The Pains of Imprisonment for Public Protection (IPP) for Family Members

This post provides a brief summary of emerging findings from the research project ‘‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ and is a shortened version of a piece for the August edition of Inside Time (https://www.insidetime.org/):

The indeterminate Imprisonment for Public Protection (IPP) sentence has rightly been described as one of the least carefully planned and implemented pieces of legislation in the history of British sentencing. Readers of Inside Time will know that there continues to be a large number of people imprisoned on IPP sentences despite its abolition in 2012, either still serving their original sentence or having been recalled to prison. There have been a number of important reports examining the problems caused by the sentence, but the experiences of families of IPP prisoners has so far not been explored.

 

Our research ‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ has begun to fill this gap. We wanted to understand how families were affected by the IPP sentence; the support they may have received; and involvement in campaigns relating to the IPP sentence. In order to do this, we conducted in-depth interviews with 15 family members of IPP prisoners and received 119 responses to an online survey.

 

Our detailed findings will be published later in the year, but we can share some of the most important themes here. Overarching themes were injustice, uncertainty and hope. With the sentence having been abolished but no legislative action taken to address the existing IPP population, families understandably felt that this was an unjust situation. One respondent told us, “I feel bitter towards the justice system knowing worse crimes are committed with much lesser sentences”. Families also emphasised the difficulties created by the uncertainty of the open-ended sentence: this raised substantial emotional challenges, with many families feeling as if they were serving the sentence with their relative. As one family member put it, ‘The not knowing is the hardest part, we have no end date, no light at the end of the tunnel’. Unfortunately, but perhaps unsurprisingly, families reported that release brought its own difficulties. Some spoke of the constant fear of recall, of ‘living on the edge’.

 

The influential Farmer Review has recently made clear that the positive role to be played by families should be taken much more seriously by the criminal justice system. It is certainly the case that families can often give valuable support to an IPP prisoner’s progression. Unfortunately our research highlighted numerous practical challenges faced by families of IPP prisoners. These ranged from poor communication and inconsistencies in policies between prisons to a lack of contact due to distance. For example one respondent said that ‘The whole process of dealing with the prison service has been very inefficient and frustrating.’ Many families felt that probation should be doing a lot more to ensure progression towards release. Others spoke of long delays in the parole process, deferred hearings, and this all making a ‘really, really hard emotional journey’ even more difficult.

 

Many families put in a great deal of work to support their relative. While many family members are pleased that they can take action to help their relative, this does present challenges and put pressures on them. Some families told us that just having some recognition by relevant organisations (for example probation and parole) of their actions and how important they are would make a big difference to them. In addition to the work required of family members, the IPP sentence also often puts strain on family relationships. Many family members also reported serious health problems relating to the stresses and strains of the situation described above.

 

This research will provide further evidence to support arguments for additional legislative action to be taken in relation to IPP sentences. The majority of IPP prisoners are over tariff, and many have now served 3-4 times their tariff period. Proposals such as a ‘sunset clause’, where IPP prisoners cannot be imprisoned for longer than the maximum available sentence length for the offence committed, remain attractive. There are also steps that can, and should, be taken in relation to the licence period. Most obviously shortening its default length (from life); reducing the time from which a prisoner can apply for it to be lifted (from 10 years); and changing what happens when an IPP prisoner is recalled to prison (for example not returning them onto the original IPP sentence, or changing the release test for their subsequent parole hearing). Thankfully organisations like the Parole Board and the National Probation Service are increasingly aware of the important role played by families, and their need for advice and support. We hope that our research will help to move this agenda forwards and in particular ensure that the specific issues relating to IPP prisoners are addressed.

Dr Harry Annison, Dr Rachel Condry and Anna Leathem

An essay by student Chay Clark – Dress codes in the workplace: does the current law effectively protect from this type of discrimination?

Chay Clark is a third-year law student at Southampton Law School. She aspires to be a solicitor and has a particular interest in both employment law and intellectual property law. For Chay, the most interesting aspect of equality law is the gender pay gap which is the area in which she has chosen to focus her dissertation on.

 

Dress codes in the workplace: does the current law effectively protect from this type of discrimination?

In 2015 Nicola Thorp[1] petitioned the government to ‘make it illegal for a company to require women to wear high heels at work’ after being sent home for refusing to comply with her employer’s dress code. This sparked debate across the country, after the petition reached 150,000 signatures, as to whether the law effectively provides redress for dress code discrimination: leading to the House of Commons Petition Committee and Women and Equalities Committee launching a joint inquest.[2]

In response to the Committee’s report, the government[3] felt redress already existed under the Equality Act 2010[4] believing that ‘discrimination cannot be tackled by legislation alone instead changing attitudes and raising awareness is a crucial influence.’[5] The government[6] and ACAS[7] stated that dress codes do not need to be identical between the sexes but instead must not place an unequal burden upon one sex. However, whilst the Equality Act 2010[8] has provisions to protect against both direct and indirect sex discrimination, I doubt that they can be effective for dress codes.

This post assesses the current law and any barriers claimants face, particularly with reference to case law precedent; then moving onto the Committees report and whether their recommendations would provide re-dress for any imperfections in the law.

The Equality Act outlines direct discrimination stating, ‘a person discriminates against another if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’[9] The key problem in this provision is ‘less favourably.’ This requirement allows judicial discretion as there is no guidance on what amounts to less favourable treatment, especially when, dress codes are based on men and women’s inherent differences. This allows judges to set the standard for less favourable treatment, in my opinion, leading to the threshold being set too high.

The problems associated with a finding of ‘less favourable treatment’ can be illustrated from the leading case Smith v Safeway Plc.[10] In this case the Court of Appeal affirmed the reasoning of Phillip J in Schmidt[11] creating the precedent[12] to be followed in direct discrimination cases. The case concerned a delicatessen assistant who argued that his employer’s policy requiring men to have short hair was direct sex discrimination. The court stated that the correct approach to follow was the package approach Phillip J[13] laid down in Schmidt. He stated, firstly, that the whole code must be looked at in deciding less favourable treatment, not item by item separately. Secondly, a conventional standard of appearance can be applied by employers as men and women do not have the same dress codes due to inherent differences. Therefore, dress codes should be based on societal attitudes. Finally, the whole code must not treat one sex less favourably. Following this reasoning, the Court of Appeal concluded that the tribunal was correct in their finding of no discrimination, as by looking at the whole code there was no less favourable treatment towards men. This was subsequently followed in the case of Dansie,[14] whereby the tribunal also concluded that there was no discrimination as the whole dress code was gender neutral, as it merely required smart formal dress. This meant the claimant had not received less favourable treatment.

The ‘package approach’ not only allows for an additional defence for employers, when only a term of the code is discriminatory, but creates judicial discretion. Studies[15] have suggested that the approach of the courts ‘enables the facilitation of gender stereotyping that employers can reinforce.’ Whilst the law should be flexible, it should not give judges discretion to decide what is deemed an appropriate standard in society, especially when societal standards are continuously changing. This exemplifies how the current law is ineffective.

While these cases fell under the Sex Discrimination Act 1975[16], academic commentators[17] have criticised that the Equality Act has not changed direct discrimination requirements and Smith[18] is still the binding authority in this area. I believe these cases are strong illustrations that direct discrimination leads to an undesirable burden on claimants as less favourable treatment is difficult to objectively prove, especially when the whole code is considered rather than an individual term.

The Equality Act 2010 also prohibits indirect discrimination where, ‘a person discriminates against another if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’[19] Indirect discrimination is considered easier to prove because ‘the focus is on the impact rather than the treatment’[20] and there does not need to be a reason for the disadvantage.[21] One barrier of indirect discrimination claims is, however, that employers can justify discriminatory policies if they are a ‘proportionate means of achieving a legitimate aim.’[22] Regarding dress codes, there is a lack of case law surrounding indirect discrimination claims, meaning there is uncertainty as to what justifications would amount to a legitimate aim. This exemplifies the ineffectiveness of the law as it does not provide guidance on acceptable legitimate aims.

The Women’s and Equality Committee criticised both direct and indirect discrimination for placing barriers to successful claims.[23] Overall, they felt the law does not enable claims to be clear and straightforward. A key focus of the Committee’s report was analysing whether under the current law a requirement that women must wear make-up would constitute discrimination. Differing conclusions[24] were drawn about what type of discrimination, if any, this would amount to. The inconsistency in their conclusions demonstrates the unclarity surrounding whether certain dress codes amount to discrimination.

The Committee made two key recommendations[25] which I feel would address the laws current imperfections.

Firstly, they believe the requirement of less favourable treatment deters employees from bringing a claim as the law surrounding what amounts to this is uncertain. They suggested the test should be adapted to place weight on a subjective element of how the treatment made the claimant feel and a guideline produced of what constitutes less favourable treatment. This would ensure the threshold of less favourable treatment is not a barrier and removes judicial discretion, meaning judges would no longer be able to decide what is a conventional standard of appearance. In my view, this recommendation would be of great benefit because it would stop gender stereotypes from being reinforced by employers by conveying both a subjective and objective standard whilst keeping the law certain.

Secondly, the Committee suggested that cases under indirect discrimination would fail as employers can justify their policies by producing evidence of a legitimate aim. They felt that if there was a specific closed list of legitimate aims for dress codes this would ensure that employers could not justify discrimination easily. I feel that this recommendation would improve clarity, especially for lawyers advising clients on their claims.

The Committee found that ‘although the Equality Act is clear in principle, a range of evidence suggests that its application to individual cases is not straightforward.’[26] I support this conclusion as the variation of dress codes and the inherent differences between sexes make it impossible currently to determine the outcomes of individual cases. I believe that, by implementing the Committee’s recommendations, it would become clearer to both employers and employees what dress codes amount to discrimination in the workplace. Ultimately, the Committee found that Nicola Thorp’s treatment was not an isolated case, illustrating how the current law is not providing redress from discrimination.

On the whole, the current law is vague and unclear in what dress codes amount to discrimination, so introducing small changes could allow to identify and prevent dress code discrimination more easily. While the government responded positively to the Committee’s recommendations,[27] amending the Equality Act 2010 seems unlikely in the short run. Nevertheless, the Government Equalities Office published in May 2018 the Guidance: ´Dress codes and sex discrimination: what you need to know´, which is a welcomed small step forward.

 

 

[1] ‘Make it illegal for a company to require women to wear high heels at work’ (UK government and Parliament Petitions) (2015) <https://petition.parliament.uk/archived/petitions/129823> accessed 10th November 2017

[2] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25th January 2017

[3] Government ‘First Special Report’ (Parliament Publications, 20th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10th November 2017

[4] Equality Act 2010

[5] Government ‘First Special Report’ (Parliament Publications, 20th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10th November 2017

[6] Government ‘First Special Report’ (Parliament Publications, 20th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10th November 2017

[7] ACAS, ‘Dress Code Advice’ (ACAS, 2016) <http://www.acas.org.uk/index.aspx?articleid=4953> accessed 10th November 2017

[8] Equality Act 2010

[9] Equality Act 2010 S13(1)

[10] Smith v Safeway Plc [1996] EWCA Civ J0216-2

[11] Schmidt v Austicks Bookshops Ltd [1978] ICR 85

[12] Smith v Safeway Plc [1996] EWCA Civ J0216-2 13-14

[13] Schmidt v Austicks Bookshops Ltd [1978] ICR 85 (Phillip J)

[14] Dansie v The Commissioner of Police for the Metropolis [2009] UKEAT 0234_09_

[15] Dr Vandana Nath, Professor Stephen Bach and Dr Graeme Lockwood, ‘Dress codes and appearance at work: Body supplements, body modification and aesthetic labour’, (ACAS, August 2016) 16 <http://www.acas.org.uk/media/pdf/9/b/Acas_Dress_codes_and_appearance_at_work.pdf> accessed 10th November 2017

[16] Sex Discrimination Act 1975

[17] Charles Pigott, ‘Code of Conduct’ (2016) New Law Journal 166 NLJ 7704, 10

[18] Smith v Safeway Plc [1996] EWCA Civ J0216-2

[19] Equality Act 2010 S19(1)

[20] Sandra Fredman, ‘The Reason Why: Unravelling Indirect Discrimination’, (2016) Industrial Law Journal, Volume 45, Issue 2

[21] (Respondent); Naeem (Appellant) v Secretary of State for Justice (Respondent) [2017] 1 WLR 1343, [2017] UKSC 27

[22] Equality Act 2010 S19(2)(D)

[23] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25th January 2017

[24] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25th January 2017

[25] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25th January 2017

[26] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25th January 2017

[27] Government ‘First Special Report’ (Parliament Publications, 20th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10th November 2017

Exploring the internal dynamics of the Ministry of Justice

Exploring the Ministry of Justice, Explaining Penal Policy

Dr Harry Annison

Southampton Law School

Much of my research, and my teaching, explores issues of penal policy and in particular the political and policymaking processes that are involved in criminal justice policy. Issues relating to prisons, punishment, policing and so on are often highly emotive, technically complex and subject to fierce political debate.

As part of this ongoing work, in a recent paper I considered the history of the UK Ministry of Justice and what it “is”: what are the traditions (the collections of beliefs) that underpin the ongoing activities of those within the department’s concrete obelisk home? I suggest that understanding what the department “is” in this way, is an important consideration when trying to understand particular policy developments such as those highlighted above. (Note that while the Ministry of Justice is part of the UK government, responsibility for criminal justice in Scotland is a devolved matter: the MoJ is therefore responsible for policy in England and Wales).

Drawing on ‘elite’ research interviews conducted with nearly 100 policy participants (including ministers, senior civil servants, MPs, and many more), I argued that there exist four ‘Ministries’:

  • A liberal department centred upon justice and fairness;
  • One determined to achieve the rehabilitation of offenders;
  • One obsessed with public protection;
  • One steeped in new managerialism

For some the Ministry of Justice is (or was) the ‘balancing department’, ‘the ones who did the checks and balances’ (research quotes from civil servants). For others, public protection is the dominant paradigm: avoiding high profile, serious incidents in the community, and ensuring ‘security of the [prison] estate’ (research quote from special adviser) is the overriding concern.

For others still, rehabilitation was the raison d’etre of the department (those parts tasked with prisons and probation policy, in particular). While often operating more at the level of rhetoric than reality, it was a ‘noble aim’ that sustained the department (civil servant), and indeed recurs in public debate with striking frequency.

Finally, for some managerialism had come to dominate, with aspirations for ‘an end-to-end criminal justice system’ (Lord Falconer, evidence to Constitutional Affairs Committee, 2007) flowing into benchmarking of prison services against the private sector, and talk of ‘capability gaps’, ‘business critical requirements’ and ‘doing better for less’.

These traditions – ideas about what the department is, and what it is for, collide and combine; they compete. In turn the department has been buffeted by a series of dilemmas – questions that raise profound questions about its nature and role. These include:

  • Is its political head a judicial representative (in his role as Lord Chancellor) or a government minister (as Justice Secretary)? Can he or she be both?
  • Is the Ministry of Justice a centralised department, or an assortment of largely discreet parts?
  • Are the ‘policy’ and ‘operational’ aspects (of prisons, probation, legal aid, and so on) to be fused, or kept separate?
  • Is the goal of the department patient implementation of policy, or political responsiveness to immediate events?

These concerns, and developing such ‘internal’ narratives of a government department, may seem inward-looking, self-regarding, and to pale into insignificance compared to the serious concerns identified at the beginning of this blog post.But as I have argued in a recent paper for the
British Journal of Criminology, the activity in any department is characterized by a complex interplay between perceived conditions ‘out there’ (austerity, election cycles, and so on), ‘internal’ considerations (informed by the traditions and dilemmas identified above) and work on specific policy areas.

Therefore, if one seeks to understand developments in a particular policy area – and as importantly, to consider how to achieve positive change in that field – a crucial part of this enterprise requires understanding this ‘internal’ aspect of policymakers’ concerns.

 

The working paper ‘Decentring the UK Ministry/s of Justice’ is available here

 

The finalized paper is published as a chapter entitled ‘What is Penal Policy? Traditions and practices in the UK Ministry of Justice’, in Narrative Policy Analysis: Cases in decentred policy, edited by RAW Rhodes and published by Palgrave Macmillan in May 2018.

 

The paper ‘The Policymakers’ Dilemma: Change, continuity and enduring rationalities of penal policy’ is published in the British Journal of Criminology and available here

 

A longer version of this blog post is available at the BSC (British Society of Criminology) Blog site: https://thebscblog.wordpress.com/2018/06/13/exploring-the-uk-ministry-of-justice-explaining-penal-policy/

Emma Ship writes one of the best blog posts for ‘Equality at Work’ final year module

A blog post written by final year student Emma Ship has been named as one of the three best pieces of summative coursework for the module ‘Equality at Work’. 

Module leader, Sara Benedi Lahuerta, said of Emma’s work “Emma’s essay is well-written, it provides good critical and personal insights, and arguments are well-supported with academic references and examples”.

Read Emma’s essay below

Can Immutability be Used to Justify the Protected Characteristics Under the Equality Act 2010?

The Equality Act 2010 provides nine characteristics, which must be protected under anti-discrimination laws in the workplace.[1] It is widely accepted by the judgment of society that these characteristics are deserving of legal protection. It is not often questioned why these particular grounds have protection when others, such as political opinion, do not. This blog post will be discussing whether the concept of immutability can be used to justify the current protected characteristics. In particular, there will be a focus on religion/belief and sexual orientation as they are arguably the most difficult characteristics to which immutability can be applied.

What is Immutability?

The criterion of immutability has historically been the “lynchpin upon which a restricted regime is based”[2] and has been recognised as a justifying principle of protecting certain characteristics by both the UK and European courts.[3] Immutability is the idea that characteristics should be protected under anti-discrimination laws if they are unchangeable and not chosen.[4] Therefore, the permanence of these characteristics and the fact they are outside the control of the individual means they need to be protected from societal prejudice.[5] For example, characteristics which can clearly be justified by the principle of immutability are race[6] and age[7] which cannot be changed and are not within the individual’s control.

It has been argued that anti-discrimination laws will only be viewed as politically legitimate if its aim is to protect individuals from discrimination arising from something which they have no control over and is very difficult to change.[8] At first glance of the protected characteristics, I would be inclined to agree with this argument. However, when looking in detail at characteristics such as religion it becomes clear that immutability may not be so easily applied.

Can Immutability Justify Protecting Religion and Belief?

Religion/belief is a characteristic which is protected by legislation[9] but is difficult to fit in with the criterion of being immutable. In the case of Eweida v British Airways, Sedley J stated that all of the protected characteristics apart from religion and belief are “objective characteristics of individuals; religion and belief alone are matters of choice”. [10]  Therefore, as it has been recognised by the courts that religion is a matter of choice, it could be argued that its place within the Equality Act 2010 is misguided. An individual’s religion and beliefs can change throughout their lives and, therefore, lack consistency meaning that it may not be a characteristic which could be claimed to be immutable.

Religion/beliefs could also arguably fail the immutability criterion because, unlike race and sex which are established at birth, religion may be something which is instead learnt.[11] It may be analogous to characteristics like political opinion which can adjust due to a change in an individual’s circumstances, current affairs and the effect friends and family have upon them.

However, I would argue that what Sedley J fails to consider in his brief discussion on the lack of immutability in relation to religion in Eweida,[12] is the circumstances in which it could be argued that an individual lacks choice. I believe it is necessary to recognise the assertion that religion may sometimes be arguably out of an individual’s control, especially when considering “the dynamic interplay between various social and cultural pressures in the lives of many individuals”.[13]

After considering both the arguments for and against viewing religion/belief as an immutable characteristic I would argue that the stronger assertion is that religion cannot be justified by the criterion of immutability. Although social, cultural and other pressures may lead to an individual perhaps lacking the freedom to make a completely autonomous choice regarding their religion, to denominate this as an immutable characteristic may undermine others, such as race, where there is a complete absence of choice. It may lead to the possibility of opening the floodgates to allow other factors to be included under the Equality Act[14] which may in turn destabilise the significance of the current characteristics. This begs one to ask the question of whether it should be included within the Equality Act 2010 and, if it should, what principle can be used to justify it.

Can Immutability Justify Protecting Sexual Orientation?

Sexual orientation is also protected by UK legislation[15] but academics have controversially debated the possibility that immutability does not apply to it.[16] Although it is arguable that sexual orientation is not a characteristic that can be chosen or changed, it has been contended that, as there is not a way to prove the existence and immutability of an attraction through scientific measurement (like the way someone’s sex can be established), scientists are unable to conclusively preclude that there is individual choice to sexual orientation.[17]

Academics, including John Gardner, have claimed that the “orientation of our sexual attraction, like our religious faith, might of course change through dramatically life-transforming experiences such as trauma, conversion or brainwashing”.[18] Also, Wintemute has stated that there are few homosexual men who have succeeded in changing to become heterosexual which suggests that although minute, there is still a possibility of change.[19]

However, I believe that sexual orientation is an immutable characteristic which cannot be changed due to the complete lack of supporting evidence and the fact it is just an a priori assumption. In response to Wintemute’s claim that some men have changed their sexuality, we should consider stigmatisation and the fact that homosexuality was illegal until 1967 in the UK.[20] Therefore, up until 1967, instead of actually changing their sexuality, those individuals were responding to society’s norms and pressures and thus felt compelled to appear heterosexual in order to be accepted. Although homosexuality has been legal ever since, the fact that same sex marriage was only legalised in 2014[21] demonstrates that homosexual couples have only just received equal rights. Therefore, until very recently, same sex couples may have – and possibly still do – face stigmatism in everyday life and thus may feel unable to live how they truly desire.

What are the Alternative Justifications?

After considering the application of immutability to religion/beliefs and sexual orientation, I would conclude that religion cannot be justified by immutability, but sexual orientation can. Also, other protected characteristics such as pregnancy[22] and marriage/civil partnership[23] may be a choice and within the individual’s control. However, to omit to protect individuals from discrimination at the workplace based on these grounds appears unjust.

Therefore, perhaps the protected characteristics can be better justified by other principles such as it being a fundamental choice of that individual. It has been stated by academics that it is arguable the protected characteristics are not immutable, but “simply manifestations of a fundamental choice exercised by an individual” which warrants protection.[24] A fundamental choice is something that everyone should have the right to make unconstrained from outside interference.[25] It is linked to concepts such as personal autonomy and dignity and is associated with an individual’s sense of identity.[26] For example, a choice regarding one’s own sexuality may be fundamental to their identity.[27] Alternatively, it could be argued that we should avoid a grounds based idea altogether in recreating a legal approach to discrimination as was suggested in a dissenting judgment in Egan v Canada.[28]

 

Conclusion

To conclude, I would argue that sexual orientation can be justified by immutability and religion/belief cannot. Although immutability sometimes appears to be a sound justification for why certain characteristics, such as race, are protected, when one looks deeper into the matter it is revealed that immutability may be flawed as a way of looking at anti-discrimination laws. The fact that religion/belief cannot be rationalised by immutability demonstrates that perhaps immutability has been misplaced as a criterion which can be used to justify the protected characteristics. Assuming that the nine grounds of protected characteristics are deserving of legal protection, as immutability falls short, perhaps they will be better justified by other principles such as them being a fundamental choice to that individual.

 

Tags:

#Immutability #Protected Characteristics #Religion and Belief #Sexual Orientation #Justification

 

 

[1] Equality Act 2010, s4.

[2] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 415.

[3] For example R (Age UK) v Secretary of State for Business, Innovation and Skills [2010] ICR 260, 297C-E: Blake J and Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des Ministres ECLI:EU:C:2011:100 [50].

[4] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 415.

[5] A McColgan, Discrimination, Equality and the Law (Hart 2014) 53.

[6] Equality Act 2010, s9.

[7] Equality Act 2010, s5.

[8] I. Solanke, ‘Infusing the Silos in the Equality Act 2010 with Synergy’ (2011) 40(4) Industrial Law Journal 336, 349, accessed 14th November 2017.

[9] Equality Act 2010, s10.

[10] Eweida v British Airways plc [2010] ICR 890, 901F.

[11] Jessica A Clarke, ‘Against Immutability’ (2015) 125 Yale LJ 2, 103, 31.

[12] Eweida v British Airways plc [2010] ICR 890, 901F.

[13] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) page 418.

[14] Equality Act 2010.

[15] Equality Act 2010, s12.

[16] For example, R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6 and J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[17] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6.

[18] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[19] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174–6

[20] Sexual Offences Act 1967.

[21] Marriage (Same Sex Couples) Act 2013.

[22] Equality Act 2010, s18.

[23] Equality Act 2010, s8.

[24] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[25] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 418.

[26] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 418.

[27] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 173.

[28] Egan v Canada [1995] 2 SCR 513.

Rape Myths and Medusa’s Gaze: a story of windows and mirrors

It is a little while now since the media storm surrounding the Ched Evans rape case died down following the footballer’s acquittal at retrial. Since that time, attention has moved on to a much larger story about alleged sexual wrongdoing in Hollywood, and the prosecution of Harvey Weinstein may well also turn on the issue of consent and the relevance or otherwise of complainants’ sexual histories. Such cases force us to confront difficult and important questions about what the interests of justice require to be made visible and must be kept hidden from view. In an article published just now in the International Journal of Law and Context (‘Ched Evans, Rape Myths and Medusa’s Gaze: a story of windows and mirrors’), I discuss some ways in which the legal debate about defendants seeking to discredit a complainant using details of the latter’s sexual life is itself part of a larger voyeuristic culture. The article considers the decisive second Evans Court of Appeal judgment, and this post offers some reflections that draw on that article.

Appeal judgments often offer up narrative details that seem irrelevant to the legal point at issue, but in fact tell of a deeper significance. Hallet LJ described two men who, on the night in question, sought to watch and film the defendant, his friend, and the complainant (‘X’) through the window of the ground floor hotel room where the incident was taking place. Their efforts were thwarted at a certain point when the curtains were closed. Does this scene not perfectly capture the essence of the case as a whole: the complainant’s identity concealed on one level by curtains as if in a private theatre, and on another by her designation in the legal judgment euphemistically by the letter ‘X’ – that signifier of censored content that simultaneously veils and draws attention? If the vignette of two men peering through a window mirrors a broader cultural voyeurism that surrounded the case, then so too did the Court’s own framing of the legal issue in terms of the justifiability of ‘indulg[ing] in a forensic examination of [X’s] sexual behaviour with others’ [para 74]. As we know, the Court did indeed decide that such ‘indulgence’ was justifiable, on the basis that the testimony of X’s purported acts of consensual drunken, rough and loud sex [paras. 12, 13, 24, 33, 35, 39, 52, 56, 58, 71] – constituted relevant and admissible evidence that a jury could well regard as corroborating Evans’s own testimony that X consented.

What the Evans judgment seems to affirm is something long argued by commentators of variously feminist positions: that there is a certain relationship between the power of visual spectacle and the imperatives of justice that, placed in the context of our existing gendered norms about ‘proper’ sexual behaviour, may disadvantage women. In this case, the evidence in question indicated that X was a violator of traditional feminine norms: that far from a sexual ‘gatekeeper’ of men’s morals X was an aggressive initiator of casual sex, and thus more masculine than feminine in terms of traditional gendered sex roles. Much was written at the time of retrial on how this fact engages the myth referred to by Hallet LJ herself, that ‘unchaste women are more likely to consent to intercourse and in any case, are less worthy of belief’ [para. 44]. Indeed, beliefs of this kind – well exploited by Evans’s defence team in soliciting the fresh evidence – are reinforced by a ‘just world’ philosophy: that ‘bad girls’ like X have no cause to complain about the consequences of their own risky and disapproved-of sexual behaviours.

If it is the case that the Court’s judgment may have reinforced such myths then this is of course a serious matter. However, the judgment is instructive furthermore about what criminal justice ‘sees’ when it turns its gaze on a case like Evans’s. It is to this issue that I want to get, which takes us some way beyond the usual debates about rape culture and what a ‘not guilty’ verdict really means. In finding its way to legitimising ‘indulgence’ in the sexual details of X’s private life, the Court reminds us of that image with which we started: of those tawdry observers peering through the hotel window, hoping to catch a glimpse of X and who understand her only in terms of an object for view. The Court, like those gawping men, thus serves as a mirror of cultural prejudices rather than a means by which to dispel them. This affords an explanation for lingering dissatisfaction (at least among ‘elite opinion’) with the retrial verdict: not on account of the factual question of whether Evans really did rape X after all, but rather the confirmation that the criminal justice gaze is ally to the voyeuristic and objectifying male gaze.

If the Evans judgment represents any sort of failure on the part of the judiciary then, it is a failure of the imagination: to imagine a view from the standpoint of the supposed ‘object’. Finding ways towards accommodating alternative perspectives is one of the key contributions of ‘law and humanities’ approaches to legal studies. What we need is criminal justice that has the imaginative capacity to countenance the object of its gaze ‘looking back’ – that is cognisant of the dangers of objectification and that makes room for something of the spirit of the mythic Medusa. In that myth, the hero Perseus knew that while he looked at Medusa only in the reflection of his polished shield, he was invulnerable to her monstrous feminine gaze. If rape myths are a kind of ‘shield’ that reinforces the male gaze, then the story of how Perseus killed Medusa seems perfectly to literalise that. The aims of feminist critiques of rape myths have tended to rehearse that struggle: to, so to speak, render Perseus’ shield transparent somehow and thereby to force dominant masculinity to reckon with another perspective on the question of what it means to do justice for both defendants and complainants.

David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, Southampton Law School

Data Protection and data analytics: what is Art. 29 WP really saying to businesses wanting to innovate with data?

In three-month time, the General Data Protection Regulation (GDPR), will become applicable to many, if not all, data processing activities to which living individuals can be associated. Businesses operating in Europe have had about two years to prepare for this change. As readers know, even if the GDPR is a lengthy piece of legislation, additional interpretative guidance is very much welcome to create and aid understanding about the ‘links’ between key concepts arising across the different pieces of the legislative ‘jigsaw’. The influential EU Article 29 Data Protection Working Party (Art. 29 WP) has therefore been working hard these past few months to give context to some of the most important GDPR requirements: e.g. by publishing guidelines on issues such as data protection impact assessment, data protection officers, the right to data portability, automated individual decision-making and profiling, personal data breach notification, consent, and transparency.

For new comers to the field, excited about working with data (including personal data) to build and develop smart algorithmic systems, getting simple answers to key questions about how to comply with the GDPR is not always easy. [The same is often probably true for avid readers of the GDPR…]

What if one had only 1000 words to explain to businesses wanting to innovate with data relating to people what the GDPR is about? What would the message be?

For the sake of this thought exercise attempted here, we should probably assume that data innovation, in the main, implies the repurposing of data. The data is first collected for a specific or specified purpose and is then processed for a different purpose, one that most likely was not anticipated at the initial stage of collection by the data controller.

One of the first questions to pose in that context is whether a new legal (‘lawful’) basis is needed to comply with EU data protection law for this change of purpose. Under GDPR Article 6, the principle of lawfulness demands that at least one legal basis (chosen from a limited list of options) be identified to justify a personal data processing activity, either: consent; performance of a contract or steps necessary to entering into a contract; protection of the vital interests of the data subject; performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or, necessary to achieve legitimate interests pursued by the data controller, or by a third party, as long as the interests are not overridden by the interests or fundamental rights and freedoms of the data subjects.

Reading both Article 6(4) GDPR and the last version of Art. 29 WP guidelines on consent (‘WP259’) in conjunction, it appears that if the initial legal basis relied upon to justify personal data processing is consent, the only way to comply with the principle of lawfulness at the second stage (the data analytics stage) is to seek consent again.

This is what Art. 29 WP writes at p. 12 of WP259: “If a controller processes data based on consent and wishes to process the data for a new purpose, the controller needs to seek a new consent from the data subject for the new processing purpose.”

Nevertheless, Art. 29 WP is mindful of the fact that the law is changing and the GDPR introduces stricter conditions for obtaining informed consent where it is being relied upon by a data controller. It therefore adds (p. 30): If a controller finds that the consent previously obtained under the old legislation will not meet the standard of GDPR consent, then controllers must assess whether the processing may be based on a different lawful basis, taking into account the conditions set by the GDPR. However, this is a one off situation as controllers are moving from applying the Directive to applying the GDPR. Under the GDPR, it is not possible to swap between one lawful basis and another.”

GDPR Art. 6(4) and Recital 50 seem to confirm that – following the GDPR coming into force – if the initial legal basis to be relied upon to justify processing personal data is consent, the doctrine of (in)compatibility of purposes (to ensure compliance with the so-called principle of ‘purpose limitation’) is not applicable. [Note that there has not always been consensus on the exact effects of the doctrine of (in)compatibility of purposes, see my previous post here, but Recital 50 now clarifies that [t]he processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required.”].

But then, even if one is ready to seek consent again at the data analytics stage, could data subjects really be said to be capable of providing meaningful consent to such secondary practices? Article 6(4) provides that consent can only be given in relation to specific purposes.

Recital 33 GDPR suggests that, for scientific research purposes, the principle of purpose limitation should be relaxed. This is because, “It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have the opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose.”

Although the GDPR seems to adopt a broad definition of scientific research, which covers “technological development and demonstration, fundamental research, applied research and privately funded research” (Recital 159), this relaxation per definition only applies to scientific research. Data analytics practices are not necessarily tantamount to scientific research activities. In fact, in most cases they do not involve researchers at all.

This explains why the GDPR uses a different term to describe data analytics: that of ‘general analysis.’ In Recital 29, one reads as follows:

“In order to create incentives to apply pseudonymisation when processing personal data, measures of pseudonymisation should, whilst allowing general analysis, be possible within the same controller when that controller has taken technical and organisational measures necessary to ensure, for the processing concerned, that this Regulation is implemented, and that additional information for attributing the personal data to a specific data subject is kept separately.”

What could Recital 29 mean?

It seems to suggests that, assuming the initial data controller also performs the secondary ‘general analysis’, the new purpose pursued at this later stage should be deemed  compatible with the initial purpose at least where a process of pseudonymisation (see Article 4(5) for the GDPR definition of ‘pseudonymisation’ matching the description in Recital 29) is applied to the personal data post-collection. Therefore, could we also surmise – logically – that, assuming consent was not the initial legal basis relied upon to justify the collection of the personal data originally, no new legal basis would be needed to justify its secondary usage?

On the other hand, by contrast, what if the secondary ‘general analysis’ of that same personal data was actually to be undertaken by a third party, which implies that the data controller would transfer the data set to a recipient [e.g. a start-up] to carry out the innovatory analytics job? Would the old and new purposes be necessarily incompatible? If the answer is yes, a new legal basis would then be needed to justify the secondary processing at the data analytics stage.

What should a start-up receiving personal data from a data provider, to develop a solution and sell it back to the data provider, really do then?

At a minimum, the start-up should probably check what the legal basis for the repurposing of the data is likely to be, BUT ALSO whether the initial legal basis relied upon by the data provider in collecting/creating the personal data was consent obtained from the data subject, or not.

Taking this analysis one step further, assuming there is an argument [which is not straightforward as explained above] that the processing of personal data for general analysis (secondary analytics) purposes was compatible with the initial purpose justifying the original collection –even if the general analysis is to be undertaken by a third party on behalf of the data controller – that third party should in principle receive the data after a pseudonymisation process has been applied to the personal data.

Start-ups should therefore specifically ask for pseudonymised data from the provider of the data they will be experimenting with, whenever possible.

This makes particular sense in the light of Article 11 GDPR, which expressly states in alluding to a state of personal data very similar to the state of personal data that has undergone the process of GDPR pseudonymisation, that if “the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.”  [As a reminder, Article 15-20 GDPR refers to the data subject’s rights of: access by the data subject; to rectification; to erasure; to restriction of processing; and, to data portability].

Surprisingly the right to object is not exempted under Article 11 as it is governed by Article 21, whereas Article 12(2) expressly states: “In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.” [How do we explain this?]

But that is probably not all that we can infer from the above logic being suggested.

Under GDPR Art. 4(4) ‘profiling’ means “any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.”

Whereas, reading Art. 29 WP guidelines on automated individual decision-making and profiling (‘WP251’, recently adopted in final form here), it appears clear that the Art.29 WP envisages that the secondary data analytics stage, i.e. analysis to identify correlations in personal datasets at a later time period, is covered by this GDPR definition of profiling. Specifically, it alludes to the fact that analysis to identify correlations would/should fall underwould/should fall under the GDPR definition of profiling. (p.7).

As a result, if the data shared retains individual level data points [a fact that is consistent with the process of pseudonymisation being applied to personal data precisely to minimise the risk of harm arising to data subjects consequential to later processing activities], there is an argument that the recipient responsible for the data analytics effort may yet be determined to be engaging in profiling activities whenever it looks for patterns of commonalities. [The way the ultimate purpose of the set of processing activities is described could make the difference. E.g. “I am analysing data generated by driverless cars to identify where the most accidents take place and adapt road signs”].

As profiling activities require special care under the GDPR, in particular if such activities are followed by individual decisions taken as a result of profiles created (see GDPR Art.22 and Art. 35, for example), start-ups could find it useful to check with their data providers whether a data protection impact assessment has been undertaken to make sure the future risks for the individual data subjects – those at the very centre of the data analytics ‘story’ – have been taken into account and mitigated at an early stage.

What is the moral of the story? Data providers and start-ups should probably work closely together when doing people-centric data innovation or…. 1000 words is never enough to tell a data protection story!

Sophie Stalla-Bourdillon

This article was first published on Peep Beep!, a blog dedicated to information law.

Carriage of passengers – two recent decisions

Two recent English Court of Appeal decisions consider the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974. Hamblen LJ in November 2017 decided the two cases Lawrence v NCL (Bahamas) Ltd (The “Norwegian Jade”) [2017] EWCA Civ 2222 and Collins v Lawrence [2017] EWCA Civ 2268. What does disembarkation mean? And what are the roles of the contractual carrier and the performing carrier under the Convention?

Collins v Lawrence

Mr Collins had been for a fishing trip. Disembarkation was by a set of semi-permanent steps down onto a shingle beach. Was Mr Collins still in the process of disembarkation, or had he completed that process when he slipped on a wooden plank at the foot of the steps? If he injured himself in the process of disembarkation, the short Athens Convention time bar applied, but if he injured himself afterwards, the general civil liability time bar, which was longer, applied and the claim would be within time.

The key provision in the Athens Convention 1974 was the following, article 1.8:

“‘Carriage’ covers the following periods:

(a) With regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice versa, if the cost of such transport is included in the fare or if the vessel used for the purpose or auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation.”

In the view of the judge, the process of disembarkation covered the whole period of moving from the vessel to a safe position on the shore while a person was still using equipment which facilitated disembarkation, such as the steps and wooden board in this case. Therefore Mr Collins was still in the process of disembarking. Disembarkation had not been completed until the claimant was ashore, which meant safely on the shingle beach. The claim was time-barred.

The Norwegian Jade

In The Norwegian Jade, the cruise passenger had made a contract through a travel agent to travel from London to Venice, join a cruise around the Mediterranean with disembarkation in Venice and then a return flight to London. At Santorini, he fell and injured himself, not on board, but on a smaller boat which was to take him from the cruise ship to the island.

The cruise ship operator first of all argued that it was not the contractual carrier, and that it was the travel agent who had contracted with the passenger as contractual carrier. This argument was unsuccessful: it was the cruise ship operator who provided booking confirmations, in copy to the travel agent and the guest. The booking conditions stated that for a booking made through a travel agent, a binding contract came into existence with the defendant when the travel agent received confirmation of the booking and a reservation number.

Secondly, the cruise ship operator argued that article 1.8 of the Athens Convention did not apply when Mr Lawrence left the ship only for a day trip. ‘Embarkation’ and ‘disembarkation,’ the cruise ship operator argued, meant the passenger and their luggage being moved simultaneously at the beginning and end of the cruise. This argument too was unsuccessful. It appear to be the first time it has been considered by a court.

Thirdly, the judge held that the operator of the smaller boat at Santorini, which was acting as ‘performing carriers,’ was at fault or in neglect in that they should have placed an additional sign at eye level warning passengers of the potentially hazardous step that caused Mr Lawrence to trip and fall. Since the performing carrier was at fault or in neglect, so was the contractual carrier, namely the cruise ship operator, either because it had taken no action itself or because it was answerable for the fault or neglect of the performing carrier.

Comment

Personal injuries and small passenger claims are most frequently brought in the county courts. Such decisions are often not reported, meaning that it is difficult to find decisions on how the Athens Convention is applied in practice. These decisions should help achieve some uniformity in passenger carriage claims.

Dr Johanna Hjalmarsson
Southampton Law School
The full article was published in Lloyd’s Shipping & Trade Law on 9 February and is available on www.i-law.com and on www.shippingandtradelaw.com

What is the UK limit of liability for wreck?

Surprisingly, a shipowner’s rights to limit liability in respect of claims against a wreck are not clear under UK law. Although the ambiguities in question were pointed out at an early stage, the position remains unresolved. This article considers the applicable treaties, legislation and views of eminent authors to demonstrate that the position is unresolved.

The treaties

The position is ultimately defined by the treaties to which the UK is a party, namely the conventions on shipowners’ limitation of liability generally and the wreck convention.

The UK is currently a party to the 1996 Protocol to the International Convention on Limitation of Liability for Maritime Claims 1976. In becoming a party, the UK denounced the 1976 Convention to which it had previously been a party since 1 December 1986. The 1996 Protocol entered into force in the UK on 13 May 2004.

In connection with the ratification of both the 1976 Convention and the 1996 Protocol, the UK notified the depositary, the International Maritime Organization, that it reserved its right not to apply rights to limit liability to claims falling under article 2(1)(d) of the Convention. There has been no withdrawal of that notification. Article 2 is in identical form in both Conventions, and reads, with emphasis added:

“Claims subject to limitation

1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

[(a) – (c)] …

(d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;

(e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship …”

Reservations are permitted against the Convention. Article 18 reads:

“Article 18. Reservations

1. Any State may, at the time of signature, ratification, acceptance, approval or accession, reserve the right to exclude the application of Article 2, paragraph 1(d) and (e). …”

The amending Protocol also permits this same reservation. The UK has availed itself of this option. As a result of this reservation, it is not bound by international law to ensure by domestic legislation that claims such as under article 2(1)(d) are subject to limitation. The reservation was made both under the original Convention and when ratifying the Protocol.

As for the Nairobi International Convention on the Removal of Wrecks 2007, it entered into force in the UK on 14 April 2015. This Convention does not contain any provisions on limitation of liability, except to recognise that states may wish to apply other Conventions on limitation of liability to claims in respect of wreck:

“Article 10. Liability of the owner

1. Subject to Article 11, the registered owner shall be liable for the costs of locating, marking and removing the wreck under Articles 7, 8 and 9, respectively, unless the registered owner proves that the maritime casualty that caused the wreck:

(a) resulted from an act of war, hostilities, civil war, insurrection, or a natural phenomenon of an exceptional, inevitable and irresistible character;

(b) was wholly caused by an act or omission done with intent to cause damage by a third party; or

(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

2. Nothing in this Convention shall affect the right of the registered owner to limit liability under any applicable national or international regime , such as the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.” [Emphasis added.]

The right to limit liability for claims against wreck under UK law therefore depends on whether the enabling legislation giving force to the 1996 Protocol has given effect to the reservation against article 2(1)(d).

The legislation

The relevant provisions are contained in the Merchant Shipping Act 1995. Section 185(1) of that Act provides:

“The provisions of the Convention on Limitation of Liability for Maritime Claims 1976 as set out in Part I of Schedule 7 (in this section and Part II of that Schedule referred to as ‘the Convention’) shall have the force of law in the United Kingdom.”

Part I contains the text of the 1996 text of the Convention in full, without omission of article 2(1)(d). In principle, the full Convention therefore has the force of law. However, section 185(2) of the Merchant Shipping Act states that Part I of the Schedule is subject to Part II.

Part II, para 3, headed “Claims subject to limitation” reads as follows:

“(1) Paragraph 1(d) of article 2 shall not apply unless provision has been made by an order of the Secretary of State for the setting up and management of a fund to be used for the making to harbour or conservancy authorities of payments needed to compensate them for the reduction, in consequence of the said paragraph 1(d), of amounts recoverable by them in claims of the kind there mentioned, and to be maintained by contributions from such authorities raised and collected by them in respect of vessels in like manner as other sums so raised by them.

(2) Any order under sub-paragraph (1) above may contain such incidental and supplemental provisions as appear to the Secretary of State to be necessary or expedient.” [Emphasis added.]

There appears to be no such order at present. The conclusion must therefore be that the provision does not apply, and that wreck claims are not currently subject to limitation in the UK. This contradicts the Explanatory notes to the Wreck Removal Convention Bill as introduced in the House of Commons on 30 June 2010 [Bill 18], where para 24 reads:

“The right to limit liability under section 185 (limitation of liability for marine claims), which gives effect to the Convention on Liability for Marine Claims, is preserved.”

To confuse matters, the header “Claims subject to limitation” in Part II of Schedule 7 is followed by another header, “Claims excluded from limitation” above para 4, which deals with claims for damages related to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (the HNS Convention). Considering the combination of headers (“Claims subject to limitation” and “Claims excluded from limitation”), it appears clear that the intention of the legislator was that HNS claims should be excluded from, but wreck claims should be subject to limitation.

Other sources: comments on the provisions

These observations are not new: the discrepancy has been pointed out by others. A letter from the British Maritime Law Association dated 24 July 2008 and signed by the association’s then Secretary/Treasurer Andrew Taylor is available online. 1 In the letter, it is noted a propos para 3(1) of part II of Schedule 7 to the Merchant Shipping Act 1995:

“The effect of this provision is that the owner of a ship is not in English Law entitled to limit its liability under the Merchant Shipping Act for the cost of wreck removal.”

The BMLA letter goes on to offer a solution:

“However it is, in the view of the BMLA working group, arguable that the provisions relating to compulsory insurance and direct action for the recovery of such costs are equivalent to the setting up of a fund envisaged by the above paragraph.”

If additional support were needed, other authors have noted the same discrepancy. Aengus Fogarty, the author of Merchant Shipping Legislation, 3rd Edition, 2017, Informa Law, makes a similar observation at para 15.171:

“Article 2(1)(d) of the Convention is not yet applicable as no fund has yet been established under paragraph 3 of Part II of Schedule 7. Accordingly, statutory claims by harbour and conservancy authorities for wreck removal expenses are not yet subject to limitation of liability. It is arguable that non-statutory claims for wreck removal expenses in circumstances similar to those in The Putbus, 2 supra, and The Arabet, 3 supra, are excluded from limitation by virtue of this paragraph: see Limitation of Liability for Maritime Claims …” (Footnotes with references added.)

The work referenced at the end of the quote is Griggs et al, Limitation of Liability for Maritime Claims, 4th Edition, 2005, Informa Law. This work, best known as Griggs, contains a commentary to the Limitation Convention. The Commentary to article 2(1)(d) of the Convention posits – undoubtedly correctly – that the government’s policy behind the reservation to the Convention was that harbours and other facilities should not shoulder the costs for wreck removal. That concern pertains particularly to wreck removal undertaken pursuant to statutory powers. The authors of Griggs go on to say:

“it appears that as a result of the wording in the introductory paragraph to Article 2, to the effect that the listed claims are to be the subject of limitation ‘whatever the basis of liability’, the reservation exercised by the United Kingdom may have inadvertently taken out of limitation in the United Kingdom any claims (whether statutory or otherwise) relating to wreck removal, including claims for recourse, provided that the liability does not relate to remuneration under a contract with the person liable).” 4

The apparent effect that claims for wreck removal expenses against other parties are not subject to limitation as a result of the legislation is confirmed by these eminent authors, and described as “inadvertent”.

Comment

The effects for insurers are important: they are said in the Wreck Removal Convention Act 2011, section 255P, sub-section (5) to have the same rights to limit liability as their insured:

“The insurer may limit liability in respect of claims made under this section to the same extent as the registered owner may limit liability by virtue of section 185 (or would be able to limit liability by virtue of that section if it were not for paragraph 3 of Part 2 of Schedule 7).” (Emphasis added.)

But what does “to the same extent” mean? The position appears to be a door to litigation, waiting to be knocked down.

Dr Johanna Hjalmarsson

Informa Associate Professor in Maritime and Commercial Law

This article was first published in Shipping & Trade Law 2017 (17) 10 pp 3-5 and is reproduced here by kind permission of the publisher.

Available at: https://www.shippingandtradelaw.com/shipping/liability/what-is-the-uk-limit-of-liability-for-wreck-127949.htm (registration required) and https://www.i-law.com/ilaw/doc/view.htm?id=385574 (paywall)

Footnotes

1 The letter is available at www.bmla.org.uk/documents/2011/ltr_DfT_re_Nairobi_Convention_Wreck_Removal.doc (accessed on 20 December 2017).

2 [1969] 1 Lloyd’s Rep 253.
3 [1963] P 102.
4 Griggs, chapter 3, commentary to article 2(1)(d).

Brands and ecommerce platforms: a tainted relationship?

What has happened to online ecommerce platforms? Over the past few months news reports have multiplied – or, perhaps, their underlying issues have acquired greater visibility – that brand owners have been increasingly voicing criticisms against, sued, or discontinued sales on ecommerce sites. In particular, after the criticisms made against Alibaba, it seems that Amazon is now making the headlines.

Let’s have a quick look at what has happened over the past few months.

Court actions

First, there have been legal proceedings being brought by trade mark owners, claiming a direct responsibility of Amazon in the sale of counterfeits or invoking a right to prevent sales on such platform.

An example of the former is the lawsuit filed by Daimler against Amazon in late 2017 in the US District Court for the Western District of Washington at Seattle. The well-known German car manufacturer argues that Amazon is directly responsible for the “offer for sale, sale and distribution of wheels which blatantly copy issued design patents in various distinctive and artistic wheel designs owned by Daimler” under the Lanham Act (§ 1051 ff), the US Patent Act (§ 1 ff), and Washington State statutory and common law.

As explained on Forbes here, this is not the first time that a trade mark owner is seeking to have the direct liability of Amazon established. However, back in 2015 a 9-member jury in the same court that has now been asked to rule on the lawsuit filed by Daimler held that Amazon was not liable for the sale of counterfeit Milo & Gabby (now JoliMoli) animal-shaped pillows.

If the case brought by Daimler ended with a finding of liability for Amazon, that would likely have a significant impact on the liability of platforms allowing third-party listings, and set a different approach to platform liability in the US.

As readers knows, the particular issues surrounding platform liability have been at the centre of attention also in Europe.

Reference in the online trade mark realm goes instinctively to the landmark decision of the Court of Justice of the European Union (CJEU) in eBay, C-324/09, in which the highest EU court clarified that the safe harbour for hosting providers within Article 14 of the E-Commerce Directive does not apply to “an information society service [which is] aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31.” [para 120]

More recently, the CJEU appears to have pushed the liability of platforms even further than the realm of safe harbours (hence, scenarios of secondary liability) by holding that a platform may be even directly (primarily) liable for third-party infringements. It has done so in the copyright context, especially in the recent Filmspeler decision [hereand – even more clearly – in the Ziggo ruling [here].

If we remain in the EU context, the issue of platform liability is not the only aspect that has been touched upon in relation to ecommerce platforms. Readers will in fact remember the recent judgment in Coty Prestige, C-230/16 [here], in which the CJEU tackled the compatibility with EU competition rules of selective distribution agreements for luxury brands, including clauses that would prevent resellers from distributing branded products via Amazon. The CJEU provided an interpretation of relevant EU provisions that allows – at certain conditions – trade mark holders from preventing distribution of their goods via platforms of this kind.

Discontinued sales

In parallel with court actions, other brands have recently announced their intention to discontinue sales on Amazon, over issues of counterfeiting and allegedly excessive discounts.

In a timeframe of just a few weeks, this has been for instance the case of Birkenstock and Italian publisher E/O, respectively.

Shoe producer Birkenstock announced that as of 1 January 2018 it would terminate its business relations with Amazon, on grounds that

“there have been a series of violations of the law on the Marketplace platform operated by Amazon which the platform operator has failed to prevent of its own accord. On a number of occasions, BIRKENSTOCK lodged a complaint that counterfeit products of poor quality which infringed BIRKENSTOCK’s trademark rights and misled the consumers regarding the origins of goods were being made available on the platform.

Putting the issue of legal obligations aside, BIRKENSTOCK is of the opinion that an integral part of a trusting business relationship is that, upon being first notified as the operator of the Marketplace platform of such a breach of the law, Amazon would, of its own accord, do everything within its power to prevent this type of and similar infringements. To this day, no binding statement has been made to the effect that no more counterfeit BIRKENSTOCK products would be offered for sale through the platform.”

A couple of weeks ago also E/O [the Italian publisher of Elena Ferrante’s books, amongst others] announced that it would no longer sell on Amazon, on consideration that the discounts requested by the ecommerce provider would be excessive. It is not the first time that a complaint of this kind is made by the publishing industry.

What’s next?

In all this, what does the future hold?

On the one hand, it appears that brand owners’ complaints may result in the adoption of new approaches towards responsibilization and liability of online platforms.

This could occur not just at the court level, but also by means of initiatives of policy- and law-makers. In Europe, for instance, the issue of platform liability, notice-and-stay down obligations (including filtering), as well improved enforcement tools are currently central items to the agenda of the EU Commission and legislature. In the first half of 2018 it is expected that the Commission will unveil further legislative proposals in this area, under the umbrella of its Digital Single Market Strategy.

On the other hand, platforms like Amazon may not rely just on partnerships with brand owners or the making available third-party offerings but, rather, increasingly invest on the making available of their own offerings. In this sense, the trend in fashion seems to be already reality. As noted by The Fashion Law, Amazon has in fact been working on and launched a number of in-house collections that have been already finding success among consumers, “particularly in light of the current retail environment, when brand loyalty is low, consumers are overly price/value conscious, and branding is simply not as significant a player as it used to be.”

In this sense, the general trend seems to be towards a configuration of platforms’ activity as no longer – or just – passive hosts of third-party offerings but, rather, active providers of own offerings. What should the legal treatment of this evolving and evolved scenario be? While the functioning of the internet must be safeguarded [as was also recently stressed by the German Federal Court of Justice, here and herethe questions that lie ahead and require a response are whether new rules are needed, existing rules should be applied differently … or what else?

[This post was originally published on The IPKat on 4 January 2018]