BERNARDO CARVALHO DE MELLO

Introduction

Women’s reproductive rights have always been a disputed and controversial theme. However, recent developments have shown that the issue is more contested than before in our highly politically and legally polarised world. Two critical cases demonstrate how this human rights subject is currently a hot topic and exemplify a trend in an erosion of women’s rights.

The overturn of Roe v. Wade reignited the debate on abortion in the world, anticipating a possible moralist and conservative trend that, similarly to what happened in the 1970s when it was first brought before the US Supreme Court but in the opposite direction, will reverberate in other countries, now implying a broader restriction of women’s human rights.

The Beatriz v. El Salvador case showcases how the issue surrounding the legal prohibition of abortion leads it to be practised clandestinely and in an unsafe manner or at high costs. Therefore, the core of the problem lies in the fact that prohibition mainly affects and controls the bodies of poor, black, Latino women with less education and more unfavourable living conditions, further increasing social inequality.

An intersectional view of the controversy appears to be the way to analyse these factors in a way that recognises abortion not as a crime but as part of the universal human right to health and life and by affirming the complexities that arise when multiple factors of marginalisation impact on women’s access to healthcare and reproductive rights.

The Overturning of Roe V. Wade

On the 24th of June of 2022, The United States overturned the landmark 1973 case of Roe v. Wade, which legalised abortion in the US, raising significant concerns and warranting a critical examination of its potential consequences. Such a reversal has far-reaching implications for women’s reproductive rights and bodily autonomy.

The overturning of Roe v. Wade effectively hands the power to regulate abortion back to individual states, leading to a patchwork of varying laws and restrictions across the country. This disproportionately impacts marginalised communities, who may face limited access to reproductive healthcare services due to geographic, economic, or social barriers. In addition, women’s autonomy is undermined as their ability to make decisions about their own bodies and futures is eroded.

Additionally, the overturning of Roe v. Wade does not eliminate the demand for abortion; rather, it pushes many women towards unsafe and illegal procedures, risking their health and lives. History has shown that restricting access to abortion does not reduce the occurrence of abortions but instead drives them underground, perpetuating a cycle of unsafe practices.

Moreover, it reflects a broader erosion of the principles of gender equality and bodily autonomy. It sends a troubling message that women’s rights to make choices about their own reproductive health are not considered fundamental and deserving of protection.

Beatriz V. El Salvador

The Beatriz vs El Salvador case presents a significant challenge to the Inter-American Court of Human Rights, exposing the complex dynamics at the intersection of human rights and reproductive justice.

In summary, Beatriz (an alias used to protect her real name) became pregnant for the first time in July 2011. However, her pregnancy was high-risk due to a series of diseases she had: systemic lupus erythematosus, lupus nephropathy, and rheumatoid arthritis.

She was hospitalised several times and experienced anaemia, exacerbation of lupus symptoms, and pre-eclampsia. She almost died during labour, and her child had to stay in the hospital for over 30 days until being discharged.

Beatriz became pregnant a second time in February 2013, again a high-risk pregnancy. Except for one thing: on the 7th of March, 2013, she received the news that the foetus had anencephaly, a condition incompatible with life outside the womb. At the same time, she was also warned that continuing the pregnancy posed a risk to her own life.

Even though abortion is illegal without any exception in El Salvador, she filed a request for an abortion due to severe risk to her life, initially recognised by the Constitutional Chamber but later reversed by the same Court because they considered that there was no “omissive conduct” on the part of the authorities that would endanger Beatriz’s rights to life and health. On the 3^rd of June, she gave birth to the baby, who died 5 hours later. In 2017, after a car accident, she died partly due to the ongoing deterioration of her health conditions exacerbated by her pregnancies.

Faced with the denial that Beatriz’s request for an abortion was a clear violation of her human rights, civil society groups decided to bring the case to the IACHR. They call for justice for Beatriz’s memory and compensatory damages for her family. Additionally, they demand non-repetition measures such as a change in El Salvador’s Penal Code.

While it is pending judgment, the Inter-American Court of Human Rights has a unique opportunity to affirm the principle of reproductive autonomy and recognise the right to access safe and legal abortion when a woman’s life is at risk. By failing to do so, the Court would miss a chance to set a precedent for safeguarding women’s rights in cases where pregnancy endangers their lives, ultimately perpetuating gender-based discrimination and infringing upon individual autonomy in a region where these issues are everyday occurrences.

The Beatriz case highlights the detrimental consequences of restrictive abortion laws on reproductive justice. El Salvador’s absolute criminalisation of abortion denies women the right to make decisions about their own bodies and endangers their health and lives. The court’s decision is an excellent opportunity to address the systemic injustices and social inequalities perpetuated by such laws, further marginalising vulnerable women and perpetuating a cycle of discrimination.

Moreover, the Beatriz case underscores the importance of international human rights standards in shaping domestic laws and policies. International bodies such as the IACHR must play a proactive role in upholding human rights and pressuring governments to reform laws restricting women’s access to safe and legal abortion, ensuring the protection of their fundamental rights.

Furthermore, the case brings to light the influence of cultural and societal factors on the denial of reproductive rights. El Salvador’s deeply rooted conservative values and strong ties to religious institutions have perpetuated a culture of stigmatisation and moral judgment surrounding abortion. This cultural backdrop has hindered progress in recognising and respecting women’s autonomy and their right to make decisions about their own bodies.

The Beatriz case also sheds light on the importance of ensuring access to comprehensive healthcare services, including safe and legal abortion. Denying women access to the complete range of reproductive healthcare options compromises their overall well-being and autonomy. El Salvador’s Constitutional Chamber’s decision to deny Beatriz an abortion perpetuates unequal access to healthcare services and exacerbates existing disparities in health outcomes, particularly for marginalised communities.

It should be stressed that the Beatriz case prompts reflection on the role of legal frameworks and the potential for judicial activism in advancing reproductive justice. The court has the opportunity to interpret existing laws in a way that aligns with evolving societal values and international human rights standards. In addition, the Inter-American Court of Human Rights has a chance to proactively shape legal frameworks to better protect women’s rights and promote social progress.

Intersectionality and the cases

What do both these cases have in common? First, they highlight how, even in 2023, we are still debating the recognition of a fundamental human right. More than the abortion issue itself, Roe v. Wade and Beatriz v. El Salvador show that reproductive rights emphasise the intersection of multiple factors of marginalisation.

The struggle for reproductive rights has been a longstanding battle for women worldwide. However, when examining this issue through the lens of intersectionality,[1] it becomes evident that the fight for reproductive autonomy is far from uniform.

In the context of reproductive rights, these intersecting identities produce a complex web of privilege and oppression. For instance, women of colour often face disproportionate barriers to reproductive healthcare due to systemic racism and economic disparities. They are more likely to face inadequate healthcare facilities, lack of information, and racial biases restricting their choices. Therefore, the fight for reproductive autonomy cannot be divorced from the broader struggle against social inequality.

What’s more, intersectionality introduces the reproductive justice concept, expanding the traditional reproductive rights framework. Reproductive justice stresses the need to consider not only the right to access contraception and safe abortions but also the broader socio-economic, cultural, and environmental conditions necessary for individuals to make reproductive decisions free from coercion and discrimination. It acknowledges that marginalised communities encounter intersecting oppressions that limit their agency in reproductive matters. By adopting a reproductive justice framework, we can address the intersecting concerns of poverty, racism, ableism, and other forms of discrimination that disproportionately impact marginalised individuals.

The impact of intersectionality on reproductive rights is most palpable when examining access to reproductive healthcare. Privileged individuals often enjoy greater access to comprehensive reproductive healthcare, while marginalised groups face significant barriers. For example, women from low-income backgrounds often struggle to access affordable contraception, prenatal care, and adequate maternal healthcare. This inequality is compounded when considering the experiences of transgender and gender-nonconforming individuals, who face additional challenges such as discrimination, limited healthcare providers, and inadequate reproductive healthcare options. Intersectionality illuminates these disparities, underlining the need for inclusive policies that address the unique needs of marginalised communities.

Intersectionality also plays a crucial role in legal battles surrounding reproductive rights. Court cases and legislation focusing solely on gender-based discrimination may inadvertently ignore the specific challenges individuals face at the intersections of multiple identities. For instance, laws restricting reproductive autonomy may disproportionately affect low-income women of colour or individuals with disabilities. In addition, intersectional perspectives provide a more comprehensive understanding of the diverse barriers faced by different communities, urging lawmakers and activists to adopt an inclusive approach that upholds the rights of all individuals.

Conclusion

In sum, the fight for reproductive justice and fundamental human rights regarding abortion and comprehensive women’s healthcare is controversial in the political, legal and, more broadly, social arenas.

Scepticism regarding the substantial effects of international human rights court judgments stems from concerns about the ability to enforce and effectively implement these judgments consistently and meaningfully across different countries and legal systems due to factors such as non-compliance by states, political resistance, resource constraints, and cultural relativism.

Nevertheless,  Roe v. Wade and Beatriz v. El Salvador illustrate how the judicial system does have the power to make critical changes in society and how we, as legal scholars, can advance the human rights debate and contribute to societal change. And as both cases illustrate, the backlash against women’s rights is a current and dangerous trend that needs special attention from all sectors of society, especially the legal and social activism fields.

Footnotes

[1] Intersectionality is a concept that recognises and explores the interplay of social identities, such as race, gender, class, sexuality, disability, and others, and how they intersect to create situations of oppression or privilege. It understands that these social categories do not exist independently but interact and overlap, creating unique and complex experiences for individuals and groups with multiple marginalised identities. Its main goal is to create a comprehensive and inclusive approach to social justice.

Intersectionality was first coined by legal scholar Kimberlé Crenshaw in 1989 in her groundbreaking article “Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” Crenshaw underlined the shortcomings of mainstream feminist and civil rights frameworks, which did not adequately address the unique experiences of Black women who encountered discrimination at the intersection of multiple identities.

Since then, intersectionality has gained prominence across various academic disciplines, activism, and social justice movements. The ongoing scholarship and activism movement are also expanding the scope of intersectionality beyond the categories of gender and race, including other intersecting social identities and power dynamics that are current in social debate (such as LGBTQIA+ gender performance and identity, mental and physical disability, nationality and language). Moreover, it has been applied to various contexts, such as law, sociology, and political science, to assess the complex ways in which intersecting identities influence social, economic, and political outcomes.

Bernardo Carvalho De mello is a law phd student at newcastle university.

MAURICIO FIGUERO

It is well acknowledged that the digital age has transformed the way people express and connect, but it has also undeniably affected the dynamics of power. The so-called algorithmic society has affected how people exercise their liberties and at the same time has intensified the economic and political power of Big Tech companies. These have become actors that exercise public authority and private ordering, far beyond their façade of mere market participants. With this perspective in mind, Giovanni De Gregorio has introduced the first comprehensive study of the emerging yet highly relevant field of Digital Constitutionalism in his book Digital Constitutionalism in Europe, published by Cambridge University Press in 2022 and made available Open Access.

But what does it all mean? How is constitutional law relevant in the digital environment? De Gregorio stresses that, by imposing limitations and regulating their internal infrastructures, these companies compete with public authorities to determine, shape, and manage users’ rights and freedoms — and in some cases they may succeed in imposing their private values over the State’s constitutional mandate. While some may still find it hard to conceive private actors as entities exercising public authority, especially in the digital context, De Gregorio provides a detailed explanation of how constitutional law serves a remedy for the abuse of power from Big Tech corporations. De Gregorio does not only succeed in clearly presenting his research in terms of methodology, but also in introducing Digital Constitutionalism as the comprehensive framework for safeguarding rights in the digital age.

Digital Constitutionalism in Europe explains how digital platforms have amassed their power, transforming themselves into de facto authorities that delimit users’ rights and enforce public policies outside the apparatus of the State. On top of that, the book clearly allows the reader to make sense of how these platforms have also several functions unique to their architecture and dynamics, this is what De Gregorio refers to as “quasi-public powers online” (p. 95). When a user enters into an agreement with a digital platform, the Terms of Service (ToS) are far more than a simple instrument of contract law, these are factual instruments of vertical regulation that serve as a means for the exercising of authority over the users. This takes place, again, in the context of opacity, lack of participation and with no mechanisms that explain how and why they take these decisions. What can public law do? Is not this all governed by contract law?

In order to explain the role of constitutional law, in chapter 4 De Gregorio elaborates on the intersection between content and data in the algorithmic society. While these two regimes have been originally conceived of as separate tracks, De Gregorio proves that the two overlap more often than not. He provides solid examples that show how the two are intertwined, such as the case of search engines and social media. De Gregorio does not only demonstrate how the two legal regimes are connected with each other but also highlights how inconvenient it is for courts to apply a rigid separation between the two systems.

Then, in chapter 5, he explores in-depth Freedom of Expression in the context of European Digital Constitutionalism, a foundational right for any democratic society. This right, however, has been subject to major challenges in the context of digital technologies. This is mostly exemplified by the private enforcement of content moderation practices by digital platforms, and the imposing of corporate interests over public values. De Gregorio conveys that Digital Constitutionalism has found its way to counter the discretionary mechanisms of these companies. This is reflected across specific normative instruments in the European Union, such as the Directive of Copyright in the Digital Single Market, or the Regulation of Terrorist Content. But this regulatory framework is not focused on content regulation, it rather establishes procedural safeguards to foster more transparent and accountable mechanisms. This is a major example of how constitutional principles are of relevance in safeguarding digital spaces.

Then De Gregorio in chapter 6 provides an explanation of the evolution of privacy and how private data fuels the algorithmic society. In this regard, the role of European Digital Constitutionalism is not restricted to a traditional interpretation of the General Data Protection Regulation (GDPR). In fact, De Gregorio explains that it is necessary to look at this instrument with a new teleological perspective, not only focussing on the obligations it imposes but also looking at it as a catalyst of positive responsibility to intervene at the horizontal level towards the protection of human dignity.

In the last chapter, De Gregorio illustrates the possible futures of European Digital Constitutionalism. He first points out that, while not closing its doors to digital capitalism, Europe embraces digital humanism. In this regard, European Digital Constitutionalism serves as a means to balance market development concerns and the protection of human dignity and democratic values. He then analyses the contrast between public and private ordering. De Gregorio explains that, in the middle of the two poles represented by the Chinese and American models, Europe is fostering a co-regulatory approach, laying out the public values which set the framework within which the private sector operates. Lastly, he answers the question “how far could Digital European Constitutionalism extend its influence to protect fundamental rights?”. It is clear — De Gregorio maintains — that the Union does not have the intention to promote its industry, but rather it is concerned with rising as a global standard-maker. This is evident, for instance, in the influence that the GDPR has attained outside Europe.

Although it is not expressly mentioned in his book, De Gregorio’s findings resonate with the distinction that permeates until today between the continental and common law traditions: the role of the State. This is distinctly evident in the context of American Law, where commodification and market efficiency play a major role in the legal system, and therefore the role of the State is conceived of differently from the one in continental law. As Katharina Pistor explains (The Code of Capital, Princeton University Press, 2019), the institution of property that emerged in Britain was originally limited and restricted; it was not until the fall of the Middle Ages that property started to be regarded as a complete right with formal titles. This was the concept that arrived to Britain’s North American colonies. This explains why, for instance, the legal narrative of property and the lack of State intervention play out so strongly in the American legal system. In this regard, the American legal landscape privileges property, freedom, innovation, and wealth, whereas Europe leans towards the protection of human dignity and safeguarding of fundamental rights.

It is to be noted that De Gregorio’s Digital Constitutionalism in Europe is a work worthy of recognition and dissemination, precisely because it superbly presents Digital Constitutionalism as a comprehensive methodology to analyse rights in the algorithmic society. As opposed to presenting a stand-alone proposal for reform or a specific amendment to the EU legal system, De Gregorio introduces an innovative lens to protect and place human dignity at the centre of the legal discussion.

The complexity of the algorithmic society makes it a potential field of analysis from different legal optics, such as competition, consumer, contract law or privacy law. The problem is that those branches alone cannot fully grasp the problems related to the private ordering and authority that digital platforms impose over their users. In that regard, Digital Constitutionalism provides a holistic view to interpret and safeguard fundamental rights in the digital context.

At several times, the rhetoric of freedom, liberties and innovation has been used to shield private corporations and their abuse of power. This attitude favours the status quo and diminishes the rights of citizens in the digital age. In that regard, De Gregorio’s research plainly sheds light on the factual nature of platforms and how we can protect human dignity from the abuse of power of technology giants.

This book refreshes the reflection on digital technologies and human rights, and must be regarded as a starting point for further discussion, not as a final stage of debate. This work reflects indeed a new moment in legal academia, where constitutional and legal technology scholars must both take part.

Mauricio Figueroa is a PhD Candidate at Newcastle Law School, affiliated to the research group “Law and Futures”.

Eleanor Fox

With the development of the tort ‘misuse of private information’ the law has increased the protection available to public figures in protecting their privacy. However, due to an inadequate system of press regulation and the rise in social media, it has become harder for the law to properly protect and provide redress for these harms. Despite claims from the government that progress has been made, there is a clear need for a more effective regulator that will scrutinise and hold publications to account, as well as making changes to improve the protection injunctions provide.

Regulating the Press

The Leveson Inquiry was set up with the aim of a better regulated media. This resulted in the Independent Press Standards Organisation (IPSO) being established as a self-regulator. Support for this has been given by members of the government. Matt Hancock claims they have made progress and have taken steps to demonstrate their independence. Yet, looking at their source of funding, can they really be considered independent?

The Regulatory Funding Company, who funds the IPSO, is financed by its member publications. It has control over things such as the standards code, appointments, investigation fund and voting. Hence, with such a high level of influence, to deem it truly independent seems misleading. IPSO also has the power to hold publications to account by issuing fines of up to £1 million for serious breaches, nevertheless, so far sanctions have never been issued. With over 1,700 violations, it seems unlikely they have never faced a serious enough breach. This could be an effective way to deter other publications from ignoring a public figure’s right to privacy, but without serious consequences, it seems publications will continue using unethical practices.

IPSO had the potential to be a more accessible route than taking privacy claims to court, nevertheless, it has been unsuccessful. This leaves legal action as the only way to provide redress and protect privacy, but even this may be under threat from social media.

Social Media and Injunctions

Newspaper circulation has dropped by around two-thirds since 2000, with people now getting their news from social media. Online platforms are not generating the same revenue as print and social media platforms often don’t pay for the content appearing on their websites. This means stories are reaching more people without the financial benefit to the publisher. The real pressure now is to get original stories faster, with little regard for the public interest, leading to unethical reporting. This is evidently concerning because once a story has been published, it is very difficult to curb the online spread. Damages for breaching someone’s privacy may not be satisfactory and often the information can still be found with minimal effort.

Social media is also threatening to undermine the effectiveness of the remedies available through court. Injunctions are granted to prevent private information being disclosed, limiting what journalists can publish. However, as information has become easy to share and people have access to a wider range of sources, jigsaw identification has become easier. This is where people can piece together snippets of information to identify the individual who is being protected, which can often lead to misidentification or intrusive speculation. One high profile example is Ryan Giggs who was granted an injunction against The Sun newspaper. The newspaper had published the story leaving his name anonymous, however, twitter users soon identified the person in question since the same information had been repeated more than 75,000 times. This ultimately left the injunction ineffective which demonstrates that the capability of the law to protect this information and provide redress is threatened.

Contempt of court is one way to hold those who breach an injunction online accountable, but this can often be costly and increase the publicity of the injunction. However, it is unrealistic to hold 75,000 people accountable on twitter as it would be extremely difficult. This mechanism will only be useful in a few circumstances and often is ineffective with social media making it easy for information to be shared by so many. The most effective way to prevent this breach of privacy and to uphold the value of injunctions would be through the use of pre-notification requirements. This would mean publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.

“Publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.”

ELeanor Fox, LLB Graduate from Newcastle law school

Pre-notification requirements have faced heavy criticism over concerns of the chilling effects on journalism, where time is of the essence, such as investigative journalism. To overcome this problem, this requirement could be used for certain categories of journalism, such as tabloid newspapers, where there is no pressing need to publish a story. This is unlikely to be implemented, however, as it is thought to give too little weight to freedom of speech and there has been little discussion around categorising journalism.

Jurisdictional Problems

Interim injunctions, granted by the court prior to privacy trials, are limited in their protection due to jurisdictional issues. These injunctions granted in England are not enforceable elsewhere in the UK. The information can therefore be published online in other UK jurisdictions and shared to viewers in England, undermining the law. This was true of the PJScase, where the information was shared in the US, Canada and Scotland despite being granted an interim injunction in England and Wales.

A solution to this would be to enable interim injunctions to be enforceable in all UK jurisdictions. This has received opposition from those such as Dominic Grieve QC, arguing that separate legal systems are fundamental to the UK. However, final injunctions received after trial are enforceable in all three jurisdictions, giving little weight to this argument if other forms of injunctions are enforced in this way. Although this would not overcome the problem of sharing the information in jurisdictions outside the UK, this could significantly increase the protection afforded to people’s privacy.

It is therefore clear that further press regulation reform is needed along with relevant steps required in order to preserve the effectiveness of injunctions and overcome jurisdictional problems. Until such changes are made, the law cannot sufficiently protect a public figure’s privacy.

Eleanor Fox is a Newcastle Law School alumni. This post is part of the research topic in law module blog post series.

REET KAUR

After several years of campaigning, delays caused by Brexit, and the General Election, the Domestic Abuse Bill is now the Domestic Abuse Act. Exciting, right? But, let’s take a moment to reflect on what this Act has really done for the victims of abuse.

Although the Act reflects our contemporary society, it is reasonable to ask, are the victims silent or are they silenced by this act? The fact is that it has, to an extent, silenced them. Over 80% of victims wanted perpetrators’ behaviour to be challenged via mental health support, public awareness campaigns, and tougher sentences. Yet, the Law does not reflect this. Currently, less than 1% of perpetrators are being challenged to reform. Rather than hearing the victims and acting in their interest, the changes in the Law ignore the voice of the victims and instead reflect the views of a contemporary society. The Act is essentially silencing the victims whilst upholding the dominant societal view.

The non-privatization of domestic abuse has resulted in the need for a balance between public and victim’s interest to be reflected in the Law. The concept of privacy, which has historically favoured men, needs inspection by the Law so that it does not hinder the rights of victims. The Law cannot ignore the public concerns surrounding domestic abuse due to the welfare benefits provided by the Government. Finding a balance between public and victim’s interest may be a more suitable approach, rather than ignoring one group. But as the recent discussions have shown us, reaching a balance is harder than we thought.

Differences Between Violence and Abuse

The linguistic changes, although diminutive, are a good example of a balance being reached between public and victims’ interest. Our language essentially mirrors our perspective and understanding of domestic abuse. This is why the introduction of a clear legal definition of ‘Domestic Abuse’ is significant. There are semantic differences between ‘violence’ and ‘abuse’, the latter accepting the broad nature of this act, whereas the former limits abuse to mere physical acts. The Law’s shift away from ‘violence’ helps clarify the nature of this act.

“Rather than hearing the victims and acting in their interest, the changes in the Law ignore the voice of the victims and instead reflect the views of a contemporary society. The Act is essentially silencing the victims whilst upholding the dominant societal view.”

Reet Kaur, llb graduate from newcastle law school

Confusion around the term ‘violence’ arising in Yemshaw v Hounslow LBC [2011] led to the public asking one simple question: why not just use the term ‘abuse’? Therefore, a shift from the use of ‘violence’ to ‘abuse’ is a positive reflection of society’s broad perception of domestic abuse. The new definition also strengthens the relationship between the Law and the victims by legally recognising ‘intimacy’ as a characteristic of domestic abuse. Domestic abuse is the misuse of an intimate relationship. It exploits the self-discovery, freedom, and autonomy that an intimate relationship should provide.

Scholars, such as Herring and Reece, have contrasting views on whether domestic abuse is a form of an intimate relationship. However, this is not something that should be up for discussion as victims of abuse predominately view it as a form of an intimate relationship. Since societal views are conflicted on the intimacy aspect of this relationship, recognising intimacy successfully mirrors the victim’s perception of the relationship.

Providing Safer Accommodation

The Government’s aim of providing safer accommodation is where the balance of interest has clearly not been reached. Struggles with providing accommodation are no secret. Prior to the pandemic, refugees in England were already struggling to obtain accommodation. The bed spaces in England were 30% below the recommended number. The increase in domestic abuse cases following the onset of the pandemic means even less bed space for the victims. Yet, the bill does not tackle the limited space and instead encourages victims to seek refuge. For instance, the increased longevity on the Domestic Abuse Protection Order will allow victims to engage with better support but it will also encourage them to explore accommodation services. Encouraging victims to seek refuge is great, except what bed will these victims sleep on after doing so? Clearly, the Act has some more work to do!

Whilst discussing safer accommodation, the Government also missed the opportunity to address the difficulties in obtaining the Occupation Order. This order excludes or prevents perpetrators from returning to their houses. In theory, this sounds great because the victim should not have to leave their home, especially since the perpetrator is the problem. However, in practice, this is unlikely to happen as removing an individual from their property is quite difficult. This is not surprising because English law loves its land law rights! After all, an ‘Englishman’s home is his castle’.

Nevertheless, the difficulty in obtaining this order inevitably puts a strain on the accommodation services. Victims are left to decide whether to seek accommodation or continue living with their abuser. In R v Dhaliwal [2006] the victim had failed to obtain this order, continued to live with her abuser and unfortunately committed suicide. So, it is not an easy choice and if the victim chooses to stay, the abuse may become more unbearable. Failure to address this order leaves a fragile relationship between the victims and the Law. The Law must make this order more accessible. The appreciation for land law rights should not come at the cost of victims’ freedom.

Sadly, the Government also failed to tackle the difficulties migrant women face when they seek refuge. Nearly 80% of migrant women are turned away from accommodation due to their immigration status which is one explanation for why they are 1.5 times more likely to stay quieter than British women. Step Up for Migrant Women and other organisations have been campaigning for these changes but have had no luck so far. Victims should not have to fear that their personal data will be shared with the Home Office if they speak up!

By way of conclusion, domestic abuse is a matter of human rights, and the English Law should view it as such. One’s immigration status or the abuser’s land law rights must not outweigh the victim’s voice. So, although significant changes have been made, there are still strides to be made in the reformation of domestic abuse law.

Reet Kaur is a Newcastle Law School alumni. This post is part of the research topic in law module blog post series.

NICOLE STOCKTON

It has been over 30 years since the 1991 House of Lords landmark ruling in R v R that stated the marital exception no longer stood and a husband was criminally liable for raping his wife. The rule that was previously upheld was Hale’s view that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’. It is easy to look back with hindsight today and ask why something which seems so obviously wrong to us now, took until 1991 for this ruling but there were a number of socio-legal influences that culminated in 1991. This blog will address each of these in turn as well as the question of, if there was pressure for reform for at least 20 years, why did it take until 1991 for the judiciary to make the decision in R v R?

The R v R Case

In the case of R v R, the defendant and his wife had been married for five years when she left to live with her parents and intended to file for divorce. The defendant broke into the house, attempted to have sexual intercourse with his wife and put his hands around her neck, assaulting her. He was charged with rape and assault and appealed saying that section 1(1) of the Sexual Offences (Amendment) Act 1976 did not acknowledge marital rape as unlawful. Therefore, the issue the court addressed was whether the inclusion of the word ‘unlawful’ in the ad hoc section should include marital rape and had been construed over time through case law. This case was monumental as it not only stated that this was not the Parliament’s intention but also because it highlighted the impact of socio-legal influences at the time.

A key influence was the 20 years’ work of the feminist movement prior to this decision. Grassroots organisations like Women Against Rape (WAR), founded in 1976, were instrumental as they publicly criticised the view that marital rape was not rape with slogans such as ‘rape, like charity, begins at home’. As Williams acknowledged, the frustration from feminists was that if marital rape was taken more seriously earlier, it would have conveyed a strong message that all rape is to be taken seriously, giving women more confidence to come forward. Initially, the feminist movement had to influence society as women needed to realise that marital rape was a crime that should be reported. The impact of the feminist movement on reporting was evident as it increased from 2,417 cases in 1987 to 4,589 in 1993. However, the conviction rates were so low, declining from 19-11% from 1987 to 1993, so the real change for women could only happen once law and politics embraced the feminist movement.

“The real change for women could only happen once law and politics embraced the feminist movement.”

Nicole Stockton, LLB Graduate from Newcastle Law School

The Feminist Movement Influence

The feminist movement started affecting politics in 1989 as the campaigning went public rather than to government. As the ‘World in Action’ programme and ‘The right to rape’ presented an academic survey, results showed that 14% of married women had been raped and 96% of women wanted the law changed. WAR also started working alongside the Law Commission sending proposals for reform which eventually led to the 1990 Law Commission Working Paper. The paper called for the extension of the Sexual Offences Act 1976 to include marital rape. Further to this, there was also an increase in Parliamentary Debate around marital rape as Labour MP John Tilley had worked with WAR since 1983. Tilley gave a speech to Parliament stating that the role of the criminal law is to ‘list the actions and activities that society finds so abhorrent that the perpetuators deserve punishment’, marital rape being one of these. This gives some context as to why it took until 1991 for the growing tension to not only build in society but also in law and politics to make the judges in R v R feel they were not overstepping by making this ruling when they did.

The effect of the feminist movement’s work was seen particularly in the Court of Appeal judgement of R v R as Lord Lane CJ went from stating in 1977 that ‘as a general principle, there is no doubt that a husband cannot be guilty of rape upon his wife’ to stating in this judgement that ‘the law should declare that a rapist remains a rapist…irrespective of his relationship with his victim.’ This demonstrates that by 1991 the feminist movement had influenced society and politics enough to shape and influence the law, albeit at a slower rate. The House of Lords judgement also echoed this as it focussed on the word ‘unlawful’ and as Laird observed, the judges were ‘evidencing discomfort with the idea a wife has implicitly consented to intercourse with her husband’. This was because, as the feminist movement proved, wives were far from the portrayed image of being unable to make their own decisions around consent. It is also worth noting that Scotland had made the ruling that marital rape was unlawful in 1989 so there was a pressure to make the same ruling in England and Wales. To this effect, the House of Lords in R v R stated, ‘the substance of that reasoning to be no less valid in England than in Scotland’. This contextualises why by 1991 there were both legal and political pressures and discomfort with ignoring this issue which resulted in this ruling.

The feminist movement, evidently, was a long-term catalyst to the ruling in R v R as it gave women confidence to come forward and acknowledge what had happened prior to the House of Lords decision. The reason it took until 1991 for it to be recognised was that society needed to shift in line with the feminist movement, infiltrating politics and law, so that judges became increasingly uncomfortable with the issue which inevitably forced them to make a definitive ruling in 1991 rather than wait for political clarification.

NICOLE STOCKTON is a newcastle law school alumni. This post is part of the research topic in law module blog post series.

JOSH SHEEHY (AUTHOR) AND MAX CHAU (CO-AUTHOR)

On 7 October 2021, a consortium backed by the Saudi Public Investment Fund (PIF) purchased Newcastle United for £305m. Fans were rightfully overjoyed that the more than decade long austerity under Mike Ashley was coming to an end, bringing new hope for success that could be felt and seen across the city. But the takeover was important for more than just football fans. Human rights advocates were far less jubilant, labelling the takeover as the latest instance of ‘sportswashing’.

This blog post considers whether newly proposed measures in the Fan-Led Review of Football Governance will be sufficient to prevent sportswashing in the future and outlines additional measures that the government should consider if it intends to tackle football’s proximity to human rights abuses more comprehensively.

Saudi Arabia’s Human Rights Abuses

For decades, Saudi Arabia has been accused of significant human rights breaches, which few feel it has been held accountable for. Most famously, in 2018 Saudi Arabia was accused of the extrajudicial killing of journalist and political dissident Jamal Khashoggi. CIA reports found he was assassinated in the Saudi Consulate in Turkey with the subsequent closed trial deemed to lack credibility and transparency. However, Khashoggi’s murder is only the tip of the human rights violation iceberg. Saudi Arabia’s disregard for freedom of expression, association and belief is broad, continuing to imprison women’s rights activists, peaceful protesters and gay rights activists on vague and obfuscating charges to this day.

Further violations arise out of Saudi involvement in the armed conflict in Yemen. Since March 2015, Human Rights Watch has documented numerous unlawful attacks by the Saudi-led coalition that have hit homes, markets, hospitals, schools, and mosques; some of which may amount to war crimes. Additionally, their sustained blockade of ports has limited international humanitarian aid efforts from providing life-saving supplies to the suffering Yemini population.

Mohammed bin Salman and the PIF

While evidently severe, it is quite fair for Newcastle United fans to question how these human rights violations – thousands of miles away – relate to their club. After all, the purchase of the club was led by the PIF, a corporation, rather than the Saudi State. During negotiations, the English Premier League (EPL) raised this question, unsure over which entities would own or have the ability to control the club following the takeover.

In response, the PIF offered ‘legally binding assurances’ that the PIF and Saudi State were (and shall remain) independent, sufficient to abate the EPL’s concern. However, critics are rightfully unsure of the substance of these assurances. Mohammed bin Salman remains simultaneously the head of state for Saudi Arabia and the Chairman of the PIF, making any real separation of interest or decision-making improbable.

Furthermore, regardless of legal assurances, Mohammed bin Salman has been personally implicated in several human rights abuses, making the PIF proximate to human rights abuse irrespective of its connection to the Saudi state. Supporting evidence includes documents released by the CIA that indicate Bin Salman had personally approved the killing of Jamal Khashoggi within the Saudi Consulate in Turkey as well as an admission he was responsible for the murder in part.

What is ‘sportswashing’?

Consequently, with the connection of Newcastle United’s new owners to human rights abuses so proximate, the labelling of the takeover as ‘sportswashing’ may not be entirely unjustified; but what is sportswashing?

Most simply, ‘sportswashing’ is the practice of using sport to improve a tarnished reputation. It has been used as a reputational tool throughout history, most famously in the Berlin Summer Olympics of 1936 and, more recently, as an alleged reason for China hosting the 2022 Beijing Winter Olympics. It can work in multiple ways, either by diverting attention away from certain events or information, by normalising the public to irreputable parties, or by transferring the reputation of one well-regarded party onto another.

Whether Saudi Arabia set out to improve its reputation by purchasing Newcastle United is only speculation but there is some evidence it has worked, at least locally, with Newcastle fans choosing to wear traditional Saudi dress throughout the season. Though clearly confined to a minority of supporters, should Newcastle begin to garner more success domestically and internationally, that admiration for Saudi Arabia will only grow with the club’s renown.

Fan-Led Review of English Football Governance

The question then, is whether it is acceptable for people with human rights records such as bin Salman to be involved in English sport. If not, what can be done about it? The solution may lie in the proposals set forth in the Fan-Led Review of Football Governance. It comes after the collapse of Bury FC in 2019, the Covid-19 financial crisis, and the attempt to set up a European Super League (ESL) in April 2021. However, despite being written before issues surrounding the Saudi takeover were known, its recommendations offer an avenue to integrate human rights values into English football securely and with force. Foundationally, this involves the establishment of a new Independent Regulator for English Football (IREF).

What is the IREF?

The primary role of the IREF would be to establish and maintain a licencing system for professional men’s football clubs predicated on powers bestowed by an Act of Parliament. This would require clubs to meet the requirements of its licensing agreement or else face having their licence to participate in English football removed. In this way, the IREF would have a mechanism to enforce its objectives on clubs whilst providing them sufficient flexibility to adapt and tailor new requirements according to new problems that arise.

Enabling this, the IREF would be given strong investigatory powers, including the ability to demand information from clubs, assess compliance and use interim powers for suspected license breaches pending investigation. Furthermore, the IREF would have a range of sanctions including: the ability to order compliance, ordering compensation, reputational sanctions (i.e. naming and shaming), fines, points deductions and transfer bans. Most significantly, the IREF would be able to sanction owners and directors of clubs individually, including the capacity to ban them from English football entirely. At its most extreme, this could involve temporary administration of the club by an IREF-appointed director until a new owner is found.

What are its objectives?

Evidently the IREF would have sufficient power to implement its objectives, but the precise scope of these objectives remains unclear. Under the present review, these will be focused on ensuring financial sustainability and improving decision-making at clubs through a new corporate governance code, as well as measures to improve diversity and supporter engagement. Though the current proposals set forth by the fan-led review do not expressly mention human rights, fundamentally, it premises the creation of the IREF on supporting the long-term health of English football. Therefore, given the considerable media attention and vocal concern from club’s themselves for the financial and reputational damage that association with human rights abuses could have, it is likely that the IREF will at least consider measures to combat potential problems. Additionally, interest groups including Our Beautiful Game, FA Equality Now and Fair Game were consulted in the process of formulating the review, making it clear that there is a place for moral value propositions to be heard and enforced through the IREF.

Ownership and Directors Test

Of the 47 recommendations made in the review, proposed changes to the ownership and directors tests across all leagues could tackle the involvement of human rights abusers in football most effectively.

Existing Tests

Presently, there are three different Owners’ and Directors’ Tests across the hierarchy of leagues within English football, administered by the EPL, EFL and FA respectively. Though varied, the three tests in operation today cover broad, objective factors that disqualify individuals from being an owner or director of a football club in line with the Companies Act 2006.

These include past involvement with club bankruptcies, dishonest dealings with football authorities, control or influence at multiple clubs, criminal convictions (including overseas), personal insolvencies, suspension or ban from another sport, being barred from entry to the UK, and being a football agent. Importantly, they do not capture wrongs beyond the sphere of finances or football such as human rights abuses, that could nevertheless cause financial and reputational harm to their club or English football. The creation of the IREF offers the opportunity to introduce a new unified test with a broader and more meaningful scope to include these considerations. The fan-led review proposes a test with several stages:

The New Test

Firstly, the IREF would disqualify prospective owners and directives if they are subject to any of the disqualification criteria set out in Section F of the Premier League Handbook. These criteria are mostly limited to financial and criminal misconduct mentioned previously, forming the backbone of the narrow ownership and director’s tests as they exist currently.

Secondly, prospective owners will now also be required to:

a. Submit a business plan for assessment by IREF.

b. Provide evidence of sufficient financial resources to cover three years.

c. Be subject to enhanced due diligence checks on source of funds to be developed in accordance with the Home Office and National Crime Agency (NCA).

d. Pass an Integrity Test.

It is the final stage, the integrity test, that represents the most substantial reform in regard to human rights for English football. The Review concluded that an approach based on that used in financial services, including the ‘Joint Guidelines on the prudential assessment of acquisitions and increases of qualifying holdings in the financial sector’ should be adopted. This would involve an assessment by the IREF of whether the proposed owner or director is of good character such that they should be allowed to be the custodian of an important community asset. This approach will be (but not be limited to) the following:

a. The proposed owner will be considered of good character if there is no reliable evidence to consider otherwise and IREF has no reasonable grounds to doubt their good repute;

b. The IREF would consider all relevant information in relation to the character of the proposed owner, such as:

I. Criminal matters not sufficient to be disqualifying conditions.

II. Civil, administrative or professional sanctions against the proposed acquirer.

III. Any other relevant information from credible and reliable sources.

IV. The propriety of the proposed acquirer in past business dealings (including honesty in dealing with regulatory authorities, matters such as refusal of licences, reasons for dismissal from employment or fiduciary positions etc).

V. Frequent ‘minor’ matters which cumulatively suggest that the proposed owner is not of good repute.

VI. Consideration of the integrity and reputation of any close family member or business associate of the proposed owner.

Unanswered questions for the IREF

The question is whether these recommendations are sufficient to prevent ‘sportswashing’ like behaviour in the future. In the case of the Saudi/Newcastle United takeover, several questions would remain unanswered. Firstly, whether the character of a Chairman of a corporation having ownership is sufficient to ‘colour’ that whole corporation and disqualify them? Secondly, in the hypothetical that bin Salman had removed himself as Chair of the PIF, would the IREF be willing to pierce the legal assurances separating the PIF and Saudi State? Thirdly, would the IREF be able to act objectively and independently of foreign policy objectives where those owners in question are political figures or heads of state? Lastly, to what degree would the IREF hold sovereigns or heads of state liable for injustices committed by their country?

These are all questions the IREF will have to contend with at some point given the growing number of foreign sovereigns now involved in English football. Should the IREF fail to address these questions appropriately, and without sufficient and specific regard to human rights, even these very promising proposals could fall flat.

“Should the IREF fail to address these questions appropriately, and without sufficient and specific regard to human rights, even these very promising proposals could fall flat.”

Josh Sheehy and Max Chau, Newcastle Law School

Taking the proposals further: additional considerations

For this reason, the proposal for a renewed directors test should be considered in conjunction with other measures, and wording in the review is receptive to this.

Implementation of International Human Rights Framework

Primarily, this should include implementing a football-wide human rights policy. Neither the Premier League nor lower leagues have actionable human rights policies despite all giving considerable regard to values of equality, diversity and inclusion (EDI).

It may simply be that English football has not yet been forced to contend with its proximity to broader human rights abuses, in the same way it has with race and gender. Having been drafted before the Saudi-Newcastle takeover, the fan-led review is also symptomatic of this undoubtedly important but seemingly narrow focus on EDI. Recommendation 23 of the review proposes the IREF enforces a mandate for clubs to draft and enact Equality, Diversity and Inclusion Action Plans yearly. These plans would set out the club’s objectives for EDI, and importantly, how the club is going to achieve them for the upcoming season. If the IREF deemed there to be insufficient progress made against the organisation’s plans, it would be able to enforce financial or regulatory sanctions.

Though these recommendations are sound, it would seem paradoxical for Newcastle United to, on one hand, be mandated to comply with EDI objectives amongst its staff and, on the other, to be permitted to receive finance from parties connected with human rights abuse simply because they have not been considered. EDI objectives are predicated on notions of equality enshrined amongst the broader set of humanist values and thus it seems both narrow-sighted and illogical to limit the IREF’s considerations to only few.

Consequently, to better address the full range of inequities the IREF might address, it should draft its own human rights policy or look to existing International Human Rights Frameworks already designed to be integrated into corporate governance flexibly. The best example is the United Nations Guiding Principles on Human Rights (UNGP) which set out business practices and responsibilities that would guide corporations towards conduct respectful of human rights. These principles would be enforced through the IREF licensing mechanism and could inform new elements of the proposed integrity test to better combat the broad range of wrongs the IREF could be forced to tackle.

Furthermore, it is worth considering that the issue of sportswashing is not confined to the Premier League. While a new regulator for English football may be able to tackle the problem in football, an entirely football-centric solution does not protect other sports or other public-facing sectors generally. On this basis, implementation and enforcement of the UNGP by the IREF could be an initial stepping stone in the adoption of these guidelines across all commercial and entertainment sectors more comprehensively.

Summary

Sports Minister Nigel Huddleston has said the government intends to “proceed at pace” in actioning the reforms but has only gone so far as to say it supports ‘the primary recommendation of the review, that football requires a strong independent regulator’. Fortunately, the leagues themselves have been more open about what they are looking to achieve through the IREF. Recently, the Premier League’s chief executive Richard Masters has indicated the league is receptive to broadening the proposed Owners and Directors Test to include human rights considerations, but further discussion must be had with the FA to before they can be coordinated across football.

While certainly promising, it will remain to be seen whether such changes will be sufficient to eliminate sportswashing. At the very least, should the government implement changes to the owners’ and directors’ test as they stand in the review, scrutiny over the character of those involved in English football will increase to the benefit of all. For the new owners of Newcastle United, compliance with this test will be evaluated on a tri-yearly basis, meaning scrutiny over their human rights record is by no means over. Hopefully, given continued concern voiced by the human rights community and enough vocal fans, the government will consider integrating human rights values into English football to a far greater extent going forward.

Until this happens, each of us should take note of the words of the great Alan Shearer, to ‘educate ourselves’ on the human rights record of incumbent and incoming owners. In doing so, football fans may be able to have their cake and eat it; benefiting from new money at their beloved clubs, whilst denying any attempts to erase their wrongdoings.

“Each of us should take note of the words of the great Alan Shearer, to ‘educate ourselves’ on the human rights record of incumbent and incoming owners. In doing so, football fans may be able to have their cake and eat it.”

Josh Sheehy and Max Chau, Newcastle Law School

JOSH SHEEHY AND MAX CHAU ARE FINAL-YEAR LLB STUDENTS AT NEWCASTLE LAW SCHOOL AND PRESIDENT AND CHAIR, RESPECTIVELY, OF THE ‘LAWYERS WITHOUT BORDERS’ NEWCASTLE STUDENT DIVISION. THE AUTHORS WISH TO THANK DR CONALL MALLORY, OF THE HUMAN RIGHTS AND SOCIAL JUSTICE FORUM, FOR HIS GUIDANCE AND SUPERVISION.

EMNANI SUBHI

Towards the end of last year, the Supreme Court upheld a Court of Appeal decision that the consent of others is a relevant consideration in sexual decision-making. This was the first time the highest court has considered ‘capacity’ under the Mental Capacity Act 2005 (MCA).

1. Does a person need to understand that their sexual partner must have the capacity to consent to sex?

2. Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?

These were the questions set before the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52.

The case concerned JB, a 38-year-old man with a complex diagnosis of autism (Asperger’s syndrome) combined with ‘impaired cognition’ resulting from severe brain damage caused by epilepsy. He had expressed, in explicit terms, his strong desire to have a sexual partner but his previous behaviour towards women saw heavy restrictions imposed on his ability to socialise without his care workers’ supervision.

Part of his Asperger’s diagnosis meant that he sometimes became:

“…obsessionally fixated on a particular woman, sending inappropriate sexual messages, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable.” [para 20]

The judgment cites extensively from the evidence of a clinical psychologist, Dr Thrift, who spoke of the difficulties JB has in terms of learning how to understand and interpret the subtle nuances in intimate interactions. When asked about the other person withdrawing consent during a sexual act, JB said [para 34]:

“She cannot change her mind if you are already doing it. ‘Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no.”

His lack of insight was graphically illustrated in his response to another question by Dr Thrift [para 45]:

“If a woman gets drunk as a party and has sex with a man there, is she fair game for anyone else?”

JB replied:

“I’d say she was fair game, yes. Especially if she’s done it with one person. If she drinks enough, she’s bound to do it with the second one, too.”

Court of Protection – a partner’s consent is not relevant

In the Court of Protection, the judge reached the conclusion that for the purposes of satisfying the test of capacity under the MCA, it was not relevant or necessary for a person to understand the need for their sexual partner’s consent. JB was thus declared to have the capacity to consent to sexual relations. His argument was made on the basis that those without cognitive impairments are not subject to the same standards in advance; hence, the question of JB’s possible exposure to the criminal justice system in consequence of initiating sexual relations with a person who did not consent should be dealt with by the criminal law, retrospectively. The Local Authority were concerned, however, that if JB did not understand the mutuality of consent then there was a moderate risk of him committing sexual offences under the Sexual Offences Act 2003.

Court of Appeal – engaging in sex, not consenting to sex

The Court of Appeal marked an important shift in recasting the decision as being a decision to ‘engage in’ sexual relations rather than simply ‘consenting’ to them.¹

Baker LJ held [para 94] that:

“When the ‘decision’ is expressed in those terms, it becomes clear that the ‘information relevant to the decision’ inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.”

Supreme Court – a landmark ruling?

The Supreme Court endorsed the Court of Appeal’s approach, which was welcomed by many academics, lawyers, and professional care workers.² Professor Harding praised the “clear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations.” Ultimately, the judgment was not a radical rethink of the test for sexual capacity. It simply restated the Court of Appeal’s decision, but with one small but welcome modification. In the Court of Appeal, the consent element was termed as “the fact that the other person must have the capacity to consent” [para 100]; in the Supreme Court, this was changed to “must be able to consent” [para 90], avoiding the need to grapple with the philosophical complexities of the notion of capacity.

Along with praise, it has also drawn criticism, particularly in respect of the difficult tensions at the interface of the Mental Capacity Act and Sexual Offences Act. The engagement of the criminal law has been seen by some as in direct conflict with the principles of autonomy and empowerment that underpin the MCA, with far-reaching implications of overly paternalistic interventions that may deprive a person of their autonomy in other aspects of life, as well as their freedom of sexual expression (see comments by Regan and Reed-Berendt in the ‘Capacity to engage in sex’ report). Perhaps, as Baker LJ explains [para 6] in the appellate judgment, the MCA is best understood “as a part of a wider system of law and justice.”

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Footnotes

1 A detailed analysis of this shift can be found in a case note here: Subhi, E. A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39. Fem Leg Stud 29, 267–276 (2021). https://doi.org/10.1007/s10691-021-09451-9

2 Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB – Promoting Open Justice in the Court of Protection (openjusticecourtofprotection.org)

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Emnani Subhi is PhD student at Newcastle Law School examining where the boundaries of sexual consent should be drawn for people with compromised mental capacity to strike the right balance between protecting them from abuse and preserving their sexual autonomy. Last year, her case note on Re JB’s Court of Appeal decision was published in the Feminist Legal Studies journal: E Subhi, ‘A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39’ (2021) 29 Fem Leg Stud 267–276, https://doi.org/10.1007/s10691-021-09451-9.

Dr Sean Molloy

On 7 October 2021, it was confirmed that an investment group led by the Public Investment Fund (PIF), and also comprising PCP Capital Partners and RB Sports & Media, had completed the acquisition of Newcastle United Ltd and Newcastle United Football Club Ltd from St. James Holdings Ltd. While a deal was some time in the making,[i] it has been particularly controversial owing to the involvement of the PIF, which is the sovereign wealth fund of Saudi Arabia. From a human rights perspective, the deal is unquestionably a significant setback as a result of the PIF’s involvement, one that appears to subordinate rights and allows Saudi Arabia the opportunity to sportswash its dire human rights record. Nevertheless, the deal is now done, with little prospect existing for pushing back against it. To that end, this post seeks to locate some potential silver linings for promoting human rights that might emerge from the takeover.

Shining a spotlight on the Saudi Regime’s Approach to Human Rights

The takeover is, in the first instance, a useful opportunity to draw attention to human rights violations in Saudi Arabia. Perhaps the most widely reported example of Saudi Arabia’s disregard for human rights in recent times is the murder of Jamal Khashoggi, a Saudi dissident, journalist, columnist for The Washington Post, former editor of Al-Watan and former general manager and editor-in-chief of the Al-Arab News Channel. He was assassinated by agents of the Saudi Government at the Saudi consulate in Istanbul, Turkey on 2 October 2018.[i] Beyond this immediate headline, there is a litany of other human rights violations in Saudi Arabia that are daily occurrences. These include, as examples, violations of women’s rights, the right to education, religious freedoms, freedom of expression, freedom of assembly, rights to a fair trial, torture, detention without trial, and discrimination against the LGBTQ community.[ii]

Nevertheless, countries like Saudi Arabia are often far removed from most people’s everyday lives and concerns of people in the UK. This distance, in some cases, permits knowledge gaps, particularly in relation to the ways in which rights are denied. In other cases, it allows for a type of cognitive dissonance, one that enables us to distance ourselves from the plight of others in far off places. Yet, with the takeover widely publicised, opportunities emerge for shining a spotlight firmly on the Saudi approach (or lack of an approach) to human rights. To this end, various organisations have, as part of their opposition to the deal, brought these matters to the fore (see, for example, here).

More generally and opportunistically, the discourse around the takeover might also prompt a wider discussion on what we mean by human rights more generally and why, particularly when dealing with repressive states, they are so important. Salient questions also arise in relation to how we prioritise human rights, their interrelationship with sport, and the potential subordination of rights to economic concerns and opportunities. Any engagement or reacquaintance with human rights is particularly important in light of the efforts of the current Conservative Government to undermine their importance and place in society. In this sense, the takeover could serve as a catalyst both for raising awareness of rights violations in Saudi Arabia and triggering more general discussions on the meaning and place of rights.

Opportunities for bottom-up advocacy and challenging hypocrisy

Much has been written over the last number of weeks regarding the ways in which Newcastle United fans received news of the takeover. Often painted in a negative light, there is frequently an implied suggestion that the takeover should be opposed, even campaigned against by the fans. However, such views are somewhat misdirected. In the first instance, to place responsibility on the fans to mount such opposition is to try and shut the stable door after the horse has bolted. The challenges associated with trying to remove Mike Ashley―the now former club owner and businessman―illustrate the lack of influence that football fans have over elite-level negotiations and deals.

Secondly, it is important to properly acknowledge what was being celebrated. In contrast to the likes of Manchester, Liverpool and London, Newcastle is one of the few cities in England with only one football club. Moreover, there are even fewer that can boast a stadium with a proximity as close to the city as that of St James’ Park. This physical intimacy is, in many ways, reflective of the cultural and societal relationship between the club and the people of Newcastle; it is engrained into its very fabric and is, for many, a way of life. The takeover was not, contrary to what many have reported, celebrated in spite of the approach to human rights by its new owners. The euphoria was instead one borne from the ouster of the former owner and the prospects of a new dawn for the club. In line with the initial comments, for many, whether as a result of insufficient information or cognitive dissonance), the human rights record of Saudi Arabia was not a consideration.

Newcastle fans have a unique opportunity to lend their voice and support to those that fall on the wrong sides of the Saudi regime.

Dr Sean Molloy, Newcastle Law School

Thirdly, while a specific event such as the takeover shines a direct light on relationships with Saudi Arabia, the benefactor of that relationship―in this instance, the Newcastle United fans―become an easy scapegoat. Yet, the UK Government does business regularly with Saudi Arabia in such markets as oil and weapons. Indeed, a 2018 report by Kings College London identified that trade exports in goods and services to Saudi Arabia totalled £6.2 billion in 2016, and imports from Saudi Arabia to the UK were worth £2 billion.

There are, it follows, a number of opportunities here as well. Firstly, the relationship between club, city and the people of Newcastle presents opportunities for the fans to advocate for human rights improvements in Saudi Arabia. Such a claim is far from beyond the pale when one reflects upon the rich pedigree of rights advocacy in the city, which have spanned campaigns against slave trade, pitmen protests in the 1800s to the miners protests in the 1980s and, more recently, protests around climate change and Black Lives Matter. Secondly, if one of the consequences of the takeover is to raise the public consciousness around human rights violations in Saudi Arabia, this could and should serve as the catalyst for pressure on the UK to reduce or desist from its ongoing dealings with the country.

A chance for integrating human rights concerns into English Football

Questions are also raised regarding the Premier League’s human rights obligations, which is, for all intents and purposes a private entity. As Prasad and Mishrahave have noted, as a business, the Premier League ought to operate according to the United Nations Guiding Principle’s on Human Rights (UNGP). Amongst other things, this framework, developed by the recently deceased Professor John Ruggie (thus often called the Ruggie Principles), places responsibilities on businesses to ensure that they are respecting human rights. In cases of investment into sporting leagues which are run as businesses, the UNGP asks sporting leagues to conduct human rights due diligence of all their business activities and business relationships. This must include human rights due diligence of investors and owners of clubs. Therefore, the Premier League, as a business, must conduct human rights due diligence of its business relations. As Prasad and Mishrave have aptly noted:

If the due diligence exercise reveals adverse harm towards human rights through sportswashing, then remediation of the harm becomes necessary, because merely conducting human rights due diligence does not absolve liability.

While governing bodies such as Fédération Internationale de Football Association (FIFA), primarily as a result of their own controversies, have sought to integrate the UNGP (Duval and Heerdt, 2020), the Premier League and English football more generally have been less progressive. Thus, from the takeover and the elucidation of the gaps in the League’s approach to human rights, opportunities emerge for placing global human rights and corporate social responsibility standards such as the UNGP front and centre in the future.

Beyond this global policy framework―which is non-binding under international law―others have drawn attention to the fact that neither the Premier League nor the Football Association have a comprehensive human rights policy. Human rights policies or codes of conduct, while again often non-binding, nevertheless lay down a system of rules and requirements that ought to guide the commercial activities of the organisation.

Moreover, the Owners and Directors’ test that is applied by the Premier League to football clubs also lacks any mention of human rights. As explained by Ashley Cukier, this test is applicable to owners of clubs (whether in direct or indirect control of the club), directors and officers of clubs and any associated persons who are themselves directors of a company incorporated under the Companies Act 2006. In omitting a provision on human rights or adopting a robust human rights code, owners with questionable human rights records are not prevented from taking ownership of a Premier League Club. For this reason, David Chivers QC last year co-wrote a new human rights-compliant Owners’ and Directors’ test on Amnesty’s behalf. The takeover offers the opportunity to reconsider how leagues in general and the Premier League specifically safeguard against transfers of ownership to those with dubious human rights records. The revised test as proposed by Chivers QC is a useful starting point in this regard.

A final consideration relates to the other clubs in the Premier League, which have expressed concern that the League’s brand could be damaged by PIF’s investment. While as noted the Premier League is a limited company, it is wholly owned by its 20 Member Clubs who make up the League at any one time. Despite welcome developments in the fight against racism in football, if both clubs and the League are to take human rights seriously, there are conversations to be had regarding the scope and powers of other clubs to take a strong human rights stance. Otherwise, human rights exist merely to project an ethical image, one which lacks any operational effect in practice.

Recognising and pushing back against sportswashing

Beyond immediate matters relating to the takeover itself, the shift in ownership helps to illuminate a wider problem―that of sportswashing and its relationship to human rights. Sportswashing is the practice of an individual, group, corporation, or nation-state using a major or prestigious international sport to improve its reputation, through hosting a sporting event, the purchase or sponsorship of sporting teams, or by participation in the sport itself. The concept is in no way new. For instance, the 1934 World Cup was held during the rule of Mussolini in Italy. In 1964, the European Nations’ Cup took place during the military rule of Francisco Franco. Beyond football, Nazi Germany hosted the 1936 Summer Olympics. More recently, sportswashing can be identified in the 2008 Summer Olympics held in China, the 2014 Winter Olympics held in Russia and the hosting of the 2022 FIFA World Cup in Qatar. The Saudi kingdom, for its part, has engaged in plenty of sporting activities over recent years, including staging Anthony Joshua boxing bouts and a Formula 1 Grand Prix.

Notwithstanding dubious human rights records, repressive countries, through the medium of sport, are thus afforded the opportunity to present to the world a picture that is often wholly detached from the human rights environment in that country. In doing so, the intention is to create a diversion from human rights violations. The obvious risk is that as a result of this guise, breaches of human rights are able to continue, particularly as scrutiny lessens. Nevertheless, major events such as the Newcastle takeover provide the opportunity to bring to the attention of the wider public the growth of this tactic. With increased knowledge and awareness, greater levels of accountability and push back might follow.

Conclusion

For better or worse, the takeover of Newcastle United FC is now a done deal. It is unquestionable that from a human rights perspective, the deal has stuck a significant blow to the idea that rights are and should be prioritised above most (if not all) other considerations. Nevertheless, it makes little sense in lamenting over that which has come to pass. Attention should instead shift towards searching for silver linings to improve human rights not only in Saudi Arabia but also more generally. In this sense, the takeover does help to identify a number of existing shortfalls, not least in terms of the UK Government’s dealings with Saudi Arabia, English footballs approach to human rights and the ways in which human rights ought to be integrating into the Premier League.

Beyond this, Newcastle fans have a unique opportunity to lend their voice and support to those that fall on the wrong sides of the Saudi regime. At a more general level, the takeover ought to provide a catalyst for increasing discussions around what we mean by human rights and a point of reference from which to interrogate and understand other examples of sportswashing that appear to be occurring with greater frequency.

[i] For a useful chronology of events see here.

[ii] See Human Rights Watch Report here and Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions here.

[iii] See Human Rights Watch Country Report.

Dr Sean Molloy is a NUAcT Fellow (Economics & Social Sciences) at Newcastle Law School