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.
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.’
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
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
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  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