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

Nick Beard
Nick Beard

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

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

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

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

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

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

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

Lily Parisi
Lily Parisi

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

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

 

FACTS AND BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

 

THE EUROPEAN COURT OF HUMAN RIGHTS

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

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

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

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

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

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

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

 

COMMENTS

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

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

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

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

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

Free Speech, or Defamation?

Lily Parisi
Lily Parisi

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

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

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

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

FACTS & BACKGROUND

 The four NGOs involved were:

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

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

First Instance

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

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

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

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

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

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

The European Court of Human Rights

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

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

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

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

Dissenting Opinion

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

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

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

COMMENTS

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

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

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

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

How Vulnerable is ‘Vulnerable’? Hotak v Southwark LBC [2015] UKSC 30

Alex Latham
Alex Latham

The case concerned the proper approach to s.189(1)(c) of the Housing Act 1996, which affords ‘priority need’ status to a person who is ‘vulnerable’ as a result of old age, disability, or ‘other special reason’. The assessment of priority need is a crucial step in determining whether a homeless person is entitled to accommodation. The key question was what is meant by vulnerable.

Previously, the leading case was Pereira, where Hobhouse LJ described the test as:

‘… whether [the applicant] is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.’

Since Pereira, local authorities (LAs) have tended to treat this phrase as an authoritative definition, and it was repeated in the Secretary of State’s 2002 Code of Guidance.

There was also an argument about the relevance of the so-called ‘public sector equality duty’ contained in s.149 of the Equality Act 2010, which places public authorities under an obligation to ‘remove or minimise disadvantages suffered by’ and ‘take steps to meet the needs of’ persons who share a ‘relevant protected characteristic’, such as a disability.

The Facts

There were three appellants:

Johnson claimed to suffer from depression, although Solihull MBC disputed this. Denying his application, Solihull said he ‘would not be less able to fend for himself than an ordinary homeless person’.

Hotak had significant learning difficulties and was reliant on his brother for routine tasks such as washing, dressing and cooking. Southwark LBC decided he was not vulnerable because, if homeless, his brother would provide him with the necessary support.

Kanu suffered from hepatitis B, psychosis and suicidal ideation. Southwark LBC decided that he would not ‘be at risk of injury or detriment greater than another ordinary street homeless person’.

The Issues

There were three principal issues:

  • Does the vulnerability assessment require a comparison and, if so, who is the appropriate comparator?
  • Is it permissible to take into account the support which would be provided by a family member of an applicant if he were homeless?
  • What effect does the public sector equality duty have on the determination of priority need?

Lord Neuberger gave the speech for the majority; Baroness Hale delivered a partially dissenting judgment.

Vulnerable Compared to Whom?

Counsel for Johnson had argued that there was no need for a comparator, but this argument was given short shrift. Everyone who is homeless could be described as ‘vulnerable’: s.189(1)(c) therefore has ‘a necessary implication of relativity’, referring to homeless people who are more vulnerable than others would be in the same position.

Nevertheless, there is an ambiguity in the Pereira formulation. On one hand, it could be interpreted as comparing the applicant with an ordinary person, who happened for whatever reason to become homeless. On the other, the comparator could be a typical member of the class of homeless people (an ordinary ‘homeless person’). The LAs in all three cases took the latter approach; in the Johnson case, Solihull even went so far as to cite statistics showing the high rate of mental health problems among homeless people, concluding that this ‘clearly shows that the fact that [Mr Johnson is] suffering from depression does not necessarily mean that [he is] vulnerable’.

The Court was clear that the LAs had taken the wrong approach. The proper comparator is not an ordinary ‘homeless person’, but an ordinary person if made homeless. Leaving the standard dependent on the characteristics of those who happen to be homeless would lead to ‘arbitrary and unpredictable outcomes’.

The Relevance of Support from Family Members

Counsel for Hotak had argued that Southwark should not have taken into account the support that he was receiving from his brother. The majority disagreed. The assessment of vulnerability is ‘contextual and practical’, and so should take into consideration all relevant facts, including the support that would be available to the applicant if he were homeless.

Lord Neuberger did recognise that this was capable of leading to a ‘distasteful’ outcome. Since the duty to house is owed to the applicant’s entire household, there may be cases where a family member who refused to look after an applicant would herself be housed as a member of the applicant’s household, while a similarly situated family member who was willing to assist the applicant would find herself without accommodation. However, to interpret the statute differently to avoid this possibility ‘would involve the tail wagging the dog’; the potential counterintuitive result does not justify a ‘judicially created legislative exception’.

Baroness Hale disagreed. Although she accepted that it is proper to take into account statutory services which will be available to the applicant, she felt that family support was different. She was particularly troubled by the idea that refusing support might result in an offer of accommodation: ‘Why on earth would Parliament want to give such a heartless person priority and priority over the person who was fulfilling his familial duties?’

The Public Sector Equality Duty

Lord Neuberger did not believe that there had been a violation of the public sector equality duty, though he took the opportunity to lay down guidance on the relevance of the duty for homelessness applications. The duty requires officers to ‘focus very sharply’ on the extent and likely effect of any disability from which a homeless applicant may suffer. While an officer need not make express reference to the duty, ‘there will undoubtedly be cases where [an otherwise lawful] review… will be held unlawful because it does not comply with the equality duty’.

Resolutions of the Appeals

Johnson: Solihull had reasonably concluded that Johnson did not actually suffer from depression, so that their referral to the wrong comparator in their decision letter was irrelevant to the outcome. Appeal dismissed.

Hotak: Counsel had agreed that the appeal turned entirely on the question of whether Southwark had been entitled to take into account his brother’s support when making their decision. However, Southwark had used the wrong comparator, and Hotak appeared to have a strong case for priority need. Southwark were invited to make further submissions as to why its decision should not be quashed.

Kanu: It was ‘quite conceivable that the review would have gone the other way if the right comparator had been used’. Appeal allowed.

Comments

This decision is to be welcomed. No longer will LAs be able to say (to quote Baroness Hale) “you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. A high correlation between rough sleeping and mental health and substance dependency problems should never have been a reason to deny that people with such conditions are vulnerable.

Even if we were to take the ordinary ‘homeless person’ as a comparator, there can be no justification for the comparison – drawn by both LAs – to the ordinary ‘street homeless person’. Not all homeless people are rough sleepers, and so this comparator restricts priority need to those who are more vulnerable than a particularly vulnerable subset of already vulnerable persons. The fact that this comparison was made in all three cases is indicative of the extent that LAs will go to minimise the number of homelessness applications that they accept. I suspect that, following Hotak, a number of homelessness decisions up and down the country will have suddenly found themselves vulnerable.

On the issue of third party support, Lord Neuberger’s interpretation seems correct. The purpose of the vulnerability criterion is to pick out, from amongst all applicants who are old, disabled etc., those who are in particular need. The question is a counter-factual one: ‘what would happen to this applicant were he to become homeless?’ In making that assessment LAs should be allowed to take into account any relevant facts. While Baroness Hale’s proposed distinction between support from statutory agencies and support from family members might make for sound policy, I cannot see how it can be read into the statute. It is also worth pointing out that the ‘contextual and practical’ approach cuts both ways: just as LAs are entitled to consider support that is likely to be provided by family members, so they must consider any practical difficulties that an applicant might have in accessing statutory support. They cannot simply assume that he will receive the support that he is entitled to.

Finally, and despite my general agreement with the decision, I find the comments on the effect of the public sector equality duty puzzling. Lord Neuberger tells us that LAs must examine very carefully the nature and likely effect of any disability that an applicant might have. While this is true, is it not precisely what s.189(1)(c) already requires? I cannot see how an adequate inquiry could be conducted without such careful scrutiny, and thus do not understand what the Equality Act adds.

Alex Latham is Lecturer at Welfare Law at the University of Sussex and Academic Lead of the Sussex Pro Bono Housing Project

How Israel withholds labour rights from the West Bank’s Palestinian workers

Amir Paz-Fuchs
Amir Paz-Fuchs

As Israel’s occupation of the Palestinian territories edges towards its 50th year, violent incidents in the West Bank remain fairly sporadic. The political and economic reality of coexistence in the Palestinian territories has made Palestinians and Israelis deeply interdependent – and especially Palestinian workers and Israeli employers and corporations.

That relationship has always been legally tangled, but in recent weeks, there’ve been new developments that could make things even worse.

To begin with, the Israeli National Labour Court found that Israeli law does not apply to Palestinians working for Israelis in the Jordan Valley, an area of the West Bank that has become infamous for child labour.

Meanwhile, the leader of the right-wing party Jewish Home, Naftali Bennett, succumbed to pressure placed by Israeli farmers in the Jordan Valley and stepped back from his previous commitment to apply Israeli labour law in the West Bank.

That spells misery for West Bank Palestinians working for Israeli employers and corporations, and doubles down on a regime of profound legal inequality.

Choked

Tens of thousands of Israelis are moving into existing settlements and establishing new ones(often on private Palestinian land) –not for ideological reasons, but because the costs are lower and the standard of living is higher than in Israel proper. For the same reason, a great many Israeli businesses are moving to the settlements and to industrial zones. Many of these businesses, especially in sectors such as manufacturing, construction and agriculture, rely on cheap Palestinian labour for their profits.

The Israeli government is still choking the development of an independent Palestinian economy through military orders that curb the use of funds, imposes limits on the supply of water and electricity and restricts access to farm land through the permit system and the separation barrier. That means Palestinians are increasingly forced to rely on Israeli employers to make ends meet.

This is not an unwelcome development on the Israeli side. Palestinian workers are especially attractive to Israeli employers because of a very particular legal situation that’s arisen over the past few years.

Heavy load. Reuters/Ammar Awad

Until 2007, the assumption was that Palestinians were employed in the settlements and in Israeli-owned industries according to the Jordanian law that was in place when Israel conquered the West Bank – except where that law was modified by the military commander of the region.

This situation was based on the law of occupation, which dictates that the occupier should respect the law in force in the occupied territory. However, as the occupation became a prolonged one, a situation developed that those who drafted the laws of occupation never imagined.

Israelis lived in the territory and conducted their economic life as if under Israeli law (as is their prerogative) while employing Palestinians under Jordanian law in the West Bank and Egyptian law in Gaza. Different laws apply for people doing the same work, who are different only by virtue of their race or nationality.

The result is not mere discrimination. The application of different laws for different sections of people is very close to, if not reaches the core of, apartheid.

Separate and unequal

The Israeli Supreme Court, politically savvy as ever, addressed this issue in 2007. In a landmark decision, it ruled that where Palestinians work side-by-side with Israelis in Israeli “exclaves” created from illegal settlements and industrial zones, then the same Israeli law should apply to both Israelis and Palestinians.

Paradoxically, this was not just a victory for Palestinians and their Israeli supporters. It was also supported by right-wing Israeli nationalists, who advocate the annexation of Palestinian land through the application of Israeli law to Area C, the West Bank’s largest subdivision. But the ruling both created problems for Israeli businesses established in the West Bank and explicitly relied on a law that is already anything but generous to Palestinians.

Since 2007, the situation has evolved on both sides. Some Palestinian workers have taken advantage of the rights the Supreme Court decision guaranteed them, while right-wing members of the Knesset continued their efforts to expand the application of Israeli labour law.

Many Israeli businesses sprung into action and began searching for loopholes in the Supreme Court’s 2007 decision. So Israeli law should apply where the employer is Israeli? No problem, we’ll engage a Palestinian intermediary to sign the cheques. So Israeli law should apply where the employment is based in an Israeli exclave? That’s fine, we’ll move the undertaking out of the industrial zone, meaning the employer’s obligations are eased, but their workers still regulated by the same highly restrictive permit regime.

This issue was looked into by the National Labour Court, but sadly, it gave its stamp of approval to legal trickery and ushered in the shameful state of affairs we see today, where the application of different laws to different people is formally acknowledged.

As for Naftali Bennett, he could have responded with a proud national pronouncement that would indicate that nationalist ideology comes at a cost. Come to think of it, perhaps that’s exactly what he did – only the cost is for the Palestinians to bear.

Amir Paz-Fuchs is Senior Lecturer in Employment Law, University of Sussex. 

The post was previously published in The Conversation, and is republished with permission and thanks.

Racist hate crimes: Why do they do it?

Mark Walters
Mark Walters

The massacre of nine African Americans in Charleston by a young man hell bent on starting a “race war” has sent shock waves across the world. Such brutal acts of violence remind us of what seems to be an ever increasingly fractured global society. Despite the wilfully blind trying to maintain the myth of a ‘post-racial society’, many others are no doubt unsurprised by the events of last week given the ongoing problem of racism in the US. However, the US is by no means alone in suffering from post-colonial racism through 21st century reassertions of white supremacy. Currently, Zack Davies, 26, from Mold, Flintshire, in Wales is being prosecuted for the attempted murder of Dr Sarandev Bhambra. Davies is said to have followed his victim into a Tesco’s supermarket where he set about hacking at him with a hammer and a machete almost severing his victm’s hand while shouting ‘white power’ and ‘this is for Lee Rigby’.

Such heinous demonstrations of racism have far-reaching effects on the cohesiveness of our multicultural communities. Unfortunately rather than being one off incidents, these acts of violence represent just the tip of the iceberg of racist hate crime in both the US and the UK. For instance, last year police services in England and Wales recorded a total of 37,484 racist hate crimes; that made up 84% of all hate rime recorded by the police. This figure represents a 5% increase in racist hate crimes recorded in the year 2012-13. Yet police recorded data shows only part of the picture. More representative data provided by the Crime Survey for England and Wales estimates that there is an average 154,000 incidents of racially motivated hate crime per year, the majority of these are personal in nature including assault, wounding and robbery.

So why is there so much racist hate crime? It is difficult to even begin to understand the nature and extent of racially motivated violence without an appreciation of the history of racism in countries such as the US and UK. Though both nation’s pasts are distinct, they are intertwined by histories influenced by the enlightenment philosophies that gave rise to practices including slavery, racial segregation, and more directly to the violent persecution of Black people throughout the US and Europe. The tumultuous history of racism on both continents has inevitably left a nasty residue. Left behind is a system of social, political and economic governance from which white privilege has continued to proliferate within and across generations. That is not to suggest that progress has not been made. The emergence of a civil rights movement in the 20th century has ensured that there are now equal rights in terms of voting, working and use of public spaces.

Nonetheless, racism remains deeply imbedded in contemporary society; in its institutions, its schools, its workplaces and most pertinently in its governments. This means that people of colour remain constantly on the back foot. Their otherness means that they often have to endure everyday forms of discrimination. Some of these become systemic leading to institutional racism as well as to direct expressions of prejudice, including the murder of black men by police officers. Other forms of prejudice are formed by subtle processes of discrimination that are not overtly detectable, such as dirty looks in public spaces, but nonetheless lead to feelings of otherness. In fact, there is some evidence to suggest that racism is getting worse. Recent data from the British Social Attitudes Survey showed that racial prejudice is on the rise again. From an all-time low of 25% in 2001, levels of racial prejudice have since risen to 30% in 2013. It is by no means coincidental that during this period of time that we have also seen the insurgence of nationalist parties such as UKIP, and to the renewed activities of right wing racist groups across Europe.

It is against this backdrop that we observe the continued proliferation of racist hate crimes across the US and UK. Within what continues to be a divided society, some, such as Roof, take it upon themselves to eradicate those deemed as racially ‘different’. American criminologists Jack Levin and Jack McDevitt refer to these perpetrators of hate as “Mission offenders”, as they make it their mission in life to eradicate certain groups of people. They ascribe to an ideology of hatred that fuels and emboldens their hate-motivated acts. While it is likely that Roof embodies such a type of hate crime offender, we do not yet know Roof’s reasons for acting as he did. I do not pretend to know his inner thoughts and what compelled him to sit in a room for almost one hour before pulling a revolver and opening fire. It is likely, though, that he felt immense fear before doing so. It is the emotion of fear that seems to tie most theories of hate crime together. The racist attacker’s fear relates to the threat that others pose to his way of existing as a social being. It is this perceived threat that impels him to act in order to protect his own way of life. Many racists fear that black people will one day take away the power that the white man has built over centuries and which is maintained via social processes and state institutions. This power relates not just to social norms, values and customs but also to economic power and capital. In responding to this threat, some racist offenders take it upon themselves to police the boundaries of acceptable community membership through acts of violence.

Similarly, many of the racist and anti-Muslim attacks that occurred directly after the murder of Lee Rigby can be understood through the lens of fear. Hate crime rates often surge during periods of time when one ethnic or religious group feels under attack from another. Spikes in racist and Islamophobic attacks occurred in the aftermath of 9/11, 7/7 and more recently in the months following the murder of Lee Rigby. These retaliatory acts of hate are sparked by the fear that Muslims are ‘taking over’, and must therefore be resisted. Some politicians and certain media outlets go on to conflate the words ‘Muslim’ with ‘extremist’ and/or ‘terrorist’ as means of social and political resistance. Government agencies go on to disproportionately enforce anti-terrorism laws while some even ban Islamic clothing in public places. For the man on the street, his resistance is often his fists, or worse a machete or worse still a hand gun.

So what is to be done? Histories of oppression and the structural forces that maintain them cannot be reversed over night. But if we are to see fewer incidents such as those in Charleston and Flintshire, change we must. As Dr Martin Luther King so poignantly put it, ‘I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality… I believe that unarmed truth and unconditional love will have the final word.’

Dr Mark Walters is Senior Lecturer in Law at the University of Sussex and Co-Director of the International Network of Hate Studies

The post originally appeared on the INHS website on 30 June 2015, and is reprinted with permission.

 

Access to Justice for all – support the Brighton Legal Walk

Please sponsor the University of Sussex Law School team!

On Monday evening I’ll be participating in the Brighton Legal Walk, to support the provision of free local legal advice.

I’ll be walking with colleagues from the University of Sussex Law School to raise funds for a range of clinical law projects run through the school. These projects involve law students, supervised by faculty, providing free legal assistance on a range of issues to local people who may not otherwise have the means to access this kind of advice. Our schemes include:

  • BHT Pro Bono: run in partnership with the Brighton Housing Trust, who work to support homeless, insecurely housed and vulnerable people and to tackle both the causes and effects of homelessness and poverty.
  • StreetLaw: an innovative project that sees students working with Art Schism, a local collective of artists, to explore legal questions around the ownership of artworks and the legality of grafitti, and the potential of art therapy as a form of rehabilitation for ex-offenders. You can find out more on their blog, Facebook and twitter @SussexStreetLaw
  • The Innocence Project: provides pro bono legal and investigative services to individuals seeking to prove their innocence of crimes for which they have been convicted and working to redress the causes of wrongful convictions.
  • The Environmental Law Project: will involve students carrying out research on cases for the Environmental Law Foundation a registered charity providing pro bono guidance and representation to communities and individuals confronted by environmental issues.
  • The Creative Industries Law Clinic: will offer students a chance to be engaged in clinical work related to the areas of Intellectual Property and Media Law in general, with emphasis on digital rights issues, in partnership with Creative Commons and the Open Rights Group.

These schemes give our students a valuable insight into the ways law works in ordinary people’s lives as well as providing much needed legal advice to the community in the context of increasing cuts to legal aid and the austerity programme in general. Please give whatever you can at our fundraising page to help us maintain and develop this work.

The walk takes place this Monday 15th June and follows a 10km route from the Magistrates Court and out along the seafront to finish at Brighton Housing Trust’s First Base Day Centre.