, murder). At the point of completing the physical element of the offence (eg, killing) D lacks an element of mental fault (eg, intention to kill) due to intoxication.
D will be liable for the offence (eg, murder) regardless of the missing mental element. This will be the case whether the offence is legally classified as one of basic/general intent or specific intent.
III. D becomes intoxicated involuntarily, or through the voluntary consumption of a non-dangerous drug. D then completes the physical element of an offence (eg, killing) without the mental element (eg, intention or recklessness).
D will not be liable for any offence for which she lacks a mental element.
IV. D becomes voluntarily intoxicated with a dangerous drug (eg, alcohol). D then completes the physical element of an offence (eg, killing) without the mental element (eg, intention or recklessness).
The law distinguishes between offences of basic/general intent (eg, manslaughter) and specific intent (eg, murder):
Specific Intent: D will not be liable for the offence (eg, murder) for which she lacks a mental element;
Basic Intent: D will be liable for the offence (eg, manslaughter) regardless of a missing mental element.
Criticisms were highlighted and discussed as to almost every aspect of the current law. With reference to the separate cases above, these include:
Potential overcriminalisation – particularly where D’s intoxication is involuntary and does not demonstrate a defect of will (as was arguably the case in Kingston).
‘Special’ intoxication rules may not be necessary – where D becomes intoxicated in order to commit an offence, it may be possible to identify the conduct element of the offence in her act of becoming intoxicated, linking this to the later harms through standard causation principles. The same may be possible where D is reckless as to losing capacity and committing a recklessness-based offence.
Voluntary/Involuntary and Dangerous/Non-Dangerous distinctions are problematic – both from legal and neuroscientific perspectives.
It is here that the intoxication rules become most problematic, first because there is no settled distinction between offences of basic/general and specific intent, and second because there is no agreed conceptualisation of how the intoxication rules apply to find liability in the context of basic/general intent offences.
The intoxication rules do not apply as a defence, although this is the most common label employed by courts and within codes. Where D commits all elements of an offence (Example I), the rules are irrelevant to liability; they only become relevant as an inculpatory tool for the prosecution where mental fault is otherwise absent (Example IV). Inaccurate labelling here can impact substantive outcomes.
Describing the intoxication rules as evidential is also problematic. If this were the case, in the context of basic intent offences, we would need to justify rules of evidence that allow a jury to find the presence of mental fault beyond reasonable doubt despite the court knowing that such fault was absent.
Describing the intoxication rules as substantively inculpatory for basic/general intent offences has become more common within academia. However, understood in this way, the rules are difficult to justify. How can we say that a decision to become intoxicated at time 1 (t1), which may be no worse than negligent, is equivalent to missing (subjective) mental fault when causing harms at time 2 (t2)? The current rules therefore risk considerable over-criminalisation and/or inappropriate labelling and punishment.
Conference Position: It is agreed that the current law is in need of review and reform.
Several alternatives to the current intoxication rules were discussed. These included:
Abolition without replacement: Under this approach D would only be liable for an offence where she acts with both physical and coinciding mental fault. Where mental fault is lacking, even when due to voluntary intoxication, no liability can follow. This accords with basic criminal law principles, but may be perceived as unduly lenient on those who cause serious harms when intoxicated.
Focus on fault at t2: This approach recognises that D does not have subjective mental fault (due to intoxication) when causing the external harms at t2, but asks whether and to what extent those harms nevertheless demonstrate a potentially criminal defect of will. Locating fault at t2 avoids considerably complexities and problems with tracing or substituting fault from t1 (when D becomes intoxicated), but the central role of ‘defect of will’ requires precise elucidation – an elucidation that does not derive from conduct or fault at t1.
Focus on fault at t1: This approach bases potential criminal liability on D’s decision to become intoxicated, foreseeing the risk of future harms, where such harms arise in fact. This includes subjective foresight of future harms, as well as potentially objective foresight (that a ‘reasonable person’ would have foreseen the harms) or a rebuttable presumption of foresight. Focusing on t1 allows us to assess D’s mental fault at a time she is not affected by intoxication, but depending on what fault is required the approach risks over-criminalising (where objective fault substitutes for missing subjective fault) and/or under-criminalising (where D does not have foresight, but later causes considerable harms).
A new intoxication offence: This approach abolishes the current intoxication rules and replaces them with a new offence of voluntary intoxication + harm. The new offence can be designed to target only certain serious intoxicated harms and will allow for more accurate labelling and punishment. However, any new offence must still locate and clarify requirements across t1 and t2, as well as explain a rational (perhaps causal) relationship between them. The offence must also be drafted in a manner that is clear and practical for court application.
Conference Position: It is agreed that a review of intoxication and the criminal law should take place across two stages – (1) Identifying cases that may be dealt with using current criminal offences, and exploring rules of causation, coincidence and/or other devises to make this possible; and (2) Identifying possible cases that fall outside this group, but should nevertheless face criminalisation through a potential new offence.
Areas for Further Study
For the law in this area to be usefully reformed, it was agreed that the following questions require particular attention and/or further study:
Can/Should we ever construct fault on the basis of popular perceptions, and often misconceptions, about drugs and/or intoxication? This may arise, for example, where it is popularly believed that a certain drug will lead to a risk of uncontrolled violence, but this is not supported by the scientific evidence. Should/Could scientific knowledge about underlying mechanisms of drug actions on neurobiology, cognition and/or behaviour (ie, how drugs affect function) provide better (causal) understanding of the relationship(s) between drugs, intoxication and criminal offending, beyond mere population-level, correlational evidence?
How (if at all) does scientific understanding of how drug intoxication and addiction affect behaviour and cognition translate to legally relevant constructs, specifically in relation to determinations of criminal liability?
Can (neuro)scientific understanding provide a basis for legal distinctions between dangerous and non-dangerous drugs, or voluntary and involuntary intoxication? What is the relevance of drug-drug interactions, medicinal and diverted drug use, impact of co-morbid disease conditions?
If D is to be held liable for a crime of recklessness at t2 (when D was not aware of the relevant risk of harm), on the basis of her awareness of the risks in becoming voluntarily intoxicated at t1, what kind of awareness should be required? Must D have been aware at t1 of a risk that she might cause the very kind of harm that he in fact caused at t2?
If fault is to be ascribed to D at t1 in the absence of subjective foresight of future dangers/harms, what objective criteria can/should be employed to identify that fault? For example, the statistical likelihood of harm resulting; the common knowledge of such risks; the level or circumstances of intoxication; or a combination of these factors?
Where potential liability is constructed across conduct and fault at both t1 and t2, how can we understand and demonstrate the connection between these two points in time? Must we, for example, prove that D’s conduct at t1 caused her conduct at t2?
What difference (if any) does/should it make if D’s intoxication arises partly as a result of addiction? In cases of this kind, we could conclude that the addiction mitigates D’s ‘choice’ to become intoxicated (but if so, we need to know how such mitigation would operate), or that a blameworthy choice can be traced back to the origins of D’s addiction (but if so, we need to know how closely such origins will be investigated). Is there scientific consensus about how drug abuse and addiction could affect ‘choice’ in becoming intoxicated and wider decision making in relation to criminal offending? How do we consider genetic and phenotypic predispositions (e.g. impulsivity) to addiction and the complex interactions of ‘set and setting’ in determining drug intoxication and addiction susceptibility?
What are the main difficulties faced by advocates applying the current intoxication rules, and what problems arise from law reform? This is particularly important in the context of a potential intoxication offence, where previous reform proposals have faced considerable opposition from the profession.
What is the judicial attitude toward intoxicated harm-causers, and towards the current legal response? Research in the area of diminished responsibility may be useful here.
How do members of the public understand intoxication and the criminal law, and what is their attitude to liability? This question is relevant to the communicative function of the criminal law (are current potential liabilities known?), as well as its normative future (when do people think that intoxicated harm-causing should become a criminal wrong?).
To what extent do/should the same prior-fault principles at play in relation to intoxication also operate in relation to automatism and certain cases of insanity? Where we see overlap, should we explore the potential for a consistent and/or single approach to reform?
What can we learn from approaches to intoxicated harms in other countries, particularly from civil law jurisdictions? Civil codes often include intoxication offences for example.
 Where D consumes a drug that the court considers non-dangerous (eg, sleeping pills) but suffers an unexpected reaction leading to harmful conduct, the intoxication will be treated (in effect) as if it were involuntary.
  3 All ER 353. See, Husak, ‘Intoxication and Culpability’ (2012) Crim L & Phil 363.
 Robinson, ‘Causing the Conditions of One’s Own Defence: A Study in the Limits of Theory in Criminal Law Doctrine’ (1985) Vir LR 1; Child, ‘Prior Fault: Blocking Defences or Constructing Crimes’ in Reed and Bohlander (eds), General Defences (2014) 37.
 Law Commission, Intoxication and Criminal Liability (Law Com 314, 2009).
 Dimock, ‘What are Intoxicated Defendants Responsible For? The “Intoxication Defense” Re-Examined’ (2010) Crim L & Phil 1; Simester, ‘Intoxication is Never a Defence’  Crim LR 3.
 Shain & Higgins, ‘The Intoxication Defense and Theories of Criminal Liability: A Praxeological Approach’ (1997) Contemporary Drug Problems 731.
 Simester, ‘Intoxication is Never a Defence’  Crim LR 3.
 For one of the few attempts to justify this, in proposals that were rejected by Government, see Law Commission, Intoxication and Criminal Liability (Law Com 314, 2009); Child, ‘Drink, Drugs and Law Reform’  Crim LR 488.
 Mackay, ‘The Taint of Intoxication’ (1990) Int J Law & Psy 37; Gough, ‘Surviving Without Majewski’ (2000) Crim LR 719.
 Husak, ‘Intoxication and Culpability’ (2012) Crim L & Phil 363.
 Robinson, ‘Causing the Conditions of One’s Own Defence: A Study in the Limits of Theory in Criminal Law Doctrine’ (1985) Vir LR 1; Dimock, ‘What are Intoxicated Defendants Responsible For? The “Intoxication Defense” Re-Examined’ (2010) Crim L & Phil 1; Dimock, ‘Actio Libera in Causa’ (2013) Crim L & Phil 549.
 Law Commission, Intoxication and Criminal Liability (Consultation 127, 1993); Child, ‘Prior Fault: Blocking Defences or Constructing Crimes’ in Reed and Bohlander (eds), General Defences (2014) 37.
 Having been proposed in their 1993 CP (ibid), this approach was rejected in Law Commission, Intoxication and Criminal Liability (Law Com 229, 1995).
 Sanchez-Roige, Stephens, and Duka, ‘Heightened impulsivity: associated with family history of alcohol misuse, and a consequence of alcohol intake’ (2016) Alcohol Clin Exp Res 40(10); Curran, Freeman, Mokrysz, Lewis, Morgan, Parsons, ‘Keep off the grass? Cannabis, cognition and addiction’ (2016) Nat Rev Neurosci 17(5); van Oorsouw, Merckelbach and Smeets, ‘Alcohol intoxication impairs memory and increases suggestibility for a mock crime: a field study’ (2015) Appl Cogn Psychol, 29(4).
 Curran, Freeman, Mokrysz, Lewis, Morgan and Parsons,’ Keep off the grass? Cannabis, cognition and addiction’ (2016) Nat Rev Neurosci 17(5).
 Dingwall, Alcohol and Crime (Devon, Willan Publishing, 2006).
 Jupp and Dalley, ‘Behavioral endophenotypes of drug addiction: etiological insights from neuroimaging studies’ (2014) Neuropharm 76; Badiani, ‘Substance-specific environmental influences on drug use and drug preference in animals and humans’ (2013) Curr Opin Neurobiol 2.
 Mackay, ‘The Taint of Intoxication’ (1990) Int J Law & Psy 37; Child & Reed, ‘Automatism is Never a Defence’ (2014) NILQ 167; Child & Sullivan, ‘When Does the Insanity Defence Apply? Some Recent Cases’  Crim LR 787.
 Gur-Arye, Actio Libera in Causa in Criminal Law (Jerusalem, 1984).
Note: The conference and this position document are feeding into a reform focused project to be taken forward by conference organisers John Child and Hans Crombag with Rudi Fortson QC. For more information on this project and/or to share your views, please contact H.Crombag@sussex.ac.uk and/or J.J.Child@sussex.ac.uk.
In 2012 Mr Justice Tugendhat, ahead of his retirement in 2014, made a plea for more media specialist barristers and solicitors to consider a judicial role: “As the recruiting posters put it: Your country needs you.”
He emphasised the particular burden of freedom of expression cases, which require judges, for example, to consider the rights of third parties, “even if those third parties choose not to attend court” and to provide reasons for the granting of injunctions at very short notice.
Without expert knowledge of the applicable law, this is no easy task. Fortunately, media law cases have not fallen apart with the respective retirements of Sir Michael Tugendhat and Sir David Eady, and recent specialists to join the High Court include Mr Justice Warby in 2014, and Mr Justice Nicklin in 2017 – both formerly of 5RB chambers.
The arrival of Mr Justice Warby, who was given the newly created role of Judge in charge of the Media and Communications List, has provided a welcome opportunity to propose changes to the procedure of media litigation in the Queen’s Bench Division, where the majority of English defamation and privacy claims are heard.
Since taking on responsibility for the cases involving one or more of the main media torts – including defamation, misuse of private information and breach of duty under the Data Protection 1998 – Mr Justice Warby has spoken about his hopes and plans for the list, and also conducted a consultation among those who litigate in the area, as well as other interested parties.
The consultation considered the adequacy of Civil Procedure Rules and Practice Directions; the adequacy of the regime for monitoring statistics on privacy injunctions; and support for the creation of a new committee.
As a socio-legal researcher rather than legal practitioner, my interest was piqued by the latter two questions.
For some time, I have been concerned that efforts by the Judiciary and the Ministry of Justice to collect and publish anonymised privacy injunction data have been insufficient, and also that the availability of information about media cases could be improved more generally.
My own efforts to access case files and records in 2011-13, to update research conducted by Eric Barendt and others in the mid 1990s, and to interrogate assertions of defamation’s “chilling effect”, proved largely unsuccessful and I was astonished how rudimentary and paper-based internal systems at the Royal Courts of Justice appeared to be.
Although public observers are entitled to access certain documents – such as claim forms – the cost and difficulty in locating claim numbers prohibits any kind of useful bulk research which would allow more sophisticated qualitative and quantitative analysis of media litigation.
I jumped, therefore, at the opportunity of the consultation to raise my concerns about the injunctions data, and to support the creation of a new user group committee.
My submission, with Paul Magrath and Julie Doughty, on behalf of the Transparency Project charity, made suggestions for revising the injunctions data collection process, including the introduction of an audit procedure to check information was being recorded systematically and accurately.
Following the consultation, Mr Justice Warby held a large meeting at the Royal Courts of Justice for all respondents and other interested parties at which he shared a table of proposals from the consultation, provisionally ranked as “most feasible”, “more difficult” and “most difficult”.
The last category also included proposals which would require primary legislation, which would be a matter for Parliament rather than the Judiciary.
I was pleased that our initial proposals on the transparency of injunctions data have been deemed practical and feasible in the first instance.
Also considered achievable are some of the proposals related to case management and listings, updating the pre-action protocol (PAP), the Queen’s Bench Guide, and civil practice directions in light of developments in privacy, data protection and defamation litigation and press regulation (not least to reflect the Defamation Act 2013).
This meeting also established the creation of a new Media and Communications List User Group (MACLUG) to which a range of representatives have been appointed.
The group comprises members of the Bar and private practice solicitors (including both claimant and defendant specialists), in-house counsel, clerks, and a costs practitioner.
Additionally, I have joined as a representative of public interest groups – i.e. those engaged in academic research and third sector work. The new committee met for the first time at the end of 2017, and members have formed smaller working groups to take forward the “feasible” proposals, which will be discussed with our respective constituencies in due course, and where relevant, eventually proposed to the Civil Procedure Rule Committee to consider.
All of which were “easier said than done”, in his words. Quite so. But it is right that it should be attempted, and with judicial input where appropriate.
Mr Justice Warby’s efforts to date are to be applauded, and in particular, his open approach in addressing some of the flaws and inconsistencies of current practice, and evaluating structural and systemic issues.
That said, a committee formed by the judiciary is constrained in its remit, quite rightly. The consideration of changes to primary legislation should fall to Parliament.
It is therefore important that media law practitioners and other stakeholders should also work with the Ministry of Justice and HM Courts and Tribunals Service to inform ongoing work on courts modernisation, and push for wider consultation and involvement in reforms. A further challenge is to persuade government and parliamentarians to take on any issues requiring changes to legislation.
Part I of the Leveson Inquiry addressing, in part, the relationship between media proprietors, editors and politicians showed that the process of consultation on public policy affecting the news media has been subject to undue influence by certain private interests, and insufficiently transparent.
To this end, perhaps the new Lord Chancellor and Secretary of State for Justice, David Gauke MP, and the new Secretary of State for Digital, Culture, Media and Sport, Matt Hancock MP, might consider ways in which they can consult more openly and fairly in their development of policy and draft legislation on freedom of expression, reputation and privacy.
Dr Judith Townend is lecturer in media and information law at the University of Sussex and a member of the Queen’s Bench Division Media and Communications List User Group Committee.This is an edited version of an article which first appeared in Communications Law journal, volume 23, issue 1 (Bloomsbury Professional) and PA Media Lawyer, and the Transparency Project Blog and is re-published here with permission and thanks.
On 27 June 2017, the European Commission closed its investigation in the Google Shopping case. It found a breach of article 102 TFEU in relation to Google’s “more favourable positioning and display of its own comparison shopping service compared to competing comparison shopping services” (hereinafter, “the conduct”). The Commission’s Decision is important for several reasons. First and foremost, it constitutes the first application of the leveraging theory in an algorithmic context, where as a result of certain algorithmic design choices a dominant undertaking systematically directs (“nudges”) consumers towards its own goods or services in a secondary market. Google apparently didn’t see it coming, as it argued both in the proceedings before the European Commission and in the appeal it lodged against the Decision that the Commission used a novel theory of abuse, and therefore in accordance with its previous practice should not have imposed a fine. However, the Commission rejected this argument, noting that it had already used a self-favouring theory to establish abuse in a number of cases. It therefore imposed a fine of almost 2.5 billion euros and ordered Google to take adequate measures to bring the conduct to an end, and refrain from repeating it, or engaging in any act or conduct with the same or an equivalent object or effect.
The divergence of views between Google and the Commission relates to the specificities of the application of leveraging theory (and in particular the so called ‘self-favouring’ abuse) in this particular context. In this short Comment, I acknowledge the peculiarities of algorithmic leveraging and sketch some of the implications of a broad definition of preferential treatment in a world where algorithmic mediation, and to some extent “nudging”, becomes pervasive.
The notion of preferential treatment in Google Shopping
In order to appreciate the Commission’s definition of preferential treatment, it is necessary to make a clarification about the technology under discussion: to provide users with the most relevant results, search engines undertake editorial functions in indexing, triggering, ranking and displaying content. Those choices are made primarily by designing algorithms, i.e. rules that will govern the operation of Google’s crawling, triggering, ranking and displaying technologies to perform the desired process. Because of these editorial functions, algorithms can have in-built biases which lead to systematically favouring certain content, although that may not necessarily be the result of a deliberate choice of the designer. Since the stage of algorithmic design is removed from the generation of results, it is often difficult for the designer to anticipate all the possible consequences. This holds even more true when it comes to machine-learning algorithms, recently incorporated into Google Search, that are characterized by the property to automatically learn and improve from experience without being explicitly programmed. The problems of transparency, fairness and accountability of algorithmic systems are so complex and important that they have come to define an entire field of research, much of which focused on machine-learning. They are now an increasing source of headaches for courts and regulators.
Given the challenges in predicting the nature and effects of algorithmic design decisions on the market, it is particularly significant that the Decision condemns a conduct resulting from algorithmic design choices. Taken at face value, this could mean that a dominant company having developed or used an algorithm is strictly liable for any possible anticompetitive effects derived therefrom. Consequentially, it requires the adoption of wide-ranging measures of self-monitoring to ensure compliance by design, which is something that Commissioner Vestager has recently alluded to. However, the Commission provides no guiding principle on how far that compliance framework should go: neither in the substantive part of the decision nor in its remedial order, where it requires Google to ensure equal treatment concerning “all elements that have an impact on the visibility, triggering, ranking or graphical format of a search result in Google’s general search result pages” . While Google may be able to get to a good compromise in the definition of the conduct it is required to adhere to under the remedy, we may query what that high-level definition of equal treatment means for future developers of algorithms?
To compound those challenges, it is worth noting the Decision does not specify a threshold of materiality for differential treatment by a dominant company to fall foul of Article 102. The Commission presents data showing that the conduct in question is sufficiently capable (a threshold that is notably lower than likelihood) of driving competitors out of business, reducing incentives to innovate and consumer choice, and leading to higher prices. To supplement its findings, it puts forward some colorful evidence of intent by the concerned undertaking to favour its own services over those of competitors in order to leverage its position in general search into the market for shopping comparison services. Regrettably, however, the line between permitted and prohibited conduct is rather blurred, as nowhere in the Decision does the Commission detail what amounts to preferential treatment, other than stating that it involves the application of different standards for ranking and visualization to Google Shopping than to other comparison shopping services.
Most notably, the Decision begs the question of whether a dominant undertaking remains free to set up its ranking and selection (“triggering”) criteria, so long as those are applicable indistinctively both to its products and services and to those of its competitors. The Commission seems to gloss over those details, affirming that “[it] does not object to Google applying certain relevance standards, but to the fact that Google’s own comparison shopping service is not subject to those same standards as competing comparison shopping services”. This leaves us with the suspicion that a dominant undertaking such as Google could in fact be found liable for designing its algorithms in a way that leads to a disparate impact on a given class of competitors (or in the case of the implementation of the remedy, its competing comparison shopping services), despite the indiscriminate application of those algorithms to all products and services.
However, a blanket prohibition of self-favouring formulated in these terms would be likely to impose a disproportionate burden on a range of undertakings, if not accompanied by some limiting principle: much like a dominant company’s indiscriminate conditions of sale may lead to refusal to supply in violation of Article 102 when it fulfills the specific conditions established in Bronner, an algorithm with indiscriminate application but disparate impact on competitors should be held in violation of Article 102 only if it meets specific requirements serving as proxy of consumer harm. To be clear, this is not a call for the application of the Bronner conditions, which is unsurprisingly invoked by Google, but rather a recognition that the Commission would be well advised to narrow the net it casts to catch anticompetitive conduct perpetrated through algorithmic nudging. Perhaps one could take the Commission’s emphasis on the “active” nature of the refusal to grant competitors access to a proportion of its general search result pages (in the sense of exempting Google Shopping from demotions and “hardcoding” its position in the ranking) to mean that the use of certain types of instructions or criteria would be considered “passive” refusal, and therefore escape the prohibition. However, this distinction necessitates further elaboration. In the absence of clarifications on the constitutive elements of the self-favouring abuse, the extent of antitrust deference towards the design of “relevance standards” for ranking and selection algorithms is nebulous, and therefore problematic for investment and innovation.
Transparency is important, but not enough
Another piece of the puzzle in understanding the Commission’s stance towards algorithmic design is its concern for transparency as a means of protecting both market players and final consumers in their interactions with a dominant company. First, the Decision highlights the ample discretion to remove or demote websites retained by Google in its Webmaster Guidelines, where the company warns against certain identified practices but also reserves the right to “respond negatively to other practices not listed”. Second, it recognizes that only a fraction of Google’s users (“the most knowledgeable users”) is likely to take the “Sponsored” label to mean that different positioning and display mechanisms are used for the corresponding search results. It is worth noting that the Decision does not provide empirical support for the latter position, and that this specific issue was at the core of the Dissenting Opinion to the recent Indian Competition Commission’s Decision finding that Google leveraged its dominant position in general web search to favour its own flight comparison service (Google Flights) over competing ‘travel verticals’. Nevertheless, these statements indicate that an important element of the Commission’s condemnation of the conduct lies in the opaqueness of Google’s prioritization and/or penalization practices, which affects the structure of competition in the market for shopping comparison services.
One may therefore expect that the transparency and intelligibility of algorithmic practices will play a role in determining the scope of differential treatment that may be caught under Article 102. However, even admitting the relevance of those considerations, it remains to be seen the extent to which those can serve as defense to a self-favouring allegation. One could argue, for instance, that Google should not be allowed to escape scrutiny by making it crystal clear that its search services systematically prioritize content coming from domains starting with “Goo”, or pages displaying its official logo. Condoning such conduct would run counter to the antitrust doctrine rejection of formalism, including the established principle that an abuse of dominant position is prohibited regardless of the means and procedure by which it is achieved. Following this argument, the fact that Google has come consistently on top of the auctions run for its Shopping Unit slots as part of its remedial measures should at least raise some eyebrow about the adequacy of those measures, highlighting the importance of the link with a clear and consistent definition of the abuse in question.
Towards a negligence-based safe harbor for impactful algorithms?
The main criticism of this Comment is that the Commission must look harder into the criteria underlying algorithmic design. Attributing strict liability for any algorithmic conduct that is capable of affecting competition is extremely far-reaching. What is needed is thus a limiting principle, for example in the guise of a ‘safe harbour’, that provides legal certainty for undertakings offering ranking and selection algorithms. A safe harbour could rely on conditions similar to those set out by article 14 of the E-commerce directive, which grants a content host immunity from liability under European law for the information stored provided that: “(a) it does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; and (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information” . Those conditions could then be used to design, with appropriate institutional and procedural safeguards, a framework of ‘notice and re-adjustment’ of disproportionately and unjustifiably affected competitors. Additionally, the Commission could ensure that a dominant company is not negligent by prescribing a due diligence procedure for the design of algorithms that can effectively impact consumer choice through the selection or ranking of content. Such procedure could for instance rely on established techniques to detect the existence of bias, maintain a record of that testing for inspection by a competition or judicial authority, and even define a threshold of adverse impact warranting a change of the existing rules or criteria. While algorithmic accountability is a regulatory challenge that is here to stay, the global antitrust community has a responsibility to clarify the scope of the nascent antitrust duty to police one’s own algorithm. This should aim to ensure a sufficient protection against unfair manipulation (a task shared with consumer and data protection authorities), but without undermining the incentives to invest and innovate in algorithmic technologies.
 By “design choices”, I refer here to the rules and criteria embedded in the algorithm, including any subsequent changes or “updates” (as they are typically called in the context of Google search). Further, I am using a specific notion of algorithm, as a set of mathematical instructions to provide gatekeeping services.
 See Case T-612/17, Action brought on 11 September 2017 – Google and Alphabet v Commission, OJ C 369, 30.10.2017, p. 37–38.
 Decision, para. 649, referring to Case 311/84, Télémarketing, EU:C:1985:394; Case C-333/94 P, Tetra Pak II, EU:C:1996:436; Case T- 228/97, Irish Sugar, EU:T:1999:246; Case T-201/04, Microsoft, EU:T:2007:289. It bears noting that the case-law suggests that self-favouring may be caught as a manifestation of various types of conduct prohibited by article 102: see in this regard Nicolas Petit, ‘Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf’ (April 29, 2015). Available at SSRN: https://ssrn.com/abstract=2592253 or http://dx.doi.org/10.2139/ssrn.2592253. See also the Decision by India’s Competition Commission in Cases Nos. 07 & 30 of 2012, Matrimony.com v Google LLC, Google India and Google Ireland, available at http://www.cci.gov.in/sites/default/files/07%20%26%20%2030%20of%202012.pdf (finding that Google’s leveraging amounted to an imposition of unfair conditions in the purchase or sale of goods or services, in contravention of Section 4 (2) (a) (i) of the Competition Act).
 In some instances, the preferential treatment ostensibly results from the criteria generating a given algorithmic result. A good example is the “signals” for triggering the appearance of Product Universal, and/or its appearance in the middle to top position of the results in the first page: the number of stores and the number of shopping comparison engine in the top-3 generic search results. Decision, para. 391. In other parts of the Decision, however, the Commission merely takes issue with the exclusion of Google Shopping from the application of certain criteria that adversely affect the position of competing price comparison services (notably the […] and Panda algorithms). See Decision, para. 512.
 The only limit it provides in that respect, presumably reflecting the feedback received in the ‘market-testing’ of the commitments offered to Commissioner Almunia in 2013 and 2014, is that any measure chosen by Google to comply with the order “should not lead to competing comparison shopping services being charged a fee or another form of consideration that has the same or an equivalent object or effect as the infringement established by this Decision”. Decision, para. 700.
 The Commission can find support for “capability” in a series of cases, many of which are listed in the Decision at para. 602; Case C-52/09, Konkurrensverket v TeliaSonera Sverige AB, EU:C:2011:83, para. 64; Case C- 549/10 P, Tomra Systems and Others v Commission, EU:C:2012:221, para. 79; Case T-336/07 Telefónica SA v Commission, EU:T:2012:172, para. 272, upheld on appeal in Case C-295/12 P, EU:C:2014:2062, para. 124; Case C-23/14 Post Danmark, EU:C:2015:651, para. 66; see also Case T-286/09, Intel v Commission, ECLI:EU:T:2014:547, para. 85, on this specific point confirmed on appeal in Case C-413/14, ECLI:EU:C:2017:632, para.149.
 In particular, the Commission found in internal documents that the Google’s Engineering Director responsible for Froogle, the previous version of Google Shopping, stated that “Froogle stinks” and warned that “(1) [t]he [Froogle] pages may not get crawled without special treatment; without enough pagerank or other quality signals, the content may not get crawled. (2) If it gets crawled, the same reasons are likely to keep it from being indexed; (3) If it gets indexed, the same reasons are likely to keep it from showing up (high) in search results […] We’d probably have to provide a lot of special treatment to this content in order to have it be crawled, indexed, and rank well”. Decision, para. 491.
 Id., para. 440 (emphasis added). By choosing to use the word ‘certain’, the Decision suggests that the use of certain other criteria may be problematic. This hypothesis appears to be confirmed by para. 537, according to which “the Commission does not object to Google applying specific criteria per se but to the fact that Google prominently positions and displays results only from its own comparison shopping service and not from competing comparison shopping services” (emphasis added).
 Namely, that the facility that is the object of refusal is indispensable to compete on a downstream market, and that refusal is not objectively justified. See Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Case C-7/97, 1998 E.C.R. I-7791,  4 C.M.L.R. 112.
 For a useful mapping of types of deference towards design choices, see Stacey Dorgan, ‘The Role of Design Choice in Intellectual Property and Antitrust Law’, 15 Columbia Technology Law Journal 27 (2016).
 See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, p. 1–16. Applying these conditions to the Commission’s reasoning, they could be used to give content to the notions of “active” and “passive” conduct mentioned at para. 650: see supra, note 17.
 See Christian Sandvig et al. ‘Auditing Algorithms: Research Methods for Detecting Discrimination on Internet Platforms’, Data and discrimination: converting critical concerns into productive inquiry (2014), 1-23.
Nicolo Zingales is a Lecturer in Competition and Information Law at the University of Sussex. This piece first appeared on Competition Policy International’s Europe Column for February 2018.