IS IT A BOY OR IS IT A GIRL…..IT’S BOTH: THE SOCIETAL CONDEMNATION OF INTERSEXUALS

July 4, 2013 § Leave a comment

It is predicted that 1 in 2000 babies in the world are born with ‘indeterminate’ genitalia, where doctors are unable to confirm whether the child is neither male nor female, they are intersex. There are many different conditions in which this takes place but this is generally seen in a variation of characteristics in the genitalia, gonads or female/male chromosomes.

I am writing this blog whilst sitting in my accommodation in Vancouver, Canada where I am participating in the ‘Law on the Edge’ conference. Over the last couple of days I attended a conference presentation and later a film screening of Intersexion, concerning the rights of intersex people.

As a fairly naïve participant I was shocked to hear how common intersexuality is (more prevalent than babies born with cerebral palsy) and frankly horrified at the social and medical response to these children, which seeks to ‘correct’ them and place them within the gender binary of either male or female. Surgeons suggest surgery should be carried out on such children as soon as possible to reduce scarring in later life and ease their passage into society as identifying within a gender. However the repercussions can include the loss of sexual stimulation, infection and gender identity confusion which leads to anxiety, depression and in some cases suicide. Some will undergo a sex change operation and later develop opposite identity traits when they hit puberty, further confusing their designated gender.

So why does society find it necessary to categorise these children into a gender binary? This issue was raised at the conference and the response was for common reasons such as school sport teams, toilets, changing rooms and perhaps more importantly because wider society does not accept those who live outside of male/female categorisation. But in light of the existence of intersex people and the recent changes to New Zealand legislation which legalised marriage between ‘persons’ as opposed to male-female or same sex, the necessity of gender within society is something which is becoming increasingly fractured, a topic I intend to explore in further research.

The documentary and narrative provided by Mani B Mitchell, an intersex person from New Zealand, illustrated the pain and resentment experienced by intersex individuals at having their freedom removed by surgical operations which leave many feeling mutilated, undertaken without their consent as babies. The emphasis of the film was that babies who are born intersex should be left alone and parents should be congratulated on the birth of their healthy and normal child as opposed to scare mongered into consenting to surgery to correct something society views as abnormal. Intersex individuals should be given the choice to identify with whichever gender they choose, either socially or surgically, or to live as neither once they reach a culpable age of consent.

Legally a fascinating point raised at the conference was whether this surgery would be considered an offence under laws prohibiting female genital mutilation (FGM). In the UK, the legislation governing FGM is the Female Genital Mutilation Act 2003 which states in section 1(1) that ‘A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris’ bringing intersex surgery on infants into this remit.

An exception is stated at section 1(2) which makes an allowance for surgery where it is carried out by an approved person for the necessity of their physical or mental health. Where the physical health of an intersex child is at risk there was a general consensus that surgery should be undertaken, but it was recognised in the documentary that in the majority of cases, intersex children (and later adults) can live a happy and healthy life, free from the pains of surgery. In these cases, the physical health exception is removed which leaves the exemption on grounds of mental health.

In determining necessity on grounds of mental health section 4(5) states that:
‘For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.’
The obvious justification used by medical professionals is that societal transition would be easier if the child were physically changed to either male or female, but is this not classified as a Western custom, on the basis of what is socially acceptable? Custom is defined as ‘a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time’ a definition which seemingly places surgery on intersex infants within the context of FGM prohibition.

The Intersexion documentary was extremely touching and I recommend everyone to watch it as an education. As with most taboo subjects, ignorance can be combatted through education and increased knowledge of intersexuality. The anxiety and depression discussed within the documentary arose not from the groups existence as intersex but from the societal shame which arose from something which needs to be recognised as perfectly natural. After watching the documentary and hearing Mani’s personal narrative, it is clear that society should bare the shame for failure to recognise the position of those who are intersex and subjecting them to surgery which can only be described as amounting to genital mutilation.

Where’s the Humanity?

February 14, 2013 § Leave a comment

On Saturday the 26th January I attended a meeting organised by Tyneside Community Action Against Racism (TCAR). The day was organised by activists to highlight some of the pressing issues within the asylum regime. This blog will reiterate some of the concerns raised, in the hope that it will shed further light on an asylum system shamelessly focused on reducing immigration rather than providing sanctuary and meeting the needs of asylum seekers.Image

The speakers included Tom Vickers, Frances Webber, John Grayson and Raul Ally.
Tom’s speech ‘Racism and Politics in British State Welfare’ focused on the pitiful support that asylum seekers receive whilst they are in the UK and the racism which pervades the history of welfare provision and remains to this day. His speech can be accessed via his blog, consequently it will not be reiterated here.

I had the pleasure of reading Frances Webber’s book ‘Borderline Justice‘, which gives a comprehensive account of various aspects of the asylum system such as welfare, housing, detention, border control and access to justice. Her inspired speech gave a general overview of the developments in the legal system and the role of asylum seekers, community, lawyers and judges in fighting for a more humane asylum system, reiterating the importance of activism and community support. A video of her speech can be viewed by clicking the link.

The remainder of this blog is co-written by Raul Ally, who explains his profoundly moving experience of detention in the UK. He has also included a video link documenting his experience of seeking asylum

Before examining the deplorable practice of detention in the UK, the blog will examine discussion by John Grayson and the transfer of asylum seeker housing from the UK Border Agency to the privatised company G4S.

Privatised Housing and the shameless disregard for humanity:

Asylum seeker housing in the UK is now 100% outsourced to three multi-national security companies: Clearel (London and the South of England); Serco (North-West and Scotland & Northern Ireland); and G4S (North-East, Yorkshire & Humberside and the Midlands & East of England), who earn millions of pounds through securing provision. These companies cut costs by purchasing sub standard properties and letting them to asylum seekers who are left with little or no other options. Their blatant disregard for the standards of housing provided, the needs of asylum seekers and the suitability of areas of accommodation continue to place asylum seekers in precarious positions where their rights are frequently infringed.

G4S were granted 211million pounds for the seven year asylum housing contract. The company recently hit the headlines for botching security at the London Olympic Games, and more seriously for the death of Jimmy Mubenga in October 2010. Mubenga died after being restrained by G4S guards on a British Airways flight in an attempt to deport him to Angola, he was heard repeatedly shouting ‘I can’t breathe’ and ‘they’re going to kill me’ by fellow passengers and British Airways Crew.
In December 2012, G4S evicted a heavily pregnant asylum seeker from her home on the day she was due to be induced to give birth, expecting her to move all her belongings, register as homeless and travel to hospital herself. The woman was aided by one worker who took pity on her and gave her a lift to hospital.

The standards of housing provided by G4S are described by Grayson as appalling. In one case, a mother who had been housed in what Grayson describes as a ‘slum’, found a cockroach in her five month old son’s milk bottle. Her accommodation was damp and infested by slugs and cockroaches, the back yard was littered with piles of rubbish from previous tenants and the landlord had screwed cockroach traps to the walls, one of which was placed close to her son’s cot. Unlike national citizens who have tenant’s rights, asylum seekers were stripped of such rights via the Immigration and Asylum Act 1999. Despite this, the Government still have an obligation to provide asylum seekers with an adequate standard of living and physical and mental health via Article 11(1) and 12 of the International Covenant on Economic, Social and Cultural Rights.
They also have a national obligation to safeguard and promote the welfare of children, which they are bound to consider via Section 55 Borders Citizenship and Immigration Act 2009 and the Convention on the Rights of the Child. However, evidence suggests that the Government is failing to adhere to these obligations.

A recent parliamentary inquiry into the experiences of children within the asylum system found that in relation to housing, “families are living in poorly maintained, overcrowded accommodation which can be damp, dirty, cold and unsafe; infested with mice, cockroaches and other pests, rotting floorboards and locked windows. One submission characterized this as ‘death trap’ accommodation” noting there is little obligation upon housing providers to ensure high quality or appropriate accommodation. During the inquiry, one local authority affirmed that properties issued by private firms “are less well maintained and sometimes lack basic facilities needed for families with young children, such as washing machines. Children and parents have to share bedrooms, or live in flats and hostels with strangers, sharing communal areas.” The accountability of housing standards is thus a major concern.

Racist incidents have also been disregarded by G4S in their selection of accommodation areas, often housing asylum seekers in rough and notoriously racist areas. Grayson discussed the plight of an asylum seeking journalist from Iraq who was dispersed to a G4S property in Stockton in October 2012. On arrival the applicant and four other asylum seekers were overwhelmed by a crowd hurling racist abuse, who proceeded to break down the door and windows to their accommodation before being removed by police. The landlord repaired the door but refused to repair the windows, declining to move the asylum seekers to more appropriate accommodation. The police also refused to register the attack as racially motivated. In fear of reprisals the other four asylum seekers left the property, yet in doing so they also lost qualification for support.

The failure to return or subside at an authorised address constitutes a reason for the discontinuation of financial support to asylum seekers, who are also prevented from working. (See SI 2000/704 and Policy Bulletin 17, Failure to Travel)
Abandonment of address for reasons of racial harassment is classified as a reasonable excuse. In considering whether to discontinue support in these circumstances adjudicators must take into account the nature, degree, frequency, persistence and organisation of the harassment, as well as the effect it has on the asylum seeker and whether police have been informed and taken action. ‘The ‘sufficiency of protection’ test of refugee status itself has even been applied to deciding whether a refusal to return to the site of previous racist harassment was reasonable in the light of the police response. These decisions suggest that there is such a thing as an acceptable level of racial harassment (or a level of harassment which asylum seekers must accept).” (Macdonald’s Immigration Law and Practice 2010, page1104)

Though some asylum seekers are active in their fight for humane and dignified treatment, some are afraid to speak out, worried of the impact it could have on their asylum application. Consequently hundreds of asylum seekers continue to live in squalor and allow racist incidents to go unreported, choosing to remain at home rather than risk racial abuse outside.

Detention: A punitive response to seeking asylum?
Though immigration detention is claimed not to be a form of punishment, Morton Hall detention centre, where Raul was recently held used to be a female prison. At the TCAR meeting Raul described being locked in a cell intermittently during the day and released for breakfast, lunch and dinner. The centre placed restrictions on internet access, which prevented Raul from accessing websites to aid his asylum claim and he claims that staff would intercept his post. Raul reported that the majority of detainees were depressed, one of whom he witnessed stabbing himself with a fork in the dining hall through fear of deportation.

Though asylum seekers have committed no crime, once detained, they are imprisoned and unable to leave. Whereas criminals are imprisoned for a fixed amount of time, there is no time limit placed on immigration detention and no requirement to inform detainees of how long they will be incarcerated. The imprisonment of asylum seekers in the UK has led to countless riots, hunger strikes and suicides.

The National Clinical Director for Health and Criminal Justice at the Department of Health has affirmed that ‘custody causes mental distress and acts to exacerbate existing mental health problems, heighten vulnerability and increase the risk of self-harm and suicide.’ The following case study has been taken from a blog written by Clare Sambrook and provides an insight into the realities of immigration detention and deportation:

“When immigration officers called at his home in Leeds for a ‘pastoral visit’, the man was open and friendly. He let them in, offered them a seat, a cup of coffee, told them of his depression, showed them his medication. The very next day a dozen officers arrived at dawn and broke down his door with a battering ram — (an “absolutely routine pick-up”, they called it). The man and his 13 year old son woke up to find an immigration officer and a police officer in their attic bedroom. They were told to dress and pack, told they’d be flown the following morning to Angola — a country where, the man said, his mother, father and sister had been killed by the authorities.
On the drive to the removal centre — Yarl’s Wood, in Bedfordshire — escort staff from private contractors G4S confiscated a coil of washing line from his bag. At Yarl’s Wood they said he could not keep his medication or the washing line with him, but nobody noted any indication of risk of self-harm in his file. He was found hanged in a Yarl’s Wood stairwell at around 1 AM the next morning. His son was woken up and told the news. The man was Manuel Bravo. He was 35 years old. The circumstances of his death were recorded, with some compassion, by the Prisons and Probation Ombudsman Stephen Shaw in January 2006.”

At the TCAR event Raul spoke of the profound impact detention had had on him, stating ‘I may seem ok on the outside, but really I am not.’

Raul’s account:

On the 24th of June 2012 I was arrested and held in North Shields police station for 3 days. I was released 3 hours before my prom, I was arrested without committing any crime or doing anything wrong and ordered to sign on (at an immigration centre) every week.

It was Wednesday the 1st of August and I was meant to be watching an Olympic football match between Brazil and Australia, but unfortunately I couldn’t make it because I was rearrested by the UKBA and taken to Morton Hall detention centre in Lincolnshire where I was detained for over 2 months.

My experience in Morton hall has to be the worst experience I have had in Britain. I first arrived there thinking there would only be a few of us, but I was shocked to see how many people were held there, people from all different countries with different circumstances. I expected to see only asylum seekers but there were people being detained for no specific reason which was very sad to see. There were people with major illnesses such as heart disease, people who were blind, those suffering mental illness and people without limbs. It was sad spending time with them, sometimes I wished that they could be released and I remained in there because they didn’t deserve to be held in those conditions.

The staff in Morton Hall were very harsh, I heard one with my own ears saying that they had the hardest job working in a detention centre as we (asylum seekers) were the worst criminals. They treated people like animals, I saw one detainee being forced to move, they strangled and cuffed him, the guy couldn’t even breathe properly and shouted that they were killing him, it was very sad to watch. The nurses lie and say whatever is necessary so people can be deported, there was a Vietnamese person who had heart problems and couldn’t even go to the dining hall to get his food, yet the nurses signed that he was fit to be deported, and they only supply you with pain killers as medication.

The immigration rules say that the maximum someone should be held in detention is 3 months, but some of my friends were held for up to 6 years, some people have even been deported to wrong destinations, just so they can get rid of them. There were a few Somalis who pooed in the plane because they were taken to unknown countries and they used fake documents to deport them. It was hell being in a detention centre, and it hurts me to see people being treated like this. God’s world has no borders. Shut down detention centres!

By Raul Ally

A video documenting Raul’s asylum journey can be viewed at:

Do Children Have Rights? A brief analysis of the theories of rights.

October 16, 2012 § 1 Comment

For my first blog I use the foundational reading I am undertaking at the start of my PhD studies in order to discuss the theories of rights, and more specifically, what these theories mean to children as right-holders. There are two main competing theories as to the nature of rights; interest theory and choice (or will) theory. I will start by trying to briefly explain each, pointing out the fundamental differences which lead to the problematic philosophical question of whether or not children have rights.

Interest Theory

Developed from Jeremy Bentham’s benefit theory, Joseph Raz’s interest theory focuses on rights arising from our holding of a sufficient interest. The subsequent right then informs a duty or obligation of others, as Raz explains;

[T]he interests are part of the justification of the rights which are part of the justification of the duties. Rights are intermediate conclusions in arguments from ultimate values to duties. They are, so to speak, points in the argument where many considerations intersect and where their results are summarized to be used with additional premises when need be.

From this it can be seen how we move from an interest to a right, and from the right to a duty. Rights are intermediate conclusions between interests and duties, and as such we also see a key point of interest theory; that rights talk can take place antecedent of duties. This means rights ground and justify duties, or are the ‘reasons for the duties to which they give rise.’

Choice Theory

The choice theory of rights was propounded by H.L.A Hart in his 1955 paper ‘Are there any natural rights?’ Hart’s core idea is that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free”. The use of conditional language also shows another important aspect of choice theory; the difference between a right, and the right thing to do. The actions of moral agents may be considered as ‘right’ or ‘wrong’ without reference to the exercise or violation of rights, which will be important later. For now it is enough to assert that possessing a right, on choice theory, is to have a moral justification to determine how someone else should act, whether it be to fulfil a duty owed or to waive the claim. The key to a right on choice theory is control and/or autonomy. Rights serve to protect a certain measure of freedom/control the right-holder enjoys by dint of their capacity as an active manager, a choosing agent, within a realm defined by the right.

What the differences mean

As seen above, choice theorists argue that people are the “active managers of their own lives even when to do so will work to their overall detriment”, thus the upholding of autonomy is central to the theory. Contrastingly it is argued that on interest theory individuals become “passive beneficiaries of the services of others”. Interest theory could place autonomy as an interest, which can then put others under a duty not to interfere, but at the same time it can be argued that autonomy is the core and to have interests that are worthwhile, or ‘sufficient’, one must first be autonomous. Autonomy may therefore seem to supersede all other rights and interests, however there does appear some circularity here and possibly an irresolvable intertwining between interests and autonomy. Do we have an interest in being autonomous because we are autonomous? Or does our autonomous nature now makes us realise that it was because people had a duty to protect our interests in the past, that allowed us to become autonomous beings at all? Choice theorists believe a right comes from having control over someone’s duty. Yet here it can be said that they have an interest in controlling someone’s duty, and so such rights may exist on interest theory, if this interest is seen as sufficient. Rights are more likely to conflict with interest theory, but this also ensures that we consider other’s interests when determining duties.

Another important difference is unwaivable rights. Choice theorists, as ‘active managers’, believe any rights we possess can be waived by us, and that if a ‘right’, such as not to be assaulted, cannot be successfully waived, it is not a right. As such there is no right not to be murdered, or not to be enslaved, but choice theorists do not therefore condone murder or enslavement (the difference between what is right, and a right). They argue the language must be different, and that something not being protected by a right, does not mean others do not have a duty against doing it. If we bring this idea out of moral philosophy and into pragmatic legal thought, then it may seem an idea for we which we have more sympathy. Whilst there is no such thing as legal murder, we have the right to medical treatment, but we also have the right to refuse medical treatment – that is to waive our right to medical care. Thus we can control our rights, or at least certain rights. Whilst appealing, this is not without problems in that in order to be able to control our rights, right-holders must necessarily be fully autonomous persons. Thus we come to the debate of whether children have rights.

The Rights of Children

The bestowing of rights upon children and incompetent adults is one of the major advantages of interest theory. Wenar has suggested that choice theory is ‘implausibly narrow’ because it does not give those groups of individuals rights as they do not have the necessary capacity to exercise their rights. “The appeal of the interest theory emanates from the wide range of rights that it can endorse, and from the evident fact that having rights can make a life go better.” “Few would insist that it is conceptually impossible, for example, for children to have a right against severe abuse.” And Hart, subsequently changed his views on the concept of a right in respect of moral rights, reportedly suggesting rights “may be used to focus upon individuals’ needs rather than upon their possessing choices.” This would suggest that Hart agrees that children therefore have moral and legal rights against their parents, to be fed for example, as this is something ‘focused upon their needs.’

Choice theorists however would rebut that such non-right-holders are still afforded protection by non-correlative obligations, that is, obligations that are not grounded from any right. Every right may inform a corresponding duty, yet not every duty therefore is informed by a right. Such non-correlative obligations are necessarily held by the autonomous right-holders. Sumner incorporates relational duties based on a benefit analysis into his view of choice theory, leaving us with a result he hopes will negate such problems;

[A]lthough a theory of rights which adopts the choice model can make no sense of the rights of animals or foetuses or infants or young children or the severely mentally handicapped, it can accomplish essentially the same objective by making them the beneficiaries of our protective duties.

Such protective duties may seem to make the theory more palatable however there is more to the rights of children than negative duties and obligations by adults not to harm them. For example, protective duties may no room for the right to education or even to be cared for. No positive rights for children can exist, as no rights for children exist, which means our children enter a world where moral thought concerning them is that the superior autonomous human beings merely have an obligation not to harm them. It should perhaps go without saying that we as a society have problems accepting this. Children have rights. They may not have always been recognised in law, such as the Roman Republic, yet as MacCormick states, “that only means that some or perhaps many legal systems have been morally deficient, which is scarcely a startling observation.” Thus he seems to propose a blend of the two theories of rights. Interest theory is not without clear problems such as; unwaivable rights; third party beneficiaries, which show a right can be held by one who will not benefit from the duty; and that what a ‘sufficient’ interest is that will ground and justify a right has not been given any more objective description. Yet protecting sufficient interests is vital for children to have rights, and perhaps equally vital to protecting them in order to allow them to become autonomous moral agents. At this ‘cut-off point’, when this may be is another debate entirely, such moral agents may be considered to know what is in their own interests and as such move into a choice theory conception of rights. Such an idea is worthy of further thought, as it bestows rights upon children, yet has the vital aspect of control and freedom for competent and fully autonomous agents as well.

- Dominic O’Brien

Ageism in the Workplace – A Struggle for Recognition?

October 9, 2012 § 1 Comment

Historically ‘age’ has struggled for recognition as an equality issue. The emergence of other discrimination legislation emphasised this point. Discrimination on grounds of sex and race has been unlawful in the United Kindgom since 1975 and 1976 respectively. Discrimination on grounds of disability has been unlawful since 1995 and more recently discrimination on grounds of sexual orientation and religion and belief has been unlawful since 2003.

It took the emergence of the Equality Directive 2000/78/EC which gave age its rightful place alongside the other protected grounds. This Directive required Member States to enact specific legislation to combat age discrimination, which the United Kingdom did in the form of the Employment Equality (Age) Regulations 2006. Presently we have the Equality Act 2010, representing years of debate on how to improve equality law, and this consolidated and replaces a number of previous discrimination legislation including the Employment Equality (Age) Regulations 2006.

Differences of treatment between individuals or groups on the grounds of age are often based on generalised assumptions or stereotypes. Ageism allows us to think of others purely in terms of their chronological age or perceived age regardless of how experienced they are or how able they are to perform a task. It is a widespread stereotype that older persons are often assumed to lack flexibility, the ability to absorb new ideas are less motivated, are risk averse and may resist training/are resistant to change. Another stereotype frequently encountered is that the physical and mental abilities decrease with age. The stereotypes that exist are often inaccurate and do not reflect the true diversity of individuals. Age does not automatically mean a diminution of skills or a diminution in cognitive capacity or physical strength and endurance. The concern was that by allowing employers to justify direct age discrimination the defence may give rise to misuse and/or facilitate stereotypical assumption.

A review of the reported case law and observation of age discrimination claims at the local Employment Tribunal reveals the consensus that despite the existence of legislation to combat unlawful age discrimination ageism will inevitably occur at the recruitment stage for older workers and that is a fact of life. However an Employment Tribunal is willing to compensate individuals for the risk of continued discrimination.

In the case of  Killa v Electronic Motions Systems Ltd the Claimant had been employed as an electronic engineer for 8 years and was selected for redundancy, with no evidence of any objective criteria being applied. The Employment Tribunal found that the dismissal amounted to age discrimination. In the remedy judgment it was held that ‘it is not, unfortunately, the case that someone aged 59, 60 or over, competes on a level playing with younger people. The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities.”’ The Employment Tribunal goes onto confirm that ‘not only his age, but also his recent dismissal, in a non voluntary redundancy, is against him. He has already found that that was a factor making obtaining work more difficult’ andgoes as far as to conclude that Mr Killa has realistically ‘no chance of getting work in his own field at his age, and at the level he previously enjoyed. He has no chance of getting equivalent earnings in another field in the years he has left.’

We do not know what evidence the Employment Tribunal had in order to reach these findings, except the unsuccessful efforts of Mr Killa to find alternative work. Therefore we do not know whether the Employment Tribunal is acting on its own view about recruitment or whether there was clear evidence that Mr Killa was unsuccessful in securing alternative employment because of his age.

More recently in an age discrimination/unfair dismissal case that I observed at a local Employment Tribunal there was a common thread throughout the evidence as to how difficult it would be for a 58 year old to find alternative employment. The Claimant himself felt: ‘At 58 I will never get another job… Simple as that.’ One witness for the Respondent, an agent of significant experience in the relevant field of the Claimant’s work, initially commented that the Claimant ‘…would be top of the pile with his experience’ and stated that he would consider the Claimant for a role.  However later in the questioning the witness acknowledged that looking purely at the ages without knowing the candidates by recommendation then he would be unlikely to pick the 58 year old. Indeed in her closing submission Claimant’s Counsel hypothetically asked the Employment Tribunal ‘is an employer really going to give the job to a 58 year old man?’

There was no acknowledgement or indication by any of the witnesses that the culture of ageism may have changed as a result of age being a protected characteristic within the Equality Act 2010. However the Employment Tribunals are recognising this struggle to combat age discrimination and are sending a clear message that Claimants will be compensated accordingly.

- Lyndsey Martin

Justifying direct age discrimination: What is a Legitimate Aim?

October 1, 2012 § Leave a comment

A fundamental feature of UK and EU anti discrimination law is the distinction between direct and indirect discrimination. For direct discrimination there is usually no justification defence, however for indirect discrimination there is usually a defence. Article 6 of the Equality Directive 2000/78 provides that Member States may provide differences of treatment on grounds of age shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary. Therefore differences of treatment on grounds of age will not constitute direct discrimination provided they are objectively justified.

The Employment Equality (Age) Regulations 2006, and more recently the Equality Act 2010, took full advantage of the wording of Article 6 and provides a general justification defence in respect of direct age discrimination. In other words we do not have an exhaustive list of accepted grounds as an exception to the prohibition against direct age discrimination. Direct age discrimination is justified if ‘the treatment is a proportionate means of achieving a legitimate aim’ (section 13 Equality Act 2010).The general justification defence leaves the law in a state of uncertainty as to what may or may not constitute a legitimate aim. However there have been a number of decisions by the Court of Justice of the European Union that have considered the justification of direct age discrimination. Having examined these decisions the following points will assist in determining whether there is a legitimate aim in a particular case:

1. The legitimate aim must be linked to a social policy objective, as opposed to a individual reason particular to the employer’s business such as cost reduction or improving competitiveness.

2. What is legitimate will depend upon the context of the measure. For example in the case of Palacios de la Villa v Cortefiel Servicios SA C411/05 the fact that the economic background characterised by high unemployment was relevant to whether the measure in question pursued a legitimate aim.

3. Flexibility for employers is not a legitimate aim but a certain degree of flexibility may be permitted to pursue the social policy objective.

4. The following are examples of potential legitimate aims (some are more controversial than others):

i. The prevention of job blocking ‘the fair innings argument’ /sharing employment opportunities between generations

ii. Promoting access to employment for young people

iii. Enabling older people to remain in the workforce

iv. Ensuring a mix of generations of staff so as to promote the exchange of experience and ideas

v. Encouraging and rewarding loyalty

vi. Providing a target age for succession planning/efficient planning of the departure and recruitment of staff

vii. Encourage employees to save for retirement

viii. Avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating to the employee concerned

ix. Avoiding disputes as to the employee’s ability to do the work which contributes to a congenial workforce.

x. The avoidance of a windfall to an employee whether that windfall is large or small.

The fact that a particular aim is capable of being a legitimate aim under the Equality Directive (and the Equality Act 2010) is only the first step. There must then be a consideration as to whether it is the aim being pursued and whether it is appropriate and necessary in that particular case. An example provided by Lady Hale in the Supreme Court decision of Seldon v Clarkson Wright and Jakes [2010] EWCA Civ 899 is that avoiding the need to performance manage an individual may be a legitimate aim but if the business in question has a ‘sophisticated management measure in place it may not be legitimate to avoid them for only one section of the workforce.’

 The case of Ormerod v Cummins ET case number 2508268/09 is an example of the employer falling at this hurdle. In that case the Claimant brought a claim of direct age discrimination arising from his redundancy payment calculation. He did not receive his full entitlement because he was approaching retirement and thus in the Company’s view would provide him with a windfall. Although the Tribunal recognised that the avoidance of a windfall is a potential legitimate aim, it was not legitimate in this case. The Tribunal placed great reliance on the lack of attempt by the employer to advance a case as to what the windfall was. Furthermore the redundancy package and the early drawing of the pension actually deprived the Claimant of various other benefits including the loss of opportunity to work on and enhance his pension and the loss of potential bonus and overtime. Therefore the Tribunal will not simply accept the fact that it may be a legitimate aim then go straight to determine whether the means of achieving that aim are appropriate and necessary. There must be a consideration of that aim against the facts of the particular case.

- Lyndsey Martin

Celebrating a decade of Clinical Legal Education in Nigeria: It is not yet Uhuru!

August 7, 2012 § 1 Comment

By Kevwe M. Omoragbon, Northumbria University, UK.

It has been ten years of the introduction of clinical legal education in Nigeria. It can be said that the country has benefitted from the tidal flow of the global clinical movement. There has been a steady growth in the number of law clinics bringing it to fourteen law clinics which are situated within the universities and some campuses of the Nigerian Law Schools. The main goals of the clinics are to train law students in the practice of law as well as provide free legal aid to less advantaged citizens. A recent legislative change to the Legal Aid Act now legally recognizes law clinics as being engaged in the provision of legal aid.

Despite the gains of CLE, several challenges are still being faced by the law clinics. The focus of this paper will be to address the legal impediment which prohibits anyone who has not yet been called to bar from appearing in any court of law, this out rightly excludes law students. This paper argues that the practical training of law students is incomplete without a measure of appearance in some courts and/or tribunals.

The methodology of the presentation will involve the use of an ethnographic case study to highlight these challenges, and then go on to discuss what can be done to address these problems especially through law reform as  well as identify who the actors and stakeholders are in the drive towards the reform.

Clamour for reform of legal education in Nigeria began after the return to democratic rule in 1999. Consequently, the Nigerian Institute of Advanced Legal studies organized an all-stakeholders conference to discuss the fundamental issues concerned in legal education in Nigeria. The conference resolved on the need to refocus legal education for the Nigeria of the twenty-first century. After the conference, the Nigerian Bar Association set up a committee on legal education to liaise with all legal education institutions with a view to improving legal training. Moreover, the Nigerian Bar Association Summit on legal education held in May 2006 passed a resolution calling for the adoption of clinical legal education for all law programmes in Nigeria.

In a bid to develop and institutionalize clinical legal education in Nigeria, the Network of University Legal Aid Institutions, Nigeria (hereinafter referred to as NULAI) was established in 2003 as a not for profit organization. Its membership is open to legal clinics/Legal Aid Institution of Nigerian Universities and Law schools. Its activities include, promoting clinical legal education, reforms of legal education, access to justice and legal aid by organizing colloquiums, training workshops and giving grants for the provision of financial and material resources to law clinics.

At the time of this presentation, there are fourteen law clinics located in Faculties of law of Nigerian Universities as well as campuses of the Nigerian Law School. Most of the law clinics started as general interest law clinics with the exception of the Women’s Law Clinic, University of Ibadan. Over time, they have become more specialist focused especially in the area of prison decongestion. For example, the ABSU Law Clinic, Maiduguri Law Clinic, Akungba Law Clinic, EBSU Law Clinic and UNIUYO Law Clinic who started by providing legal advice, ADR and human rights education, commenced a prison service in 2009 and presently are working to assist over 550 pre-trial detainees. The Women’s Law Clinic from inception started out as a specialist law clinic and deals with cases of domestic violence, matrimonial issues including divorce and child custody, succession, employee-employer as well as tenancy disputes. It has handled over one hundred cases out of which seventy-four were successfully concluded. All law clinics also benefit from grants, several capacity building workshops and participate in an annual client counseling skills competition.

The country has also seen a law reform which now legally recognizes law clinics as providers of legal aid. The Amended legal Aid Act (attached) recognizes law clinics.  The Legal Aid Act, 2011 (Part IV Section 17) provides that “The Council shall maintain a register of non-governmental organizations and law clinics that are engaged in the provision of legal aid or assistance to persons who are entitled to legal aid under this Act”.

Despite this feat, the clinics cannot rest on their oars as there are challenges militating against the access to justice which need to be urgently addressed. The following case study brings to light some of these challenges which hamper the provision of legal aid by law clinics.

Case study

This case study is an example of the type of case the law clinics will deal with and the common problems they encounter. Yetunde is a mother of four children ages 11, 8, 5 and 8mths. The first three children are female while the last baby is a male child. Her marital problems started after the birth of her third female child. Cultural values are attached to male children as an average Nigerian man wants an heir who will bear his name and take over his inheritance after his demise. Yetunde was sent out of her husband’s house shortly after the birth of the last child having being accused of adultery and witchcraft which is a clog in his progress. Her husband also denies the paternity of the last child and won dissolution of their marriage from a customary court who awarded custody of the first three children to her husband and a monthly maintenance allowance of N1,500 (which is equivalently £6) for the last child. This dissolution was done in a customary court despite being married under statutory law after traditional marriage. In Nigeria, there are three legally recognized types of marriages- the statutory marriage or marriage under the Act, the marriage under native law and customs or the traditional marriage and the Islamic marriage. Many couple combine at least two of these types of marriages creating the practice of ‘double deck’ marriages. Double deck marriage is rife but so long as there is a statutory marriage after the celebration of a traditional marriage, the statutory marriage takes precedence and can only be dissolved in a High Court and not a customary court. A customary court only has jurisdiction over marriages which are solely conducted under local native law and customs.

Yetunde had to rent a studio apartment with her savings as a yearly tenant but just six months into her tenancy, she was issued a notice to quit the property within six months. She was informed by reliable sources that her husband had mounted pressure on the landlord to evict her whilst also accusing the landlord of committing adultery with his wife. Yetunde then approached the law clinic for legal aid in respect of two main issues:

  1. Custody and maintenance of her first three children which she claimed are being maltreated by her husband’s new wife.
  2. Reversal of the notice to quit given by her landlord as she is of good character and has paid her rent in full for one calendar year.

The clinic immediately swung into action by conducting further investigation which showed that as regards the first issue of divorce and custody, Yetunde was statutorily married under the Marriage Act and therefore only the High Court had jurisdiction to dissolve the marriage. The clinic gathered that Yetunde did receive the court summons but due to fear of being arrested and detained, she did not attend. However, the customary court went ahead to issue a verdict in her absence and a copy of the judgment was sent to her by post which stated that her husband will have custody of the first three children while she takes care of the baby until his 6th birthday, she is not allowed any access to her daughters and is also barred from going to their school or the locality where they reside. The allegation of adultery was not proven beyond reasonable doubt and a monthly maintenance award of N1,500 (which is equivalently £6) was insufficient to meet the baby’s needs, neither had she received any in the last three months.

The clinic first attempted to mediate between Yetunde and her husband although this proved problematic. Though he ignored the letter of invitation twice, he however honoured the third letter but still maintained his initial stand of upholding the divorce and adding that he has now re-married and his new wife just had baby boy. He also informed the clinic never to write anymore letters.

The clinic needs to institute an action in the High court to declare that the customary court has no jurisdiction over statutory marriages and, to file for custody and maintenance for all her children and herself. However, law students in Nigeria have no rights of appearance in any tribunal or court, the clinic is finding it difficult to find a pro bono lawyer within reasonable time who will take up the case and there is also slow progress in finding a suitable agency to refer a case of this nature.

As regards, the second issue on her tenancy, the clinic confirmed that being a yearly tenant, Yetunde is entitled to six clear calendar months notice. However, the notice to quit is three days less than the required six months which makes the notice of ineffective. Despite writing to the landlord to explain this legal requirement, he went ahead to re-issue a seven days notice of owners intention to recover possession of his property at the expiration of the notice.

The clinic needs to institute an action with the rent tribunal in order to get an injunction restraining the landlord from recovering possession. However, as there are no student practice rules in Nigeria, students have no right of appearance in any tribunal or court. The clinic was unable to find a pro bono lawyer who will take up the case within the seven day time frame. The landlord employed the use of bailiffs to recover possession at the expiration of the seven days notice. Yetunde was assaulted in the process and is disappointed that the clinic could not do anything to stop the landlord from throwing out her stuff.  

Cases such as this are rarely concluded as the client looses interest in the case and seldom shows up afterwards. This clearly shows an example of some of the cases where the clinic’s hands are tied by the law which restricts law students from appearing in any court or tribunal. It is apparent that students would have learned much more if they had the opportunity to prepare further paper work, file a case in the relevant tribunal or court and represent their clients. The reputation of the clinic is also sometimes at stake as clients find it difficult to understand these legal requirements. For instance, some of the cases before the Women’s Law Clinic are never concluded due to setbacks such as this.

It is the position of this paper that a mere ‘recognition’ of law clinics by the Legal Aid Council and their inclusion in a register as provided by the amended Legal Aid Act 2011is not enough to ensure access to justice. Therefore, it is my recommendation that the way forward for law clinics’ in Nigeria, is to have Student Practice Rules which will give students limited rights of appearance in some courts and tribunals. Nigeria, through networking in a conference like the IJCLE, can learn from other developed jurisdictions where this has produced better equipped law graduates in countries such as here in the UK as well as the US. This willalso ensure access to justice for citizens whilst fulfilling the objective of training law students in the ‘practice’ of law.

It is also my recommendation that there needs to be an increase in the number of law clinics. The present 14 law clinics’ is still a far cry out of over 40 public and private Universities in Nigeria. In order to achieve the desired law reform, many more universities need to embrace clinical legal education. The National Universities Commission as well as the Council for Legal Education in Nigeria should make it mandatory for all universities to have law clinics attached to their law faculties or have other forms of clinical programs such as street law or externships. This would replace the ambiguous NUC drafts benchmarks and minimum academic standards in law of 2005 which prescribed as mandatory the introduction of a community based course in the fourth year LL.B programme.

There also needs to be more student and faculty engagement in this regard as many clinics all over the world emerged through student activism and their demand to participate in roles similar to the ideals and vision of law practice. This can be done through the Law student societies in the universities as well as the student union and the National Students Association.

If all these machineries are put in place, there will an enabling environment as well as a learning opportunity for students whilst ensuring access to justice for the less advantaged Nigerians. I welcome comments from colleagues in other jurisdictions with or without student practice rules to share their experience on how they have overcome some of these challenges.

Thank you.

Deaths at Sea – Asylum Seekers and Illegal Entry

August 1, 2012 § 1 Comment

(Residents and police try to rescue refugees from an asylum boat being smashed by violent seas against the jagged coastline of Australia’s Christmas Island Photo: AP)

This month disturbing news revealed that 54 people died in an attempt to reach Italy from Libya by boat, one man from Eritrea survived, the rest perished from dehydration in a 15 day ordeal.

This blog aims to provide a legal and realistic narrative of the reasons why deaths at sea continue to occur and who is to be held accountable.

A Personal Account

Before I begin this blog, I want to draw attention to a story I came across during my reading. It is written by a Somali woman who was smuggled into Europe. Her personal account exposes some of the realities of smuggling and the dangers people face in escaping persecution.

“I remember living a medium life. Me, my husband and eight children. I remember my baby calling, “Mama, mama”. Quite normal.… But the war breaks. We fled. Far away to south Somalia….Two months on. Everything’s out of hand. We run away from the civil war. Me, my husband and eight children.… And we go from Somalia by boat towards Kenya. But suddenly the boat is sinking. The boat is overloaded…. The boat broke. Water breaking into us…. I can’t swim. The boat sinks. Who will rescue us?…. 200 people are dying, drowning. I’m losing my family to the sea. Five of my daughters are lost…. And my eldest son, he’s just begun his life, he’s finished university. He’s lost. That makes six of my children. Dead in the sea, in one day.… Suddenly, an Italian tourist boat is passing.… people come to rescue us. They grab my baby, who I’m holding. And another child of mine…. All the time my baby’s calling “Mama, mama.” Suddenly, I am hauled into the boat like a baby myself…. I am crying. My whole body. Crying.… Do you hear me?… I cannot forget that day. Although I’m here before you today, you can’t have imagined the life of one Somali woman.…  am breaking my silence. The world should know my life, my baby calling “Mama, mama”. The world should hear this life.” Found in research commissioned by the Information Centre about Asylum and Refugees in the UK (ICAR) at http://www.icar.org.uk/somalicommunityreport.pdf

The Factual Reality

Though the above stories are horrendous, it’s a narrative that continues to take place as persecuted individuals continue to employ criminal smugglers in attempts to find sanctuary within Europe. Figures from UNHCR show that since the 31st of January 2012 over 500 irregular migrants and refugees died attempting to cross the Mediterranean sea. Sadly, this figure is also likely to be higher as not all deaths are recorded (throwing dead bodies overboard is common) and death records are only accounted for in tales from survivors or through enquiries from family members looking for missing persons.  Unfortunately the majority of people smuggled into the UK and Europe are those seeking refuge from conflict ridden countries.

The stark reality is that despite the right to ‘seek and to enjoy in other countries asylum from persecution’ as enshrined by Article 14 of the Universal Declaration of Human Rights (UDHR), when conflicts erupt or it is likely that there will be an influx of people from a particular country, the UK government introduces stringent visa requirements and this is paralleled throughout Europe.

This can be seen in the UK Border Agency’s (UKBA) current list of countries requiring visa entry for the UK, which includes many refugee producing countries. Unfortunately given the nature of refugees, (in that most come from politically unstable countries) seeking visas from British embassies within their own countries is often impossible. Currently included on the UKBA’s list is Somalia, yet Somali’s cannot obtain passports, let alone British visas and UNHCR recently reported that a boat was still at sea carrying 50 Somali and Eritrean people attempting to reach Italy. Other countries such as Iran and China are also listed, yet within these countries the State is the persecutor from whom people seek to escape, therefore obtaining travel documents or visas can be dangerous to the applicant or the family they leave behind.

Consequently, legal entry, for the majority of asylum seekers, is unfeasible:  in essence the worse the situation in the country of origin, the more difficult it is to gain entry to the UK or Europe. As a result of this, the activities of criminal smugglers have prospered and human rights abuses have increased. Amnesty International estimates that every year, four million people are trafficked or smuggled across international borders- the value of this criminal trade is estimated at approximately $US10 billion per year.

Illegal entry and the rising death toll can be addressed as a three- fold problem:

-the first (as cited above) is due to visa requirements for entrants from refugee producing countries;

-the second is the failure of the UK government and other European States to provide sufficient resettlement programs;

-and thirdly the increased security of Europe’s external borders forces asylum seekers to find ever more complex and dangerous methods of entry.

Resettlement

In 2004 the UK government, in partnership with UNHCR, set up a refugee resettlement scheme (under Section 59 of the Nationality, Immigration and Asylum Act) which provides 500 resettlement places to those refugees most in need throughout the world, this has since been increased to 750 places.

Currently sixteen European countries provide resettlement to refugees, yet they only provide 8% of global resettlement places. 90% of places are provided by the three top resettlement countries: the United States, Australia and Canada. Recently the European Union adopted the EU resettlement program, which intends to co-ordinate, harmonize and increase the number of resettlement places offered throughout Europe. However the number of resettlement places has not increased in parallel with the number of countries needing the resettlement of citizens. UNHCR estimates that 800,000 refugees are in need of resettlement places each year, far more than the places available, the result being that only one in ten refugees in need of resettlement will secure protection through the programs.

Border Control and Smuggling

As discussed, illegal entry is often the only resort of those who wish to escape their country and find refuge. In attempting to do so, asylum seekers commonly employ criminal smugglers to smuggle them across the borders to a new life. This often involves extortionate amounts of money and the sacrifice of safety, putting individuals and families at the mercy of criminal smugglers. Contrary to popular opinion, the poorest members of societies within these conflict ridden countries often can’t afford to pay people smugglers, thus the majority of asylum seekers who reach the UK or Europe in this way come from wealthier backgrounds. Often individuals pay for the journey with their life savings, their family’s life savings or community contributions, and in some instances it can cost them their lives. Causes of death can be due to a number of circumstances such as: extreme weather; unseaworthy boats; beatings from smugglers; drowning; starvation; dehydration; suffocation and in some cases suicide out of desperation.

The increase in European and UK border control makes entering Europe progressively difficult, the visa restrictions and increased security has gained media attention as “Fortress Europe” which propels smugglers further in finding extreme methods of trafficking people across the borders.

Within the Schengen area of Europe external borders in terms of sea, land and air, are guarded by Frontex who employ a border surveillance system and European Border Guard Teams, whose mission is to reduce the number of irregular migrants entering the country.  The UK has its own border agency the UKBA who employ over 23,500 staff in protecting the UK’s borders.

Legal Responsibility

There is a legal framework for people crossing the borders by boat which divides responsibility between Shipmasters, and State parties:

Two Conventions: The 1982 United Nations Convention on the Law of the Sea and the 1974 International Convention for the Safety of Life at Sea (SOLAS) place the Shipmaster under an obligation to assist those in distress at sea, regardless of any circumstances such as nationality etc.

In terms of State parties, several international conventions obligate them to ensure appropriate rescue arrangements for distress calls received within their area of responsibility. These include:

- 1982 United Nations Convention on the Law of the Sea, Article 98(2) (UNCLOS)

- 1974 International Convention for Safety of Life at Sea, Chapter V, Regulation 7 (SOLAS)

- 1979 International Convention on Maritime Search and Rescue, Chapters 2.1.10 and 1.3.2 (SAR)

The State must aim to relieve the Shipmasters of responsibility by arranging disembarkation of those rescued as soon as possible. The State responsible for those rescued depends on the SAR region in which the survivors were recovered, the State responsible must provide a place of safety for survivors. Disembarkation should not be delayed for procedures such as screening or status assessment. (Guidelines on Treatment of Persons Rescued at Sea – Resolution MSC 167(78).

For further information see the following guidelines: http://www.marisec.org/rescueatsea.pdf

International Refugee Law

Though there is a right for individuals to seek asylum, as enshrined by Article 14 of the UDHR, there is no corresponding obligation upon States to grant asylum. The word ‘receive’ was removed from the UDHR on the premise that member State’s should retain their sovereignty in being able to decide who could enter their territory. Therefore international refugee and human rights law does not offer any concrete protection for refugees until they enter the territory in which they seek refuge. As a result, the onus is on the refugee themselves to escape persecution.

As a consequence of this, States are able to introduce stringent visa measures for refugee producing countries.  The reasons behind this are obvious in that no member State wants an influx of asylum seekers from a particular country. Once this occurs within Europe the first member State to receive applicants remains responsible for those individuals in processing their application and offering them refuge (via the Dublin Regulation – which is why Italy’s refugee system is under intense pressure). The politics of the situation seems like a playground quarrel and ultimately that’s what it is, clearly if all member State’s removed visa restrictions, some of the barriers for entry would be removed, but there is no legal requirement to do this and therefore it is unlikely this will ever happen.

As can be seen the protection for those residing in conflict ridden countries is relatively weak, however once applicants reach the State in which they seek sanctuary, Article 33 of the International Convention on the Status of Refugees (‘Geneva Convention’) becomes active. Article 33 is the right to ‘non-refoulement’ which means that once an applicant is under a State’s jurisdiction they cannot be returned to a territory ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‘  Consequently State’s must process an individual’s asylum claim before returning them to their country of origin. If they satisfy the member State’s requirements for refugee status they will be allowed to remain.

Escape

Article 33 of the Geneva Convention is seen to be ‘the cornerstone’ of refugee protection. Read in conjunction with Article 14 of the UDHR it offers significant protection to those who manage to escape their country and reach sanctuary. International maritime law also aims to protect those who take to the seas in seeking safety. But that protection only starts once people start their journey, and as shown above, even with that protection people continue to lose their lives.

As discussed there are many barriers for asylum seekers in reaching sanctuary. With no legal framework of absolute responsibility for member States to offer resettlement, or to remove visa requirements, the onus of responsibility for the safety of refugees realistically remains upon themselves. Though their countries of origin are ultimately responsible, in the real world safety does not become apparent until refugees start their perilous journey to sanctuary.

 

- Katie Bales