The EU Regulatory Magnet: What Are the Consequences for the UK?

Erika Szyszczak

Last August, it was reported that the PM, Theresa May intends to “cut and paste” existing EU trade deals when forging a new trade policy for the UK.

In September, the EU-Ukraine Association Agreement (AA) officially came into force, although most of the provisions of the AA have been provisionally applied since 1 September 2014, with the trade provisions contained in the novel Deep and Comprehensive Free Trade Area (DCFTA), provisionally applied since 1 January 2016. The AA is a new model of external relations for the EU and it addresses matters beyond trade (cooperation in foreign and security policy, justice, freedom and security (including migration) taxation, public finance management, science and technology, education and information society). It is an innovative form of external action in offering a new type of economic integration without membership of the EU: an integration-oriented agreement. The new AA may reveal some lessons for the UK as it seeks new models of trade relationships. Indeed, the AA has already entered the consciousness of the wider public as a potential model for UK-EU trade agreements post-Brexit, but, in fact, it is a most unlikely model given that the UK does not want such a deep commitment beyond trade provisions with the EU.

The importance of the EU-Ukraine AA assumes even greater significance if it is placed in the context of the agreements made between Canada and the EU (CETA), awaiting ratification by the national parliaments of the EU Member States, and the Canada Ukraine Free Trade Agreement (CUFTA) signed on 11 July 2016 and ratified by both countries. Arguably the wider context of these agreements consolidates and confirms the role of the EU as a regulatory magnet for sophisticated trade agreements.

A New Model for Coherence in EU Trade Agreements

There are a number of aspects of the AA which are relevant when thinking about the future post-Brexit trade arrangements the UK might negotiate with the EU – and indeed with Ukraine if it wishes to continue the EU trade agreement. Although the Ukraine model is not a model the UK would seek it does reveal the ability of the EU to engage with new institutional arrangements to create a trade agreement.

The EU-Ukraine AA is one of the first of the new models for coherence in EU external action after the Treaty of Lisbon 2009, as well as being one of the most controversial agreements to be signed by the EU. It was adopted by a Council Decision on 17 March 2014, using the combined Common Foreign and Security Policy legal base (Arts. 31(1) and 37 TEU) and the Association provisions (Art. 217 TFEU)). Both legal bases require unanimity voting in the Council. The combination of CFSP/TFEU legal bases reflects the comprehensive nature of the AA and the continuing bipolarity of the external competence of the EU found in Article 40 TEU.   The AA is, therefore, a mixed agreement requiring ratification at the Member State level. Opposition in The Netherlands delayed the ratification process.

The most important aspect of the AA, and an indication of the flexibility of the EU in new trading arrangements, is the aim of integrating Ukraine into the EU internal market using a new institutional framework and mechanisms by which the relevant EU laws are approximated by Ukraine, alongside the new and sophisticated mechanisms to secure the uniform interpretation and effective implementation of relevant EU legislation in Ukraine.

The EU-Ukraine AA is based on a strict conditionality approach. Conditionality has been used before in the European Neighbourhood Policy (ENP) and the Eastern Partnership (EaP). But this principle has been applied using soft-law instruments such as Action Plans and the Association Agenda. The breakthrough with EU- Ukraine AA is that it is now embedded in a legally binding bilateral agreement.  This may have significant consequences for stakeholders who may wish to push the agenda for reform in Ukraine using the legal process.

Alongside this new form of enhanced conditionality, there are other new dimensions to EU external relations policy. These are seen in a new and reinforced institutional framework and more sophisticated legal mechanisms for the approximation of laws and dispute settlement than has previously been seen in EU Association Agreements.

Annual Summit meetings form a focal point of the importance of the AA. These have an added symbolic resonance; both sides will want to stress the positive aspects by providing accountability and transparency to the approximation process. Decision-making takes place within the site of an Association Council composed of Ministers. A Parliamentary Association Committee may make recommendations to the Association Council. This body is competent to update and amend the AA Annexes as well as exchange information on the approximation of laws process.  It is assisted by an Association Committee, with specialized sub-committee, composed of civil servants. These bodies address the technical aspects of approximation of Ukraine’s trade laws with the EU acquis.

Also novel in this new structure is a Civil Society Platform, replicating the involvement of Civil Society in EU policy-making. The Platform is built from members of the European Economic and Social Committee and representatives of civil society from Ukraine, with fifteen members from each side.

Repercussions for Ukraine

Undoubtedly compliance with EU standards will open up new international markets for Ukraine, but, alongside the bilateral agreements between Canada and Ukraine and the EU and Canada, the EU has placed itself at the core of an international regulatory magnet for “trade +” deals.  There are already clear repercussions of the effects of trade in a fragile country like Ukraine, seen in terms of internal reforms to facilitate trade through new competition, procurement and anti-corruption policies, including enforcement mechanisms and the judicial system.

Through the AA Ukraine insists that it is an equal partner as a European state and this alters the cultural identity of Ukraine, moving it further away from Russian influence. Writing this blog as the UK attempts to unravel its relationship with the EU, it is tempting to argue that by adopting such a comprehensive “trade + “ agreement Ukraine has attempted to lock-in future governments by making it difficult and expensive for successor governments to leave the political and economic arrangement with the EU. In addition to the potential risk of civil protest there will be too many stakeholders locked into the EU internal market if a future government attempts to unravel the AA. However, the reactions to the UK Brexit negotiations clearly indicate that basing new political relationships on free trade agreements creates transparency in future political bargaining but also makes consensus more difficult to achieve. It is ironic that today the EU has expanded its political and economic reach at the same time as UK negotiations to create a new model of trade partnerships are faltering.

Erika Szyszczak is a Professor of Law at the University of Sussex, independent ADR Mediator and a Fellow of the UK Trade Policy Observatory. This post first appeared on the UKTPO blog.  


Future Legal Mind Award 2018 Offers £5,000 Top Prize for Undergraduate Law Students

Future legal mind award

The 4th Future Legal Mind Award opens for entries this week, offering UK law undergraduates the chance to win £5,000 and a valuable work placement. The award, sponsored by National Accident Helpline, offers the country’s brightest legal minds a head start in the highly competitive legal industry.


Last year’s Future Legal Mind Award winner, Hana Kapadia, said: “Winning the competition will undoubtedly provide a huge boost to my CV, and is a huge aid financially, giving me a sense of security towards funding my studies. I would definitely recommend entering the Future Legal Mind Award 2018.”


Entrants are required to submit an original essay on a specific subject relevant to today’s legal profession. This year’s Future Legal Mind essay question is:


“The personal injury legal sector is frequently attacked by government, insurers and media as ambulance-chasing lawyers seeking to promote a compensation culture.  What can organisations in the personal injury legal sector do differently in order to dispel the misconceptions and bring integrity back to claiming compensation?”


Essays must be a maximum of 1,300 words, excluding footnotes and a 100-word summary and need to be submitted by January 14th, 2018.


Other previous winners and shortlisted candidates also say the award has enhanced their career prospects and has been great thing to have on their CVs, including 2016 winner Tom Phillips, who said: “I have no doubt that winning the competition has provided a significant boost to my CV and will ultimately help me to obtain pupillage. I would encourage all law students to enter the Future Legal Mind Award – it is a unique and valuable opportunity.”


Simon Trott, Managing Director of National Accident Helpline and chair of judges for Future Legal Mind Award 2018, said: “At National Accident Helpline, we set standards for our solicitors, and we believe that it is crucial to attract the very best people to the legal sector. With that in mind, in 2014 we introduced the annual Future Legal Mind Essay Award, to bring recognition to young legal talent who share our passion for giving customers the best service. Our winner is awarded with a financial contribution towards their studies and work experience at one of our high quality legal firms. It’s been heartening to see the positive impact the last three years’ awards has had on our winners, and we are excited to be offering this chance to a new group of students for Future Legal Mind Award 2018.”


You can read more about the award, and enter your essay, at:

‘No children allowed’ – Truly second-rate citizens?

Nuno Ferreira

Amongst news of refugee deaths in the Mediterranean, stalled Brexit talks and North Korean missiles, the summer of 2017 has also brought us a piece of news entitled ‘Coffee shop owner defends no children policy’, courtesy of the BBC. The story behind it was that of a business man in Brixham, Devon, who created an ocean-liner themed coffee lounge. Afraid of children damaging the antiques and collectables decorating the premises of the space in question, and wishing to ensure that his clients could enjoy a ‘quiet atmosphere’ without ‘distraction’, the owner of this business decided to prohibit entry to children under the age of 12.

Although this may have shocked many people, those familiar with similar practices across the UK will not have found this case particularly surprising. Indeed, there have been reports of unpleasant experiences by people visiting tea shops with their children, and even of under-16s being refused entrance into certain chains unless accompanied by adults. The sign industry seems to have intelligently tapped into this market, by offering a range of signs that can suit the preference of any business manager, from signs with just words to signs with children pictured in them – all signs that could easily be mistaken for official traffic signage. Not wishing to have children in certain commercial premises can also translate into more subtle signs, such as aloofness of staff members, the absence of child menus or lack of high chairs in restaurants.

This is not a debate raised only in the UK, of course. Similar issues have been debated in other countries, in particular the US, but also elsewhere in Europe. Going out with children to restaurants seems to be a particularly difficult area of debate, with many people in social media asserting that high-end restaurants should undoubtedly adopt no-child policies. Some deal with it with humour and try to make people understand that parents may actually wish to go out with their children to restaurants, rather than leaving them home with a baby-sitter, so restaurants should not ban children. Being a parent myself, and knowing what it is like to go out to shops and restaurants with two lively young children, I can say I have experienced everything from pride to embarrassment for my children’s behaviour. But should businesses be allowed to prevent children from going into their premises independently of their behaviour, simply on account of their age?

Can the law help us?

Preventing children from entering a business seems to be a clear-cut case of discrimination on grounds of age. Having a teaching and research interest in discrimination law and policy myself, alarm bells rang in my head when I found out a few years ago that my local (fairly large) supermarket only allowed two children to go in at a time. I garnered all the courage I could and decided to go and have a chat with the store’s manager to challenge their policy. The moment I started explaining that I utterly opposed the idea of preventing children from entering the shop, the shop’s manager just looked at me and said: ‘It’s legal.’ And she was right.

The UK’s Equality Act 2010 does prohibit discrimination on grounds of age, but not in relation to provision of services for under-18s. This exception effectively protects the right of shops and businesses in the UK to exclude from their premises anyone under-18. Although there was some lobbying by civil liberties and children’s rights NGOs for the Equality Act 2010 to also prohibit age discrimination against children in the field of provision of services (besides other fields), law-makers apparently saw no need to heed to that pressure. Unfortunately, parliamentary debates and explanatory notes on the relevant provision offer no guidance on why this exception to the principle of equality and non-discrimination is necessary or justified. Although subsequent reforms aimed to increase the protection offered to older people, younger people have remained vulnerable to discrimination.

One suspects that business owners introduce such ‘no children allowed’ policies mainly because they may be legitimately concerned about their property being damaged by careless children. Yet, there are already other legal rules in place to address that concern, namely tort liability rules. Indeed, parents – or any person assuming the responsibility for looking after a child – have a duty to supervise their children in order to protect third parties, and when they fail to do so, they may be held liable for any damage caused. Children themselves can also be held liable in tort under the same conditions as persons of any other age, even if it may be harder to prove intention or carelessness due to children’s capacity being lower than that of an adult. It is true that business owners may fear being held liable themselves for any damage caused to the children, under the Occupiers Liability Act 1957 and 1984, but owners of premises have nothing to fear, as they cannot be held liable when young children ought to be taken care by a third party, such as a parent.

It is also possible that many business owners are concerned about goods being stolen. Again, there are already specific legal rules to address that, namely the criminal offence of theft. And if a child’s behaviour falls short of a criminal offence, it may still be dealt with through an Antisocial Behaviour Order (ASBO). Yet other business owners will be worried about the corporate image they wish to promote – perhaps a stylish and relaxed restaurant for an adult clientele, rather than a raucous atmosphere full of noisy children. Yet, adults can be raucous and children can be calm, so one should not use age as a proxy for clients’ behaviour. As polemics about work dress codes affecting workers with disabilities and female workers have shown, corporate image and the expectations or desires of some clients should not be allowed to trump individuals’ rights and dignity. And it is children’s rights and dignity that are at stake here.

What about the message we’re sending children

Children know they are not allowed to go to certain places, like night clubs. The reason behind such prohibitions relate to the protection of children from environments that may be detrimental to their physical or moral development, for example, due to the consumption of alcohol or presence of pornography. No matter if one entirely agrees with such prohibitions or not, their intention is clearly to protect children. In the case of ‘no children’ policies in shops and restaurants, the intention is clearly different – it is to protect the business, often at the cost of children’s dignity, self-esteem and wellbeing.

It is the role of the law, in particular of discrimination law, to enhance people’s dignity and protect them from being stigmatised. The Equality Act 2010 fails to do that in relation to children who may simply wish to go to a shop to buy a magazine or go to a tea shop with their parents. Prejudiced, negative judgements are being made about their behaviour and capacity to control themselves, when not about their honesty and character, simply on the basis of their age. This is unacceptable and demeaning – it denigrates children and no child should be the recipient of this message unless solid, proportionate reasons can be offered for such child bans. Even if businesses may simply believe that children are not profitable enough clients or not worth the effort required to serve them, allowing business owners to impose a blanket ban on children not for the sake of the children but for the sake of the business is discriminatory, disproportional and should thus be unlawful. Adults are banned from certain venues only based on their actual past or present behaviour – the same should apply to children.

So, it is time to revisit our equality legislation and prohibit age discrimination against children in relation to provision of services. The UK would certainly not be the first to do so – New York state, for example, did so in 1993, and there is a clear explanation online as to how to file a complaint. Perhaps a model to follow?

Nuno Ferreira is a Professor of Law at the University of Sussex. This post was originally published on the SLSA blog.

G20 Hamburg Protest – looking beyond the violence


Kufre reduced
Kufre-Obong Medo

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

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


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


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


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


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


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


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

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

Employment Law Faces Reality on the Supreme Court

aamir fuchs
Amir Paz-Fuchs

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

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

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

The Cases

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

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

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

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

Enter Legal Realism

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

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

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

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

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


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

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

Why the Supreme Court is wrong on conditional intention


John Child

Within the landmark case of Jogee [2016] UKSC 8, the Supreme Court has fundamentally restructured the law on secondary liability (ie, the criminality of those who aid, abet, counsel or procure the crimes of another). Correcting a legal ‘wrong turn’ from some thirty years previous, tre headlines in relation to the current law: (1) that so-called joint enterprise (or parasitic liability) no longer represents a separate route to complicity; and (2) that the mens rea (or mental element) of complicity should be narrowed to require intention (including conditional intention) from the defendant. The second of these, which is my focus in this post, is presented as an essential clarification to avoid the over-extension of complicity liability, and to avoid potential for ‘the striking anomaly of a lower mental threshold for guilt in the case of the accessory than in the case of the principal’ [84]. By definition, the role of an accessory will always be categorically different from that of a principal: the latter commits the principal offence directly (eg, murder by killing the victim), whereas the accessory’s contribution is indirect (eg, assisting the principal by supplying a weapon). With this in mind, whatever mental state is required of the principal offender, it is logical to limit the extension of liability to the accessory/defendant by requiring intention, correcting the law pre-Jogee that had allowed for liability where a defendant merely foresaw that the principal might offend.

Despite the clarity of the headlines in Jogee, however, and despite the explicit break from the last thirty years of jurisprudence, sections of the judgment seeking to clarify the law moving forward are much more problematic, and seem hesitant and conflicted in their application of the new intention standard. This should be no surprise. Complicity pre-Jogee had become a major route to liability for some of the most serious offences, particularly murder, and so although the court are clearly convinced of the need to restrain its application, they are also sensibly conscious of what the impacts of narrowing the law might be: impacts in terms of appeals from previous convictions (from those convicted following the legal wrong turn), as well as impacts in blunting a popular and powerful prosecutorial weapon. It is a policy conflict within the judgment that leads the court into two significant errors in their treatment of intention. First, a lack of clarity as to what a defendant must intend for complicity liability; and second, a misinterpretation of conditional intention. In what follows, I summarise the first, before focusing on the second.


What must an accessory intend?

There are two limbs to the mens rea of complicity: the first is the defendant’s mens rea as to the effects of her own conduct, and the second is the defendant’s mens rea as to the principal’s future offence. On the first of these, Jogee is clear that a defendant must intend her conduct to assist or encourage the principal’s offence. This provides useful confirmation following some inconsistency in previous case law, and brings complicity into line with inchoate assisting or encouraging (Serious Crime Act 2007, s44). So far so good, perhaps, but subject to the court’s definition of intention discussed in the next sub-section.

Despite relative clarity on the first limb, however, the court provides little guidance on what mens rea is required of a defendant as to the principal’s future offence. The omission is surprising, as it was this second limb that was central to debate within previous cases and reviews, and it was confusion here within the previous law (culminating in the identification of a foresight standard) that led the court in Jogee to identify a wrong turn to begin with. At this point we might accuse the Supreme Court of conflating the two limbs of mens rea in a manner that is not at all uncommon among both courts and commentators, but this is not strictly the case. Rather, the court in Jogee provided a few fleeting references to mens rea as to the principal’s offence – stating that the defendant must intend the principal to act with mens rea [10], and at other points that the defendant must know the elements of the principal’s offence [9] – but such references are not fully worked through, and are anyway inconsistent with examples of complicity provided elsewhere in the judgment. The danger, of course, is that without an established requirement that the defendant must intend the principal’s offence, or at least have knowledge of it, the courts will be encouraged to interpret the law (as previously) to require wider standards of mens rea such as belief, or even simple foresight. Despite the headlines of intention within Jogee therefore, and despite the apparent aim of requiring a parity of culpability between defendant and principal, the reality is a vulnerable state of legal uncertainty.


Misinterpretation of conditional intention

Having narrowed complicity to require intention, at least to some extent, the Supreme Court go on to explain the application of this standard within a series of hypotheticals [90-95]. It is here, particularly in the court’s treatment of conditional intention, that the policy conflict introduced above becomes most apparent, and (I contend) most damaging to the court’s reasoning. For the court,


‘… it will … often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional.’ [92]


Conditional intention remains a problematic and contested concept, but it is possible to identify rules for its consistent and coherent application (J.J. Child, ‘Understanding ulterior mens rea: future conduct intention is conditional intention’ (2017) Cambridge Law Journal 311). To do so, conditional intention should be defined as synonymous with future conduct intention, with a defendant’s decision at t1 to perform certain conduct at t2. Thus, for example, where a defendant decides to commit an offence if certain conditions arise (eg, a plan to assault V if she fails to pay-up), her conditional intention can be interpreted as a valid intention to commit assault, just as it would be if no conditions were explicitly considered. This definition is central to our application of all offences where a defendant must intend future conduct, including, for example, incomplete attempts, section 9(1)(a) burglaries, certain conspiracies, and so on. However, crucially, this interpretation will never apply within complicity: within complicity a defendant’s intention to assist or encourage relates to present conduct, and her intention as to the principal offence relates to the conduct of another. Application of conditional intention here would represent a significant, and I will argue inappropriate, extension of the law.

In order to understand the court’s misuse of conditional intention in Jogee, two groups of cases/hypotheticals should be distinguished. In the first, our defendant intends to assist or encourage a principal to commit Crime A, and Crime B if necessary.


‘The group of young men which faces down a rival group may hope that the rivals will slink away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done.’ [92]


I agree that intention may be properly inferred here, but not conditional intention. We intend a result (x) where we act because we believe that doing so might cause x, or if we recognise that x is a virtually certain consequence. In this example, we are assuming that the defendant has acted to assist and encourage other members of the gang, and has done so in order to influence those other members both to confront the opposing gang and to cause serious harm if necessary. In this manner, both parts of the defendant’s foresight are motivating their present conduct, and both parts are therefore standardly intended. Our defendant is not conditioning his current conduct (ie, it is being performed), and he is not conditioning his future conduct (ie, his future conduct is irrelevant here), and so although intention should be found, talk of conditional intention is misconceived.

Although the first group of cases/hypotheticals present a mislabelling of intention, the second group is considerably more dangerous. In this group, conditional intention is identified where a defendant intends to assist or encourage Crime A, foreseeing that the principal will or may perform an unwanted Crime B if necessary. This approach is not explicitly endorsed within Jogee, but it is arguably implied from the court’s examples involving escalating violence, and certainly left open from the use of vague language such as ‘scope of the venture’ and ‘tacit agreement’. Indeed, the potential for conditional intention to apply to Crime B in this kind of example has been endorsed in case law post-Jogee, including Johnson and Anwar, as well as some academic commentary. The reason this is dangerous is because the potential assistance or encouragement of Crime B, and the principal committing Crime B, are not motivating factors in the defendant’s conduct, and are not foreseen as a virtually certain consequence either. Therefore, simply put, the courts are wrong to label the defendant’s mental state as a form of intention (conditional or otherwise), and in doing so they are collapsing the concept of intention into recklessness.

In the context of complicity, and cases previously analysed within joint enterprise, the result will be business as usual: applying a pre-Jogee foresight standard, simply with a new label. As stated clearly in Anwar, ‘… the same facts which would have been used to support the inference of mens rea before the decision in Jogee will equally be used now’ [22]. So too within more standard complicity cases, where a wide net of liability will also be maintained. Indeed, this is probably the only way to reconcile one of the courts more problematic examples (where they would find liability):


‘D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime…, but having no further interest in what he does, or indeed whether he uses it at all.’ [90] (Emphasis added).


In cases of this kind, the defendant can only be said to ‘intend’ the principal offence if we read down intention into a form of recklessness. The headline narrowing of complicity within Jogee becomes illusionary.

Our problems do not end here, however. As a mens rea term of general application, the view of conditional intention set out in Jogee has the potential to impact other areas of liability as well. To provide just one example: within the inchoate offences of attempts and conspiracy, the concept of conditional intention has occasionally been used to try and introduce a recklessness standard into the law. Using this approach, sexual touching without knowledge of consent can be interpreted as a conditional intention to assault; and handling unknown property can become a conditional intention to launder goods. However, crucially, such usage has been consistently resisted by both courts and commentators. The interpretation of conditional intention in Jogee would allow intention to be found in all such cases, significantly expanding the boundaries of criminal liability.

It is concluded that the concept of conditional intention has no appropriate role to play when analysing intention for complicity liability, either as to the effects of the defendant’s conduct, or as to the potential conduct of the principal. Rather, within both limbs of mens rea, we must only inquire whether the result motivated the defendant’s present conduct or whether she foresaw it as a virtually certain consequence of that conduct. This approach will significantly narrow the law of complicity, but is the inevitable outcome of applying a genuine intention standard. To the extent that such narrowing is not desired, and parity of culpability between accessory and principal is not desired, then a lower standard of men rea should be explicitly applied.

John Child is a Senior Lecturer at the University of Sussex.

Any reform to the law on Official Secrets must provide robust protection for public interest disclosures and open justice


Judith Townend

 Judith Townend, together with Lorna Woods and  Lawrence McNamara, comment on the Law Commission’s proposals to reform ‘Protection of Official Data’. This blog post accompanies their submission to the Law Commission’s consultation, and is part of our series documenting the submissions.  

With the election now in the past, the wheels of government are beginning to grind again. While most eyes are on Brussels, it is important that the bright lights of Brexit do not draw attention away from other work that is resuming and ongoing. Among it, the Law Commission will continue its project that considers the revision of the laws on Official Secrets, with its final proposals expected later this year.

The initiative to consider existing law on the ‘Protection of Official Data’ – primarily the Official Secrets Acts 1911-1989 – began with the Cabinet Office when it referred the project to the Commission in 2015. A 315-page consultation paper with provisional recommendations was published by the Commission in spring 2017. It will be the Government that will decide how to proceed, and whether to introduce new draft legislation, once the final recommendations are made.  (No reference to Official Data or Official Secrets was made in the Queen’s Speech).

The Law Commission, which came under – perhaps unanticipated – fire from the media and NGOs for the nature of the proposed reform plans and a perceived lack of consultation before the first report was published, has since been engaging with a wider range of groups and individuals through in-person meetings. It has also published a ‘myth-buster’ on Twitter in response to some of the reports, and shared more explanatory material ahead of meetings.

However, this has not assuaged concerns, with strong reservations about the proposals expressed in a range of written industry and third sector written submissions, a number of which are available online.

We are among those who have met with the Law Commission since publication of its report, and in our written submission we focus on aspects of the consultation that relate to freedom of expression and the public interest: the public interest defence; the Independent Statutory Commissioner model; and access to court proceedings. We also address the related issue of the conduct of trials.

In important respects our position on these issues is often substantially at odds with the Law Commission’s provisional views. In summary:

  • We reject the Commission’s view that the difficulties surrounding a public interest defence outweigh its benefits. We recommend that there should be a public interest defence in official secrets offences for all those engaged in journalism in the public interest, including sources;
  • We recommend that any reformed system should not rely solely on an independent Statutory Commissioner (as the Commission suggests). It should instead adopt the Canadian model of an Independent Commissioner in addition to a public interest defence for official secrets offences;
  • We agree that the Commission’s proposed test of necessity for closing public access to proceedings is an improvement on the current law, but we argue that the proposed change alone falls short of what is required to adhere to the rule of law;
  • We disagree with the Commission’s tentative suggestion that the availability of closed material procedures in civil cases, now permitted under the Justice and Security Act 2013, should prompt a wider review of the ways that fair trial rights and safeguarding of secrets is balanced in criminal cases. On the contrary, there is no good reason at this point in time to embark on a wider review of criminal process and national security issues.

Our full submission can be read at this link.

As a research exercise, independent from the official consultation, the Information Law and Policy Centre at the Institute of Advanced Legal Studies is continuing to publish submissions on this topic: if you or your organisation would like to share yours in this way, please contact Dr Daniel Bennett at

Lorna Woods is professor in law, University of Essex; Lawrence McNamara is a reader in law, University of York and senior research fellow at the Bingham Centre for the Rule of Law; and Judith Townend is a lecturer in media and information law at the University of Sussex.  They are also affiliated to the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. The views expressed by the authors in this report are made in a personal capacity and do not represent the views of the ILPC. This post first appeared on the Information Law and Policy Centre’s blog.