Queering Brexit


How little can Little Britain get?

On 24 June 2016, many people had the feeling that they had gone to bed the night before in the United Kingdom and had woken up in Little Britain – a country prone to isolationism and protectionism, risking hurting its economic and social development for the sake of imperial nostalgia and moral panic about ‘loss of sovereignty’ and ‘mass migration’. That feeling inevitably affected many individuals who identify as lesbian, gay, bisexual, trans, intersex, queer and other (LGBTIQ+). Although the possible impact of Brexit seems to have been scrutinised from most angles, there has been limited analysis of how it may affect LGBTIQ+ individuals.

There is certainly more than one ‘gay in the village’, so it is worth assessing Brexit in relation to the situation of LGBTIQ+ individuals. This is particularly timely in the light of the recent UK Supreme Court decision in Walker v Innospec Limited, where the Court relied on European Union (EU) law to hold a provision of the Equality Act 2010 unlawful for violating pension rights of same-sex couples.

What has the European Union ever done for us queers?

The EU has often been viewed as ‘the’ sexual minorities’ champion. Whether or not this is entirely true, it has certainly been instrumental in pushing ahead the LGBTIQ+ agenda in EU member states, including the United Kingdom.

Following the reform of the European Treaties in 1997, the EU was able to take concrete, although minimum, actions to improve LGBTIQ+ people’s lives. Not only did the EU foster a cultural change in all member states, but it also introduced legal obligations that went far beyond their original scope. To mention one example, the Equality Framework Directive 2000/78, which prohibits a range of forms of discrimination in the field of employment, has been read and applied through an ‘anti-stereotyping approach’ by the Court of Justice of the EU (CJEU) and, consequently, throughout the Union.

For the first time, discrimination was detected in the case of public statements that reproduced popular clichés of homosexuality. As a result, such statements have been held unlawful when used to de facto hamper (actual or presumed) gay people from being employed (see Accept). By the same token, employees’ civil status has been deemed irrelevant as the basis for distinctions between employees if it reflects sexual orientation discrimination.

Hence, measures such as pensions, special leaves, etc., aimed to support employees’ families, cannot be denied to LGB(T) employees only because they are not married (or cannot marry) (see MarukoRömerHay). In fact, marriage has been identified by EU judges as a heteronormative notion that embeds ‘in itself’ stigma and discrimination against LGB people in countries where marriage is restricted to opposite-sex couples (see again Hay).

If we add that the EU Parliament has shown an interest in developing an interconnected and comprehensive set of measures in most spheres of life of LGBTIQ+ people through a SOGI Roadmap, then we can see that the EU has started down the path towards full recognition of LGBTIQ+ people’s ‘social’ dignity. This is even clearer if we consider the EU’s commitment to grant international protection to people fleeing homophobia outside the Union, demonstrated in the CJEU’s decisions in X, Y and Z and A, B and C.

It goes without saying that the UK will not be obliged to follow this path after Brexit. Considering also that the EU will lose an ‘LGBTIQ+ friendly’ member state, with clear implications on the internal consensus for pushing ahead the equality agenda, then LGBTIQ+ people both in the UK and elsewhere in the EU may suffer from Brexit.

God save the… queers?

Focusing on the UK, it was the EU’s Equality Framework Directive 2000/78 which acted as the spark for a change of direction in domestic discrimination law directly benefitting LGBTIQ+ people. LGBTIQ+ individuals and communities have seen significant progress since the turn of the century and much of it can be attributed to the UK’s membership (understood in its broadest sense) of the EU and the benefits derived from this in terms of a) law and policy, b) funding and broader capacity-building, and c) solidarity between activists and civil society organisations across Europe.

In the first of these areas, the Equality Framework Directive was the catalyst for a new direction in UK policy and law – which had hitherto been largely punitive and discriminatory (think of, say, the Section 28 prohibition on the ‘promotion of homosexuality’ by schools). The directive sparked a series of government white papers, legislative reviews and stakeholder debates that ultimately went beyond the requirements of EU law.

These culminated in the establishment of an equality body and the Equality Act 2010, both of which were founded on tackling discrimination on the basis of nine protected characteristics, including sexual orientation and gender reassignment, and enshrining a duty on public bodies not only to prevent discrimination but also to advance equality of opportunity (something that, notably, did not derive from European Union law).

Furthermore, EU funding has been crucial for organisations which support activities to raise awareness of discrimination and develop tools to tackle it, for example through the Progress funding programme, or through the surveys and reports commissioned by the Fundamental Rights Agency. And finally, UK membership of the EU has brought engagement with many NGOs and networks of NGOs working in partnership across Europe to tackle LGBTIQ+ discrimination and hate crime – often with the financial support of the Commission, such as ILGA Europe.

Once outside the EU, the UK may not be nudged by new laws, regulations and other initiatives into tackling discrimination to the same extent as it is now.

Hard, soft or no fall?

What will happen to LGBTIQ+ rights when the UK formally leaves the EU is obviously an exercise in futurology. Yet, one thing is clear: the fall is very likely to be hard for LGBTIQ+ individuals and anyone else relying on discrimination law to protect them, especially considering the decade-long appalling record of the Conservative Party on equality policies.

In light of the Great Repeal Bill recently approved in the Commons and Theresa May’s well-known wish to withdraw from the European Convention on Human Rights, not only might a future government erode EU-derived norms that currently protect LGBTIQ+ individuals, but where this results in a human rights violation, it might also try to deprive them of the possibility of resorting to the European Court of Human Rights.

Although it is theoretically possible that the UK will not attempt to regress in terms of the achievements described above, LGBTIQ+ individuals, organisations and communities should be well aware of one thing: they will most likely be deprived eventually of a number of pathways to justice and more progressive policies. To compensate, they will need to step up the domestic fight and build new forums for international cooperation. Red alert it is.

Dr Carmelo Danisi is Research Fellow at the University of Sussex and Adjunct Professor at the University of Bologna; Dr Moira Dustin is Research Fellow at the University of Sussex; and Professor Nuno Ferreira is Professor of Law at the University of Sussex. The authors are members of SOGICA, a four-year (2016-2020) research project funded by the European Research Council (ERC) that explores the social and legal experiences of asylum seekers across Europe claiming internal protection on the basis of their sexual orientation or gender identity (SOGI). The authors plan to release a longer analysis on the theme of this blog piece in a collection to be published in 2018, currently being co-edited by Moira Dustin, Nuno Ferreira and Susan Millns. This post was originally published on the UK in a Changing Europe weblog



Gerard Gelanty

The Leader of the Labour Party has re-stated his positon, which is the de facto policy of the party, that the outcome of the Referendum of 23rd June 2016 must be respected. By this he clearly means it must be implemented and thus agrees in substance with the position of the Conservative government. The only disagreements are on matters of the procedure by which the UK should leave the EU.

I wish to ask, again, the question why the outcome of the Referendum must be implemented in light of the following facts:

First, there is the fact that the Referendum was itself an unbinding advisory referendum. It was not a legislative one, which means that it did not need to be implemented. This is why in the Act that enabled the Referendum safeguards were not put in place to mitigate against a small majority (for example a qualifying threshold).  Yet, it is constantly presented as a decision that we are locked-into. This is a deliberate attempt to mislead the public on the legal status of the Referendum.

Second, on the legal aspect, if there is any doubt about the legal necessity to implement the outcome, the Supreme Court ruled that the Referendum did not constitute a decision to leave the European Union. That decision would have to be made by Parliament and would need an Act of Parliament.

Such a decision has not been made and nor has an Act of Parliament been made. A Notice of Withdrawal Bill was presented in response to the Supreme Court’s ruling. However, this did not include a withdrawal decision. The bill was a mechanism for notification of a decision, which has not yet been made. A notification is not a decision. Yet, the Government has falsely claimed that the Referendum was a withdrawal decision. This is a false claim and contrary to the Supreme Court ruling that affirmed the sovereignty of parliament.

The false claim that the decision was already made precluded parliamentary debate about the Referendum result. Parliament has not debated the Referendum result. Neither the Referendum result nor the Notice of Withdrawal provided the constitutionally required decision to leave.

Third, as to the political necessity to execute the outcome as ‘will of the British people’, the simple facts need to be re-stated. Only 37 % of the electorate voted to Leave the EU. A very large number of people entitled to vote were not on the voting register, many of them – those most affected by the outcome – were disfranchised.

The 3.8% majority won by Leave is a small majority for such a major change to the status quo and one that leads to the abrogation of rights currently held, in particular the rights held by young people. It cannot be argued that there is a large or clear majority in favour of Leave. Not much more than 25% of the UK population support Leave. There is no unquestioned mandate. The reality is that the UK is deeply divided.

Four, the Leave campaign was itself driven by lies which were not challenged by the government. In view of the above – the deliberate attempt to conceal the fact that the referendum result is irreversible and the ‘will of the people’ – the integrity of democracy is diminished. It is not the case that decisions cannot be reversed. Indeed, it is part of the democratic process to check and revise decisions in light of changing circumstances. Referendums may have their place, but they are only one part of the democratic process. Public opinion has already shifted against Brexit in realisation of the negative economic consequences that will almost certainly follow.

Five, it is clear that it is not in the national interest for the UK to leave the EU. Yet, the Government is pursuing this destructive goal, which, with some exceptions, has the support of the Labour party.

The UK will lose its world standing and will be isolated from the EU and severed from its largest trading partner. It does not have in place alternative trading arrangements that will compensate for the exclusion from the EU single market. It is evident that the government’s plans to implement Brexit are clearly going badly wrong.  There was never an analysis of the risks and all advice given to the government on the catastrophic outcome for industry, trade and finance were ignored and concealed from public scrutiny. The direction of travel is plainly catastrophic. It is clearly a serious dereliction of the duty of parliamentarians to give their support to a cause that has no foundation in legal necessity or political reason.

Why is this madness that derives from a small group of ultra-nationalist MPs taken on such a magnitude and received the acquiescence of the majority of MPs who know it is foolhardy? The Referendum was driven by the David Cameron’s desire to solve an internal problem in his party – and which has manifestly failed – but was bizarrely given parliamentary assent with the backing of Labour MPs.

The majority of MPs are in favour of the UK remaining within the EU – or remaining within the Single Market – yet they have surrendered reasoned deliberation for a panic-stricken endorsement of nationalist isolationism that has now left the democratic process paralyzed.

The inescapable conclusion is that it is clearly time to stop Brexit.

Gerard Gelanty is a Professor of Sociology & Social & Political Thought at the University of Sussex. This blog post first appeared on his personal blog.

State Aid is on the Agenda: Deal or No Deal

Erika Szyszczak

State aid issues are highly politicised. And for good reasons. Taxpayers’ money is being used in a selective manner, without any democratic input into its effective use. Competitors, at home and abroad, feel aggrieved that a firm is either obtaining an unfair advantage or being bailed out, where it cannot compete on the market. But State aid may be necessary to combat unusual situations, such as environmental disasters, or financial crises, or to buy time to rescue and restructure in order to save jobs and a local economy. It may be needed on an ongoing basis to provide public services. 

The role of State aid after Brexit is on the political agenda. The global implications of using State aid have already been seen in the Boeing-Bombardier dispute, discussed in the blog by Professor Steve McGuire.

At the domestic level, a discussion has to be had on how State aid will be used in a post-Brexit Britain.

In an interview with Andrew Marr on 24 September 2017, at the start of the Labour Party Conference Jeremy Corbyn discussed, for the first time, one of the core reasons why the Labour Party supported Brexit. He argued that the Single Market

“has within it restrictions in state aid and state spending. That has pressures on it through the European Union to privatise rail for example and other services.”

At one level this comment is an astute and nuanced understanding of the EU State aid rules. Although located within the Chapter of the EU Treaty (TFEU) on competition, they are in fact more attuned to the free movement issues – found in the four economic freedoms of the single market, than the competition rules which address mergers, collusion and abuse of dominant power by private firms.  However, the comment is not a correct analysis of the substance of EU State aid law. A paper by Andy Tarrant and Andrea Biondi, EU law is no barrier to Labour’s economic programme has shown that none of the 26 radical economic proposals contained in the 2017 Labour Party Manifesto would be impeded by the EU State aid rules. This paper has been attacked by Danny Nicol, Kiss goodbye to nationalisation if we stay in the single market . He argues that the Tarrant-Biondi analysis misses the point that the liberalisation of markets in the EU has necessarily led to the privatisation of essential services and sectors such as telecoms and utilities, such as gas, water, postal services.

Thus, there needs to be a better understanding of the way in which the EU State aid rules operate, and to think more carefully about how State aid will be regulated post-Brexit. Firstly, to set the record straight, the EU Treaties do not prevent nationalisation of industries or sectors. From the beginnings of the Common Market, the legal framework was neutral on public or private ownership. In 1957, the original EEC Member States were social welfare states, often using State monopolies to deliver a range of social and industrial essential services. In some instances, monopolies were created to raise revenue, for example, tobacco and matches, or alcohol monopolies, as well as fulfilling a social or health-related function of curbing excessive consumption.

Thus, what is now Article 345 TFEU, states:

This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.

Over time, as a result of the liberalisation of markets, especially after the completion of the Single Market,  there were pressures – stemming initially from the UK – for both the European Commission and the European Courts to subject State monopolies to closer scrutiny. But in many instances, the complaints were made by competitors and consumers who were tired of the out-dated and inefficient State monopolies not meeting consumer demands. In other cases, for example, telecoms and postal services, the pressures came from dramatic changes to technology.  The legal position under EU law is that where monopolies exist and are engaging in an economic activity, the State must follow the EU rules. Especially those relating to the four economic freedoms and the competition (anti-trust) rules. This creates a level playing field and prevents the deep pocket of the State from stifling competition.

But even so, EU law has developed a number of tools to manage State intervention, for example, where the State acts in the same way as a private market investor would behave, it may inject capital into firms that it either controls or owns a significant shareholding. The constraint is that the State may not behave unilaterally; it is subject to investigation and justification under EU law. This ensures that State aid is being used correctly and effectively. This is very different from the assertion that the State may not invest in public firms.

Also, where the State can show that there is an essential public service at stake (known as a Service of General Economic Interest in EU law) then the State may be able to subsidise that service where it is shown that there is a market failure. Recent cases in the EU have involved transport issues, for example, where the State has identified a need to subsidise a local airport (Scotland, France) or maintain a rail link to remote areas (Denmark). State aid has also been used to protect diversity in security of supply of energy (Lithuania, Malta), as well as ensuring the universal rollout of broadband (France). There is a current case before the European Court on whether Spain may use State aid where there is an alleged market failure to deliver the switch from analogue to digital TV.

Added to these two broad legal tools, the EU has created numerous exemptions from the application of the State aid rules for small local public services and for social services such as education and healthcare.

Since 2000, the EU has embarked upon a modernisation programme which has created clearer guidance for the Member States on where, and when, they may grant effective State aid. While such guidelines may seem prescriptive they do allow a Member State to get on with the financing of strategic projects without the need to negotiate with the European Commission.

Over time, except for the unusual set of conditions necessitating bank bailouts, it can be seen in the various EU State Aid Scoreboards that the amount of aid granted in the EU has decreased and has been used in a targeted manner, away from sectoral aid to projects that have a beneficial contribution to horizontal policies, such as the environment.

Brexit will not avoid the application of a State aid discipline. It is on the agenda as part of the EU negotiating brief for any future trade agreement with the UK. The EU is likely to apply Antidumping and Countervailing Duty duties against any trading partner granting State aid against its rules. Thus, the only way to be exempted is to sign a Free Trade Agreement that embodies EU state aid rules.

In the event of a ‘no deal’, the fall- back position of the World Trade Organization will also require a system of effective control of State subsidies.

All these requirements will require a transparent domestic State aid monitoring and enforcement body, as well as an ex post review of the effectiveness of measures taken. In addition to the political discussion of when, and how, State aid should be used any discussion needs to take on board the legal vacuum that will emerge if, and when, the UK leaves the EU.

Professor Erika Szyszczak is a Research Professor in Law at the University of Sussex and a Fellow of UKTPO. She is currently the Special Adviser to the House of Lords Internal Market Sub-Committee in respect of its inquiry into Brexit: competition. She is the author of The Regulation of the State in Competitive Markets (Hart Pub. 2007)

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: www.national-accident-helpline.co.uk/future-legal-mind

‘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.