Principles into Practice: Protecting Offensive Beliefs in the Workplace – by Amir Paz-Fuchs

[Republished with permission from the UK Labour Law blog]

 

Over the past two decades, there has been a growing interest in the impact of human rights discourse on the employment relationship and employment rights. In particular, in light of the increased opportunity, or risk, of the public exposure of an individual’s life outside of work, more attention has been drawn to the implications of employees’ private life to their place of employment.

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Image by xuanklpt from Pixabay

For progressives, the interest in preserving and protecting one’s right to privacy happily overlapped, for many years, with the substantive actions that the demand for privacy protected. In other words, progressives were determined to stand by the claimants and, where relevant, criticise courts that did not do so, not only in the name of privacy, but also because we/they asserted that the claimants in question did nothing wrong to begin with. Thus, in Pay v Lancashire Probation Service, a probation officer was dismissed because of his involvement in a business venture that was connected to sado-masochistic activities. In X v Y, a gay man was cautioned and placed on the Sex Offenders Register after a policeman arrested him for engaging in sex with another man in a public toilet. In Saunders v Scottish National Camps, the employee’s homosexuality was deemed sufficient grounds for dismissal. In Crisp v Apple Retail UK Limited [2011] ET/1500258/11 an employee was dismissed after he posted a critical appraisal of the new iPhone. And in Mathewson v RB Wilson Dental Laboratory [1989] IRLR 512 EAT the employee was dismissed after being caught in possession of cannabis. In all those cases, the employers’ decisions were upheld by the courts, and these decisions were criticised for neglecting to respecting an employee’s right to privacy, which should be constructed in a way that would ‘protect individuals from employer domination’.

In all these cases, it would seem that the liberal, progressive intuition recoils not only from the conclusion that homosexuality and the private use of cannabis can be grounds for dismissal, but even that they should be the subject of severe moral condemnation.

I thought of these cases recently, following the aftermath of the football match between Manchester United and Manchester City, in which City fans were caught on camera racially abusing United players. The Football Association investigated, and a man was quickly arrested for racially aggravated public order. So far, so reasonable. But the story took a peculiar turn, at least for me, when it was reported that the individual was identified as working for a construction company – Kier Company – which was quick to suspend him, citing the company’s ‘zero-tolerance policy towards any racist and discriminatory behaviour’.

It is here where I became slightly uncomfortable. And perhaps it is worth saying that my discomfort is, in no way, meant to minimise the, quite frankly, terrible times we are currently facing in this country. I could not agree more with the charge that the way politicians, including the Prime Minister, address the issue of migration, fuels this hateful vitriol.

But, those politics notwithstanding, the pertinent question is: should such behaviour, which occurred, of course, outside the workplace, have employment ramifications? Two of the main arguments that favoured the claimants in earlier cases – privacy and freedom of speech – clearly apply here as well. If we (as progressives) are to be taken seriously about our principled claims, i.e. that human rights should apply in the workplace even when the employer does not hold the same progressive values, we should be ready to bite the bullet and apply the same principle when those acts are offensive, and are clearly such that we (as a society) wish did not exist.

This position, simple as it may sound, must confront several objections. First, it is argued that we want to allow employees who express racist views, and hate speech in general, to be dismissed because we want to eradicate those expressions in society. ‘Society’ does not tolerate those views in this day and age. However, this view falls into a couple of familiar traps. First, the historical one: LGBT employees, and those with questionable morals (like the adulterous employee who lost her job for that reason in Spiller v Wallis) suffered from their divergence from public norms at the time, in a way we (justifiably) scoff at now. Of course, we feel that racism and homophobia are different, and that they truly should be eradicated, but some humility should guide us to assess the historical analogies. Second, there is the utilitarian argument: do we really think that sanctioning, shaming and publicly ostracising such behaviour would facilitate its eradication? There is a strong argument to suggest that it would only lead individuals harbouring those inclinations to go underground, feel victimised and even, at times, start wearing their foul opinions as badges of pride. There are examples for all of the above. This, in other words, is the argument that has at its axis the free speech of employees, and finds its justifications in the rationales of free speech in general. And yet, the workplace is a unique micro-cosmos, where people are forced to interact on a daily basis, and where concepts such as (industrial) democracy and (managerial) prerogative are deployed by way of analogy to the relationship between citizens and governments. And yet, those are still analogies, and the different context should be acknowledged.

So if we are to contextualise further, we find that there is a more sophisticated counter-argument to the one just discussed. That is, instead of focusing on public morals and public norms, one can place the centre of gravity on the employer’s values, as expressed by Kier Co (‘zero tolerance policy towards any racist and discriminatory behaviour’). Surely we cannot bar an employer from advancing such a laudable policy in her own workplace? I was considering this issue when a case just published – Forstater v CGD Europe – generated plenty of heat.

In this case, a public policy researcher who had a consultancy agreement with a not-for-profit think tank claimed that the respondent refused to renew her contract because of comments she had made on Twitter, etc expressing her beliefs about trans issues. The tribunal’s decision was limited to the preliminary question of whether the claimant’s beliefs qualified for protection under the Equality Act 2010 section 10(2) as any religious or philosophical belief in accordance with the Grainger criteria (which, in turn, relied on the ECtHR case of Campbell and Cosans v UK, which concerned corporal punishment. In particular, the tribunal found that the claimant’s belief faltered on the fifth, and final, criterion, namely: a belief that ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. The tribunal did not consider in this preliminary hearing any question of unfair dismissal or the application of the Human Rights Act 1998 (including the rights to privacy and freedom of expression, although the latter was mentioned in brief [74]).

Why did the tribunal find that Forstater’s views are incompatible with human dignity and the rights of others? Probably the most problematic of those beliefs, from the tribunal’s point of view, is the claimant’s (factually incorrect) assertion that there are only two sexes in nature – men and women, along with the position that, from the claimant’s point of view, a person cannot transition from one sex to another [84-85]. The tribunal emphasised, at some length, the fact that the first position is scientifically misguided, and the second is legally mistaken. While it is true that the claimant was, in fact, mistaken on both counts, it is not clear how these mistakes affect her power to hold those beliefs.

Starting with the latter – a person is perfectly entitled to dispute any position taken by the legal system at any time. In fact, many academics have made a career, and scores of activists made history, by doing so. It is true that British law recognises a person’s right to transition and gain a Gender Recognition Certificate. The claimant recognised the legal state of affairs but held that this was a ‘legal fiction’ because a man can never truly become a woman, and vice versa [84]. This, perhaps, is an immoral belief, but it is not undermined by the fact that it contests the current state of affairs. One can think, for example, of (radical, for the time) 18th century advocates for women’s rights who argued that a man’s ownership over a woman is ‘legal fiction’, whilst still acknowledging the practical consequences of that fiction.

And as for the former, clearly the factual veracity of a position is not a precondition for its protection, or else no religion would overcome such an obstacle. And whilst we’re analogising ‘religion’ and ‘belief’, shouldn’t we pause to consider how the fifth criterion, on which the claimant’s belief failed (in a manner that it is controversial in itself), should have barred any of the three major, monotheist religions from protection? In other words, it would seem that as a belief (as opposed to a manifestation of a belief – more on that below) – the claimant failed in her quest for protection because she grounded her positions in her understanding of feminism and the protection of women and girls. However, if she were to ground her position in the tenets of a major religion (e.g. Christianity or Judaism) – it would have been very clear that the religion itself would be covered by the scope of the Equality Act. This distinction between political (or ideological) beliefs and religious beliefs seems, indeed, arbitrary. The question would then turn to the manifestationof the belief. This, I would argue, should have been the focal point of the tribunal’s analysis here as well. Alas, no such discussion is apparent.

Indeed, while the tribunal offers a detailed account of letters and tweets by the claimant, there is not even one occasion in which the claimant’s beliefs are asserted to have targeted a colleague in the workplace. For example, she repeated the need to be polite to others, including referring to all people using the pronouns they prefer; and argued for a ‘broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls’. In other words, this is an occasion where the right to privacy and the right to freedom of speech should have been front and centre to the analysis. And yet, the latter is only mentioned, and its impact is not assessed; whereas the former isn’t even mentioned. Moreover, I would argue that the right to privacy (in this sense – the separation of work from life outside of work) is the more important of the two.

Thus, I believe that the court in Smith v Trafford Housing Trust was absolutely right to conclude that the employer wrongly demoted a housing manager who posted on his Facebook wall a post in opposition to gay marriage. Crucially, Briggs J focused on the fact that the post could not be attributed to the manager’s employer, that he used moderate language and never offended any employee in their interaction with them. Pace Paul Wragg, I don’t find this analysis to be ‘intellectually unsatisfying’ in the least. Quite the contrary. It would be quite problematic for an employer to ignore, in the name of free speech, hate speech of one employee towards another. Indeed, just as acts that may be classified as hate speech can and should be addressed by the state, and prosecuted accordingly (see the very recent ECtHR case of Beizaras and Levickas v Lithuania, with thanks to Virginia Mantouvalou for the reference), it would seem implausible for an employer to ignore similar speech if it happens within the workplace, leading other employees to feel unsafe, and justifiably so. But if such speech happens outside the workplace, it is the preserve of the government to act against those individuals.

Returning to the case at hand: if an employee, such a Forstater, suffers a detriment for actions that happened outside the workplace, the only conclusion that one can reach is that she is sanctioned for her beliefs, and not for the manifestation of those beliefs. To repeat, the claimant asserted that she ‘would of course respect anyone’s self-definition of their gender identity in any social and professional context’. And no examples were given that she behaved differently.Similarly, to close circle on the case of the Manchester derby – whilst it could be that the City fan does harbour racist beliefs, his employer gave no indication that those beliefs were manifested in the work environment.

Sanctioning someone for their beliefs is a dangerous road to follow. I have consistently taught my students that there are very few absolute rights, of which the ‘right to freedom of thought’ is one (a position accepted by the Equality and Human Rights Commission). An employer has a right, indeed a duty, to protect the work environment, to enhance inclusivity and tolerance, and make sure that all are felt welcome. When realising that some workers are (surprise, surprise) impacted by the relentless torrent of hateful narratives coming from the tabloid press and the highest political echelons, but do not act on them in a way that affects others in the workplace, employers should not respond by removing such workers from employment and into victimhood. The authoritarian control of employers, which John Gardner and Hugh Collins recently alluded to, is wide enough within the workplace, and should not extend to ‘thought control’. And as Collins and Virginia Mantouvalou wrote, apropos Redfearn v UK, ‘a democracy cannot eliminate obnoxious views by permitting the imposition of economic hardship through dismissal’. Instead, employers should have the courage of their convictions, opt for opening the discussion, through training and dialogue. That is where their social responsibility lies and so, I would argue, is where the law should be.

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

 

 

(Suggested citation: ‘A Paz-Fuchs, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace,’ UK Labour Law Blog, 12 February 2020, available at https://wordpress.com/view/uklabourlawblog.com).

The Istanbul Convention and Its Standalone Right to be Free from Violence: Feminising the Subject of Rights?

Gizem

In this post Dr Gizem Guney (Doctoral Tutor in Law and Sociology at the University of Sussex, and recent PhD graduate) analyses the Istanbul Convention, with a specific focus on its recognition of the ‘right to be free from gender-based violence’ as an independent and standalone human right. Examining the potential implications of this approach within the women’s rights framework, she questions whether this could be a step forward to reconstruct the male subject of rights.

 

The Istanbul Convention in Context

We have left behind 2019 with a worrisome level of gender-based violence against women (VAW) across Europe, alongside the evident failure of domestic laws to address the problem efficiently. The Council of Europe Istanbul Convention remains the most prominent legal tool to address VAW in Europe, as the first legally-binding treaty specifically devoted to all forms of VAW (and domestic violence) within the European human rights framework.

Although the Istanbul Convention entered into force only five years ago, it has already been acceded to by a high number of Council of Europe member states (at the time of writing, 45 signed and 34 ratified). With this high rate of accession to the Convention, one could claim that the Istanbul Convention has proved its potential for reconstructing gender policies across Europe.

At this point, it is noteworthy to underline that the UK is one of the countries which has not yet ratified the Istanbul Convention. Although the Convention was signed in 2012, and the former SNP MP Eilidh Whiteford’s Bill, which requires the Secretary of State to produce an annual report each year setting out the steps to ratify the Convention, passed in 2017, legal reforms are still needed to align UK laws with the Convention. One provision of the Convention (Article 44), which obliges states to prosecute criminal conduct even when that conduct is committed outside their territory (extra-territorial jurisdiction), has been particularly contentious in the UK context.

The Domestic Abuse Bill, which aimed to close the normative gap in UK law with regards to the Istanbul Convention (including extra-territorial jurisdiction) fell due to the prorogation of the parliament last year. Despite campaigners emphasising the pivotal nature of the Bill and Boris Johnson’s promise to bring it back, considering the current ambiguity around European laws in the context of Brexit, there is enough reason to not hold one’s breath for the resurrection of this Bill in near future.

Nevertheless, the potential of the Convention is worthy of discussion, particularly its recognition of VAW as an independent human rights violation. The rest of the article focuses on this.

The Istanbul Convention’s Recognition of VAW as an Independent Human Rights Violation

There are many firsts that the Istanbul Convention achieves, at least in theory, yet its practical success remains to be seen. In this article, I explore particularly Article 3(a) of the Convention, which defines all forms of VAW and domestic violence as both a form of ‘discrimination’ against women and a ‘human rights violation’. In doing this, the main focus is on the potential implications of defining VAW as a ‘human rights violation’, together with a brief commentary on the Convention’s approach to ‘discrimination’.

Starting with the discrimination aspect, the Convention identifies VAW as a form of discrimination against women on the grounds that VAW is a manifestation of historically unequal power relations between women and men, and therefore a structural problem. What is striking here is that the Convention brings this discrimination reading without any need for proof, such as the unequal treatment of women before the law or the evidence of women being disproportionately violated.

This is not the first time that the discriminatory nature of VAW has been established within the structures of human rights law. In its 1992 General Recommendation 19 the monitoring body of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) made the link between inequality and VAW, and consequently found the violation of CEDAW in VAW and domestic violence cases, although CEDAW originally did not make any reference to VAW.[1] Similarly, and for the first time, the European Court of Human Rights (ECtHR) found the violation of Article 14 of the European Convention on Human Rights (prohibiting discrimination) in the landmark 2009 domestic violence case of Opuz v Turkey.[2] The discrimination approach of the Istanbul Convention towards VAW is therefore not novel, but essential in the sense that the discriminatory nature of VAW is being confirmed for the first time in a ‘legally-binding instrument’ in Europe.

I would like to focus in particular on the implications of the Convention in its confirmation of VAW as an independent human rights violation. VAW had previously been found by other human rights bodies to have led to the violation of numerous rights such as the right to life, the right to be free from torture, the right to privacy and so on. This was mainly due to the normative gap in the human rights treaties regarding VAW, namely the lack of a VAW provision in human rights instruments. VAW incidents therefore had to be handled under these gender-neutral human rights.

At this point, we should remind ourselves of the well-established feminist critique arguing that, under the disguise of gender-neutrality, rights are actually gendered. It is not possible to cover the critique in detail here, but it is necessary to establish that:

  • Liberally constructed (gender-neutral) rights exclude women’s gendered problems in their origin and prioritise male interests.
  • In other words, rights are constructed only with the imagination of men as right-holders, and with the aim to address men’s common concerns.
  • Rights are constructed to a male standard and therefore the subject of rights is men.

The Istanbul Convention defines VAW as a human rights violation in itself, in its very own nature, without leaving VAW having to fit in other (gender-neutral) rights categories. VAW had been previously identified as an independent human rights violation in the Organization of American States, via the 1994 Convention of Belem do Para, the first regional treaty that specifically handled VAW. However, the Istanbul Convention is the first legally-binding treaty carrying this onto the European context.

It is important to mention that the journey to this confirmation in the Convention was not an easy one. In the drafting process, some delegations insisted that violence against women merely formed an obstacle for women to fully realise their human rights, instead of being an explicit human rights violation in itself. For example, the United Kingdom suggested the removal of Article 3(a) of the draft Convention, which categorised violence against women as a human rights violation. It proposed this article be replaced with the statement that ‘[v]iolence against women constitutes a serious obstacle for women’s enjoyment of human rights’. This proposal was heavily criticized by Amnesty International in its report, ‘Time to Take a Stand’, which opposed these amendments on the grounds that they could potentially weaken the effect of the Convention.

Deconstructing the ‘Male’ Subjects of Rights?

The questions to be asked then are:

  • Why is this identification of VAW as an independent human rights violation important?
  • What is the message given by the drafters of the Istanbul Convention by this?
  • And, what are the potential implications of this approach in practice?

This outright recognition of the standalone ‘right to be free from VAW’, besides its symbolic value, leads to important legal implications. As the previous president of the monitoring body of the Convention, GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence), said to me in an interview, this recognition means that the ECtHR and other human rights law bodies are likely to take the issue of VAW more seriously.[3] The Convention does not leave any room for dispute as to whether VAW is a human rights violation.

This confirmation also allows victims to invoke states’ responsibility to prevent, investigate, and prosecute gender-based violence on stronger and more secure grounds. Recognising the issue as a violation under international law narrows states’ freedom to determine the manner in which they handle VAW within their jurisdictions. It therefore impedes states’ tolerance of the phenomenon, i.e. a failure to address it on effective and appropriate grounds.

As Paulina García-Del Moral and Megan Alexandra Dersnah state, ‘[t]hough the power to enforce those rights lies with the state, the ability to claim rights still has legitimising functions’. As a result of deeming VAW a human rights violation, and thus transforming the language of politics, women have a stronger hand when seeking protection against such violence, which is ‘less about whether or not states will immediately comply with the decisions of institutions (but) more about the extension of what women can demand’.

Looking at the issue from a theoretical point of view, the recognition of VAW as an explicit form of human rights violation strongly challenges the male standard of liberally constructed rights. In fact, by recognising the unique harm that results from gender-based violence (which disproportionately affects women) as a wrong in itself, the Istanbul Convention reveals a shift towards an approach whereby women’s gendered problems are handled in explicit terms, and are not left to be addressed under rights which were drawn in a gender-neutral sense, but ultimately promote male interests. This serves the feminist aim of deconstruction of the male standard within law.

This declaration of the Istanbul Convention does not impede other human rights law bodies, like the ECtHR, from addressing domestic violence cases by reference to other violations of rights contained in the instruments that they supervise, such as the right to be free from torture or ill-treatment, the right to privacy or the right to life. On the contrary, it will strengthen the grounds on which to find these violations. However, to recognise VAW as a human rights violation in itself, within a legally-binding treaty, demonstrates that the human rights law framework has finally reached a point whereby a gendered problem against women is directly integrated into the scope of human rights violations. This is a departure, in terms of the subject of rights, from a male to a female standard.

Concluding Remarks

It is perhaps too early to make conceptual and assertive evaluations on such a young instrument as the Istanbul Convention. Over time, the extent to which the Istanbul Convention will have affected state policies and laws, as well as international human rights responses to VAW, will be more visible and measurable. Undoubtedly, the ongoing state report mechanism, which is supervised by GREVIO, will help clarify the picture. It can, however, still be argued that the Convention has the potential, not only to lead states making necessary legal reforms regarding VAW, but also to deconstruct and redefine the gendered foundations of human rights, which have long subordinated women.

[1] In the context of domestic violence cases, see AT v Hungary (CEDAW Committee, 26 January 2005) Com No 2/2003, UN Doc A/60/38 (2005); Goekce v Austria (CEDAW Committee, 2005) Com No 5/2005, UN Doc CEDAW/C/39/D/5/2005 (2007); Yıldırım v Austria (CEDAW Committee, 2005) Com No 6/2005, UN Doc CEDAW/C/39/D/6/2005 (2007); VK v Bulgaria (CEDAW Committee, 2011) Com No 20/2008 UN Doc CEDAW/C/49/D/20/2008 (2011); Isatou Jallow v Bulgaria (CEDAW Committee, 2012) Com No 32/2011 UN Doc CEDAW/C/52/D/32/2011 (2012); Angela González Carreño v Spain (CEDAW Committee, 2014) Com No 47/2012 UN Doc CEDAW/C/58/D/47/2012 (2014).

[2] Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009).

[3] Interview with Feride Acar, then President of Group of Experts on Action against Violence against Women and Domestic Violence and Retired Professor of the Faculty of Economic and Administrative Sciences in METU (Ankara, Turkey, 18 January 2017).

 

The politics of evidence: ‘Doing nothing’ about LGBT health inequities by the WHO

Po-Han Lee

In this post Dr Po-Han Lee (Doctoral Tutor in Sociology and Law at the University of Sussex) summarises key findings from his recently completed PhD in Sociology, which examines international inaction in the face of the health disparities of sexual and gender minorities.

 

How is ‘nothing’ produced and justified, and how is it functioning? Here, I will take a multilateral debate in the World Health Organisation (WHO) over the issues regarding health inequities experienced by sexual and gender minorities (SGMs) as an example.[1]

On request by the US and Thailand, the WHO Secretariat produced a report on LGBT health in May 2013 for the Executive Board (EB) – the organ authorised by the WHO Constitution to adopt policy agenda for the WHO governing bodies especially the annual World Health Assemblies. That was the very first time that the LGBT health issue had been put on the table in the WHO governing body. The debate was an intense one, lasting more than six hours, and in the end, the agenda item was removed from the final agenda, and kept only as a footnote. In May 2015, the footnote was deleted for good, and after that, an interstate informal consultation was pursued by Colombia.[2] However, the working group failed to achieve any consensus either. Since then, the topic has never been brought up again.

Geographically, the WHO divides the world into six regions – each has its own governing body and a committee with regard to health affairs on the regional level. The degree of development of LGBT health issues varies across different regions. The Pan American Health Organisation is the most active one; it has recognised sexual orientation as a social determinant of health (Res. CD50.R8). It adopted another resolution (CD52.R6) addressing the causes of LGBT health disparities in October 2013 after the discussion in the EB was suspended. In the Regional Committee for Europe, it was discussed in the context of the Health 2020 policy framework. LGBT populations are referenced only in relation to HIV/AIDS response and prevention by the Regional Committees for the Western Pacific and for South-East Asia. In the Regional Committees for the Eastern Mediterranean and for Africa, nothing is mentioned at all.

At the debate between members of the Executive Board in 2013, the reasons for removing the agenda item included:

  1. a lack of capacity for the WHO to address politically sensitive human rights issues, which had been addressed by the UN human rights bodies;
  2. a lack of consensus between states on what health issues should be prioritised;
  3. a lack of a universally agreed definition of affected communities, ‘LGBT people’ in this case; and,
  4. a lack of evidence regarding the existence of the health inequities in question.

In those meetings, member states employed many human rights notions, but eventually they decided that the WHO should step away from other human rights concerns, as if the right-to-health issues could be addressed in isolation. This suggests that these states were not committed to the so-called human rights-based approach to global health governance, although they had spoken a great deal in the language of human rights.

Can no-evidence say anything?

The WHO member states involved in the debate in the end made an unusual decision, which was to ‘do nothing’ about the health disparities experienced by SGMs. That decision is particularly relevant to the power of official and expert discourses regarding knowledge production in health research. That is, the inaction was taken and justified based on the fact that the epidemiological science had not proven the existence of SGM health inequities yet.

Among those ‘lacks’ mentioned above, I will focus on the assertion of lacking evidence. In this regard, in terms of theoretical and methodological approaches, the sociological interrogations concerning ‘absence’ and ‘ignorance’ would be useful; they have critically identified the symbolic meanings of non-existence and non-knowledge as well as the socio-political organising and functioning of such. Deconstructing the notion that ‘we don’t have enough proof’ enables us to argue that what ‘no evidence’ shows is no less than what evidence does.

On the one hand, it is that ‘queer trouble’ makes a comprehensive survey concerning the health of SGMs almost impossible. Out of the different understandings regarding sexuality and gender between health and social scientists, it is very difficult to define SGM populations across societies. In short, there are too many ways of naming queer people due to their diverse locationalities considering the dominant culture of the place where they live. This conceptual difficulty informs us that, on the one hand, the social determinants of health may be universal, but are context-sensitive as applied, and on the other, related studies are hardly achievable without generalising the population under research. Even the researchers themselves would have to acknowledge this partiality in the research process.

It is true that SGM health is far from simply a scientific question, especially if we consider the situations in which SGM members are afraid to see a doctor and face persecution, let alone voluntarily accepting to be studied. This has exposed the limits of evidence-based public health when the target populations are hard to define, and even harder to reach in many societies. That is to say, the nexus between the lack of evidence and the lack of definition of queer populations seems inextricable.

Yet, what counts as ‘evidence’?

Yet, it would also be irresponsible to simply blame the lack of evidence on ‘queer trouble’. The real problem in regard to the underrepresentation of queer communities and the misinterpretation of their health information should be uncovered. Here, I am arguing that, other than the troubling definition of queer people, the intended ignorance – due to non-recognition (omissive) and misrecognition (commissive) of SGM communities and hence non-production of knowledge concerning their health – plays a greater role in reinforcing the social and health injustices against them. That is to ask: What counts as evidence? Could it be that the lack of evidence manifests the evidence of health inequity? Namely, the socially constructed ignorance can be seen as the evidence of health injustice. Therefore, it is important to know how not-knowing functions.

In the absence of knowledge that meets professional standards, we shall consider the knowledge coming from local communities. The selection process of and resource allocation with regard to conducting health research may result in the invisibility of the non-recognised and the misrecognised. For example, a Bangladeshi activist stated at the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s Asian Regional Conference (ILGA-Asia) of 2015: ‘Health issues of hijra are always related to social discrimination. We are often denied access to seeing a doctor.’ A Thai transman activist expressed concerns about health professionals’ insensitivity: ‘Most trans health information is accessible only to transwomen…doctors just don’t know what to do with us and our health issues’.[3]

These narratives are rarely documented and used as evidence for health inequity, but they call on us to rethink the absence of evidence in certain places, as reported by the Bangladeshi and Thai governments, for instance. In this light, the tolerance of no-evidence itself could be a form of state-sponsored health inequity. Where there is ‘evidence’, it can be misrepresented in a biased manner. Indeed, the powerless position of queer people is both the cause and the result of the misinterpretation of health data – mainly by governments and mass media.

Local queer activists are ambivalent about the efforts towards making social injustices against SGMs a health issue, while they have suffered a lot from being over-medicalised subjects. This ambivalence is quite salient in Asian societies. At the 2015 ILGA-Asia Conference, an activist from the Philippines stated that: ‘The news about our poor lives attracts audiences for sensational stories’, as if ‘we are ill for being sexually active and self-indulgent’. And, according to a Nepalese activist: ‘The information can be quoted out of context’, when people only read that ‘international studies say we are less healthy’.

Conclusion: Health is political!

After all, do states really presume that there will be ‘enough-ness’ of evidence? Can health inequity research be capable of establishing the causation between any social determinant and one’s health outcome? If not, what do national delegates mean? Observing the debates in the WHO and elsewhere, what certain national governments have been doing is to avoid – by not making anything happen – a potential formulation of future international pressure through global health policymaking and its normative discourse.

Through deconstructing the discourse of a ‘lack of evidence’, we can thus identify the socio-political functions of ignorance and ignoring. That is, they did nothing, not because they didn’t understand and care. Quite on the contrary, it was because they cared and knew too well that health is always political, and yet, it is not just the politics concerning knowledge production and media representation; it is also international politics.

 

[1] In my research, I tend to use the term ‘SGM’ to encompass not only people who identify as lesbian, gay, bisexual and transgender (LGBT) but also those whose sexual practices or gender expressions are considered bad/immoral/abnormal in varied historical and sociocultural contexts. So, SGM and LGBT should not be used interchangeably.

[2] For more information, see the meeting records of the 139th session of EB in 2016, pp. 3-5.

[3] These are my notes taken at the meetings of the sixth ILGA-Asia Regional Conference, held on 28-30 October 2015 in Taipei.

Manifestos of nature – what the parties are saying about biodiversity

Joanna

In this post Dr Joanna Miller Smallwood (ESRC/SENSS Post Doctoral Research Fellow at Sussex Law School) discusses how the Labour, Conservative, Lib Dem and Green manifestos for the upcoming general election propose to tackle issues around biodiversity through law and policy.

We are living in a period of mass extinction more catastrophic than any other including the mass extinction period of the dinosaurs. Recent global reports show that 1 in 10 animals and plants will be extinct by 2050, and the loss of species is faster than ever. In the UK, the State of the Nature report 2019 finds that terrestrial and freshwater species have declined by 13% since 1970. This loss is not a natural phenomenon, it is human led. Society is waking up to this fundamental issue, with the help of key media personalities such as David Attenborough and rising social movements such as Extinction Rebellion. All party leaders apart from Boris Johnson took part in a recent televised debate on the approaches of their parties to tackle climate change. This televised debate also touched upon biodiversity related issues, which is promising as biodiversity often plays the underdog to debates on climate change, despite that fact that biodiversity loss is of at least equal importance in terms of planetary health. The loss of biodiversity (alongside climate change) should be at the top of any party political manifesto, these environmental issues really do trump Brexit and other societal concerns, for the simple fact that if our planetary ecosystems fail then none of the other issues will matter anyway as we may in fact cause our own extinction.

The good news is that more than ever, party manifestos for the 2019 general election are addressing key environmental issues. Not only are approaches outlined, but laws and policies are being put forward and funding promised for biodiversity in the manifestos themselves:

  • The Conservatives pledge £640 million for a new nature and climate fund;
  • Labour promise to launch a £250 billion green transformation fund;
  • the Liberal Democrats pledge to increase government expenditure to 5% of the total government expenditure within 5 years;
  • and the Greens undertake to reform the tax system to fund a green revolution.

Finally, environmental issues in the UK are receiving more focused political attention. This blogpost critically reviews the different approaches taken by the parties in relation to tree planting, nature conservation, biodiversity in agriculture, and  it highlights some transformational ideas as well as those which are fundamentally flawed.

Trees

Much has been made of party pledges to plant trees:

  • In their manifesto, the Greens promise planting 700 million trees by 2030 (an average of 70 million a year).
  • The Conservatives promise to raise the number of trees planted to 30 million trees a year by 2024 and the creation of a Great Northumberland forest of 75,000 acres by the end of next parliament.
  • Labour commits to an unquantified ‘ambitious programme’ of tree planting and an NHS forest of 1 million trees in their manifesto and Corbyn recently made an announcement committing Labour to plant two billion by 2040 (100 million a year).
  • The Liberal Democrats promise in their manifesto to raise the number of trees planted to 60 million trees a year by 2024.

If planting trees were the answer to biodiversity loss then it would be relatively clear who has the strongest party manifesto with the ranking from top to bottom being Labour, Greens, Liberal Democrats then Conservatives.

However, the focus on tree planting is problematic for two reasons:

  1. Firstly the amount of trees suggested is highly ambitious and currently much lower targets are left unmet, recent figures show tree planting is 71% short of government targets in the UK.
    This raises doubts whether the party commitments to ever increasing numbers of trees is realistic without systematic change to support these ambitious programmes.
  2. Secondly, despite the huge benefits of tree planting both as carbon sinks and for creating forest ecosystems, planting trees alone will not fully address the biodiversity crisis we are experiencing.
    This is largely because forests are only one of many important types of ecosystem and only focusing on planting trees does not address the main drivers of biodiversity loss. According to the State of the Nature 2019 report, in the UK, the main drivers of biodiversity loss are agricultural management, climate change, hydrological change, urbanisation, pollution, woodland management and invasive non-native species. The causes of biodiversity loss are therefore multiple and complex, and they demand more than tree planting alone and any tree planting that does take place has to be carefully thought out.

Nature

The most obvious solution that springs to mind when considering biodiversity loss is its antithesis, nature conservation. How can nature be conserved, restored and enhanced?

Each party have made broad promises in their manifestos in relation to nature conservation. The Greens’ ‘Green New Deal’ pledges to make space for nature, create policies to restore habitats in urban, suburban and countryside environments and uphold access to diverse nature as a human right. Recognising access to a healthy biodiverse environment as a fundamental human right is a ground-breaking but incredibly sensible rights-based approach to secure more protection to biodiversity. It opens numerous avenues to provide much greater legal protection for biodiversity and nature through the provision of potential legal actions for infringements of this right.

The Greens also aim to create a tryptic of environmental legislation: an Ecocide act (providing for crimes against the natural environment), a Clean Air Act (with ambitious binding emissions targets) and a Sustainable Economy Act (with binding targets for soil quality and biodiversity).

It is envisaged that these legal environmental obligations will be monitored and enforced through a new Environmental Protection Commission. Providing such a means of accountability is vital for the success of the laws introduced. Unsurprisingly the Greens have a strong and comprehensive well thought out environmental programme which addresses biodiversity loss. Key to the Green approach is not only the inclusion of a human right to nature and environmental laws but also a means to enforce compliance. In the UK, conservation legislation is often difficult to enforce due to vague provisions and insufficient funding of regulatory bodies to monitor compliance and to bring non-compliance cases to court. Equally important to the creation of clear environmental laws are well funded independent bodies, that can enforce legal provisions and, in this way, bring real meaning to them.

Labour heralds a ‘green industrial revolution’ not only by creating a million green jobs but by restoring nature. Labour promises a Plan for Nature that sets concrete legally binding targets to drive restoration of species and habitats, this is good news.

Furthermore, they promise to fully fund the Environment Agency which is the existing body that regulates environmental issues from flooding to air quality as well as bringing prosecutions. Labour pledge to increase funding to Department for Environment, Food and Rural Affairs (DEFRA) agencies by a combined annual total of £70m with a significant amount going to the Environment Agency (EA) and over half to Natural England (NE) to expand their role in monitoring and evaluation of the natural environment. These expanded roles for the EA and NE are key to incentivise businesses and other stakeholders to change behaviours so that the new species and habitat restoration targets can be met.

Labour also pledges to create an environmental tribunal to ensure that administrative decisions are consistent with environmental and nature-recovery obligations, this is a real positive step forward and would hold government departments accountable for their impact on nature. Labour provide a robust approach to nature conservation; their approach moves beyond solely laws and policies outlining binding obligations, but addresses means of monitoring and enforcement and therefore accountability to nature within decision making of the sectors that drive biodiversity loss as well as across government.

The Conservatives promote the Draft Environment (Principles and Governance) Bill 2018 (the Environment Bill) which is currently awaiting parliamentary approval depending on the outcome of the election. It has received a mixed response with positive feedback in that it increases ambition in relation to nature recovery, it also adopts a principle based approach where principles such as the precautionary principle will be applied by Ministers of the Crown in making, developing and revising their policies. It is yet not clear exactly how this principle based approach will be applied and work in practice.

The Environment Bill has also been criticised as it does not include definite binding targets or a statutory duty on ministers to create such targets. Without any backbone to the law that places a clear duty on ministers, it could be a token nod to the creation of targets and a principle-based approach and this is very concerning.

The Conservatives propose to set up an Office for Environmental Protection (OEP), an independent body to provide scrutiny and advice on environmental law as well as having enforcement functions which is positive and the OEP would promote the new provisions within the Environment Bill. there are concerns the body is too closely linked to DEFRA in terms of funding and accountability which raises some concern about its independence.  Further, if the provisions laid out in the Environment Bill are too vague then enforcement of them will be difficult in practice.

The Liberal Democrats promise a Nature Act to set legally binding near term and long-term targets for improving water, air, soil and biodiversity and guaranteeing an Office of Environmental Protection (OEP). They promise the independence of the OEP and powers and funding to enforce compliance.

They also provide for structural changes within government including establishing a Department for Climate Change and Natural Resources. As well as the appointment of a cabinet-level Chief Secretary for Sustainability in the Treasury – this is a promising suggestion as it begins to promote the ‘mainstreaming’ of environmental issues across government departments which is key to addressing the underlying drivers of biodiversity loss.

The Liberal Democrats’ proposals for nature also provide a dedicated department for natural resources. Whilst a step forward, more important than dealing with ‘nature’ as an isolated issues is the mainstreaming of biodiversity across sectors, which is promoted at the global level by the 1992 Convention of Biological Diversity (CBD), the main global treaty on biodiversity. It is a fundamental approach that has been agreed by the CBDs 196 Member Stated and is a key approach that must be adopted by countries to avert the biodiversity crisis.

The Liberal Democrats’ proposal requires every government agency to account for its contribution towards meeting climate targets which is good – even better would be an extension of this to biodiversity targets although this is not in the current remit of the manifesto. Ensuring government departments such as agriculture, trade and industry address biodiversity begins to get to the heart of mainstreaming and accounting for their role in biodiversity loss.

The party manifestos all to a greater or lesser degree account for nature conservation within their manifestos. This is really positive and moves nature further up political agendas. However, nature conservation alone is not enough to tackle the biodiversity crisis. Political parties need to look further than solely nature conservation laws to effectively conserve, restore and enhance biodiversity. Biodiversity also needs to be mainstreamed across society and accounted for in policies and practices in relation to those sectors who drive biodiversity loss, the main one in the UK being agriculture. Legally binding targets will go some way to change behaviour, but it is key that nature conservation is also at the heart of decisions made by all sectors and incorporated into the relevant laws and policies. This is the greatest challenge and where efforts are most needed for change.

Agriculture

A recent report highlighted that the main driver of biodiversity loss in the UK is agricultural management. In the last 50 years the UK’s biodiversity has been destroyed through the intensification of agriculture. A recent DEFRA report on the abundance of birds on farms shows a 56% decline in the number of farmland birds nationally since 1970. Considering that 71% of UK land area is agricultural land this statistic is shocking. The way land is farmed in Britain is key for the restoration and enhancement of biodiversity and farming systems are needed that protect biodiversity rather than destroy it.

In their manifesto the Greens pledge to transform food and farming systems to improve human and environmental health by shifting away from intensive towards smaller-scale farming. The Green plan is for a ten-year transition to agro-ecological farming which includes the transfer of subsidies to farming methods and food systems that create jobs and restore ecosystem health. They promise to encourage the expansion and replanting of most hedgerows lost in the last 50 years through new subsidies. They will create laws to give farmers greater security of tenure to encourage investment in improvements to the land and to reduce pesticide and fungicide use by at least 50% by 2022, phase out all non-agricultural uses of pesticides, and immediately ban the most harmful substances.

They also talk of ‘encouraging’ the ‘rewilding’ of spaces through the planning system. They pledge to establish a Food and Agriculture Research Council to research sustainable and health-promoting farming, the reduction of methane emissions and soil quality. Their comprehensive approach tackles multiple practices which drive biodiversity loss and puts in place a system of farming that moves towards smaller scale farms, reduced pesticide use and planting hedgerows and other rewilding activities. This holistic approach to farming is likely to play a very positive role in not only stopping the ongoing decline in biodiversity driven by agricultural practices but transforming practices to restore and enhance biodiversity. The Greens’ revised subsidy system is planned to fund such changes.

Labour states in its Plan for Nature that it will support farmers to adapt and improve agricultural practices to reduce greenhouse gases and to change use of fertilisers and pesticides to benefit environment quality. They also pledge to consult to set appropriate targets for the reduced use of harmful pesticides and fungicides and adopt the precautionary principle in regulations. They will focus on supporting sustainable farming methods with less reliance on chemicals.

Labour pledge to maintain agricultural and rural structural funds but to repurpose them to support environmental land management and sustainable methods of food production. This talks to the elimination of subsidies and incentives which are harmful to biodiversity and promotion of positive incentives for the conservation and sustainable use of biodiversity. The Labour manifesto has many strengths including setting targets on pesticide use, supporting sustainable farming as well as reforming the subsidy system. The manifesto and Plan for Nature, however, provide little detail as to how this will be achieved and do not extend to rewilding activities on farms.

The Conservatives promote a change to the role of farmers to act as stewards of the natural world and pledge to guarantee the annual budget of farmers in return for farming in a way that protects and enhances the natural environment and safeguarding high standards of animal welfare. Their vision is to lead the world in quality food, agriculture and land management – driven by science-led, evidence-based policy. However, no detail is given on how this vision will be achieved and no laws or policies are put forward to implement these changes. There are no commitments made in relation to reduction in pesticide use, rewilding of farms or providing greater security of tenure to farmers.

The Liberal Democrats in their manifesto propose to reduce basic agricultural subsidies to larger recipients and redeploy the savings to support the public goods that come from effective land management, including restoring nature and protecting the countryside. They also pledge to support farmers to protect and restore the natural environment alongside other critical roles such as in producing food. They do not make any commitments to reduction in the use of pesticides. Their commitment to the redirection of subsides and commitment of money to nature restoration are positive. However, lack of any detail of how this will be achieved is concerning.

The political parties all envisage major changes to the way land is farmed in the UK with a focus on the farmer’s role in safeguarding and enhancing biodiversity, which is hugely positive.

However, concrete plans in the form of laws and policies and governance structures which outline how this ambitious level of change will take place are completely absent in the Conservative manifesto and lacking detail in the Liberal Democrat manifesto. The Greens provide the clearest plan of how biodiversity will be incorporated into a new agricultural system and promise laws to increase security of land tenure as well as pesticide reduction and bans, they aim to promote rewilding using the planning system and change subsidies to encourage the planting of hedgerows. Labour also have a comprehensive approach with the aim to set targets for pesticide use as well as the use subsides to promote environmental land management and sustainable farming.

Beyond nature conservation and agriculture

Nature conservation and the role of agriculture in protecting and enhancing biodiversity discussed in this blogpost are just two areas in which biodiversity needs to be addressed.

Other areas are also key to a comprehensive approach but cannot be covered here. Such areas include the importance of acknowledging the UK’s role in destruction of biodiversity overseas, either within British Overseas Territories or through trade deals. This is a crucial issue as most of the world’s biodiversity is held in the Global South and support and funding from the Global North are needed to protect vital biodiversity reserves.

Further, the role education can play in transforming societal ideologies are key to shaping a future society that respects biodiversity and the essential role it plays, and this will require great change in the way we all live and how society functions.

Things clearly must change, and political parties are beginning to recognise this. This gives some hope but is very much the tip of the iceberg, only when these commitments turn into concrete change through law and policy and strong systems of governance will the decimation we have caused to biodiversity begin to repair. Friends of the Earth and Greenpeace have produced comprehensive environmental assessments of the political parties manifestos and place the Greens and Labour as parties with the best score for environmental objectives with Liberal Democrats not far behind. They both agree that the Conservatives are very much at the bottom of the list.

The Erratic Present, and Unpredictable Future, of the Legal System under Trump

Nick Beard
Nick Beard

It would be foolish not to begin this blog with a note that President-elect Donald Trump has often been proved to be erratic and difficult to predict.  Accordingly, any forecasts of his decisions while in government should be judged with a healthy scepticism and a caveat that during his presidential campaign, Donald Trump has changed his position on several issues likely to be adjudicated during his presidency – abortion rights, funding by wealthy corporations, marriage equality and free access of the press.

Throughout the campaign, the prerogative of the next president to elect at least one member of the Supreme Court was widely discussed.  While President Obama appointed Merrick Garland to fill the vacancy left by the death of Antonin Scalia, the Senate has successfully prevented the hearing to confirm Garland to this position and seems unlikely to continue to block this appointment until the end of Obama’s term.  It was often touted as a major reason that Americans affiliated with a political party and uncomfortable with their party’s nominee should still vote for them.  President Clinton or Trump would provide the nominee to fill Scalia’s seat and with only one justice currently under the age of 60, any slots made available by retirement of a justice over the next four to eight years.

Donald Trump has released a list of potential justices he would consider elevating to the Supreme Court: all 11 were appointed by Republican politicians, all 11 are white and 8 of the 11 are men.  Interestingly, he had previously cited his sister, Maryanne Trump Barry (considered to be a broad defender of abortion rights) as a possible Supreme Court nominee.  This is particularly significant, as Trump has identified abortion as one of the most pressing current topics facing the Supreme Court.  The leading case, Roe v. Wade, which allows women the right to privacy in order to access a termination in the first trimester of their pregnancy, has been restricted by Planned Parenthood v. Casey, to allow restrictions to be placed on abortion access, as long as these restrictions do not place an undue burden on the woman.  This was reinforced in the recent Whole Woman’s Health v. Hellerstedt case (in a 5-3 decision determined after Scalia’s death), where the majority of the Court argued that the onerous restrictions on abortion clinics were not intended to safeguard women’s health, but to make abortion access more difficult.  Proponents of abortion rights are concerned that a change in the make up of the Court would allow abortion access to be steadily chiselled away through increasing unrealistic requirements for women’s health centres.

Another Supreme Court case which was discussed widely during the 2016 election was Citizens United v. FEC.  The 2010 case, decided 5 to 4, has prevented the Federal Elections Commission from limiting the amount of money which could be raised and spent as part of presidential campaigns, leading to the accusation that candidates were indebted to wealthy donors and their agendas .  Donald Trump, throughout his campaign, bemoaned the role of financial lobbying in presidential election.  As part of his populace platform, he often cited the corrupting influence of large campaign donations and claimed that due to his large personal fortune, he would be able to self-fund the majority of his campaign.  Trump did, however, receive large individual and corporate donations and despite promises to “drain the swamp” of money in Washington,  has already hired former lobbyists to aid his transition team, as well as hiring a recent president of Citizens United (the lobby group which brought the relevant court case) to serve within his campaign.  This would indicate that while Trump has been publicly critical of the decision, he has made no tangible policy proposals for campaign finance reform.

Donald Trump will definitely have the task of appointing one judge to the Supreme Court and depending on future retirement of justices, up to four vacancies.  His position on constitutional law seems to be uneven and erratic, without thoughtful contributions as to the role of the judiciary.  Perhaps as he assumes the role of the President, his exposure to the original American concept of judicial review and the importance of judicial oversight of congressional and executive action will increase – but as always with Donald Trump, who can guess?

Nick Beard is a PhD Student and Scholar at the School of Law, University of Sussex

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

Lily Parisi
Lily Parisi

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

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

 

FACTS AND BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

 

THE EUROPEAN COURT OF HUMAN RIGHTS

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

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

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

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

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

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

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

 

COMMENTS

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

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

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

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

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

Free Speech, or Defamation?

Lily Parisi
Lily Parisi

The ECtHR case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina concerned defamation proceedings brought against four NGOs (Non-Governmental Organisations) by the entertainment editor of a public radio station. The NGOs had submitted a letter of complaint to district authorities alleging misconduct of the entertainment editor, which was subsequently published by newspapers.

The difficulty the Court faced was in balancing the conflicting rights of the parties:

  1. The entertainment editor’s right to protect their reputation (as a prospective candidate for a position as a public servant);
  2. The applicant NGOs’ right of freedom of expression (Article 10 of the European Convention of Human Rights (ECHR)) to report alleged misconduct of a public servant to a suitable public body.

Contrary to expectation, the NGOs’ comments were not discussed in regard to serving public interests; an interesting factor, as it indicates that in this case, the NGOs’ comments may have been made without sufficient public concern and therefore unnecessary.

FACTS & BACKGROUND

 The four NGOs involved were:

  1. The Brčko Branch of the Islamic Community of Bosnia and Herzegovina (Medžlis Islamske Zajednice Brčko)
  2. The Bosniac Cultural Society “Preporod” (Bošnjačka zajednica kulture)
  3. The Bosniac Charity Association “Merhamet” (Humanitarno udruženje građana Bošnjaka Brčko Distrikta)
  4. The Council of Bosniac Intellectuals (Vijeće Kongresa Bošnjačkih intelektualaca Brčko Distrikta)

In May 2003, the applicants submitted a letter to the highest authorities of the Brčko district of Bosnia and Herzegovina in complaint of the alleged misconduct of the entertainment editor of their district’s mutli-ethnic public radio station. The NGOs alleged that the editor had been involved in disparaging behaviour towards Bosniac people and their culture; therefore, the editor should be disqualified as a potential candidate for the position of the radio station’s director. The letter was later published in three different newspapers. Consequently, the entertainment editor brought civil defamation proceedings against the NGOs.

First Instance

At first instance, the claim was rejected. The Court found the applicants could not be held liable as they had not themselves published the letter in the media. The relevant part of the judgement reads as follows:

From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District…and it was not sent to the media… [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information.

Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.’
The Appellate Court

In 2007, the appellate court found the NGOs were liable for defamation due to the false nature of the statements they had made about the editor. The comments made by the NGOs were also found to be significantly damaging to the editor’s reputation. It was held that to establish liability for defamation under section 6(1) of the Defamation Act 2003, it was irrelevant that the NGOs did not in fact publish the letter.

The NGOs were ordered to retract their statements within 15 days. Upon the NGOs’ failure to comply, the editor brought enforcement proceedings and in December 2007, the applicants paid 1,445 euros for the enforcement of the judgement of July 2007.

Further, the Constitutional Court upheld the appellate court’s judgement in May 2010.

The European Court of Human Rights

The applicant NGOs complained that the domestic courts’ decisions against them had breached their right to freedom of expression (thus in violation of Art. 10 of the ECHR). The NGOs argued that they had never intended to publish the letter and that this had occurred without their knowledge, action or consent. They claimed that their only intention was to inform those in authority about certain irregularities in a matter of public interest and to prompt them to investigate the allegations.

The European Court of Human Rights held by four votes to three that there had been no violation of Article 10.

The Court found that the national courts, which had heard the witnesses in the defamation proceedings, had correctly concluded that the applicant NGOs had acted negligently in reporting the entertainment editor’s alleged misconduct, without making a reasonable effort to verify the accuracy of this misconduct.

The national courts were found to have struck a fair balance between the radio editor’s right to reputation and the applicants’ right to report irregularities about the conduct of a public servant.

Dissenting Opinion

Judges Nicalaou, Tsotsoria and Vehabović gave a joint dissenting opinion. They argued that there had been a violation of Article 10 of the Convention on the basis that the applicants’ rights to hold opinions and to receive and impart information had been breached.

The dissenting opinion drew on the fact that no question arose as to the meaning and effect of the relevant provision in this case, which was Section 6 of the Defamation Act 2003. The act defines defamation as causing damage to the reputation of a person by ‘…ascertaining or disseminating a falsehood in relation to that person…’ which they argued was not satisfied by the NGOs comments.

The facts surrounding the publication of the letter were also highlighted; it was argued that ‘it cannot be said that the applicants were, in the circumstances, responsible for disseminating the letter complained of.’ The dissenting opinion further stated that the letter had been ‘both private and confidential, and was made to persons who had a direct institutional interest in the matter and were thus entitled to receive it. The letter was certainly not meant for wider publication…’

COMMENTS

I agree with the majority ruling that there had been no violation of Article 10 of the Convention. In my opinion the entertainment editor’s right to reputation outweighs the applicants’ right to report irregularities about the editor’s conduct in this case. Of crucial importance here is that the editor was a prospective candidate for a position as a public servant, thus maintaining their respected reputation was fundamental to their future prospects, which should be taken into consideration.

With respect, the dissenting opinion is less persuasive, particularly with regards to the suggestion that the applicants were not responsible for disseminating the letter in question. The applicants do appear to have been reckless and careless in believing that the letter would not be disseminated widely. It is fair to suggest that greater awareness of possession of the letter and a conscious effort to ensure it was not publicised should have been pursued.

What strikes me as significant in this case is that an open discussion of matters of public interest did not come into play in the balancing exercise. The lack of discussion of public interest suggests that the alleged misconduct of the editor was not in fact something that was even in the public’s interest. One could further argue the complaint, therefore, was somewhat meaningless and unnecessary in light of the NGOs’ expected exclusive commitment to public interest. It must be asked whether the European Court of Human Rights should even be considering applications based on relatively trivial complaints when other applications could be of a higher importance.

Lily Parisi is an 2nd year undergraduate student at the School of Law, University of Sussex