Author: legalfeminist

Crowd-funding: transparency and trust

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb.

Crowd-funding is frequently used as a way of funding claims: the UK’s main legal crowd-funding platform, CrowdJustice, is currently hosting over 1,500 live campaigns, with widely varying levels of support. 

Crowd-funding can be a powerful way of righting a wrong which, because of the high cost of litigation, would otherwise go un-righted. It has contributed to “gender wars” cases on a number of occasions already: Keira Bell, Maya Forstater, Henry Miller, Julie Bindel, For Women Scotland, Fair Play For Women, LGB Alliance, Jo Phoenix and Lizzy Pitt have all used it to good effect, to mention just a few. These cases have been funded, for the most part, by large numbers of small donations. Many of them have been successful. 

But there are worries and uncertainties about this method of funding litigation. Any member of the public can decide whether a particular grievance tugs hard enough on their heartstrings to persuade them to contribute. But they won’t necessarily have very good information about how likely a given case is to succeed, or whether it is being run in a sensible, cost-effective or prudent manner. Sometimes donors have undoubtedly been persuaded to waste their money to the benefit of no-one but lawyers. 

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb. 

On launching 

At the outset, we think a crowdfunder should address the following questions: 

What are the outline facts of the case? 

Tell the story in a paragraph or two. What has happened?

What is the cause of action? 

That is to say, what kind of legal claim is proposed? A breach of contract claim? Judicial review of the decision-making of a public or quasi-public body? Discrimination contrary to the Equality Act? Negligence?

How strong is the case? 

A short advice by a named lawyer on how likely the case is to succeed should be published as soon as possible, together with (or followed by, if not yet drafted) the statements of case on both sides. 

It may be objected to this that a candid assessment of merits “gives too much away”. We don’t think this is a serious concern. Even if courts or tribunals were to read these assessments (which we think unlikely), they will make up their own minds on the merits of the case. 

More fundamentally, if you don’t think the case has good merits, then unless there’s some exceptional justification — which you should be willing to explain — you shouldn’t be asking the crowd to pay for it. We don’t suggest that it will always be desirable to give as granular an assessment of the strengths and weaknessess of each aspect of the case as might be provided confidentially to the client; but it should be possible at least to say in the round how good the chances are of a substantial and worthwhile measure of success. 

Does the outcome of the case matter to anyone but the individual claimant, and if so why? 

It’s perfectly open to individual donors to support a case just because they feel the claimant has suffered an injustice, and they want to help. But donors should be given the information on which to make an assessment of the wider importance of the case. 

If the case is of strategic importance, what is the individual claimant’s attitude to settlement?

Claimants won’t be able to give cast-iron guarantees that they will not settle in any circumstances, but a statement of intent not to settle the case confidentially in a manner that benefits only him or her, anyway unless advised it’s essential to do so,  may give contributors some comfort. 

What are the best case and worst case outcomes? 

Who are the lawyers, and what’s their expertise and track record?  

What total costs are anticipated? What factors could push those up? What work will be covered by the initial target?

The answer to the third question may give an indication of whether the case is being prudently managed: it should not normally cost more than a few thousand to get an initial advice on merits and draft the claim. If for some reason the case is going to be particularly expensive to run, that should be explained at the outset.

Is there a risk of having to pay the other side’s legal costs? What’s the plan for that?

What will be done with any excess left in the fund after all legal fees are paid?

Running the case 

Once the case is launched, it should be run with maximum transparency throughout. There should be  prompt publication of any case documents that it is possible to publish, and lawyers should take all reasonable steps to facilitate public attendance at in-person or  remote hearings, access to witness statements, documents referred to in court, reporting, live-tweeting etc. 

Legal fees

Legal representation is expensive, and that’s unavoidable: if crowd-funded cases are to be competently done, the lawyers will need to be able to earn from them at levels not too far from their usual rates. But lawyers’ “usual rates” often encompass quite a wide variation depending on the means of the client. When billing on a crowd-funded case, lawyers should remember that they are being paid from large numbers of small donations from donors of modest means. It doesn’t seem fair to treat “the crowd” as a client with a particularly deep pocket. 

The result 

The outcome of the case should be announced promptly with transparency, honesty and completeness; it should never be “spun” as more successful than it was. 

A v Chief Constable of West Yorkshire and the transformed landscape of consent

The decision in A v Chief Constable of West Yorkshire [2004] UKHL 21, [2005] 1 AC 51 has been the subject of much recent analysis by those  involved, and those interested, in the hearing before the Supreme Court in For Women Scotland v Scottish Ministers. The Scottish Ministers (Respondent) and Amnesty International (intervening) have relied on it to support the proposition that recognition of trans people in their acquired gender is longstanding and follows the line of case law necessary to give effect to the decision in P v S and Cornwall County Council [1996] ECR I-2143 and EU sex discrimination law.

Lord Bingham, giving the leading judgment, stated that [11]:

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.

(Aidan O’Neill KC, on behalf of For Women Scotland, deprecated this as the “what you don’t know can’t hurt you” principle). 

A may, in the event, prove to be of little significance in For Women Scotland. There is no obvious route to reconciling the facts in A with the requirements of EU law other than by a tortuous route through the Sex Discrimination Act 1975. Happily, that may now be circumnavigated by the protections on grounds of gender reassignment that follow from section 7 Equality Act 2010. But that will not put to bed the question as to whether preventing a transgender person from carrying out intimate searches (for instance) may amount to unlawful discrimination.  

The answer to the question is likely to be found in how the legal and societal understanding of consent has transformed in the twenty years since Lord Bingham’s speech.

Michael Foran has noted

Leaving aside how the visual test is undertaken and by whom, this displays, at best, a remarkable ignorance and, at worst, a shocking indifference to the human rights of women who do not consent to being intimately searched by males.

This transformation has been seen in the criminal law, where the Sexual Offences Act 2003 defines the giving of consent as where a person “agrees by choice, and has the freedom and capacity to make that choice”. Applying this definition, the Court has found that the complainants did not consent where they were deceived as to the sex of the person with whom they were having intercourse (R v McNally [2013] 2 Cr.App.R.),  use of a condom (Assange v Sweden (2011) 108(44) L.S.G. 17) or an intention to withdraw before ejaculation (R(F) v DPP [2013] 2 Cr. App. R. 21).

The landscape of consent has also been transformed in various different areas of civil law.

In 2015, the Supreme Court in Montgomery v Lanarkshire [2015] UKSC 11 [2015] 1 AC 1430 overturned decades of conflicting authority and affirmed that the standard of consent required to defeat claims in medical negligence was the standard of “informed consent”, and that information as to risk must be given proactively unless the patient positively indicates that he or she does not wish to receive it, or that (exceptionally) there was a therapeutic reason why such information could not be given; Lord Kerr and Lord Reed, in the leading judgment, were emphatic that this could not be the foundation of the general rule [85].  Lady Hale stated that [116]:

Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.

Notably, Lady Hale also gave a judgment concurring with Lord Bingham in A v Chief Constable in which she envisaged the effect of the Gender Recognition Act  2004 as being that “it will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live”. Had the decision in Montgomery been made earlier, her consideration in A v Chief Constable might well have been different.

“Genuine autonomy” is not restricted in principle either to pregnant women or to medical negligence. It is echoed in the Mental Capacity Act 2005 (again post-dating the decision in A) where the criteria for making a capacitous decision include the person’s ability to understand relevant information, retain and use or weigh that information (sections 2 and 3). Even where a person does not have capacity, his or her wishes and feelings, beliefs and values, and other factors they would likely consider, are core aspects of any “best interests” decision taken under section 4. 

Lady Hale’s usage of the term reflects the growing influence of the European Convention on Human Rights, and in particular Article 8, even in cases not directly concerned with alleged breaches of Convention rights, or the effect of those rights upon statutory interpretation. 

Most obviously, the rights under Article 8: the principle of autonomy and the consequent principle that a loss of autonomy can be either prevented by injunctive relief or compensated for, has developed into a standalone tort, misuse of private information, Google v Vidal-Hall [2015] EWCA Civ 311 [2015] WLR (D) 156. The court has found that a lack of informed consent to the use of information amounts to a loss of autonomy in finding liability, and in measuring damages, see e.g. Ali v Channel 5 [2018] EWHC 298 (Ch).  

“What you don’t know can’t hurt you” as a principle has been given short shrift in recent cases concerning alleged harassment contrary to the Protection from Harassment Act 1997 (again, the case law in relation to this Act is replete with the influence of Article 8). In Gerrard v ENRC [2020] EWHC 3241 (QB), [2021] EMLR 8, Richard Spearman KC (sitting as a Judge of the  High Court) noted that

By their very nature, those particular types of conduct may well be carried out in such a way that, and with the intention that, they will be neither discovered nor discoverable by the victim. […] For one thing, the longer the acts remain concealed from the victim the longer the acts can be continued, and the more extensively they can be pursued, without the victim taking practical steps to avoid them, or legal steps to prevent them. For another, some perpetrators may derive satisfaction from knowing that, for example, their “watching and spying” is being carried out without the victim having any idea that they are being watched and spied upon. Further, a number of perpetrators will be concerned that they may be subject to criminal penalties or civil remedies if they are discovered.

Accordingly, if acts such as following, monitoring electronic communications, and watching and spying do not amount to the particular kind of harassment which constitutes stalking in circumstances where the perpetrator (1) conceals those acts, (2) has no intention that they should be discovered by the victim, and (3) reasonably believes that they will not be discovered (for example, because they are carried out with skill and care), that would greatly cut down the protection for victims which the PHA provides.

In 2019, the Divisional Court upheld the decision of the regulator to strike off a surgeon who had allegedly branded two patients’ replacement livers with his initials. The doctor had pleaded guilty to two charges of common assault. Neither patient was physically harmed by the branding, and it would never have been discovered if one of the patients had not required emergency surgery a few days after the original operation; the second alleged incident only came to light from a disclosure by an anaesthetist (following the first incident) many years after the event.

The relationship between the information available to a person and his or her enjoyment of physical autonomy, psychological integrity and dignity (as evident in these authorities and in statute) is a core element of the right to private life under Article 8 of the European Convention on Human Rights and in the Strasbourg jurisprudence. The Strasbourg court has found violations of Article 8 based on a lack of informed consent where:

–     The police entered a person’s home, after he had cooperated to the extent of opening the door to them because the visit had been unannounced, Sabani v Belgium 53069/15 2022, [46];

–     A person had not been given information as to the risks of adverse outcomes for medical procedures and treatment,  Y.P. v Russia  43399/13 2022; [42] [53-59], Csoma v Romania, 8759/05 2013 [65-68]; Vilnes and Others v Norway 52806/09 and 22703/10 2013, [244];

–    The state has failed to set up an appropriate regulatory framework and ensure professional standards providing for informed consent, Mayboroda v Ukraine 14709/07 2023 [62] [64].

Against this, a public authority does not itself enjoy the benefit of Convention rights because it cannot claim victim status. It is therefore difficult to see how a transgender police officer, who may only lawfully search a person by virtue of his or her role in exercise of that public function, could assert any countervailing “right” to do so if the subject of the search had not been informed of his or her right to object and of the fact of the police officer’s transgender status. Unless the police officer was willing for that information to be disclosed to prospective search subjects, the only possible means of protection of the hypothetical subject’s rights would be by a prohibition on the officer carrying out searches at all. Even if it were arguable that the police officer’s personal rights did, under Article 8, extend to the right to fulfil all aspects of their role (although this is doubtful), this would have to be balanced against the rights of prospective search subjects. The “intense focus test” applied to the balancing of conflicting rights operates from the starting point that neither party’s rights automatically takes precedence over the other: however, the right to autonomy, dignity and with it to informed consent are far more fundamental, wide-ranging and established facets of Article 8, and far more central to the concept of private life than the exercise of one aspect of a job which is fundamentally a public function inevitably involving some degree of interference with the subject’s rights in the first place. It is difficult to see any circumstances in which the rights of the prospective subject would not prevail. 

In fact, this is addressed in A by Lord Rodger, whose judgment concurred with Lord Bingham and Lady Hale on the principle of liability but dissented on this point, [24]  [25]: 

[I]n my view, section 54(9) of PACE means that it would have been unlawful for Ms A to search female suspects and in practice she could not have searched — and indeed would not have wanted to search — male suspects. 

[…]

[T]he logic of the directive, and of the 1975 Act, must be that, while a Chief Constable — who is the equivalent of an employer for these purposes — is not entitled to refuse to employ a transsexual as a police officer on the ground of her sex, equally, she is not entitled, except as provided by the legislation, to insist that she be employed in a different way on the ground of her sex. More particularly, she cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that he be employed in such a way that his homosexuality or dyslexia is kept confidential in all circumstances. Of course, the Chief Constable should not compromise the officer’s privacy by revealing the matter in question when there is no good reason to do so. But, equally, an officer cannot insist that his or her Chief Constable should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential. More generally, the Chief Constable must be free to take all appropriate decisions relating to the deployment of the officer even if, in consequence, the matter becomes known. 

Although Lord Bingham’s judgment post-dated the incorporation of rights contained in the European Convention on Human Rights into UK law, it concerned an index act which preceded it, and the passing consideration given to the “reasonable objections” of a search subject did not operate from a starting point of the Chief Constable’s duty to act compatibly with the Convention,  or contain any analysis of the search subject’s rights under the Convention and in relation to informed consent. If that decision were taken today, and in the context of how societal and legal standards around consent have developed, it is unlikely that the court could come to the same conclusion.  It is Lord Rodger’s analysis that has stood the test of time. 

Beth Grossman is junior counsel to the Lesbian Interveners in For Women Scotland v Scottish Ministers. The views expressed above are personal views only. 

Recording the sex of rapists: what does the law require?

Guest blogger Dr Claire Methven O’Brien explains how Police Scotland are mis-recording the sex of offenders.

Claire Methven O’Brien

How should public bodies, and particularly the police, record the sex of individuals charged or convicted of rape?

This once uncontroversial question is now attracting scrutiny at Holyrood, by oversight bodies and in the media. This has revealed that across the Scottish justice system, policy provides for the production of official data based on individuals’ self-identified gender rather than their biological sex. Although defended as necessary to align with human rights and equality concerns, this approach in fact contradicts international human rights requirements.

Recording sex and gender: approach of Scottish justice actors

A 2021 petition lodged with Holyrood’s Citizen Participation and Public Petitions Committee exhorted ‘Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape’ (PE 1876).  As defined in Scotland (Sexual Offences (Scotland) Act 2009, section 1), rape may be perpetrated by a biological man or biological woman, victims may be biologically male or female, and women may also be liable on an ‘art and part’ basis. 

Accurately tracking incidence and trends in sexual crime, including with reference to specific individual characteristics, requires the collection of data on both sex and gender. However, in its evidence to the Petitions Committee, Police Scotland disclosed that on all systems such as crime management and custody databases, it uses sex and gender interchangeably – not just for rape, but for all offences, whether or not of a sexual nature. Further, the force does not ‘routinely ask the gender or sex of people with whom they interact’ but bases the sex/gender identification of individuals on how they self-declare, or ‘…on how the person presents to officers at the time of engagement’, unless doing otherwise is ‘evidentially critical’. ‘No evidence or certification as proof of biological sex or gender identity’ is required unless this is ‘pertinent’ to an investigation.

According to Police Scotland, this approach reflects ‘legislative compliance, operational need and the values of respect, integrity, fairness and human rights’ while also ‘promoting a strong sense of belonging’. 

The Scottish Courts and Tribunals Service, and the Crown Office and Procurator Fiscal Service mirror Police Scotland’s approach. This appears consistent with Scottish Government Guidance for public bodies on collecting sex and gender data for operational, statistical and research purposes, published in 2021. Policy and decision-making on ‘operational data collection decisions’, under the Guidance, is deferred to individual public authorities. Only in rare cases, the Guidance provides, will it ‘be necessary and proportionate’ for such bodies to depart from self-identified gender ‘to require a person to answer a question on their biological sex’. Though the investigation of serious sexual offences is in this regard cited as an example, on the other hand, the Guidance warns, gathering data on sex may otherwise ‘be an unjustifiable breach of privacy’. 

Sex-disaggregated data and violence against women: international standards

Are justice system actors entitled to take this approach when recording crime? At least in relation to crimes against women, it would appear not.

The UK is a party to various treaties that prohibit violence against women, including rape and sexual assault. These include the United Nations’ women’s rights convention (CEDAW, Arts 1-3, 5(a)) and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The United Kingdom ratified the latter in 2022.

As part of a package of preventive measures, Article 11 of the Istanbul Convention requires states to collect data on all forms of violence against women. Although, according to the Convention’s accompanying Explanatory Report, the drafters ‘left the choice of data categories used’ to states parties, ‘as a minimum requirement, recorded data on victim and perpetrator should be disaggregated by sex, age, type of violence as well as the relationship of the perpetrator to the victim, geographical location and any other factors deemed relevant by the state in question’ (para.76). 

Highlighting that ‘The usefulness and relevance’ of data on violence against women ‘depend above all’ on their quality‘, the Explanatory Report adds, ‘public authorities such as the judiciary, the police and social welfare services will need to set-up data systems …that go beyond the internal recording of the needs of the agency’ (para. 76). While the privacy of both victims and perpetrators should be safeguarded, it is clear that no privacy-based obstacle to collecting sex-disaggregated data is foreseen (para.80; see also Art. 65 Istanbul Convention). 

Additional guidance provided by the Council of Europe identifies sex-disaggregation of data collected by law enforcement as ‘compulsory’ (p.36). Likewise, European Union-level recommendations on rape statistics in particular direct states to ‘include specific breakdowns essential for identifying rape, including data on the sex and age of the victim and perpetrator and the victim–perpetrator relationship as a minimum’.

Under the UN women’s convention, states have been recommended, ‘To develop judiciary databases on complaints, investigations, prosecutions, and  protection orders related to [gender-based violence against women] disaggregated by age, sex, disability, crime, punishment, redress and relationship between the perpetrator and the victim.’  The UN Statistical Division (UN Guidelines for Producing Statistics on Violence against Women— Statistical Surveys, pp.26-27) also presumes the collection of data on perpetrators and victims by sex.

Conclusion

Police Scotland has adopted admirable commitments and policies on violence against women. How the force’s current position on data collection was arrived at, given this, is perplexing.   

In any event, it is incorrect that legal compliance and ‘human rights’ demand gender self-identification in the generation of official data on rape and forms of violence against women, to the exclusion of data on sex. On the contrary, they preclude it.

Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the Scottish Human Rights Commission or any other organisation. 

Further references

S Walby, Ensuring data collection and research on violence against women and domestic violence: Article 11 of the Istanbul Convention (COE, 2016)

Bailey v Stonewall

The decision is out in Allison Bailey’s appeal against the decision of the Employment Tribunal that Stonewall did not contravene s.111 Equality Act 2010. The Employment Appeal Tribunal has upheld the decision. 

The ET is the first instance tribunal. The EAT is the appellate tribunal which heard the appeal from the ET. Any onward appeal must go to the Court of Appeal – and can only be heard if permission is granted and if it satisfies the “second appeal test” of establishing an important principle or there is some other good reason for it to be heard. 

Allison Bailey was a barrister at Garden Court Chambers. A seasoned campaigner for lesbian and gay rights, she found herself in profound disagreement with the proposition then being advanced by Stonewall that some men were ‘truly’ lesbians, including those who had no intention of making a physical transition, if they said that they were. 

Both Ms Bailey and Stonewall made known their own views on this topic on Twitter. As a result of Ms Bailey’s tweets, Stonewall’s then Head of Trans Inclusion Kirrin Medcalf sent a complaint to Garden Court Chambers saying that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.” 

The detriments to which Garden Court Chambers then subjected Ms Bailey on the basis of her protected belief are set out in the ET decision and were found proved by the ET, which found that Garden Court had unlawfully discriminated against her, including by upholding Medcalf’s complaint against her. However, the ET did not find that Stonewall, through Kirrin Medcalf, had “induced” or “caused” that discrimination. 

She appealed to the EAT. 

Section 111 Equality Act 2010 prohibits anyone from instructing, causing or inducing another to discrimination against another:

111 Instructing, causing or inducing contraventions
(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

… 

The EAT had to consider what these meant, which is not something previously attempted by a court. Bourne J held that 

  1. In section 111(1), “It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.” [101]
  2. the word “induce” in section 111(3) “is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.” [105]  He also held that “it is in the nature of an inducement that the inducer intends the inducee to do what they are being induced to do.” [106] and so “inducing” in s.111(3) must be intentional. 

In other words, both instruction and inducement are intentional by their very nature. 

That left s.111(2) and “cause.” To this the judge applied a two-stage test: first, was the discrimination ‘caused’ by the defendant, applying a “but for” test – would it have happened but for the actions of the defendant? Then secondly, is it “fair, just and reasonable” to hold them liable? 

This came from a House of Lords authority, Kuwait Airways Corp v Iraqi Airways Co & Anor [2002] UKHL 19. This is a case which has provided significant authority in respect of the tort of conversion, litigation privilege and the iniquity exception, but it seems that this is the first time it has been cited in respect of discrimination. It has been cited in another EAT case, also decided by Bourne J, but in respect of litigation privilege rather than discrimination. 

The EAT held in this case that “by analogy with the approach to loss in Kuwait Airways, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the prohibited act on a “but for” basis and, second, that the causal connection is such that person A ought to be held liable. Borrowing Lord Nicholls’ phrase, those last words mean that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable.” 

It went on to hold that “For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.” The blame, ruled the EAT, was squarely with Garden Court Chambers for choosing to respond to the complaint in a discriminatory way. 

The application of a two-stage test to s.111(2) is an interesting one. It is very unclear as to whether this was actually argued by either party. It also seems at first blush that it may impose a more strenuous threshold than that set out in the plain words of the statute. However, it does undeniably bring the intention / effect into alignment with s.111(1) and s.111(3) and to that extent is an elegant solution. 

This is the first time that the courts have grappled with the definitions of s.111 and as an EAT judgment, this is binding until and unless overturned on appeal, or overruled by a higher court. 

Finally, a note which may sound into future cases. Paragraph 101 of the judgment provides that 

“section 111(1) requires that person A must not “instruct” person B to do in relation to person C anything which contravenes the relevant provisions. I agree with Mr Cooper that the question of person A’s mental state is subsumed into the nature of the prohibited act. It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction. So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

Put simply, the only intention of the person instructing need be that the person instructed carry out the instruction. If one body instructs another to implement policies that are indirectly discriminatory, the instructing body may be held liable.

This is likely not the last we have seen of s.111.

Legal Feminist Response To Financial Conduct Authority’s Consultation on “Diversity and Inclusion Financial Sector Working Together Drive Change”


Introduction

Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including in particular financial services, discrimination and data protection, as well as corporate governance, company law, corporate finance, criminal law, human rights law and public and administrative law. Our range of specialisms enables us to consider holistically the issues raised in the Consultation Paper (CP) and our collective experience enables us to comment on the practical implications of some of those issues.  As a non-aligned collective of lawyers from a range of backgrounds, we do not represent any particular firm or issuer and are therefore well-placed to give candid feedback on the issues raised by the CP.

Executive summary

For reference to consultation document see https://www.fca.org.uk/publications/consultation-papers/cp23-20-diversity-inclusion-financial-sector-working-together-drive-change

As feminists, we welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support the concept of evidence based strategies. However, the FCA’s proposals engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.  Our more detailed responses to questions are set out later in this response, but in summary:

  • The definitions of discriminatory practices and demographic characteristics are ambiguous and will cause confusion and so not meet the FCA’s objectives. We recommend the FCA adopt the definitions of discrimination and harassment applied in the Equality Act and the definition of bullying applied by ACAS, since these are all well understood and supported by a developed body of case law. The term demographic characteristics should be replaced with “protected characteristics” (with the possible addition of socio economic status) and should be defined by reference to the Equality Act.

  • Subject to our comments on the definitions, we support the proposals in respect of non-financial misconduct relating to colleagues and those relating to misconduct outside the workplace.
  • With regard to data collection, reporting and targets:
  • The sector has not yet done enough to tackle the cultural issues faced by women and the barriers which lead to women leaving the sector and which hold back their progression to senior roles. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  
  • We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of women and ethnic minority membership of boards as a result of board level initiatives and support the greater extension of this to senior leadership. 
  • More should be done to address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore track outcomes for women following pregnancy and maternity leave – for example through exit and promotion data, and develop specific strategies to tackle the issues and improve outcomes.
  • That said, lack of promotion cannot be solely blamed on pregnancy and family responsibilities.  Firms should also focus attention on systemic biases that persist regardless of family responsibility including by analysing data on evaluations, progression, allocation of opportunities and exit data.

  • Collection of data on sex (rather than gender) should be mandatory to reflect the protected characteristic in the Equality Act and so minimise data protection issues. This will better facilitate use of the positive action provisions of the Equality Act and therefore enhance achievement of the FCA’s objectives. It will also align with the mandatory disclosure regime for listed companies under the Companies Act. 

  • Allowing organisations to choose to report on gender instead of sex constitutes indirect discrimination since it places those with gender critical beliefs at a particular disadvantage and is not objectively justified.  As such, the FCA would be inducing a breach of the Equality Act.  We have suggested a more proportionate approach in our comments below.

  • Allowing organisations to choose between sex and gender will also lead to inconsistency and poor quality data. Encouraging collection of data on gender is therefore inconsistent with the FCA’s Public Sector Equality Duty (PSED) set out in the Equality Act 2010.

We have answered questions 4, 5, 7 8 and 10 to 17 of the CP below.

Q4: To what extent do you agree with our definitions of the terms specified? 

We disagree with the definition of discriminatory practices.

In order to achieve the FCA’s objectives, it is essential that key definitions are clearly defined in order to ensure transparency, consistency and fairness of application. Since discrimination and harassment can be unintentional and under the proposals there are potential career ending consequences if an individual is found responsible for discriminatory practices, ambiguity must be avoided. 

The definition of the term “Discriminatory Practices” includes discrimination,  harassment or victimisation due to “demographic characteristics”.  However “demographic characteristics” is not defined and it is unclear what is meant by this phrase. In particular, it is unclear whether it includes all the protected characteristics in the Equality Act such as religion and belief, marriage and civil partnership, and what additional characteristics are included.

Our recommendation is that:

  • Either the term demographic characteristics is replaced with “protected characteristics” by reference to the Equality Act; or
  • If the intention is to include socio economic status, to define demographic characteristic as meaning “a protected characteristic pursuant to the Equality Act or socio economic status”. 

Q5: To what extent do you agree with our proposals to expand the coverage of non-financial misconduct in FIT, COCON and COND?

We disagree with the proposed language in FIT and COCON including the proposed definition of harassment.

We agree that non-financial misconduct should be addressed in FIT COCON and COND and recognise the need for the FCA to effectively reverse the outcome in the Frensham. However we have concerns with regard to the scope of the proposed extension:

With regard to conduct outside of work:

  • We agree that dishonesty outside of work is always likely to be relevant to the fit and proper assessment.
  • However, we have material concerns about the proposal to include conduct outside of work that does not involve “a breach of standards that are equivalent to those required under the regulatory system“. In particular, the amendments suggest that a person may be determined to lack “moral soundness, rectitude and steady adherence to an ethical code” as a result of conduct that is “disgraceful or morally reprehensible or otherwise sufficiently serious”.  Terms such as “disgraceful” and “morally reprehensible” introduce a significant degree of ambiguity. Firms are therefore likely to find it more difficult to determine whether an individual remains fit and proper or what to state in a regulatory reference. This is likely to lead to a lack of consistency which is undesirable.  In that regard we would note that the UK financial services industry operates in and draws its workforce from a multi-cultural environment. Accordingly,  there are likely to be cultural and other differences of view as to what is morally wrong.  The FCA’s objectives can be fully met by limiting non-financial misconduct committed outside of work to situations where the conduct is reasonably judged by the employer to amount to a criminal offence (whether or not the individual is charged or convicted). 
  • With regard to conduct towards colleagues:
  • The proposed definition of harassment goes beyond that in the Equality Act, is ambiguous, and will lead to a lack of consistency in determining whether workplace conduct amounts to a breach of the Conduct Rules.  The proposed definition starts with the same language as that of the Equality Act, but goes on to cover conduct that “is unreasonable and oppressive” or “humiliates, degrades or injures” the other person. The reference to “unreasonable” conduct creates unnecessary ambiguity. This risks creating uncertainty for firms seeking to apply the definition. This is unacceptable given that a finding of harassment could end an individual’s career. The ambiguity will also lead to inconsistency between firms. We recommend that the COCON amendment adopt the Equality Act definition of harassment alone. This is a longstanding, well understood definition, with a well-established body of caselaw to assist in its interpretation. 
  • The Conduct Rules should also incorporate an important safeguard to interpretation in the Equality Act currently omitted from the proposed COCON amendment. Under the Equality Act harassment is unlawful if it has the proscribed effect (ie if the act in question creates a hostile etc environment) even if that effect was unintentional. However the Equality Act goes on to state that when considering if the actions have that effect, account should be taken of the other person’s perception, the circumstances, and whether it is reasonable for the conduct to have that effect. This ensures a level of objectivity in the assessment. While we also welcome the list of general factors for assessing misconduct in relation to colleagues set out in the draft COCON 1.3 , (such as whether the conduct is repeated, its duration, degree of impact and likelihood of damage to culture, the relative seniority of those involved and whether the conduct would justify dismissal), we recommend adopting the additional language from the Equality Act in addition to the proposed general factors.
  • It is our view that conduct toward colleagues should not be regarded as misconduct unless the employer reasonably considers that it amounts to harassment or victimisation within the meaning of the Equality Act and in respect of the characteristics protected by the Equality Act, or harassment within the meaning of the Protection from Harassment Act, or bullying within the definition provided by ACAS, or commission of a criminal offence.  

With regard to the threshold Conditions, we note our concerns stated above regarding the definition of Discriminatory Practices. 

 Q7: To what extent do you agree with our proposals on D&I strategies? 

We agree with the FCA’s proposal that firms should be required to develop evidence based strategies.

The sector needs to do more to tackle the cultural issues faced by women, the deconstruct the barriers that prevent women rising to the most senior levels, and to retain women in the sector. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  In this regard we note:

  • Women typically are more likely than men to take time out of their careers for children, and to bear an unequal share of the burden of childcare. The sector has not done enough to understand and address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore expressly track outcomes for women following pregnancy and maternity leave, and develop specific strategies to tackle the issues and improve outcomes, for example to address allocation of career developing opportunities. 

  • However pregnancy and maternity leave are not the sole reasons for the lack of women in senior positions. Firms should also focus attention on systemic biases that have led to this.

  • Some firms have tried to address under-representation of certain groups including women and ethnic minorities through a range of initiatives such as training, policies and mentoring programmes. While these programmes can have positive benefits, they have not to date led to sufficient progress. They are often fragmented, and do not tackle the fundamental structural and cultural issues that persist.  At a time when DE&I resource and funding is under material pressure, we welcome an evidence based approach that focuses on the issues facing women and other underrepresented groups, and which looks at why existing initiatives have not worked.

  • We consider that firms need to investigate and understand what is happening in their organisations, at every point in the employee life cycle, in order to identify where the true challenges are, and develop a strategy to address these challenges. This would involve examining  data not just on recruitment, but at every stage of decision making from intake to annual evaluation, pay and bonus, promotion, allocation of work and opportunities and through to leaver data. For example:

    • Is there evidence that women are less likely to achieve the highest ratings in evaluations? Does this indicate systemic bias in the performance appraisal system?Whether there is bias in the firm’s system for allocation of developmental projects, client relationships and opportunities that are more likely to lead to promotion and higher bonus awards. 

    • Firms should then use this data to build their strategy to tackle inequality in allocation of work and opportunities, bias in the assessment of women and ethnic minorities, lack of transparency in promotion processes, lack of pay transparency, presenteeism and lack of recognition for the differing levels of contribution made by women and men to positive workplace behaviours. 

Q8: To what extent do you agree with our proposals on targets? 

We partially agree with these proposals. 

We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of listed company boards as a result of initiatives to set targets for representation of women and ethnic minorities and support the greater extension of this to senior leadership.

However we qualify our response noting that:

  • Firms should limit themselves to targets in respect of the main protected characteristics which are measurably under represented compared to the general population. These are likely in most organisations to be sex, ethnicity and disability. In addition, we support targets based on socio economic status. 

  • As noted below in response to question 10, data and targets should refer to sex not gender.

  • Targets should be set by reference to context including the population from which the firm recruits.

  • The FCA should state clearly how socio economic status is to be defined in the context of targets and reporting.

  • Targets should remain aspirational. The recent highly publicised investigation into discrimination in recruitment at the RAF demonstrates the risk where targets are treated as akin to quotas and where inappropriate pressure is placed on individuals to meet them.

Q10: To what extent do you agree with the list of demographic characteristics we propose to include in our regulatory return? 

We disagree with the proposal to make collection of sex data optional and to make maternity data optional. 

  • Sex is the relevant protected characteristic in the Equality Act 2010. Collection of data on sex should be mandatory. Gender is not a protected characteristic and does not have a recognised meaning. The conflation of sex and gender diminishes the value of the data, and has the effect of introducing self-identification of gender.  This will hamper achievement of the FCA’s objectives, since one of  the main reasons for lack of advancement of women is structural sexism. If data on sex is not collected, structural sexism cannot be measured and addressed. 
  • In providing firms with the option of reporting on the basis of gender in place of sex, the FCA is itself inducing discrimination against those with gender critical beliefs:
  • Indirect discrimination occurs where a practice puts an individual and those who share their protected characteristic at a “particular disadvantage” unless this can be objectively justified. 
  • The gender critical belief (that sex is biological and immutable, and that gender is a concept based on the imposition of stereotypes on each sex) is a protected characteristic. 
  • If employers elect to collect data, set targets and strategy and report on gender rather than sex, those with gender critical beliefs will be placed in an invidious position: their alternatives will be to state something they do not believe in, ie their gender, which is unacceptable to them, not to respond at all, or to select “prefer not to say”.  
  • As such, they are deprived of the opportunity to have their most fundamental characteristic recorded. This places them at a particular disadvantage. Caselaw has made clear that the threshold for establishment of particular disadvantage is not in fact high.  A decision to collect data on gender not sex exceeds this threshold by some considerable margin.  It is more than reasonable for those with gender critical beliefs to wish to have their sex accurately recorded, not to record a gender which they don’t believe exists, and not to be placed in the invidious position where because they cannot respond to the term gender, and are not offered the chance to state their sex, meaning that one of their most fundamental protected characteristics is not recorded.
  • Such a requirement cannot be objectively justified.  While the aim may be to accommodate those trans-identifying colleagues who wish to record their gender, the replacement of sex with gender is not a proportionate way of achieving that aim.  It is deeply offensive to those with gender critical beliefs, and particularly to women. It clearly cannot under any circumstances be appropriate to entirely erase one protected characteristic – sex – in the interests of accommodating.  The more proportionate approach would be to collect data based on sex recorded at birth, combined with a supplementary optional question as to whether the individual considers they have a gender identity that differs from their sex recorded at birth.  This would also have the benefit of ensuring that the employer had accurate data on both issues.  
  • Accordingly, any requirement on or by firms to ask individuals to identify their “gender” is therefore discriminatory.  
  • We also envisage that many of those holding orthodox religious views would similarly disbelieve in innate gender overwriting sex and so would similarly be subject to discrimination.
  • Encouraging discrimination is inconsistent with the PSED.  
  • Following a legal challenge to the ONS, the UK Census collects data on sex. This approach has been followed by the Solicitors Regulation Authority (SRA).  The SRA’s approach is to collect data on sex, with three options: male, female and prefer not to say. This is followed by a question to accommodate those hold the belief that they have a gender identity (by asking if they consider they have a gender identity different to their sex as registered at birth). This approach enables accurate collection of data on sex and would better achieve the FCA’s objective.
  • As part of their diversity strategies, firms should be encouraged to use the positive action provisions in sections 158 and 159 of the Equality Act. Section 158 for example, facilitates initiatives such as sponsorship and mentoring programmes, diverse interview panels, diverse long lists, specialist open days and outreach programmes etc.  Section 159 enables a decision to appoint an individual from an underrepresented group if certain stringent conditions are met.  As Government and EHRC guidance makes clear, reliance on these provisions is dependent on having data. Accordingly, the ability to apply these provisions in respect of initiatives focused on women is dependent on having good quality data in respect of the protected characteristic of sex.  Data based on “gender” would not meet this requirement.
  • Under GDPR there is a clear legal basis for collecting data on sex, whereas that is not the case for “gender” which is arguably special category data.  
  • The FCA is subject to the PSED under the Equality Act meaning that it must have ‘due regard’ to the need to: 
  • eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the EqA]
  • advance equality of opportunity between people who share a protected characteristic and those who do not share it and, 
  • foster good relations between people who share a protected characteristic and those who do not share it. 
  • Application of the PSED must be related to the protected characteristics in the Equality Act. Mandatory collection of data on sex would ensure that regulators are able to comply with the PSED:
  • Policy making that seeks to conflate two protected characteristics (sex and gender reassignment) or introduce the concept of gender, which is not a protected characteristic, would fail to advance equality of opportunity between those who share one of those protected characteristics and those that do not.  It would therefore be a breach of the FCA’s duties under the PSED to implement proposals to replace sex with gender, or treat sex as not mandatory.
  • In this regard we note that the Government has abandoned the use of the term “BAME” because (a) aggregation of data for different ethnic groups masks differences in outcome, and (b) because of the offence caused to groups who found themselves grouped together notwithstanding their very different experiences. By analogy, use of the term gender will aggregate the women and those born male who identify as trans, notwithstanding that they will have different experiences, particularly those who identify after their careers have been established. It has also been established that men and women have different risk taking behaviours.   It is very likely that from a risk perspective, the risk taking behaviour of those born male is more likely to align with their birth sex. Further, and as noted above, aggregation is offensive to those with gender critical beliefs.
  • We also consider that firms should collect data on pregnancy and maternity.  Pregnancy and maternity are major contributors to women leaving the sector, to the reduction in opportunities, and lack of promotion to more senior roles. The impact of pregnancy on women’s careers is far greater than the impact that becoming a parent or taking paternity leave has on fathers. In fact there is some evidence that men’s careers take off after fatherhood.  While pregnancy and  maternity leave are for a limited time period, firms could still measure and track progress for women on return from maternity leave – for example how long do they stay, are they overrepresented in redundancy exits, are they under-represented on promotion, and what is the impact on bonus. While the data sets may be relatively small, data protection concerns could be addressed by requiring firms to collect and report such data to the FCA,  but not publish it. 
  • We reject the suggestion that data on parental responsibilities is a more suitable long-term metric than pregnancy and maternity data. There is clear evidence that motherhood has a detrimental impact on women’s careers, and that parental responsibility does not affect men’s careers in the same way. Our view is that firms should collect and report data on pregnancy and maternity, and that data on parental responsibilities should be sub divided by sex.   

Q11: To what extent do you agree that reporting should be mandatory for some demographic characteristics and voluntary for others? 

We agree that in principle reporting of some characteristics should be mandatory and others voluntary:

  • We consider that the mandatory requirements should be limited to key demographic characteristics.  
  • Reporting on parental responsibility should be subdivided by sex, reflecting that typically the impact of parental responsibility on careers differs between men and women. Indeed there is some evidence not only that women’s careers are harmed by having children, the career and pay prospects of men improve.

Q12: Do you think reporting should instead be mandatory for all demographic characteristics? 

No. We consider that reporting (and resources) should focus on key characteristics, including sex, ethnicity and disability. 

Q13: To what extent do you agree with the list of inclusion questions we propose to include in our regulatory return? 

We agree save that the reference to feeling insulted or badly treated because of personal characteristics should be restricted to protected characteristics.

Q14: To what extent do you agree with our proposals on disclosure? 

We agree save that disclosure should relate to sex, not gender.

Q15: To what extent do you agree that disclosure should be mandatory for some demographic characteristics and voluntary for others?

Disclosure of data in respect of sex, ethnicity and disability should be mandatory since these groups are clearly under-represented in comparison to the UK population,

Q16: Do you think disclosure should instead be mandatory for all demographic characteristics? 

No – see our response to question 15. The experience of Legal Feminist is that reporting on multiple characteristics is likely to lead to a diversion of resources away from the key priority areas, as firms would need to spend time and resource on a campaign to build up reporting of data. 

Q17: To what extent do you agree that a lack of D&I should be treated as a non-financial risk and addressed accordingly through a firm’s governance structures? 

We agree.

Limitations on domestic violence protections in the Immigration Rules justified, Court of Appeal holds


In the recently published case of R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439, the Court of Appeal has looked at the domestic violence concessions in the Immigration Rules.

What are the domestic violence concessions?
These were originally introduced in 1999 following a seven year campaign by Southall Black Sisters. Those who enter the UK as spouses of permanent residents or British citizens have “no recourse to public funds” and must be self-sufficient. They are granted five years leave to remain (two prior to 2012) after which they may apply for indefinite leave in their own right. The problem with this is that if a woman enters the UK only to find that her husband is an abuser, she faces an impossible choice: remain in the marriage for the requisite five years, or leave and face destitution and loss of immigration status. The 1999 concession allowed a victim of domestic abuse in these circumstances to apply for indefinite leave before the end of the spouse visa. The concession was replaced in 2002 with paragraph 289 of the Immigration Rules, and that in turn was replaced again in 2012 by the “DVILR” section of Appendix FM to the Immigration Rules. 

What this did not solve was the issue of destitution, particularly during the period where an applicant was preparing the application and while it was being considered, which could take some months. In 2012 the “Destitute Domestic Violence Concession” (DDVC”) was introduced whereby a victim of domestic abuse could apply for a three month bridging visa which would allow her access to public funds and the right to work while she prepared her application and applied for indefinite leave under DVILR. 

The current domestic violence rule can be found here and the crux of it is that 

The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

What’s the issue?
The eagle eyed reader will have spotted that the rule is no longer restricted to partners of British citizens and those who are settled. The rule is now also available to partners of refugees and to partners of people in the UK with what is known as “pre settled status” – European nationals who did not gain fully settled status. 

The reason for extending it to partners of refugees is obvious. Partners of those with pre settled status are included because the Withdrawal Agreement required the UK to treat EU nationals applying under the scheme no differently to British nationals. 

However, partners of people on other visas are not included. This is not a new problem; the joint report from Southall Black Sisters and Eaves recommended in their 2013 review of the DVILR scheme one year on that it should be extended to those on other visas, commenting that “it is still a concern that this concession applies only to very specific group and relatively small group of women. All women in the UK, irrespective of their immigration status, should be entitled to equal access to safety and justice and to be able to access life-saving support and advocacy.”  

Why now? 
The Home Office line has always been – and continues to be – that the scheme is only available to those with a “legitimate expectation” of settling here. In written evidence before the Court of Appeal, the Home Office set it out in this way:

“The rationale for the terms of the DV Rule concession was (and is) that individuals who come to the UK as the spouse or dependant of a partner who is present and settled in the UK will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions concession means that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave. They should also not feel compelled to leave the UK when the reason for being here (to live here permanently with their British or settled partner) falls away through no fault of their own.”

…

“The rationale for the present policy is, as stated above, that those who have come to the UK as the spouse or partner of a person present and settled in the UK (or with refugee status or pre-settled status) have come to the UK in the reasonable expectation of being able to live permanently. They would have an expectation of permanent settlement but for the breakdown in the relationship as a consequence of domestic abuse. But those who have come as the partner of a person on a temporary work or study visa have no such legitimate expectation.”

However, the post-Brexit inclusion of EU nationals with pre-settled status, which is not permanent, meant that there was now a comparator. This was important, because it meant that the Appellant was now able to argue that she was being treated in a discriminatory way regarding her private and family life, contrary to Articles 14 and 8 of the Human Rights Act. To succeed in an Article 14 discrimination argument, a person must show that they are being treated differently by comparison to persons in an analogous or very similar situation. 

What was the case? 
SWP was an Indian national who moved to the UK with her husband when his company moved him to the UK to work. There was some confusion over exactly what type of visa it was, but the case proceeded on the basis that it was a Tier 2 (General) visa. People who come to the UK on a Tier 2 (General) visa do not have an expectation of settlement necessarily, but if they live in the UK with this type of visa for long enough they will be permitted to settle. 

Her husband was violent and abusive to her both in India and the UK. She finally managed to leave the relationship after he sexually assaulted her and tried to suffocate her. She fled with their son to a domestic violence refuge. With her visa about to expire, she tried to find a sponsor of her own to acquire a visa independent of her husband, but as her own profession of primary teacher is no longer on the shortage list, she was unable to find a sponsor. She therefore made an application for the DDVC. 

This was refused because she was not the partner of a person who was settled or British, but the partner of a person with a Tier 2 visa, and she was therefore not eligible. She applied for judicial review of the decision, which was rejected, and appealed to the Court of Appeal. 

What did the court decide?
The Home Office did not agree that the decision was discriminatory under Article 14 although they did agree that it was linked to Article 8 (private and family life). Article 14 can only be relied upon in relation to one of the other Articles; it is not a standalone right. 

The first court had already ruled that there was a sufficiently close analogy between the partner of a Tier 2 migrant and the partner of a person with pre-settled status. 

The crucial issue was therefore whether or not the difference in treatment was justified. 

The Court of Appeal decided that the difference in treatment was justified. The Home Office had a policy reason behind the differentiation and a “wide margin of discretion” is open to the government in choosing its policies on general measures of social strategy. Brexit was a “unique phenomenon” and provided “an objective and reasonable justification for the difference in treatment which now arises under the EUSS.” 

The appeal was therefore dismissed. 

What next?
It is possible that SWP may appeal to the Supreme Court, although even if she won it would be a pyrrhic victory since the Home Office very belatedly realised that her husband was not a Tier 2 (General) migrant on a route which might lead to settlement, but in fact was a Tier 2 (ICT) migrant on a route which very definitely does not. Understandably, she had not had access to his documents and did not know this herself. 

As things stand, there is therefore no DVILR route for those who are victims of domestic abuse but whose abusers are not settled. 

The Home Office approach is unfortunate, because it leaves migrant women very vulnerable to domestic abuse. While some will be able simply to leave their abuser and go back to their home country, this is not always possible for women who are from countries where divorce is a social taboo, or where there are children involved. Bleakly illustrative of this is SWP’s evidence that she could feel compelled to return to her abusive husband if her appeal failed, as she would not be able to afford to educate him in India by herself. There will be many women in similar situations weighing the merits of remaining with an abuser if they cannot remain in the UK if they leave him. Sadly, it seems this is not a situation the Home Office is willing to change. 

Edinburgh University, freedom of speech and the heckler’s veto

Edinburgh University has for a second time allowed protestors to prevent the screening of the documentary film “Adult Human Female.” It was initially to be screened in December 2022, but cancelled when demonstrators occupied the university buildings. The rescheduled showing was arranged for 26 April 2023, but prevented once more by a large group of protestors. 

Protestors blocked off the entrances and physically stopped anyone from getting inside. The event was once again cancelled.

The protestors of course regard this as a victory for the prevention of intolerance. A spokesman told the Times that 

“Their argument is that trans women are the problem and are men in disguise and that is a lie. It is tarring a whole community and demonising them. Free speech is fine for everybody but it does not extend to the intolerant and hateful.”

There is nothing in this quote to suggest that the spokesman had in fact watched the film. But what is more remarkable is the spokesman’s claim that free speech “does not extend to the intolerant or hateful.”  

As we have said before, the relevant provision is Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows: 

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the first three paragraphs of his judgment in R (Miller) v College of Policing & CC Humberside [2020] EWHC 225 (Admin), Julian Knowles J summarised three famous citations on free speech: 

  1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
  2. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said that: “… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
  3. Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
    “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having  … “

That of course does not mean that freedom of speech is unlimited. It may be limited where a legitimate aim is pursued, although as was said in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127,

The existence of a broad legitimate aim is a mere threshold to the key decision in this case, as in almost all cases it must be. Such a legitimate aim must have limits. It cannot extend too far. In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.  

This is particularly so when the speech in question, here the film Adult Human Female, is itself an expression of protected views. 

Proportionality is key to any decision to limit free speech. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at [49]:

“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

There are two issues here, in terms of freedom of expression (I am not considering here the law on academic freedom, but only human rights. For those wanting further reading around academic freedom, the law in England and Wales can be found here and Scottish law here.) 

The first is whether the film Adult Human Female really is as offensive as the protestors claim. That in my view is inconceivable – it discusses proposed changes to the law from the perspective of one of the affected groups, namely women. 

The second is that even if a sector of the population disagrees with it, feels personally affected or is offended by it, this intimidation is disproportionate and anti-democratic. A protest that does not prevent the event from taking place must be possible. 

It is noteworthy that one of the groups who are highlighted as anti-democratic in the film are UCU. A number of the academic interviewees express disbelief that a union for those whose lives are dedicated to the pursuit of knowledge should behave in such an anti-intellectual way. I do wonder whether UCU’s enthusiastic support for the protests in Edinburgh is to spare its own blushes should their students watch the film and find out how spineless their tutors are when faced with intellectual disagreement. 

Freedom of expression is valuable. If the protestors’ freedom of expression were similarly impaired by mob justice, they would be outraged. They should be careful what they wish for. 

Film Review: Adult Human Female

In the wake of Edinburgh University’s second cancellation of a proposed screening of the Adult Human Female screening, one of the Legal Feminists went to watch it.

Which is pretty easy, as it is online and on YouTube. 

Certified by the BBFC with a 15 rating, it features interviews with a number of women (and one man) who hold concerns over the conflict of rights between women and transgender people in light of legal and social developments of the last few years, and in particular over proposals (dropped in England and Wales, but still live in Scotland) to amend the Gender Recognition Act to make it possible to get a GRC without a diagnosis of gender dysphoria. The most notable of those is the proposal in England and Wales (now dropped) and in Scotland (still live) to allow a person to obtain a Gender Recognition Certificate, and thereby a new legal sex, by simple self-definition.

The intention is to streamline the system for those who are put off by the bureaucracy involved in obtaining a Gender Recognition Certificate but who would otherwise plainly be entitled to one.

The difficulty is that this benevolence then includes people who do not have a Gender Recognition Certificate, not because they have never applied but would otherwise qualify, but because they very plainly would not qualify under the current provisions. The last ten years have taught us that it is almost impossible for service providers to distinguish between the two, not least because it has been impressed upon them that it is impolite or impermissible to ask. This may once have worked when the only males who would seek to access female services were a tiny, discrete group of transsexuals. That finely balanced compromise is displaced by self-definition, which extends to a much wider group.

The Adult Human Female film features interviews with women who argue – in the most moderate terms – that this creates a conflict of rights. 

I have to say, from the fuss that the film has created, I was rather hoping to see something considerably more seditious than a doctor saying that biological sex can affect medical treatment; a professor of criminology talking about statistics in prisons; and a barrister talking about the law. If I have a criticism of the film, they can only be that it is unexciting compared to the hype. That one interviewee referenced the Equalities [sic] Act (pet hate). And, perhaps, that Prof. Phoenix could have made it clearer at the outset of one segment that she was talking about trans prisoners, when she gave the statistical analysis, rather than the entire trans population in the community (although the context was rapidly made clear). 

The interviewees all take a left-wing approach to the topic. They look at the effect on women not individually but as a class. What is the effect on women as a class if single sex becomes mixed sex? In particular, on vulnerable women in prison, in refuge, in crisis. 

The film makers do not exclude the possibility that trans people may also need crisis support and emphasise that support services to trans people should be maintained. One issue which is raised – but not resolved – is that at the point of introduction of the GRA it was only ever imagined that those who would be encompassed in the category of legal (rather than biological) women were those who suffered severe gender dysphoria and who underwent surgery. Parliament simply did not envisage that this easily identifiable and discrete category would expand to include what Prof Phoenix described as a “gossamer” of cross-dressers, demi-girls, and anyone else who says they feel female – including inevitably men who do not have gender dysphoria. As Elizabeth I could have warned 2004’s legislature, it is not possible to make windows into men’s hearts. 

Does that original category, for whom the GRA was introduced, still need its  protection? Is it proportionate to jettison their protections because members of a much wider group are now seeking to claim those protections? The film does not explore this, no doubt because it is a film made by and about women, but it would be an interesting topic for a post screening discussion. 

What does come across strongly is criticism of those who seek to stifle any political discussion on the subject of evolving and fast-moving legal developments which affect us all. UCU come in for a well deserved hammering: their hyperbolic demonisation of critics is said to be in direct conflict with academic freedom. If academic sociologists can’t critique social issues, asks Dr Jane Clare Jones rhetorically, then “what are we for?” Quite. 

I combed through this film seeking out offence, given the protests. Not every viewer will agree with every interviewee – I certainly didn’t. But each of them gave me food for thought. I is risible to suggest that any one of them was “hateful” or that the film is so subversive as to be worthy of blocking. Any undergraduate who has academic ambition – particularly if it is towards law – should think very seriously about the difference between distaste and illegality. It is a topic which has been known to come up at pupillage interview. 

Is this really necessary, Minister?

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

Politicians are always inclined to fall for the “If all you have is a hammer, everything looks like a nail” fallacy. The almost instant reaction to any problem in the public eye or if you want to look serious about an issue or to show that you really really care is to propose a new law. 

In recent days, Labour have proposed a law making spiking a criminal offence, even though there are existing laws which could be used. They plan to ban “conversion therapy”, though it is wholly unclear what this term means. The Tories are trying to pass a law against small boats in the Channel. The Bill of Rights (introduced under Raab, dropped by Truss, reintroduced by Raab again) is back on Alex Chalk’s desk. 

This last Bill is a classic example of a solution in search of a problem. It has been presented as a necessary reform. In reality, there have – since 2010 – been 4 reviews, all of which found no “compelling evidence of a problem” or “viable proposals for reform”. The Bill has been eviscerated by the joint Parliamentary Human Rights Committee’s report – here. Even a previous Tory Justice Minister (Robert Buckland) said the proposed Bill was pointless and a solution to a problem which no longer existed, if it ever did.

This last comment goes to the heart of why so many proposed new laws so often achieve little – and can do great harm.

When should a new law be introduced? And why? 

Those wanting a change should show:-

  1. The mischief they seek to address or the improvement that is needed. “What is the problem to which this is the solution? Be  precise in your answer” should be the first two questions asked of any politician proposing a new law. Too often they are never asked. Or, if asked, the answer is no more than “Something must be done. This is something. Therefore we must do this.”
  1. What are the real causes of that problem? If the causes are not legal ones, a legal solution is not going to be the answer. What will it improve and how? Too often, a new law is doing for the sake of doing. Or more often appearing to be doing.
  1. Can this issue be addressed by existing laws or other measures? We have enough of the bloody things on the statute book, after all.
  1. Is the problem sufficiently serious to warrant change? Partly this is a matter of priorities. But some problems are ones which cannot easily be solved or at all, are inherent in the tensions between conflicting interests. A bit of realism to counter the “There should be a law against it.” tendency in voters and politicians is needed.
  1. Will legal change resolve or alleviate the problem? Will it create other problems instead?
  1. Is what is proposed a proportionate way of resolving the problem. Not all problems can be resolved or only at an unacceptable cost.
  1. What are the consequences, especially the unintended ones? Do they harm the interests of others? If so, how badly? Can these be easily mitigated? If not, is it really worth going ahead or are there other measures which might work better?
  1. Is this consistent with other legislation or initiatives the government is enacting? This may be unduly hopeful but some attempt at consistency and joined up thinking would be welcome.
  1. Finally – and critically – how is this going to be implemented / enforced? If there are no or few resources to back up the new intentions, what – really – is the point? 

Is a pointless / ineffective law harmful?

Does it matter? Yes. Pointless law-making – the passing of Potemkin laws –  creates or reinforces cynicism about politics and a disregard for the rule of law, especially when it is seen as ineffective. Above all, it diverts attention and effort away from practical and effective problem-solving measures.

The desire to be seen to be doing something often seems to be the only important consideration. Consultation is put forward as a justification. But too often consultation starts from the assumption that something must be done and avoids a clear-sighted analysis of what the problem actually is and whether anything should be done. Or, more cynically, a cover for unclear / unpopular proposals (“We are going to consult on these proposals” = “We know they aren’t popular but we’re going to implement them anyway.”)

It’s as if what matters most is not effectiveness but the appearance of busyness. Ironically, this simply creates more work for lawyers and judges to try to sort out the mess thus created, more material for politicians to grumble about, more cynicism among voters, more proposals – and on it goes. It’s law-making as Escher might draw it.

Stating the Obvious

This is not a blog post which explores fundamental truths of the human condition or even one which traces a pathway through legal complexities. Rather, it looks at the law in practice.

Regular readers of this blog will know that paragraphs 27-28 of Schedule 3 of the Equality Act 2010 permit a service provider to offer a single sex or separate sex service. Paragraph 28 in particular allows a service provider to discriminate on the grounds of gender reassignment. For the purposes of women-only services and spaces, it is generally understood that this means that a women only service may exclude all those who are biologically and legally male by virtue of paragraph 27, and may (if proportionate) exclude biological females who are legally male and biological males who are legally female by virtue of paragraph 28. There remains some discussion over whether “blanket” policies are permissible and whether paragraph 28 should be applied person-by-person or policy-by-policy, but the overarching principles are those.

In recent times organisations which hold their line on single sex services have been viciously targeted. The rat nailed to the door of Vancouver Rape Relief, the smoke bombs set off outside the WPUK meeting held near to Grenfell Tower, the violent and sexually aggressive imagery chalked on the pavement at FiLiA. 

This is a question for those who attend, or organise, such protests. If you heard that a women-only self-defence group had refused entry to a transwoman who approached them saying she was fearful of violence because of her gender and wanted to learn to defend herself, would you protest that organisation? Would you denounce them on social media? Organise a boycott? You’d probably want to write to all of their funders to try to have their funding withdrawn, at the very least, and notify the local council – wouldn’t you? Perhaps you could persuade the Good Law Project to bring a legal case against them? 

If the centre argued that their classes were for women who had suffered domestic or sexual violence, that wouldn’t change your view in the least, would it? After all, transwomen can also suffer domestic or sexual violence, and any woman who is triggered by the presence of a male-born person just needs to reframe her trauma, right? 

This is not a hypothetical scenario. In 2021, the Scottish Centre for Personal Safety declined to admit Annie Bryson to their women only self-defence course offered to survivors of domestic or sexual violence. But before anyone goes to organise a protest, there’s some additional important information to know.

In 2016 Annie Bryson – then Adam Graham – raped a woman. In 2019, he raped another woman. In 2021 he tried to access this course – a course for survivors of male violence where he would presumably have learned what techniques women use to fend off rapists, while triggering a trauma response among any survivors there. (The same year he enrolled on a beautician course which involved women removing their clothes to practise spray tan procedures on one another. Would-be protestors can pat Ayrshire College on the back for their admirably inclusive policy.)

In 2023 he was convicted of both rapes. His ex-wife said that she thought he was “bullshitting” his claim to be transgender, which had only developed after he was arrested for the rapes, and even that arch-proponent of self-ID Nicola Sturgeon can’t quite bring herself to call him a woman, saying “She regards herself as a woman. I regard the individual as a rapist.” 

It might be tempting to say – well, what’s wrong with that? The individual IS a rapist.

He is. But for the purposes of the criminal justice system, between 2016 and 2023 he was Schroedinger’s Rapist: he had committed rape but he was not convicted of rape. 

What motive could a double rapist have for wanting to join a class for survivors of sexual violence and learn what techniques they would use against a predator? What motive could a double rapist have for wanting to join a class full of semi-clad women applying beauty techniques? The answer is surely obvious on both counts. 

Now that Adam Graham / Annie Bryson / Isla Bryson has been reallocated from the women’s estate to the men’s estate, there seems to be a grudging acceptance that he isn’t “really” trans. After all, he’s a rapist. 

The problem for the protestors is that he wasn’t – in law – a rapist until he was convicted. 

If the protestors had their way, Adam Graham would have been welcomed in to any women only service he chose to attend. That in itself should be explanation as to why some services, particularly those where women are undressing or where they are survivors of male violence, want to exercise their right to remain female only under the Equality Act exceptions. It should take a lot more than a chalk willy on a pavement to persuade anybody otherwise.