LaPSe of Reason

Blogging from the School of Law, Politics and Sociology at the University of Sussex

Why the Framework Convention for the Protection of National Minorities Matters

[This post is by Dr Elizabeth Craig (Senior Lecturer in Law at Sussex) and is republished with permission from her blog Minority Rights – Reflections and Surmises]

I started this blog in part to air some of my frustrations at the limitations and ambiguities embedded within the European minority rights framework. However, I am not a minority rights sceptic. I became interested in minority rights acutely aware of what can happen when minority rights are not respected, and are indeed sometimes trampled over given my Northern Irish upbringing and my knowledge and understanding of events in the Balkans during my teenage years.

I was reminded of this when I read the so-called ‘Slovenian non-paper’ on ‘The Western Balkans – the Way Forward’ this week, essentially predicting the ‘dismembering’ of Bosnia and Herzegovina. I will leave analysis of the significance (or otherwise) of the ‘non-paper’ to those better versed in the politics of the region. However, the subsequent furore really brought home to me why minority rights, and making minority rights work, really matters. In earlier posts I have described some of my recent work considering the role of minority (or community) rights legislation in Kosovo, Bosnia and Herzegovina and North Macedonia. However, in this short piece I want to focus on a different angle – the uniqueness of the Council of Europe’s Framework Convention for the Protection of National MInorities as a regional minority rights treaty specifically focused on minority protection issues.

I have recently subscribed to the International Human Rights Law Reports, attracted by their coverage of decisions of both regional and international human rights bodies. One case that caught my particular interest was that of M.T. v. Estonia, 6 August 2020, Communication no. 64/2018. The application was lodged before the Committee on the Elimination of Racial Discrimination by M.T., an Estonian national of Russian ethnicity and a member of the group of ‘Old Believers’, that had rejected reforms that had taken within the Russian Orthodox Church. His complaint related to the refusal of the authorities to include his patronym on his identity card, despite his specific request for it to be included. This is a right expressly recognised in Article 11(1) of the Framework Convention for the Protection of National Minorities, which provides that: ‘The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronym) and first names in the minority language and the right to official recognition of them, according to modalities provided for in their legal system.’

The CERD Committee found the complaint inadmissible on the grounds that no concrete example was provided of the refusal putting the applicant in an unequal position with other nationals in relation to the enjoyment of his rights, or evidence of negative effects on his private relations with other members of either the Russian minority or of the Russian ‘Old Believers’ community (para 6.4). As David Harris has pointed out in his commentary, this was not an inevitable conclusion given the applicant’s claim that the refusal was contrary to ‘Russian traditions’ and therefore might have been considered discrimination in relation to the right of freedom of expression under Article 5 of CERD.

What is of particular interest to me in the case is that the applicant cited Article 11 of the Framework Convention for the Protection of National Minorities both in domestic proceedings and before the CERD Committee. In its response the State noted that the Framework Convention did not fall within the scope of the Convention or the competence of CERD and that there was no specific right in the Convention, including under Article 5, that would serve as grounds for his request (para 4.3). The Committee itself found that the applicant had failed to indicate which exact right had been violated (para 6.3). For me what this decision illustrates is the gap within international human rights law served by the Framework Convention. Rights such as the right to use a patronym might be considered to come within the category of ‘symbolic rights’, but are of fundamental importance to those belonging to minority groups.

Queering Asylum… or Human Rights in Europe?

&

Nuno Ferreira

University of Sussex

After 70 years since the conclusion of the Convention relating to the status of refugees, the process of ‘queering’ asylum law is beyond doubt, as we have explored in The Oxford Handbook of International Refugee Law (Chapter 4). This process of ‘queering’ asylum law has certainly reached its highest peak in Europe, where the needs of people claiming asylum on grounds of sexual orientation and gender identity (SOGI) are increasingly taken into account in law and practice. Yet, a four-year research project carried out across the EU has found that a range of issues remain problematic, or even unaddressed, in this field. These include: the lack of information on SOGI as grounds to claim international protection at arrival to Europe; the lack of specific procedural arrangements, including the choice of the interviewer and of the interpreter, and of appropriate reception conditions; a persistent culture of disbelief and the use of stereotypical views on sexual and gender minorities during the adjudication process of asylum claims; and the misuse and low quality of Country of Origin Information. Some of these problems could be addressed in the context of the current reform of EU asylum law, given the need to improve the Common European Asylum System in this respect. However, such a reform might not be enough, especially if we consider the evolution of European human rights law in relation to SOGI asylum.

Indeed, we have recently witnessed controversial decisions by the European Court of Human Rights (ECtHR) that raise a fundamental question: to effectively protect SOGI minorities claiming asylum in Europe, along with the ‘queering’ process of asylum law, is there a need to also ‘queer’ human rights? To answer this question, here we wish to bring attention to two decisions issued, respectively, by the ECtHR in B and C v. Switzerland, and the Committee on the Rights of the Child in A.B. v. Finland. By building on different assumptions, these human rights bodies seem to set different principles in the field of SOGI asylum. Let us first briefly recall the facts and outcomes in these cases.

On the one side, in B and C v. Switzerland the European Court of Human Rights issued one of its very few decisions on the merits of an application related to SOGI asylum. In short, Mr B claimed that, if returned to The Gambia, he could be exposed to persecution and, therefore, to ill-treatment on grounds of his sexual orientation. In fact, Swiss asylum authorities rejected his asylum applications in the belief that Mr B’s sexual orientation would presumably not come to the attention of the Gambian authorities or population, so he could be safely returned. The ECtHR certainly made important statements in its decision in this case. In line with the position adopted by the Court of Justice of the EU (CJEU) in X, Y and Z, it has reiterated that no one should be obliged to conceal their sexual orientation in order to avoid persecution. The ECtHR also found that it is irrelevant whether or not the Gambian authorities or population are aware of Mr B’s sexual orientation because this may be discovered very easily after his removal. Even more importantly, according to the ECtHR, given that the risk of persecution may come from non-State actors, States parties’ authorities need to evaluate whether the Gambian authorities would be able and willing to provide the necessary protection to Mr B against ill-treatment based on his sexual orientation emanating from such non-State actors. Yet, the ECtHR adopted a controversial position in relation to the criminalisation of homosexuality or same-sex sexual acts: ‘the mere existence of laws criminalising homosexual acts in the country of destination does not render an individual’s removal to that country contrary to Article 3 of the Convention’ (para. 59). In fact, and in line with the judgment of the CJEU in X, Y and Z, what is decisive for the ECtHR is whether there is a real risk that these laws are applied in practice. In other words, the effects that the mere existence of such laws have on sexual and gender minorities and on their protection by the State have been disregarded by the ECtHR, although their implications for the protection of human rights are widely known.

On the other side, in its first-ever decision involving SOGI asylum, the Committee on the Rights of the Child has adopted a much firmer approach questioning the possibility of returning a family to a country where legislation discriminates against sexual and gender minorities. In short, a Russian child was discriminated against on the grounds of his mother’s sexual orientation and same-sex relationship. To cite just one example, he was bullied in kindergarten, where even the staff considered his family to be ‘abnormal’. The child’s mothers decided to flee Russia and moved to Finland, where they submitted an asylum application on sexual orientation grounds. Although the asylum authorities recognised the general increasing violence against sexual and gender minorities in Russia, especially after the introduction of the so-called ‘gay propaganda law’ that promotes the impunity of perpetrators of discrimination and harassment, and accepted that the family experienced discrimination in Russia, the asylum application was rejected because the threshold of persecution was not met. The rights violation was not so severe as to fulfil the requirements of the notion of refugee. The family was therefore forced to go back to Russia, where the child has to lie about his family to avoid ill-treatment, which entails serious mental health implications and the constant need to move to other parts of the country. Against the arguments of the State party in question, the Committee found that the Finnish authorities had failed to carry out a proper asylum assessment. In fact, the existence of a risk of serious violations of the Convention on the Rights of the Child in Russia was not evaluated in light of the child’s best interests to live safely and receive appropriate care in a way that would effectively ensure his holistic development. Despite being based on the principle of the best interests of the child, the Committee on the Rights of the Child accepted that, even without criminalisation of same-sex sexual acts or relationships, the impact of violence and harassment in a homophobic society in the country of origin is an essential factor in the evaluation of the risk of refoulement. It may indeed lead to finding a real risk of irreparable harm (directly and indirectly) on SOGI grounds.

Leaving aside other considerations based on their different nature and role, the gap between the approaches adopted by the ECtHR and the Committee on the Rights of the Child sheds light on what a ‘queer reading’ of human rights really entails. Whereas the Committee looked at the individual and contextualised his specific needs in order to evaluate the risk of return, the ECtHR failed to afford sufficient weight to the societal and cultural environment in which the risk of ill-treatment materialises. In doing so, the Court employs heteronormative understandings of human rights, far from more advanced interpretations of asylum and human rights law supported at international level, as well as adopted domestically.

So, the answer to our question is necessarily ‘yes’: European human rights law also needs to be ‘queered’, because despite all the improvements made so far, ‘queering’ asylum law is not enough to protect SOGI minorities claiming asylum in Europe if human rights law supports contrasting views. The decision of the Committee on the Rights of the Child in A.B. v. Finland is particularly welcome because it may set the path for a better understanding of the complex and harsh conditions that sexual and gender minorities experience in their countries of origin before fleeing to safer places. Hopefully, it may lead to better-informed asylum and human rights decisions in Europe.

Suggested reading

Danisi, C, Dustin, M, Ferreira, N and Held, N (2021) Queering asylum in Europe: legal and social experiences of seeking international protection on grounds of sexual orientation and gender identity. IMISCOE Research Series. Springer, Cham.

Ferreira, N and Danisi, C (2021) Queering international refugee law. In: Costello, C, Foster, M and McAdam, J (eds.) The Oxford Handbook of International Refugee Law. Oxford University Press, Oxford, Chapter 4.

SOGICA Project (2020) 32 recommendations to the European Commission on the new EU LGBTI+ Equality Strategy. University of Sussex, Brighton.

Your Teachers are Researchers: Changing Research Culture

This post reflects upon the event ‘Your Teachers are Researchers’, held as part of Sussex Law School’s Research Seminar Series on 26 November 2020.  It is written by Verona Ní Drisceoil (co-organiser and chair) and Bal Sokhi-Bulley (co-organiser and panellist) with input from the panel of staff (Neemah Ahamed, Matt Evans, Sabrina Gilani and Lucy Welsh) and from the student voices (Henry Bonsor, Jasmine Bundhoo, Ayo Idowu-Bello and Tyrone Logue) who participated in and facilitated the event.

Introduction

There was bhangra and then there was jazz. There were staff and there were students. And then there was a space of collaboration and ‘collaborators’. On 26 November in an otherwise usual Week 9 of term, students and faculty of Sussex Law School (SLS) came together in a shared, non-hierarchical space to reflect, relate and disrupt. The result was a powerful, moving and liberatory one. In that shared space, collectively, and in friendship, we had succeeded in doing research relationally – building relationships with, rather than just being in the same room as, our students. We created a ‘liberatory space’ (Jivraj, 2020) wherein we were able to be otherwise.

‘Your Teachers are Researchers’ grew out of a desire for connectedness in these times of pandemic; to breach the staff/student binary and grow a research culture that shared a space with the students with whom we do ‘research-led teaching’. In this respect, the event drew inspiration from Fung’s vision of a ‘connected curriculum’ (Fung 2017), from Freire on dialogue (1970) and bell hooks (1994) calling for the teaching and learning experience to be different; one that can be shared and transgressed, together. This vision strongly echoes Jivraj’s (2020) call to engage in ‘self-liberatory’ processes, that can only be achieved through a focus on relationality – between staff and their students – allowing us all to ‘belong’ to, and in, the academy.

A False Binary

In that space, we discovered that the staff/student binary is a false one; we had instead become ‘collaborators’. The event was deliberately organised to remove the normative hierarchy of faculty/student. Students, as opposed to their teachers, led and facilitated the session. Faculty were decentred. Final year students Henry and Jasmine began with powerful reflections on what research-led teaching means to them. Eloquently, they shared how the Law and Critique module convened by Bal and Sabrina had offered a space to be ‘intellectually creative and sensitive’ (Jasmine) and distilled our shared roles as activists, writers and thinkers, as, ultimately, to ‘make the word a better place’ (Henry). They spoke too of how the module had helped them to grow in confidence – to find voice and expression – and equipped them with the ‘tools’ to go out and ‘flourish’.  Ayo and Tyrone (Year 1) followed by introducing the panel of faculty speakers: Bal, Sabrina, Neemah, Matt and Lucy. Their introductions were thoughtful and generous; their questions, powerful and insightful. They set the bar high!

Faculty then spoke to their experience of teaching their research and to something they were currently or had recently been working on. Over the course of the evening, we were able to share that doing research is slow, requires resilience and is personal to us. Bal spoke to how she felt compelled to write about the intersections between pandemic, race and class over the summer when the Leicester Lockdown happened. Her reference to the labelling of BAME communities as ‘dirt’ was picked up by Sabrina, who questioned what it means to be ‘human’ in the context of criminal law and punishment, focusing on how we express and recognise humanity through material engagement. We then heard about the intersectional experience of women of colour from Neemah, who played us Nina Simone’s ‘Four Women’. We were reminded of the wider, problematic space that we inhabit as individuals within higher education by Matt, who interrogated the space of the neoliberal university. And we heard about what it means, in the context of a wider neoliberal Britain, to make claims to access justice from Lucy, and how as staff and students of law we can and ought to question exactly what ‘justice’ means.

The presentations were punctuated with a flurry of questions – ranging from Alex (LLM Human Rights) asking Bal about whether Trump should do ‘friendship’ with China to remedy the blame culture he began; to Ayo asking Neemah about colourism and the different experience of lighter and darker skinned black women; to Tyrone asking Lucy about the nexus between the economy and access to justice. There were also questions about the potential impact our research has. For instance, Vanessa (LLM) asked Lucy about the process, as an academic and researcher, of impacting change in the criminal justice system.

Reflecting on the event immediately afterwards brought up feelings of pride, warmth and a sense of freedom (from the usual hierarchies and the ‘right way’ to treat our students). Verona commented on how the event made her heart feel full – in that space, she said, ‘something special happened’. Bal said she was ‘blown away by the student participation. Henry, Jasmine, Ayo and Tyrone were exceptional – eloquent, engaged and I felt both proud of them and reaffirmed in our roles as educators/researchers’. ‘It was fantastic to take part in such a well-attended event and to have the chance to actually have a conversation with students, guided by them, about research, teaching, learning, their overlaps and the environments in which they take place,’ said Matt. Lucy expressed that, ‘it was invigorating/uplifting to create a place for discussion together and see how superficially disparate interests can be brought together in a shared space of friendship and creativity’. 

Building on the theme of friendship and connectedness, Henry commented,

for me, the most meaningful aspect of the event was created by the relationality between both teachers and students. Previously, I felt like research was something that teachers performed in their own time and only shared with their peers. 

Similarly, Ayo spoke of how this event was so much more than an event about researchers talking about their research. She said that

this event gave me a sense of community and togetherness which is something that I had not felt since moving to Sussex due to the exceptional circumstances of a pandemic… This event created a space where there was no hierarchy, there were no tutors and students because for those few hours, we were all students who were there to listen, learn and critique one another.

For Tyrone, ‘the event made space for direct engagement with tutors’ allowing, he said, ‘for a valuable discourse which is often all too elusive in the conventional classroom’. Finally, Jo Bridgeman, Law, Politics and Sociology ‘research guru’, tweeted ‘this was fabulous… the staff and student contributions were outstanding.’

Building Community Through Research: Changing Culture

Pointing to the potential for collaborative opportunities, Sabrina has since found research synergies with several students in attendance (including Daniel and Amanda from Year 1) and commented on how the event is likely to shape future projects between teachers with (not just ‘and’) students. ‘Your Teachers are Researchers’ transgressed the teaching-research divide in a unique and holistic way; it created a space of shared mutual respect where everyone’s voice was heard (hence, ‘student voices’), and everyone’s presence acknowledged. Without dialogue, there is no communication, and without communication there can be no true education (Freire, 1970). In a similar vein, hooks reminds us that ‘it is not sufficient to create an exciting learning process. To generate excitement, is to ensure interest in one another and in hearing one another’s voices’ (hooks, 1994: 8).

Over the past three decades or so, forces both at a national and global level have tended to silence disparate voices and pull research and teaching apart (Barnett in Fung 2017). Siloed performance indicators such as TEF (Teaching Excellence Framework), REF (Research Excellence Framework) and KEF (Knowledge Exchange Framework) remind us that so much of our lives are about measurement and thus control; this event was freeing in allowing us to relate in a creative non-regulatory way. Against the background of measurement, Fung calls for a different approach: a truly symbiotic relationship between teaching and research. This, she suggests, begins with explicitly inviting students, at all levels, to connect with researchers and the research environment (Fung, 2017). Involving students in shared spaces of dialogue and critical engagement is an integral part of the learning journey. The benefit of this shared dialogue, of course, is not unilateral. The symbiosis provides a dual benefit in the form of opportunity for authentic co-creation. In this space, students become partners, co-researchers and co-producers as opposed to passive consumers (see further Carmichael et al, 2020). There is, perhaps then, a move towards joint ownership and joint decision-making where students inspire research.

SLS, like many law schools, is following the trend of trying to ‘decolonise’ its curriculum. We echo Jivraj in recognising that this process of decolonisation will only happen through ‘doing’ relationality together in recognition of belonging. It was not our intention to ‘decolonise’ here – but this is the point. As Adebisi (2020) reminds us, ‘[d]ecolonisation is also a reflective practice in which we as academics much constantly adapt our own pedagogies and question our own practices’. That is what we were doing – reflecting on our practices and attempting a counter-pedagogy that resists the hierarchies of knowledge transfer and we did so also through an active recognition of the need to include voices from BAME students and staff (on the problematic construction of ‘BAME’, see further Adebisi 2019). Counter-pedagogy, performed in such organic and holistic spaces, provides possibility for a true reimagining of the core purpose of universities and that is a hopeful thing.

Conclusion

The presentations began with some bhangra, which Bal described as not simply gratuitous! But, rather, a manifestation of both ‘sonic intimacy’ (James, 2020) and resistance (given the roots of UK bhangra and its growth alongside race riots). These vibes remain with us – we created an intimate space and a space that resisted the normative boundaries of the staff/student relation. We hope to continue to challenge this binary and to grow the research culture at SLS with our students as we continue to do our research, teaching and encounters with each other otherwise

References and Further Reading

Adebisi, Foluke. 2019. The only accurate part of ‘BAME’ is the ‘and’… African Skies, 8 July. https://folukeafrica.com/the-only-acceptable-part-of-bame-is-the-and/

Adebisi, Foluke. 2020. The Law Teacher Special Issue on Decolonising the Law School. African Skies, 2 December. https://folukeafrica.com/the-law-teacher-special-issue-on-decolonising-the-law-school/

Barnett, Ronald. (2017) ‘Foreword: Energising an Institution’ in Fung, Dilly. A Connected Curriculum for Higher Education. London, UCL Press.

Carmichael P, Tracy F. 2020. ‘Networks of Knowledge, Students as Producers, and Politicised Inquiry’, in Dohn, NB, Jandrić, P, Ryberg, T, de Laat, M (eds.). Mobility, Data and Learner Agency in Networked Learning. Cham, Springer.

Freire, Paolo. 2000. Pedagogy of the Oppressed. New York, Continuum (revised edition).

Fung, Dilly. 2017. A Connected Curriculum for Higher Education. London, UCL Press.

hooks, bell. 1994. Teaching to Transgress: Education and the Freedom of Practice. New York, Routledge.

James, Malcolm. 2020. Sonic Intimacy. London, Bloomsbury.

Jivraj, Suhraiya. 2020. Decolonizing the Academy – Between a Rock and a Hard Place. Interventions, 22(4): 552-573. 

Staff Panel/Papers

Neemah Ahamed, ‘What Do They Call Me? On the Poetry and Lyrics of Audre Lorde and Nina Simone’ 

Matt Evans, ‘The neoliberal university and resistance in the current crisis’

Sabrina Gilani, ‘Material Rights and Embodied Cruelty: Encountering the Constitutionality of Capital Punishment’

Bal Sokhi-Bulley, ‘From Exotic to “Dirty”: How the Pandemic has Re-colonised Leicester’

Lucy Welsh, ‘Accessing justice in criminal courts. Is it all about legal aid?’

Authors

Verona Ní Drisceoil is a Senior Lecturer in Law (Education and Scholarship) at SLS. Verona is currently working on two projects. One, with Imogen Moore (Bristol), exploring ‘confidence, community and voice’ in law school transitions and another exploring inclusion, exclusion and hierarchies in law schools. This second project asks, ‘who is not in the room and why not?’.

Bal Sokhi-Bulley is a Senior Lecturer in Law and Critical Theory at SLS. She writes and teaches on critical approaches to rights, and is currently working on using the concept of ‘friendship’ to re-imagine rights in the hostile environment; this work features in her courses on Law and Critique, Human Rights: Critical Perspectives, and Migration Rights and Governance.

Legality and Loopholes in the Environment Bill

Photo of Hannah Blitzer
Hannah Blitzer

This post is by Hannah Blitzer (graduate of the LLM International Human Rights Law, and now Doctoral Researcher, at Sussex Law School). Here Hannah evaluates the Environment Bill as it makes its way towards becoming law, and urges ‘cautious pessimism’ with regard to the Bill’s potential to effectively facilitate protection of human rights, adherence to international environmental standards and upholding of environmental justice.

After a prolonged delay, the Environment Bill re-emerged from its 200+ day hiatus in November, just in time to be ushered through Parliament in the final weeks of the Brexit transition period. With the UK’s environmental failures over the last ten years dubbed a ‘lost decade for nature’ due to its inability to meet nearly every global biodiversity target, the onus is on lawmakers to enact stringent legal measures that will restore the state of nature.

Notwithstanding the stream of other ‘world-beating’ policies that have emanated from the British government, headlines of which we are all too familiar with, the Environment Bill presented an opportunity for the UK to become a frontrunner in green leadership. In that sense, the Environment Bill is welcomed as a key legislative opportunity to develop a strong system of green governance and enforcement after the departure from the EU.

This piece will evaluate key provisions of the Environment Bill in relation to the Office for Environmental Protection (OEP) and deforestation. It finds that the revised Bill, released by the Public Bill Committee on 26 November 2020 after extensive Parliamentary debate, has retained low standards and loopholes that not only evidence the weak legislative commitment to long-term environmental quality, but also a flagrant disregard for the principles of environmental justice on a broader level

Enforcement & The OEP

After a decade of deregulation, there is an environmental enforcement gap in the UK. Despite the OEP being lauded as a ‘strong’, independent environment regulator, its independence, budget and enforcement functions (‘teeth’) have been routinely criticised throughout the Bill’s life cycle, including at the most recent Debate Stage.

  1. Who Decides What is ‘Serious’?

The OEP itself has the power to apply to the court for an environmental review (s37), or judicial review or statutory review (s38). However, government amendments limit the OEP’s power to bring such reviews to the most ‘serious’ breaches of environmental law. On its face, the OEP appears to have remit to determine what constitutes ‘serious’ (s22(6)), yet s24 gives the Secretary of State power to issue guidance explicitly on the matters contained in s22(6) and has the ability to revise such guidance at any time.

This veiled threat of the Secretary of State setting potentially arbitrary thresholds through ‘guidance’ is a testament the lack of independence of the OEP and to the government’s apparent refusal to trust experts and science to guide environmental governance. It also signifies an unwillingness to commit to concrete, transparent environmental obligations that will hold governmental authorities accountable for failing to comply with environmental law. The question of what constitutes a serious breach of environmental law is a matter for independent decision-making as opposed to government ministers, as it is the governmental (public) authorities that will be answering for alleged breaches of environmental law. Allowing ministers to influence these matters will inevitably render the OEP a satellite body of the government, not unlike the Environment Agency or Natural England

  1. Where are the ‘teeth’?

To improve the natural environment, the Environment Bill creates an obligation for the government to construct an environmental improvement plan, which must encompass regular reviews and meet both interim and long-term targets. Environmental improvement plans are given a minimum period of 15 years (s7(3)) and includes 5-year, non-binding, ‘interim targets’.

Achieving the mantra ‘building back greener’ after years of missed opportunities and vague commitments will require far more stringent, binding obligations. Greener UK has noted that the UK is at high risk across all of its environmental policy areas including nature protection and waste, and these risks are increasing due to insufficient regulatory action.  Yet, the deadline for setting targets for each priority area (air quality, water, biodiversity, and resource efficiency and waste reduction) under s3(9) isn’t until 31 October 2022. Enforcement is  compromised by s1(6), which states that the specified date of any long-term, binding target is no less than 15 years after the date it is set. Effectively, if the earliest date these targets are created is 2022, it cannot become binding and enforceable until 2037. The only exception to this is air quality, but particulate matter targets cannot sustain the well-being of interconnected, complex ecosystems across the UK over the next 15 years. In the absence of binding interim targets, the long-term targets will be the only binding obligations on the government that the OEP can enforce. Yet, the 15-year period that defines long term targets means there will be enforcement lags until 2037. There is little the OEP can achieve in respect of the priority area targets apart from ensuring that government decision-making complies with environmental law.

Where a public authority fails to comply with environmental law and that failure is serious, the OEP has the power to issue a decision notice and set out the steps it considers necessary for the authority to ‘remedy, mitigate and/or prevent reoccurrence of the failure’ (s35(2)). Once this notice is distributed, the OEP may apply to the court for an environmental review (s37). Yet, the court can only issue a ‘statement of non-compliance’, which doesn’t reflect the validity of conduct for which the statement was given (s37(6)-(7)). Moreover, the remedies available are only those that would be available on an application for judicial review, other than damages (s37(8)). The remedies available under the judicial review process do not allow claimants to challenge the substantive merits of the decisions in question, only whether they are lawful or unlawful. This means that there remains little way of effectively challenging public authorities’ ‘bad’ environmental decisions that are enshrined in law (e.g. inadequate long-term targets), apart from highlighting their non-compliance.

Provisions relating to environmental review could have balanced this injustice. However, an amendment (s37(12)) was inserted in the Debate Stage that the environmental review will be conducted by the High Court in England, Wales and Northern Ireland. Previously, it was expected that the review process should sit within the Upper Tribunal, which could make better use of  environmental experts in these reviews. The lack of specialist oversight in reviews of complex environmental decisions further erodes the adequacy of the enforcement functions of the OEP.

Whilst the High Court is available for the OEP (s38) and the public to bring judicial review to challenge the legality of environmental enforcement decisions, the current, and potentially restrictive ‘streamlined’ future, state of judicial review will impede effective access to environmental justice in terms of the Aarhus Convention. Although the ‘substantially different outcome’ requirement doesn’t apply here (s38(3)), issues of standing, time limits, the complexity of environmental cases and the declining availability of legal aid will make it time consuming and expensive for the average member of the public, who does not have specialist legal expertise, to bring a case. It remains unclear what the best way to challenge government decisions will be. Without the ‘teeth’ it needs to openly criticise and hold the government to account, it is seems implausible that the OEP will be able to enforce anything but a greenwashed ‘business as usual’ approach to environmental governance.

Due Diligence on Forest Risk Commodities

The potential benefits of the Environment Bill’s domestic measures are arguably worthless without tackling imported environmental degradation. The Environment Bill sets out new laws regarding the regulation of forest risk commodities, such as cocoa and palm oil (s107). The supply chains for these commodities require permanent land conversion and contribute extensively to deforestation, biodiversity loss and greenhouse gas emissions. Therefore, the embodied deforestation (i.e. the deforestation that is embodied in the production of these commodities) that the UK is responsible for must be addressed. Accordingly, the requirement in Schedule 16, Part 1 for regulated UK persons not to use specified commodities in their commercial activities in the UK unless they have established a system of due diligence and complied with relevant local laws (s2-3) is welcome. On its face, the Bill provides a layer of protection for ensuring that these commodities are not sourced from sources engaging in illegal deforestation.

However, the obligations appear to only apply to ‘illegal’ deforestation under the relevant laws of the exporting country. This is an issue as national laws often fail to protect the rights of forest communities, who experience injustice and are often subjected to violence, deprived of their free, prior and informed consent, and lack secure customary land tenure in addition to deforestation. Illegal logging does not occur in a vacuum. Whilst protecting biodiversity and improving the natural environment will require deforestation-free supply chains, the low standard loopholes that exist within the current draft of the Bill will allow companies to evade their obligations without effectively protecting human rights, adhering to international environmental standards and upholding environmental justice.

Cautious Pessimism

As it continues to make its way through Parliament, it remains to be seen whether further amendments to the Bill will rectify these issues. For this legislation to truly be ‘world beating’ it needs to incorporate more stringent obligations on the government and corporations to allow for the protection of the environment and human rights, alongside independent and effective environmental governance that holds public authorities to account. A healthy, functioning socio-natural environment requires the government to adhere to and robustly implement the environmental rule of law. In its current state, the Environment Bill does not represent such a commitment.

Policies should better support people trapped in long-term refugee situations

Protesters demand rights and housing for refugees and migrants in Greece.
Photo by ANGELOS TZORTZINIS / AFP

Carolien Jacobs, Leiden University and Nuno Ferreira, University of Sussex

People that are forced to live away from their homes for five years or more – such as refugees or internally displaced persons (IDPs) – are said to live in a situation of protracted displacement. In 2018 it was reported that 78% of all refugees live in protracted displacement.

This is a very challenging state. Most are vulnerable and highly dependent on external support from governments, NGOs or relatives. They also have insecure legal statuses and don’t have the ability – or opportunity – to rebuild their lives because of scarce economic resources, the legal framework that regulates their lives or societies that don’t welcome them.

In many cases, they can neither return home nor move on to other countries, nor really integrate in the country of reception.

We’ve been carrying out research that explores the experiences and solutions for protracted displaced populations around the world. Specifically, we examine the rules that dictate people’s ability to work, where they live, options for family reunification, and access to accommodation, education and health care.

We found that international and host country policies don’t adequately address the challenges posed by forced displacement across the world.

The traditional “durable” solutions are return, local integration and resettlement. But these aren’t realistic because of the way institutions and rules restrict refugees’ movement, access to services and rights.

If refugees, for instance, aren’t allowed to work, how can they become locally integrated into the host society? And if only a fraction do get access to resettlement programmes, then resettlement can’t be seen as a sustainable solution to resolve situations that affect tens of thousands of people.

More innovative and long-term approaches need to be developed that recognise the fundamentals of human rights and livelihood security. They must also allow for the freedom of movement, ensuring people reach safe countries when they need to and allow for access to resources and networks in home regions.

Finally, policies can only be developed by including refugees, IDPs and migrants’ own perspectives in policy-making. This creates ownership and ‘buy into’ by those affected.

Wrong focus

Recently, governments have made important strides in addressing refugee issues, putting more emphasis on improving social cohesion, host-refugee relations and promoting broader economic development in host countries.

But there’s been an increasing number of displaced people. This makes the situation more complex and increases populist and racist trends in host countries. It requires more collaboration, coordination and constant improvement between stakeholders.

In many cases, especially in the Global South, national measures addressed to displaced people are strongly ‘upward’ oriented. They look to satisfy the international community – in particular the UNHCR, IOM,World Bank and EU – rather than concentrating on local socio-economic needs.

This is understandable as these international actors often provide funding and demand accountability, but it doesn’t necessarily translate into a sustained focus on displaced people’s actual needs and the realisation of durable solutions.

Waiting for regional initiatives

Another challenge is that regional blocs – such as the European Union, African Union and the Intergovernmental Authority on Development – have policies that can sometimes protract, rather than resolve, displacement situations. For instance their policies could restrict people’s freedom of movement and right to work.

An example of this is the EU’s securitisation and externalisation of control agenda. This prioritises internal security and outsources border control to neighbouring countries. This overrules other agendas such as mobility, rights and livelihoods and could contribute to improving protracted displacement.

Yet studies show that people living in protracted situations rely heavily on
social networks to survive and make a living. They also need to have mobility which allows them to cross borders and find security outside their home countries.

Internally displaced people and refugees should be seen as contributors to social and economic life in a receiving country. Disregard of this potential contribution also harms host–refugee relations. If they can’t work it could protract the displacement situation. Italy and Greece are cases in point.




Read more:
Refugee camps versus urban refugees: what’s been said — and done


New solutions

Looking at the type of policies and programmes in place to support internally displaced persons and refugees, there is an unmistakable focus on humanitarian interventions, especially emergency aid. This almost inevitably competes with longer-term sustainable solutions to protracted displacement as solutions are not geared towards becoming self-reliant but towards addressing immediate needs. This needs to change.

Initiatives such as the Jordan Response Plan for the Syrian Crisis are important steps to bridge the gap. This plan seeks to better integrate and complement humanitarian measures.

Mobility and translocal livelihoods are also significant strategies for displaced people but are often hampered by multiple restrictions.

Solutions do exist.

Humanitarian visas, for instance would allow people to flee from insecurity with temporary travel documents through ‘humanitarian corridors’ but thus far they are not regulated at a European level.

Another possibility is the introduction of private sponsorship schemes whereby private individuals provide financial and emotional support to the displaced. Over the past 40 years, the Canadian government has resettled nearly 300,000 refugees through this program.

These innovative ideas could go to great lengths in addressing protracted displacement around the world.The Conversation

Carolien Jacobs, Assistant Professor, Leiden University and Nuno Ferreira, Professor of Law, University of Sussex

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What Kind of Justice for a ‘Global New Deal’?

[Republished with permission from Critical Legal Thinking]

Delivering the 2020 Nelson Mandela Annual Lecture, the United Nations Secretary General António Guterres recently set out a wide ranging critique of the current global order, characterised by pervasive, institutionalised inequality, and failed, nationalistic responses to the global Coronavirus crisis. In response he has called for the reform and reshaping of global governance structures, for a ‘New Social Contract’ and a ‘Global New Deal’.[1] But what kind of justice is presented in the call for a Global New Deal?

In sharp contrast to the incompetence and the right wing populist bluster of Donald Trump and Boris Johnson the intervention by António Guterres is refreshing. Guterres presents the Coronavirus crisis not in terms of a ‘security emergency’, or a ‘war on the virus’ or a ‘conspiracy’, but starkly in terms of the failure of the post-war global political order which is beset by systematic and structural inequality. Guterres frames this inequality as multifaceted and intersectional, combining inequalities of wealth, gender, race and knowledge and stretching across populations and nations of the Global North and Global South. This is held in place by inequalities of political power within the institutions of global governance, across the UN Security Council and across the Bretton Woods institutions. Such inequality is the legacy of neo-colonialism and globalisation.[2] Guterres argues:

COVID-19 has been likened to an X-ray, revealing fractures in the fragile skeleton of the societies we have built. It is exposing fallacies and falsehoods everywhere: the lie that free markets can deliver healthcare for all; the fiction that unpaid care work is not work; the delusion that we live in a post-racist world; the myth that we are all in the same boat. Because while we are all floating on the same sea, it’s clear that some of us are in superyachts while others are clinging to the floating debris.[3]

In response to the pandemic Guterres calls for the creation of a ‘New Social Contract’ based upon sustainable development, social protection through investment in public services like education and healthcare, affirmative action policies to redress gender and racial inequality, multilateral cooperation on climate change, and policies of corporate taxation and economic redistribution.[4] For Guterres this must go hand in hand with a ‘Global New Deal’, involving the reform of global governance institutions on the basis of ‘inclusive and equal participation’. Such a Global New Deal is to be:

[b]ased on a fair globalisation, on the rights and dignity of every human being, on living in balance with nature, on taking account of the rights of future generations, and on success measured in human rather than economic terms … [5]

Guterres’ call for the renegotiation of a global ‘New Social Contract’ and ‘New Deal’ can be thought in broader terms of Karl Polanyi’s idea of a ‘double movement’ with respect to forms of social struggle and the political and moral regulation of the economy. For Polanyi both social liberalism, and fascism, emerged in the 20th century as starkly differing reactions to the levels of social inequality, deprivation and international instability caused by widespread policies of free market capitalism and European imperialism.[6] The emergence of social democracy and the Keynesian welfare state in Western Europe and North America, such as Franklin Roosevelt’s ‘New Deal’, was one set of responses to this. The mid-20th century social democratic regulation of capitalism in turn provoked neoliberal reaction and the subsequent political ‘disembedding’ of domestic economies and then the global capitalist economy from the 1970s to the present.[7]

Guterres’ response to the rapid rise of global inequality sits then within a broader landscape of social democratic efforts to push back against the human and ecological devastation that has been wreaked by 40 years of neoliberal globalisation. In this respect his call sits alongside domestic proposals of a ‘Green New Deal’ suggested by sections of the left wing of the US Democratic Party and UK Labour Party. Guterres’ call also sits alongside the intellectual traditions of social democratic ‘cosmopolitan’ theory and policy across the fields of development studies, international political theory, international relations, and international legal theory. In this the register and principles of social democratic, Keynesian welfare capitalism developed in Western Europe and North America is drawn upon to rethink in liberal internationalist, cosmopolitan terms the reform and transformation of global social relations and the institutions of global governance and international law. In speaking of ‘fair globalisation’ Guterres’ call echoes key elements of this social democratic cosmopolitan discourse developed by figures like Amartya Sen, Martha Nussbaum, Thomas Pogge, David Held and Jürgen Habermas.[8] Broadly this is a vision of ‘global justice’ in which global capitalism is morally and politically regulated and put to use progressively for the benefit of the whole of humanity.

There is definitely some appeal to Guterres’ call to action, it is sprinkled with flashes of something more radical: the denunciation of the commodification of health and education; the recognition of the gendered nature of care in the home as unpaid work; the acknowledgement of the persistence of neo-colonialism. In this sense such a social democratic, cosmopolitan vision of global justice is more appealing than our current alternative marked by the failure and slow breakdown of the post-war global liberal order, rising nationalism and right-wing populism, and the ‘success’ of the Chinese authoritarian model of capitalist development.

Yet, there remains something fundamentally inadequate about Guterres’ call to action, which shares a set of limits and blind spots with the discourse of social democratic cosmopolitanism. Guterres’ account needs to be understood as sitting within a long tradition of Western scholarship and political action guided by the assumption that the fundamentally unequal and exclusionary idea of private property can be morally regulated, and, that the economic utility of self-interest can be channelled, regulated and made less socially destructive. Such a philosophical and economic narrative runs at least from Aristotle, through Cicero, Grotius, Smith, Keynes and Rawls, its contemporary language is that of ‘capabilities’, ‘socio-economic rights’, ‘corporate social responsibility’ and ‘sustainable development’.

Yet this long and dominant intellectual tradition is marked by far too little awareness of the forms of violence, exclusion and exploitation which sit at the heart of the systems of social reproduction that have underpinned the historical development of private property, the emergence of capitalist economies, and the global political and juridical order that sustains globalised capitalist relations. In ignoring or underemphasising the fundamental forms of violence, exclusion and exploitation that make private property, capital accumulation and capitalist social reproduction possible, the efforts to morally regulate markets and capital consistently become unhinged and plod on by justifying past and contemporary modes of exploitation through narratives of charity, welfare and future progress.

Thought of in this historical sense what is being pitched by Guterres is not so much a ‘new’ deal, but the repackaging of a distinctly old deal of the moral regulation of commercial society and capitalist markets updated with a few more nods to an expanded range of human rights, historical wrongs and a faith placed in environmental technical fixes. In many ways it represents a repackaging of a narrative of post-war Western economic prosperity and peace devoid of the key assumptions and presuppositions that made its brief moment of success possible: the successive waves of violent accumulation and dispossession domestically and through colonialism and empire; cheap resource extraction and environmental destruction; the exploitation of labour wherever it could be found; the exploitation of the unpaid, unrecognised gendered labour of women in the home; the exclusion of non-citizens from a small zone of Western prosperity and peace; and the holding of all of this together through the interventionist violence of US global hegemony.

Pitched against the ravages of neoliberal globalisation and rising tide of authoritarianism and right wing populism the repackaging of the social democratic old deal as a new deal may seem promising, but is this way of thinking truly up to the task of offering the world a plan to get to grips with the current overlapping set of crises facing humanity? The exploitation of the natural environment and biosphere, the exclusionary social relations of private property and capital accumulation, the alienation and exploitation of labour, the exploitation of gendered labour, the predatory operation of financial capital, the commodification of all things and humans, the cultural hegemony of market rationality, consumerism and individualism. All of this is hardwired into the current globalised system of capitalist social reproduction.[9]

To think of reforming and morally regulating contemporary capitalism as some form of global social democratic settlement might cure some of the ills brought by neoliberal globalisation, and might make some forms of poverty a little less severe. Yet it is also incredibly naïve to think that if we continue to gloss over and ignore the fundamental forms of violence, exploitation and exclusion that sit at the heart of contemporary capitalist social reproduction, our world could ever become anything radically different from what it currently is. It is also incredibly naïve to think that the old model of Western social democratic capitalism can be repackaged for the globe absent of the manifold forms of violence which made that slice of Western peace and prosperity possible.

Reflection upon the violence of capitalist social reproduction, and the moral rejection of this, has to inform any idea of an egalitarian and democratic global constitutional settlement.  Anything less, portrayed as ‘global justice’, merely scratches the surface and offers a bit of moral comfort while the exploitation and degradation of the earth and humanity rages on.

[1] António Guterres, ‘Tackling the Inequality Pandemic: A New Social Contract for a New Era.’ Nelson Mandela Annual Lecture, New York, 18 July 2020. https://www.nelsonmandela.org/news/entry/annual-lecture-2020-secretary-general-guterress-full-speech

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, (Boston: Beacon Press, 2001).

[7] For various accounts see: Fred Block, The Origins of International Economic Disorder, (Berkeley: University of California Press, 1977); Michael Mann, The Sources of Social Power, Vol 4: Globalizations, 1945-2011, (Cambridge: Cambridge University Press, 2013); Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism, trans. Patrick Camiller, (London: Verso, 2014); Richard Peet, Unholy Trinity: The IMF, World Bank and WTO, 2nd ed. (London: Zed Books, 2009); Philip Mirowski, Never Let a Serious Crisis go to Waste, (London: Verso, 2013).

[8] Amartya Sen, The Idea of Justice, (London: Penguin, 2009); Amartya Sen, Development as Freedom, (Oxford: Oxford University Press, 1999); Martha Nussbaum, Creating Capabilities: The Human Development Approach, (Cambridge, MA: Harvard University Press, 2011); Thomas Pogge, World Poverty and Human Rights, 2nd ed. (Cambridge: Polity, 2008); David Held, Global Covenant: The Social Democratic Alternative to the Washington Consensus, (Cambridge Polity Press, 2004); Jürgen Habermas, The Divided West, (Cambridge: Polity Press, 2006).

[9] For differing accounts see: Stephen Gill, Power and Resistance in the New World Order, (Basingstoke: Palgrave McMillan, 2003); William I. Robinson, Global Capitalism and the Crisis of Humanity, (Cambridge: Cambridge University Press, 2014); Boaventura De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, (London: Butterworths, 2002); Silvia Federici, Revolution at Point Zero: Housework, Reproduction and Feminist Struggle, (Oakland, CA: PM Press, 2012).

Tarik Kochi, University of Sussex, is the author of Global Justice and Social Conflict: The Foundations of Liberal Order and International Law (Routledge, 2019).

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.