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.
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.
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:
Figure 1. Flow chart illustrating operation of new Owners’ and Directors’ Test. Source: Independent Report for DCMS, ‘Fan-Led Review of Football Governance: securing the game’s future‘ (Department for Digital, Culture, Media & Sport, 24 November 2021) 72 (Chart 4).
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
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.
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.2Professor 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.”
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)
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.
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.
Boardroom diversity has been a discourse of increasing notoriety over the past few decades. However, while the majority of scholarly attention has focussed on the aggregate level, little analysis has been specifically directed at the technology industry. This is an area of significance, not merely due to technology’s prominence as the biggest industry in the world, but more consequently because such imbalances in tech can lead to disproportionately serious consequences. These industry specific concerns are coupled with a recent resurgence of diversity legislation being introduced globally at the national level.
Inequality at the top of tech
Despite reported progress, there is a lack of boardroom diversity amongst the biggest technology companies. A primary quantitative analysis conducted for the purposes of this project confirmed this. The statistical analysis explored board composition on the companies on the Forbes Digital 100 which provides an annual ranking of the 100 biggest technology companies globally. Using only publicly available board composition data, it emerged that only a quarter (25.7%) of board seats for companies on list are held by women. Whilst this striking statistic indicates that women are underrepresented relative to society as whole, this percentage is in-line with the global average for female representation at board level which stands at 23.3%. The global average for female boardroom representation is widely considered dismally suboptimal and thus anything aligned with this low benchmark is equally insufficient. Particularly when considered in contrast to many developed economies such as New Zealand, France, and Norway where female representation across all sectors has reached 45.5%, 43.8% and 39.1% respectively.
Perhaps most strikingly, only one single company on the Forbes Digital 100 boasted more female representation than male; Vivendi, the French media conglomerate, which itself only had a marginal 6:7 male to female ratio. The remaining 99% of companies have boards dominated by men and a staggering 10% of companies still have all-male boards. These statistics unearth a frightening trend that, despite the constantly heralded progress being made towards gender parity, there remains significant gender inequality at the very top of the tech industry.
Why boardroom equality matters
Sustained academic arguments for boardroom inequality are almost non-existent. In contrast, there exists a plethora of rationales for boardroom equality that are not necessarily mutually exclusive. Ranging from the simplest doctrines of feminism and social equality put forward by the acclaimed historian and feminist Professor Mary Beard, to the quantitative business case idioms most notably posited by the distinguished Professor Susan Vinnicombe and colleagues. However, boardroom gender imbalance at the top of tech requires specific attention, not just because technology remains the biggest industry in the world by market cap, but because unlike in other industries such imbalances have the disproportionate possibility of perpetuating a society of structural inequality.
The world in which we reside is increasingly governed by algorithms defined and written by the biggest global tech companies. These codes influence almost every aspect of our lives from anything as simple as buying our morning coffee to getting a job or buying a house. Yet men account for 75% of the decision-makers at the very top of these companies, ultimately determining these algorithms and the long-term strategic direction of these corporate goliaths. This is a grave concern – particularly as evidence suggests technology designed by a skewed sample of the population will ultimately reflect that skewed perspective, leading to tangible consequences.
“[B]oardroom gender imbalance at the top of tech requires specific attention … such imbalances have the disproportionate possibility of perpetuating a society of structural inequality.”
JOSHUA BUTCHER, LLM STUDENT AT NEWCASTLE LAW SCHOOL
Thus, as technology’s influence on society continues to proliferate exponentially, the disproportionately devastating consequences of inequality at the top of the biggest companies in the industry becomes ever more significant. Whilst the impact on a morning coffee routine is unlikely to cause much anguish, the same cannot be said for the other examples given above. It is therefore imperative that more academic attention is paid to this issue and, above all, meaningful progress is made towards greater boardroom diversity in the technology industry.
Addressing the imbalance
Most scholarly attention has focused on aggregate level approaches to unilaterally improve female boardroom representation. This is echoed by the empirical data which shows striking similarities between the level of female representation on boards of companies on the Forbes Digital 100 from the same country.[i] This was true across all nations represented, indicating a correlation between the country of incorporation and the level of female boardroom representation. Furthermore, the variation in the level of female representation between different countries was significantly higher than that within each country.[ii] This is unsurprising given the cultural and regulatory differences of each jurisdiction. However, it does affirm that boardroom representation in the tech industry does not exist in a microcosm immune from outside influences.
So what might explain this disparity in female representation between countries? Whilst a myriad of regulatory instruments exist at the national level, two distinct approaches are routinely adopted to address the boardroom gender imbalance that invariably exists. By and large, countries either opt for a neo-liberal voluntary target approach (boastfully first employed by the UK) or a hard legislative mandatory quota alternative (first introduced by Norway in 2008). Whilst the efficacy of the two approaches is a voraciously contested discourse, there are certainly merits and drawbacks to each.
Considering the companies on the Forbes Digital 100 list, it is interesting that the countries that adopted mandatory quotas typically have higher levels of female boardroom representation. These include, but are not limited to, France, Germany, and Australia whose average female representation level sits at 44.2%, 42.3% and 41.7% respectively, exceeding the global industry average. In contrast, female representation on company boards from countries taking a voluntary approach varied far more. From the particularly low levels seen in China, Mexico, and Japan (where average female representation sits at a dismal 7.4%, 7.7% and 11.5% respectively), to the much better levels of female representation seen in Canada, the Netherlands, and the US (which stand at a much loftier 37.5%, 32.4% and 31.9% respectively).
Whilst it is therefore difficult to statistically dispute the efficacy of the mandatory quota, it is vitally important to iterate that these statistics should not be the only measure of success when it comes to boardroom diversity. Representation statistics, whilst providing a useful indicator to monitor progress and make comparisons, do oversimplify boardroom diversity to figures which arguably overlook elements such as the meritocracy of appointments and tokenism. Whilst these distinct approaches are employed at the aggregate level, it is interesting to observe how different legislative approaches appear to be impacting the technology industry.
Legislation in Silicon Valley and the significance for big tech
One common characteristic of the two approaches is that both are applied unilaterally. The technology industry has not faced disproportionate scrutiny from a legislative standpoint, but a recent regulatory amendment in California has arguably altered this. California introduced Senate Bill 826 in 2018 and in so doing implemented the first mandatory quota in the US. This is a proportionally progressive gender quota requiring publicly traded companies in the state to – by the end of 2021 – have at least one, two or three female board members depending on their size, with non-compliance leading to significant fines. It is of note that California extended its mandatory quota approach in 2020 to also include other underrepresented communities.
Whilst this quota has been imposed indiscriminately at the aggregate level, California’s uniquely high concentration of technology companies could result in an especially significant impact on the level of female representation in the technology industry. California is home to almost one-fifth (19%) of the Forbes Digital 100 list. This is by far the highest concentration of big tech companies into a single forum. Except for the US more generally, of which California alone accounts for almost half (48.7%) of the companies on the list.
In the few years since Senate Bill 826 passed into law, female representation in California across all industries has increased substantially (by 66.5% between 2018 and 2020 alone). However, when we consider the companies on the Forbes Digital 100 specifically, the average level of female representation for companies in California was only 0.6% higher than the level of female representation in the tech industry across the US. This might suggest that the mandatory quota is not progressive enough to have a significant impact on the technology industry. This is reinforced by the fact that, at the time of writing, only two companies out of the nineteen on the list need to take action before the end of 2021 in order to adhere to the regulation. In contrast, as of 2020, only 183 of the 650 public companies in California actually met the 2021 requirements, meaning that whilst Senate Bill 826 in its current form is arguably not progressive enough to significantly impact big tech, it is conversely too extreme for the majority of companies in the aggregate.
Despite this, California must be applauded for taking decisive action and encouraging progress (however small) towards greater boardroom diversity, even if it has not significantly impacted big tech just yet. The coming months will be particularly interesting as the December 2021 deadline approaches. Whilst there is clearly a significant way to go towards gender equity in the technology industry, progress is being made – and although the ultimate success of this legislative provision still remains to be seen, it is entirely plausible that such provisions will be used to bring about the significant change that is needed in the future.
[i] Namely, relatively low standard deviations averaging 0.079.
[ii] This returned a relatively high standard deviation at 0.142.
Joshua Butcher IS An LLM student at Newcastle Law School, specialising in International Commercial Law. this blog post is based on research commissioned by the Newcastle-Pittsburgh Summer Research Project under the supervision of Dr Elliot Winter (Summer 2021).
In a world of ever-developing technology, it is no surprise that weapons used in warfare have also advanced. Years ago, the use of weapons was simple – a person wields a sword and cuts down another in front of them. Today, however, it is entirely possible to target an enemy that is hundreds of miles away. In the near future, it might be possible to go a step further and destroy a target using an autonomous weapons system (AWS), defined by one scholar as ‘a weapon system that, based on conclusions derived from gathered information and preprogramed constraints, is capable of independently selecting and engaging targets’. This blog post will discuss the issues the international system faces in attempts to regulate autonomous weapons systems and will argue that, given the current climate, there is likely little to be done in the near future.
International disagreement as a sticking point for change
Autonomous weapons technology has proven to be a major concern in international law, with the Campaign to Stop Killer Robots – comprised of 100 NGOs in 54 different countries – calling for regulation of autonomous weapons. In 2018, the UN Secretary-General described AWSs as ‘politically unacceptable and morally repugnant’ and called for an outright ban. However, in a world divided by countries seeking to ban AWSs and others looking to advance their military advantage, introducing practical regulations to govern AWSs seems almost impossible.
The State parties to the UN Convention on Certain Conventional Weapons (CCW) delegates policy competence over AWSs to the Group of Governmental Experts on Lethal Autonomous Weapons (GGE of LAWS), who have seemingly done little to progress discussion over the years. It is no surprise how little has been achieved when one considers the responses from countries around the world. There are many who are eager to ban or limit the production and use of AWSs, but there are a select few nations that object to the proposed initiatives.
The likes of the United States, the Russian Federation and Israel disagree with suggested methods of regulation and demonstrated their disagreement through attempts to stall discussions at the 2019 GGE meetings. As highlighted by Reeves, Alcala and McCarthy, there are several hurdles to overcome in developing regulation for AWSs, where States are likely to disagree. For example, States define AWSs differently and there may be great difficulty in settling on one international definition. Given that the CCW operates on a unanimous consensus basis, it is unsurprising that the prospects of a mandate on AWSs have failed to be realised in the face of enduring disagreement between the State parties.
Halting development: why do some States oppose regulation?
So why have attempts to regulate AWSs been halted by certain states? The answer may be that lessons from history have not been learnt. Acheson has previously argued that the mention of ‘military significant states’ within the CCW preamble is reminiscent of the struggle to regulate nuclear weapons, where States that possessed nuclear weapons ‘held an iron grip on what was considered credible and realistic’ in debate. Although a good many would argue that AWSs are required for defence and the prevention of terrorism, these arguments ultimately boil down to military advantage. It would be over-simplistic to argue that the pursuit of military advantage is, on the whole, a bad thing. However, the difference with AWSs is the dilution of direct human involvement in warfare.
“There seems to be a great divide between States who wish to prioritise morality and ethics and States who wish to prioritise military advancement.”
SAMANTHA JOHNSTON, PGT STUDENT AT NEWCASTLE LAW SCHOOL
Some States have argued that AWSs are capable of making more accurate decisions than humans and, as such, this potential increase in effectiveness has rendered some States less willing to introduce restrictive regulation. However, AWSs do not possess the human appreciation of morality, nor a human conscience. AWSs may well be able to track down a target and eliminate them without the need of human intervention, but an automated system would not be able to analyse a situation like a human could. If the target’s situation had changed, would the autonomous weapon appreciate and understand this? If a target is no longer a threat but that information is only learnt when the weapon faces the target,
would the automated weapon understand the change in circumstances? If the programming is not changed, then it would still destroy the target. A human, however, may be better placed to process the change in scenario and thus act accordingly. Many have argued that AWSs do not have the capacity to handle the verification (‘checking that the targets are legitimate’) stage of precautionary procedural rules. As examples, Human Rights Watch has argued that ‘fully autonomous weapons would not possess human qualities necessary to assess an individual’s intentions’ by understanding ‘an individual’s emotional state, something that can only be done if the soldier has emotions’. McFarland has also stated that AWSs ‘may not be trusted… and may need input from a human operator to assess whether the target is a valid military objective…’. Winter, however, argues that in practice, AWSs may be able to verify the status of the target better than another human, assuming advances in AI mean that machines can be imbued with ‘a high degree of the necessary contextual sensitivity’ needed to handle the verification stage. If States are more concerned about the efficiency of warfare than they are the morality of warfare, then any international regulation on the use of AWSs will struggle to develop.
Will we ever get there?
Calls for regulation, restrictions or bans are mounting, especially following recent use of AWSs in Libya. There have even been reports of a rogue drone pursuing and attacking its target without instruction, although the legitimacy of this is questionable seeing as nothing has been published by the UN to the public. Even so, it is clear that there is major concern in the international sphere over the production and use of AWSs, yet the international community is still far from reaching an agreement over regulation.
There seems to be a great divide between States who wish to prioritise morality and ethics and States who wish to prioritise military advancement. In line with international law, States cannot be bound to agreements without their consent, therefore a treaty separate to the UN or the CCW would be redundant if the States of concern do not sign up to it.
Unfortunately, the CCW will not see any additional laws concerning autonomous weapons if there is not unanimity. The only way forward seems to be through the UN, however, the General Assembly already delegated discussions to the CCW, and the Security Council is permanently comprised of countries that oppose bans or restrictions. For example, the UK stated that regulation ‘would not have any practical effect’ and the US stated they ‘cannot accept’ attempts to regulate AWSs. This demonstrates that it is entirely likely that a veto vote would be put forth. The path to regulation appears blocked by the minority, despite a valiant push from the majority.
SAMANTHA JOHNSTON IS A PGT STUDENT AT NEWCASTLE UNIVERSITY LAW SCHOOL. THIS BLOG POST IS BASED ON RESEARCH THAT SAMANTHA HAS UNDERTAKEN AS PART OF THE NEWCASTLE-PITTSBURGH SUMMER RESEARCH PROJECT (SUMMER 2021).
Most UK universities and law schools operate with the support of a Law Society, with a Mooting team and/or competition integrated within it. Involvement in both is oftentimes central to a law student’s academic, practical and personal development, and is regularly cited as contributory factor in that student’s success in landing graduate opportunities, including pupillage and training contracts. Newcastle University has been one of the frontrunners in getting law students involved in mediation activities, with Professor Bryan Clark lending his prolific expertise as a Commercial Law lecturer to students at all levels within the school.
I was delighted to have been selected as part of an initial 12-person trial-run mediation team back in October 2019, and have since had the privilege of working, not only with Bryan and my peers at Newcastle University, but also with students, lecturers and coaches internationally. The experiences I have gained have been central to my decision to pursue a career in commercial dispute resolution. However, I would recommend any and every student to get involved, regardless of whether or not you have an interest in commercial disputes, as there is an opportunity to develop invaluable skills, unique to the practice of mediation.
I first became involved as a budding family lawyer, having learnt about the increased use of mediation in family disputes. However, it has since become clear to me that the value of mediation is not limited to those cases, and is also used on an international scale, with unfathomable amounts of money involved (or at least to me, as a student on her last tin of baked beans!).
“I would recommend any and every student to get involved, regardless of whether or not you have an interest in commercial disputes…”
Nadia Ashbridge, Newcastle Law School Mediation Team
Despite us all having an image in our minds about the aggressive and adversarial nature of commercial disputes (personally, I blame ‘Harvey Specter’ from Suits), involvement in the mediation activities at Newcastle Law School has taught me that this perception, at least in some contexts, is misguided. For proof of this, one need only look to the websites of many of the top-tier international commercial law firms, whose services now include Alternative Dispute Resolution (including mediation). With mediation becoming something of a commercial norm in many cultures, it is my opinion that any student interested in an international legal career should get involved in mediation at Newcastle University.
Over the past year, I have had the privilege of competing in a number of international competitions, the perks of which are not limited to adding another ‘experience’ to my LinkedIn profile. Naturally, the pandemic meant that there were a few technical and practical difficulties that we had to overcome in order to train and compete effectively, especially as, pre-March 2020, we had been training face-to-face and could easily engage in role-plays and practice runs with guidance and feedback from Bryan. However, come September 2020 (i.e. when we’d all, for the most part, figured out how to use the Zoom ‘mute’ button), we reconvened virtually, taking on a couple of teammates with no previous mediation experience.
We have since trained at least twice a month, working through hypothetical problems (both commercial and non-commercial), whilst alternating roles within the role-play: mediator, mediation advocate and client. Often the training has been in the run-up to a specific competition, and we have therefore learnt to adopt different styles and practise a range of negotiation tactics, both in line with the competition rules and in anticipation of the different cultural attitudes to mediation that we might face.
To date, I have competed in four international competitions (most of which spanned across several days): the SIMI International Mediation and Advocacy Competition, Lex Infinitum International Mediation Competition, MediateGuru Virtual International Mediation Competition and, most recently, the longest-standing international competition of this kind, the INADR International Law School Mediation Tournament. Beyond the experience of competing, the real highlights of these events are the opportunities to learn from (be trained by) top mediators, negotiators and advocates in their respective fields, as well as the chance to connect with likeminded students across the world. While much of the world was in lockdown, there was a notable irony in being able to chat to students from Singapore, Taiwan, the US, India, Russia, etc between rounds – a unique experience in my nearly-four years at university.
#WEARENCLLAW We are very proud of Ben, Nadia Patrick & Heloise the @NCLLAWSCHOOL Mediation Team at the @SIMIchat Mediation Competition in November. They held their own against teams from across the globe!
While the majority of the competitions require participants to rotate through roles, a particular highlight for me was the Lex Infinitum International Mediation Competition, where I undertook the role of ‘mediator’ across the whole week. This afforded me a fantastic chance to develop skills within an unbelievably short time period, reflecting on the feedback and tutelage of hugely experienced judges and coaches. It was an honour to have placed 3rd overall, competing amongst 18 fantastic participants. However, I am most excited to have been awarded the Dr. M.R.K. Prasad Lex Infinitum Incentive Award, presented to the best international mediator in the preliminary rounds. The reward: the waiving of registration fees and a substantial travel allowance for next year’s participants. I am so excited to follow the Newcastle University team over the next year and look forward to hearing about what they get up to in Goa, India (Coronavirus permitting) in next year’s Lex Infinitum competition.
As you can likely tell, I am a huge advocate for mediation, and for the involvement of students in mediation activities whilst at Law School. On a purely academic level, my position on the Newcastle Law School Mediation team has led to a greater depth of understanding within my Commercial Law module, part of which is focused on commercial disputes. So, to any struggling Comm Law students – get involved in (what will hopefully soon be) the Mediation Society!
And to anyone whose particular academic interests do not include the niche commercial topics of agency law, product liability and civil litigation, I would still urge you to at least try mediation. I have developed skills in negotiation and collaboration within both a legal and practical context, which I could never have learnt whilst Mooting (or in any other activity). As I have (perhaps over-enthusiastically) outlined above, the scope of international involvement with the mediation activity at Newcastle is fantastic, setting you up with a more culturally aware and global mindset – perfect for anyone pursuing an international career.
And finally, it’s a bit of fun – you get to meet new people, apply the soft skills learnt throughout your law degree to practical scenarios, and grow in confidence! So, get involved!
The North East Law Review (NELR) is a student-led review established by Newcastle University’s Law School in 2013. This year, for the first time, the NELR will be producing regular videos alongside its yearly volumes and blog posts. In these videos, we will be inviting a wide range of guests, from academics to legal professionals, to speak with us on a variety of issues and debates facing the law.
If anybody is interested in speaking with us on the review, please feel free to get in touch with Becca (R.bestley@newcastle.ac.uk) or Nathan (N.cooper@newcastle.ac.uk) to arrange.
