Archive for September, 2016

Human rights law industry: criticisms from the left

The following material is highly critical of certain aspects of human rights law and practice in the United Kingdom. These preliminary points should be noted:

  • These criticisms should not be taken as in any way supporting the semi-literate and populist abuse directed at human rights organisations by a number of journalists.
  • The general argument is that human rights in the UK need to be extended, rather than restricted.
  • The UK has developed a profitable and expanding human rights industry. Human rights have developed into a commodity, including career paths for lawyers, academic career development and increased profits for multinational publishing companies.
  • Human rights law has become so complex, largely because of the involvement of lawyers, that it is now extremely difficult for non-lawyers to access the law. Victims of human rights violations are largely dependent on individual lawyers in private practice to enforce their rights.
  • In common with other areas of law, human rights law is in desperate need of demystification and simplification. There is a basic human right of access to laws set out in understandable language. For example, the law dealing with the right to a fair trial is now so complex that very few non-lawyers, and not many lawyers, can negotiate a route through it. You need a lawyer to explain how you can get a fair trial, and if you can’t afford a lawyer, or can’t get someone else to pay, you will never understand the law of human rights. This is examined in detail in Chapter 6 (Mystery).
  • British human rights organisations should, at the very least, engage in discussions as to the incorporation of social and economic rights into UK human rights law and should press for this expansion.
  • UK human rights law has developed without any serious or searching theoretical analysis. This contrasts, for example, with the extensive analyses carried out by the South African Constitutional Court.
  • Human rights organisations should disclose the levels of fees received by lawyers who act in human rights cases, whether through public funding or funding from those organisations or through public funding. Lawyers’ earnings are fully discussed in Chapter 1 (Money).
  • As a longstanding member of Liberty, and its predecessor, the National Council for Civil Liberties, I have always supported organisations which campaign for individual civil human rights. This does not prevent me from criticising the current English preoccupation with such rights and to argue that there is an almost total lack of discussion, in academic and practising circles, of the theory of human rights and the need for collective social rights to receive equal protection with individual rights. In 2010 Liberty issued a publicity poster asking “What not to love?”. The poster featured a heart-shaped statement of the rights protected by the Human Rights Act 1998. Economic and social rights were not mentioned. This lack of discussion may be peculiar to Western neo-liberal democracies.


Midcounties Co-op fails to pay minimum wage: 69p per hour?

Midcounties Co-op fails to pay minimum wage


Midcounties Co-op, Britain’s biggest independent co-op, has made the largest single payout to a worker for breaching minimum wage rules. Rodney Sharpe, a newspaper delivery man, was awarded £14,000 in back pay, while Roger Lilley was awarded £4,000 for wages and expenses.


Mr Sharpe has delivered newspapers on a 21 mile round around Maidenhead for over two decades. He had a reputation as a star worker and was liked by customers. He walks with a stick and suffers from diabetes. Due to this, each round took him around four and a half hours yet he was paid £85 per week, equating to £3.15 per hour. As one of his customers told the Guardian

“It is very unfortunate that a body like the Co-op, which purports to be a wholly ethical organisation, should be at the bottom of something like this. Rodney always did his utmost and was always absolutely determined to make the delivery.”


Mr Lilley worked as a newspaperman whilst caring for his mother-in-law who suffers from dementia. He realised that having deducted car and petrol expenses, sometimes he took home only 69p per hour. Having tried to address matters internally to no avail, Mr Lilley complained to the HMRC.


The two men have both commented on the difficulty they had with dealing with their employer, with three years of protracted legal paperwork. For a company that prides itself on ethical principles, this will undoubtedly tarnish their reputation.


Midcounties Co-op have since stated that they have different systems now in place to stop this happening again. However, the case highlights the problems in the so called gig economy. Ahead of next month’s ruling on Uber delivery drivers, the spotlight is refocused on the legal definition of employees, workers and the self-employed. In a world characterised by casual, short-term freelance contracts – do these traditional categories reflect the current working position? While it may seem straight forward for workers to be guaranteed a minimum rate of pay, who counts as “worker” and what counts as “pay” is not necessarily a clear cut question. What is clear is that a holistic approach ought to be taken to ensure that all hours spent working are appropriately remunerated.

International Labour Organisation: universal and lasting peace can only be established if it is based on social justice

International Labour Organisation (ILO)

The ILO was created in 1919 with the aim of advancing social justice in the belief that universal and lasting peace can only be established if it is based on social justice.

The ILO Declaration of Aims and Purposes 1944 included the following:

  • Labour is not to be regarded as a commodity.
  • Poverty constitutes a danger to prosperity.
  • The war against want must be carried on with unrelenting vigour within each nation and by means of concerted international efforts.
  • All human beings have the right to pursue both material well-being and spiritual development in conditions of freedom and dignity, economic security and equal opportunity without discrimination on the ground of race, creed or sex.

The ILO has obligations to promote programmes with the aim of achieving:

  • Full employment
  • Rising standards of living
  • Worker satisfaction
  • A minimum wage
  • A basic income for all in need
  • A just share in the fruits of progress for all
  • The right to free collective bargaining
  • Adequate protection for the health and safety of workers
  • Child welfare and maternity protection
  • The provision of adequate nutrition, housing and facilities for recreation and culture
  • Equality of educational and vocational opportunity.

Harold Barclay: People without government: shock, horror: some societies don’t have lawyers

A shock for lawyers – law is not universal – there are societies which have managed very well without wigs, gowns, advocates, courts, prisons and gallows.

Barclay sets out an anthropological analysis of societies which have functioned without government, which do not accept the idea of authority as natural.

His key points include:

  • Legal sanctions involve expressions of disapproval of the behaviour of an individual where:
  • Such expressions of disapproval are delegated to persons holding defined roles.
  • These persons have authority to threaten the use of violence and use it to carry out their job.
  • Punishments are imposed in relation to the infraction and are defined within certain limits and in relation to the crime.
  • Examples of persons holding these defined roles include police, judges, jailers, executioners and lawmakers.
  • The state declares that it has a monopoly on the use of violence.
  • Legal sanctions are not universal, but are characteristic of only some types of human society.
  • Law and government are invariably associated with rule by an elite class.
  • The employment of violence to enforce the law is fundamental to both government and to the state. The government may use a variety of words to describe this violence: lawful arrest, reasonable force, detention, etc., but it all involves, in the end, physical violence.

Barclay’s views must be subject to the argument that societies without laws have functioned at a primitive stage of sophistication, and that more developed societies need legal systems. This is subject to the counter-argument that current society has reached a stage of development and sophistication where justice is for sale, where  children and the mentally ill are put to death in the United States and other countries, and where war criminals avoid prosecution.

Disability discrimination: Asperger’s syndrome: knowledge of employer


Knowledge of employer

Case  Watterson v Health and Safety Executive for Northern Ireland (2016) Eq Opp Rev 270:30, Belfast IT

Facts W was diagnosed with Asperger’s syndrome, a sub-group of the autistic spectrum, after he was dismissed. He was employed by H. he sent lengthy, rambling and persistent emails to a young female colleague. He was prosecuted for harassment and dismissed for gross misconduct. He complained of disability discrimination in that the employer had failed to make reasonable adjustments in relation to its decision to proceed with disciplinary proceedings.

Decision      1. The complaint was upheld.

  1. As a large organisation with considerable resources, the employer should have been able to make enquiries about W’s behaviour and possible autism even though no formal diagnosis had been made at the time of dismissal. The issue had been raised by W’s barrister during the prosecution proceedings.

Religious discrimination: dress codes at work: Muslim dress and Christian cross


Dress code

Muslim employee

Case  Khatoon v The Pennine Acute Hospitals NHS Trust (2016) Eq Opp Rev 270:29, Manchester ET

Facts Ms K, a Muslim, was employed by P as a phlebotomist. The employer rejected K’s request to wear full Muslim dress because prevention and control policies required her to be bare below the elbows. She renewed her request to wear a niqab at work, This was refused. She complained of indirect religious discrimination.

Decision      1. The complaint was rejected.

  1. There was a particular disadvantage to Muslim women but the “bare below the elbow” policy was justified because of its success in reducing the spread of infectious diseases.
  2. The refusal to allow Ms K to wear a face veil was justified by the need for her to be able to communicate effectively with other employees and service users.




Instruction not to wear cross

Case  Koryl v ETM Group Ltd (2016) Eq Opp Rev 270:28, East London ET

Facts Ms K, a Polish Christian, was employed by ETM in its upmarket restaurant in London. She was told that she could not wear a cross visibly while working in the kitchen. The rule that no visible jewellery must be worn was applied to all employees. Ms K complained of religious discrimination.

Decision      1. The complaint was upheld.

  1. The employer’s argument that it had a legitimate aim of promoting a particular image to the public was accepted. However, applying a uniform policy for presentation reasons was not sufficiently important to outweigh the employee’s right to manifest her religion.

Sex discrimination: compensation for personal injury: previous PTSD


Personal injury


Case  Olayemi v Athena Medical Centre (2016) Morning Star, September 2, EAT

Facts Ms A was employed by AMC as a GP. Following her dismissal in 2008 she was diagnosed with post-traumatic stress disorder (PTSD). She complained of sex discrimination, unfair dismissal and breach of contract on the basis that AMC had subjected her to a campaign of harassment to drive her out of her job. The claims were upheld by the ET. She was awarded £752,333 compensation. The ET deducted 12.5% from the total, based on a medical report which stated that a previous episode of PTSD had contributed 10 to 15% to the current episode. Ms A appealed to the EAT.

Decision      1. The appeal was allowed.

  1. Ms A had clearly established that her employer’s wrongdoing had been a material cause of her psychiatric condition.
  2. It was not open to an employer to argue that the only reason she had suffered from PTSD was because of an earlier susceptibility or vulnerability.
  3. The employer could not rely on susceptibility or vulnerability as a defence unless it could show that it was completely divisible from the harm which the employer had caused.

Indirect sex discrimination: justification: two new EAT decisions


Indirect discrimination

Balancing act

Case  Dutton v The Governing Body of Woodslee Primary School (2016) Morning Star, September 16, EAT

Facts Ms D was a teacher at a school for children with special educational needs who needed a significant degree of continuity and stability. Ms D requested that she should return to work on a part-time basis, working four days a week instead of five, after maternity leave. The employer refused on the basis that the children required stability. Ms D claimed indirect sex discrimination. She argued that the employer had imposed a provision, criterion or practice (PCP) which placed her at a particular disadvantage because of her gender. The claim was rejected by the ET on the ground that the PCP was a proportionate means of achieving a legitimate aim. Ms D appealed to the EAT.

Decision      1. The appeal was allowed and the matter remitted to a freshly constituted tribunal.

  1. The ET had not fully weighed the importance of the legitimate aim against the discriminatory effect of the treatment.



Indirect discrimination

Balancing act

Case  XC Trains Ltd v CD and others (2016) Morning Star, September 9, EAT

Facts CD, a female employee, worked full time for X as a train driver/instructor. She was required to work 35 hours a week over six days with daily working hours determined by the employer. She also had to work on rostered Sundays. CD had three children. She asked to work flexibly and her specific request not to work Saturdays and Sundays was rejected. She complained of indirect sex discrimination. The ET found that the working arrangements put women and CD at a particular disadvantage. The PCP was not a proportionate aim. Other large employers had transformed their working practices. The employer appealed to the EAT.

Decision      1. The appeal was allowed and the matter remitted to the ET to decide whether the PCP was a proportionate means of achieving a legitimate aim.

  1. The ET had exceeded the scope of the exercise it should have undertaken when it categorised the employer’s bargaining system as “outdated”.

Intellectual property law and money: patent trolls

Intellectual property

This area of law is a notable exception to the general rule that money is normally a footnote in law books. The absence of any discussion, in student and practitioner textbooks, of the cost implications of legal rules, is a vacuum which effectively hides the reality that the poor cannot generally enforce their rights.

The economic effects of intellectual property regimes flow from the enormous expense of intellectual property litigation.

The expense of patent litigation, for example, is such that it has given rise to patent “trolls”. These are companies which collect patents, often of uncertain value, for the purpose of extracting royalties through threats of legal proceedings that it is cheaper to settle than to fight. Such companies often have no intention of manufacturing or marketing the patented invention. Patent trolls may, for example, buy a large number of patents from bankrupt companies and then complain of infringement. The cost of defending infringement actions in the United States is estimated at $1 million before trial. Defendant companies may settle such claims for hundreds of thousands of dollars even where they are frivolous. The expense of intellectual property litigation is a real burden on the ability of regimes to achieve their purposes.

This shows the effect of money on the practical application of a highly specialised area of law. This effect is, unusually, expressly recognised in intellectual property textbooks.

Justice and the overwhelming role of money

Recent examples of the effect of money on justice

In May 2008 a confiscation hearing was abandoned because a drug offender could not find a barrister to represent him for a legal aid fee. The offender had been sentenced to imprisonment for conspiring to supply cannabis. His assets of £4.5 million were frozen pending proceedings to confiscate one-third of the total on the basis that they were the product of a criminal lifestyle.

The offender could not use his assets to pay for representation: this is prohibited under the Proceeds of Crime Act.

His solicitor is reported to have commented that he contacted 30 sets of barristers’ chambers but could find no-one to take the case for the set legal aid fee of £175 per day.

The court ruled that the proceedings should be terminated because a fair hearing could not take place without representation.

There are few clearer examples than this of the relationship between justice and money.

In May 2014 a £5 million fraud trial was halted  following submissions by David Cameron’s brother that

legal aid cuts had resulted in a lack of competent defence

barristers. The case involved 46,000 pages of evidence.

Solicitors for the defence had  contacted a total of 69 sets

of Chambers, none of whom were prepared to take on

the case.


Trial without jury

In January 2010 the first Crown Court criminal trial to be held without a jury in England and Wales for more than 350 years took place. This was justified by fears of jury tampering, and specifically that the cost of measures such as the services of police officers needed to protect jurors from interference was too high. The sentences imposed ranged from 15 to 20 years. Evidence of jury tampering was not disclosed to the defence.