Some thoughts on European and national non-discrimination law and Brexit

Dr Jule Mulder, Lecturer in Law, University of Bristol Law School

Dr Jule Mulder, Lecturer in Law, University of Bristol Law School

European non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process.

As well demonstrated by Fredman[1]and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated.

For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs.

This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5]has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113).

The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework.

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What would Brexit mean for the UK’s conflict prevention and peace-building influence outside the EU?

GUSTAVE: Why do you want to be a lobby boy?

The elevator operator casts a sideways look. Zero searches for the honest answer – then finds it:

ZERO: Well, who wouldn’t – at the Grand Budapest, sir? It’s an institution.

GUSTAVE: (deeply impressed) Very good.

Grand Budapest Hotel [2014]

One of the UK’s primary forms of power projection in the world is through its conflict prevention and peacebuilding efforts. But this power is largely projected through the amplifier of one or other multinational institution, and in particular the EU. Eva Bertram highlights that ‘full-scale peace-building efforts are nothing short of attempts at nation building; they seek to remake a state’s political institutions, security forces, and economic arrangements’. The UK simply does not have the resources required in order to achieve this bilaterally: in terms of aid spending, the UK’s global budget for 2016/17 is just over £4billion, while the EU gives over €50billion per year in aid.

Brexit would have a negative impact on both the UK’s soft power and its hard power. Hard power is, broadly, the ability to coerce via economic or military means. Soft power is the power to impel others to do something without using force or coercion. The UK has for a long time punched well above its weight internationally owing to its post-colonial soft power—a heavily romanticised image of what Britain once was, ignoring the violence that underpinned colonialism and retaining the quaint exterior of the erstwhile empire.

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The West Decides: The EU Referendum Debate

Professor Steven Greer, from the University of Bristol Law School, attended The West Decides: EU Referendum Debate and writes up his summary of the event.

Professor Steven Greer FAcSS FRSA, Professor of Human Rights, University of Bristol Law School

Professor Steven Greer FAcSS FRSA,
Professor of Human Rights, University of Bristol Law School

On the evening of Friday, 29 April 2016, a capacity audience in the University of Bristol’s Wills Memorial Building Great Hall witnessed and participated in a lively and impassioned debate, supported by PolicyBristol and the University of Bristol Alumni Association, about whether the UK should leave or remain a member of the EU.

Introduced by Professor Nick Lieven (Pro Vice-Chancellor and Professor of Aircraft Dynamics), and professionally chaired by Dr Phil Sypris (Reader in Law), the ‘Leave’ team consisted of Daniel Hannan (Conservative MEP) and Graham Stringer (Labour MP), while the case for ‘Remain’ was put by Molly Scott-Cato (Green MEP) and Will Hutton (former editor-in-chief of The Observer and currently Principal of Hertford College, Oxford, and Chair of the Big Innovation Centre).

Before inviting the panellists to open the debate, Dr Syrpis asked the audience for a show of hands. Roughly 80 per cent were in favour of the UK remaining in the EU, 10 per cent for leaving, and 10 per cent were undecided. The formal proceedings themselves began and ended with each member of the panel summarising their case in a one minute presentation. In between the same format applied to a series of six questions chosen by students from those submitted by members of the prospective audience and circulated to panellists in advance. Contributions from the floor followed. Before the event ended, a second show of hands saw little change in the initial figures, with Remain still standing at around 80 per cent, Leave dropping to about 5 per cent and the proportion of undecideds increasing slightly to around 15 per cent.

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Abuse in Ambridge

Dr Emma Williamson, Senior Research Fellow in The Centre for Gender and Violence Research, School for Policy Studies, discusses how the recent storyline in The Archers highlights the often silent issue of coercive control and its effect on victims/survivors.

I have to admit that I don’t normally listen to The Archers. And people don’t normally talk to me about the story lines. That all changed when the long running series began a story over 18 months ago which looked at the issue of domestic violence and coercive control. One of the most difficult things that victims/survivors of abuse tell us, and have consistently told us since the first women’s refuges in the 1970’s, is that it is the non-physical abuse they experience which is the most difficult to deal with [Williamson, 2000]. The bruises and other injuries victims suffer from physical abuse are visible. They are evidence to other people but also to oneself. There it is in black and blue. What is more difficult to prove and believe, is that someone who purports to love and care for you would bully, undermine, and manipulate you. The women I spoke too after the fact would either say, ‘how could someone treat me like that?’ or more often than not, ‘how could I let someone treat me like that?’ – still blaming themselves.

As the Archers storyline shows, this type of abuse is characteristic of a pattern of ‘low level’ abusive behaviours rather than the explosive incident people tend to think about when they consider ‘a domestic’. It involves small everyday things which result in people staying away, isolating victims from their family, friends, and networks of support. Recent research from Bristol has documented the massive impact of such abuse on friends and family [Gregory et al, 2016], as well as the evidence we know about the impact on victims [Mullender et al, 2005], their children [Mullender et al, 2002], and perpetrators themselves [Hester et al, 2015]. Doctors, the police, courts, social services, all tend to think of interventions in terms of those single incidents which means that the on-going manipulation of victims goes unnoticed.

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An Orwellian violation of privacy is still not the answer to safeguarding the country in the face of extremism

oliver-daniel

Oliver Daniel is a second year Geography undergraduate, current intern at PolicyBristol, and cyber-security intern in Summer 2016.

The tragic news from Paris shook the world, and has led to an urgent reconsideration of how we can safeguard our citizens’ security. Less than two weeks after the announcement of Theresa May’s Investigatory Powers Bill, the horrific events of Paris still cannot be used as a means to justify it.

“Computers are central to our everyday lives. Big data is reshaping the way we live and work. The internet has brought us tremendous opportunities to prosper and interact with others. But a digital society also presents us with challenges. The same benefits enjoyed by us all are being exploited by serious and organised criminals, online fraudsters, and terrorists. The threat is clear. In the past 12 months alone, six significant terrorist plots have been disrupted here in the UK, as well as a number of further plots overseas. The frequency and cost of cyber-attacks is increasing, with 90% of large organisations suffering an information security breach last year.” Theresa May

The Bill was justified by the Rt Hon Theresa May MP as necessary to ensure that “law enforcement and the security and intelligence agencies have the powers they need to keep us safe”. But does this Bill really succeed in keeping us safe, and if so, at what cost?

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Counterterrorism and Muslims in Britain: What’s the problem? What’s the solution?

Thinking Futures Festival Event – Get your tickets here.

For over a decade and a half the world has witnessed a dramatic rise in a distinctive kind of violent militancy. Much about it is controversial, including how it should be understood, described and addressed. There is even little, if any consensus, about how it should be labelled. Terms currently employed include: ‘violent jihadism’, ‘jihadi terrorism’, ‘violent Islamism’, ‘violent Islamic extremism’, ‘Islamist terrorism’, to mention but a few.

But two characteristics cannot be denied: it is violent and Islam is invoked as the justification by those who resort to it. However, the precise nature of this relationship is hotly disputed. Some claim that the connection is purely contingent and has no real significance because, while Islamic terminology is employed, the motives and goals of those involved have, in fact, little or nothing to do with Islam. By contrast, others maintain that it is nothing less than the logical extension of Islam given current conditions and recent developments. Of the many positions in between is the view that the conception of Islam invoked is an utterly debased and distorted misunderstanding of the faith, totally at variance with its true, best or better interpretations.

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Government reaction to the refugee crisis: humanitarian response or political opportunism?

Ann Singleton, Senior Research Fellow, University of Bristol and consultant to the Global Migration Data Analysis Centre (GMDAC), Berlin

Ann Singleton, Senior Research Fellow, University of Bristol and currently on secondment to the Global Migration Data Analysis Centre (GMDAC), Berlin

Dr Monish Bhatia, Abertay University

Dr Monish Bhatia, Abertay University

Recently the public and media became aware, through one image across Europe (and the world) of the plight of people fleeing for their lives. Within the UK this image produced an awakening after months and years of warnings about the consequences of policy failures, wars and discrimination against migrants. Evidence of the catastrophic failures of UK and EU migration policies, which are based solely on immigration control, borders and ‘security’, have been disbelieved or treated with scepticism by policy makers, officials and many academics.

Repeated reports of deaths in the Mediterranean were ignored or seen as someone else’s problem, the public having been fed a relentless ‘diet’ of poisonous ‘news‘ and rhetoric about migration in general. Institutional racism and discrimination was further embedded as asylum seekers (including children) in the UK were detained, portrayed as troublesome, instead of being welcomed and offered protection. Furthermore, the consequences of austerity are continuously blamed on migrants.

There is a crisis of democracy, as well as policy and a humanitarian crisis, which has been fuelled by the action and inaction of our government.

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The Double Deception and the Road to War in Iraq

eric

Dr Eric Herring, Reader in International Politics

The US-instigated invasion of Iraq in 2003 continues to have profound and disastrous consequences for the region, including the partial disintegration of Iraq itself and the fuelling of a wider war in the Middle East aimed at dividing Sunni and Shia into crudely polarised identity groups. Central to the ongoing conflict are regional power politics between key players such as Saudia Arabia and Iran, and the involvement and influence of external actors including the US, Russia and China.

In terms of how Britain and the US came to initiate such an ill-thoughtout war, the British public remain, to a significant degree and probably more than they realise, in the dark.

Dr Piers Robinson, Senior Lecturer, School of Social Sciences The University of Manchester

The Chilcot Inquiry panel has thus far failed to deliver its report and there remains uncertainty as to the extent to which it will get to the truth.

From the perspective of the British public and political system, however, there has been a persistent and widely held view that some level of deliberate deception occurred in order to mobilise support for the invasion of Iraq. For many, perhaps most, the British and US Governments set about a policy aimed at removing Saddam Hussein through force for undeclared reasons and misled their publics by disguising the war as a defensive act aimed at protecting the world from Iraq’s alleged weapons of mass destruction (WMD).

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Should the police be sued for failings? We must empower victims of rape, sexual and domestic abuse

Joanne Conaghan, Professor of Law and Head of Law School

Joanne Conaghan, Professor of Law and Head of Law School

Last week the UK’s Supreme Court held that the police owed no duty of care to a victim of domestic violence whose murder could have arguably been prevented had the police not acted negligently in handling and responding to her 999 emergency call. Michael v CC of South Wales is just the latest of a growing line of cases in which the UK courts have denied such claims.

By contrast, a number of other countries whose legal systems are significantly based upon English common law principles have recognised the possibility of law suits against the police in similar circumstances. For example, in 1998, a Canadian court held the police liable in negligence for failings in relation to the investigation of a serial rapist. The claimant, Jane Doe (Doe v Metropolitan Toronto (Municipality) Commissioners of Police) successfully argued that had the police not been negligent in investigating similar earlier allegations, she might not have been raped. In South Africa in 2001, the victim of a brutal attack by a man on bail for attempted rape and with a known history of serious sexual violence successfully sued the police and the prosecution service (Carmichele v Minister of Safety and Security).

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In remembering the Charlie Hebdo attack we must not forget the responsibility that goes with free speech

On 11 January, unity marches were held across France following terrorist attacks which killed 17 people in Paris, including an attack on the headquarters of the satirical magazine Charlie Hebdo. One of the key debates to have taken place since the attacks has focused on the issue of free speech, given the controversial nature of some of the material published by the magazine.

Tariq Modood is Professor of Sociology, Politics and Public Policy

Tariq Modood  Professor of Sociology, Politics and Public Policy

Tariq Modood argues that while there is clearly no possible justification for the violence that took place, there is nevertheless an important responsibility which accompanies free speech and we should stop short of celebrating images that reinforce social divisions.

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