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Company and Insolvency Law

The Pari Passu Principle

In corporate insolvency procedures, not all creditors are alike. This is despite the pari passu principle.

The pari passu principle is often said to be a fundamental rule of any corporate insolvency law system. It holds that, when the proceeds generated by the sale of debtor’s assets are distributed to creditors as part of an insolvency procedure, they have to be shared rateably. In other words, each creditor is entitled to a share of these proceeds that corresponds to the percentage of debt owed by the company to its creditors.

Imagine that a company has creditors for £100,000. Creditor A has a claim for £1,000, creditor B for £5,000. The company is insolvent and it is liquidated. The sale generates £50,000 of proceeds available to be distributed to the creditors. While it would have been possible to say that, for instance, older creditors or creditors with larger claims are paid first, the pari passsu principle states that all creditors are treated alike. As a result, creditor A will receive 1% of these proceeds (£500), while creditor B will receive 5% of them (£2,500).

There are, of course, exceptions to the pari passu principle.

First, the pari passu principle applies only to assets that are available for distribution. For instance, a bank may have granted a mortgage to the debtor to buy a property, and the debtor may have given that property as a collateral to the bank. If the debtor becomes insolvent, the proceeds generated by the sale of that property are distributed first to the bank and then, if anything is left, to the other creditors.

Secondly, the law might introduce exceptions to this principle, in order to prioritise the payment to creditors that are deemed particularly worthy of additional protection.

 

The Law

Until the Enterprise Act 2002, the Inland Revenue and HM Customs & Excise (now HMRC) were granted a status as preferential creditors for certain debts listed in Schedule 6 of the Insolvency Act 1986. As a result, debts owed to the them had to be fully paid before any distribution to floating charge holders, pension schemes and unsecured creditors (among others) was made.

This preferential status granted these agencies a stream of £60-90 million each year in insolvencies. Section 251 of the Enterprise Act 2002, however, abolished the Crown’s status as preferential creditor and introduced a new regime (the ‘prescribed part’) wherein a portion of the distributions in liquidation was ring-fenced specifically for unsecured creditors.

Back in the 2018 Budget, mixed in with many other tweaks, the Government announced a seemingly innocuous change to the way in which business insolvencies will be handled from 6 April 2020 (later postponed to insolvencies commencing on or after 1 December 2020, irrespective of the date that the tax debts were incurred or the date of the qualifying floating charge).

Without attracting much publicity, the announced move was codified in sections 98 and 99 of the Finance Act 2020, which received Royal Assent on 22nd of July 2020. As a result, HMRC gained secondary preferential treatment over non-preferential and floating charge holders – often banks that have loaned money to firms – for uncapped amounts of VAT, Pay As You Earn (‘PAYE’) income tax, student loan repayments, employee National Insurance Contributions (‘NICs’) or construction industry scheme deductions.

In a related development, Parliament also approved the Insolvency Act 1986 (Prescribed Part) (Amendment) Order 2020. The effect of this Act is to increase the prescribed part from £600,000 to £800,000. However, this change does not apply to floating charges created before 6 April 2020.

 

So What?

The Government argue that giving HMRC priority for collecting taxes paid by employees and customers to companies is appropriate. These represent taxes that are paid by citizens with the full expectation that they are used to fund public services. Absent any form of priority, this money actually gets distributed to creditors instead. As a result, the Exchequer should move ahead of others in the pecking order and give HMRC a better chance of reclaiming the £185m per year they lose.

These explanations do not appear totally sound. The creation of the prescribed part and the increase of its cap to £800,000 served the purpose of ensuring that at least some of this money is paid back to the HMRC and used to fund public services. What has not been properly considered is the impact the Crown preference and the increased prescribed part will have on: (i) the wider lending market and access to finance; as well as (ii) corporate rescue practices.

With reference to lending practices, the new system disproportionately affects floating charge holders and unsecured creditors. The abolition of administrative receivership – a procedure controlled by lenders – by the Enterprise Act 2002 was compensated by the loss of preferential status for the HMRC. The re-introduction of such preference means that lenders in general and floating charge holders in particular will be pushed to lend money at higher interest rates, as lenders have no idea as to the tax arrears of any borrower on a day-to-day basis.

Lenders now face a double blow (increased prescribed part and Crown preference) in relation to realisations from the floating charge. They are, therefore, likely to reduce the amounts that they lend to businesses, to take account of the dilution in the realisations that they would receive in insolvency. This is a particularly unwelcome outcome in the current marketplace.

Lenders are even more likely to seek fixed charge (where possible) and to introduce covenants for reviewing the debtor’s tax liabilities. Such liabilities are likely to increase significantly in the next few months, as VAT payments due by businesses between March and June 2020 have been deferred until the end of the 2020/21 tax year. Lenders may also insist that a borrower holds tax reserves to deal with liabilities to HMRC and, in large operations, on group structures which minimise the dilution from Crown preference.

Finally, unsecured creditors may choose to protect themselves by keeping their payment terms as tight as possible and limiting the number of days that credit is offered for.

Additionally, and perhaps more importantly, such move may hamper the willingness to support an enterprise and rescue culture, which was the main justification for the abolition of the Crown’s preference. This is because HMRC’s gain is the other creditors’ loss, especially considering that the taxes classified under the preferential claim are ‘uncapped’ (while before the enactment of the Enterprise Act 2002 they were capped to amounts due to up to 1 year before the commencement of the procedure).

Despite assurances to the contrary, the existence of a preferential treatment may push the HMRC to exercise increased control over the insolvency process and promote early petitions for liquidation in the hope of higher return.

Also, the HMRC has never historically been particularly supportive of reorganisation efforts. This means that distressed companies may have to file for a new restructuring plan under part 26A of the Companies Act 2006 and seek a court-approved cross-class cram-down to overcome the HMRC’s negative vote. Such an approach would increase cost, litigation and time needed for the reorganisation effort, thus potentially pushing viable debtors out of business.

There are other elements that militate against the re-introduction of such preferential status. HMRC currently have the ability to robustly manage their debt. HMRC have powers not available to other unsecured creditors, including the ability to take enforcement action without a court order to seize assets and to deduct amounts directly from bank accounts.

HMRC have the power to issue Personal Liability Notices to corporate officers for a failure to pay National Insurance Contributions (NICs) or future unpaid payroll taxes. HMRC also have the power to insist on upfront security deposits where there is a genuine risk of non-payment of PAYE, NICs or Value Added Tax (VAT). Similarly, HMRC may issue Accelerated Payment Notices for disputed tax debts.

One of the key features of the English corporate insolvency framework is its focus on promoting business rescue and, more in general, a rescue culture, as evidenced in previous papers[1] by the author of this post. The recent long-term changes introduced by the Corporate Insolvency and Governance Act 2020 seemed to go in the direction of strengthening the rescue attitude. It makes, therefore, little sense to introduce policies designed to help businesses survive the Covid-19 pandemic and, at the same time, reduce their ability to borrow cheaply. The re-introduction of the preferential status for certain unpaid taxes spins the clock back to 2003 and is likely to hurt the existing, fragile business recovery.



[1] E Vaccari ‘English Pre-Packaged Corporate Rescue Procedures: Is there a Case for Propping Industry Self-Regulation and Industry-Led Measures such as the Pre-Pack Pool?’ (2020) 31(3) I.C.C.L.R. 169; E Vaccari, ‘Corporate Insolvency Reforms in England: Rescuing a “Broken Bench”? A Critical Analysis of Light Touch Administrations and New Restructuring Plans’ (2020) 31(12) I.C.C.L.R. 645; E Vaccari, ‘The New ‘Alert Procedure’ in Italy: Regarder au-delà du modèle français?’ (2020) 30(1) I.I.R. 1.

This blog was first published here on 6 August 2020.

Published on 2 February 2021

The English corporate insolvency framework has gone through significant changes in recent times. Some of these changes have been introduced as soon as the effects of the COVID-19 pandemic on the UK economy became apparent. Nevertheless, last summer the Corporate Insolvency and Governance Act 2020 (the Act), which completed its progress in the Parliament and received Royal Assent on 25 June 2020, coupled these temporary measures with long-term reforms and regulatory powers to significantly amend the UK corporate insolvency framework.

Similar to other countries, the UK introduced some emergency legislation aimed at suspending statutory demands and restricting winging-up petitions,[1] as well as the liability for wrongful trading.[2] At the same time, with the Act, Parliament took the opportunity to introduce some long-discussed and more permanent changes to the corporate insolvency framework. These include the introduction of a short free-standing company moratorium,[3] a new restructuring plan procedure (known as “part 26A restructuring plan”) modelled after the successful schemes of arrangement (but with a cross-class cram-down!),[4] and a general ban on the enforceability of ipso facto clauses.[5]

It seems, therefore, that the country – or at least its legislator – is trying to replace or, at least, discourage the use of the formal insolvency procedure originally designed to promote the rescue of distressed yet viable companies. This is the administration procedure governed by Schedule B1 of the Insolvency Act 1986, as amended by the Enterprise Act 2002.

There is, in fact, a widespread belief that this procedure is inadequate to achieve the goals for which it was introduced. These are: rescuing the company as a going concern, achieving a better result than liquidation or, in the last instance, realising the company’s assets to make a distribution.[6] For instance, media outlets frequently depict administration as “the end of the road” for the debtors by reporting on companies “collapsing” into administration.[7]

To be fair, for some companies, administration is the end of the road. This seems to be the case of one of the most illustrious administration cases of this year, Philip Green’s Arcadia group collapse into administration.[8] In the case of Arcadia, it is quite likely that the doors of the stores of the retail group will never open again. Its most iconic brands are being sold to online retailers,[9] and the company’s 13,000 employees are going to be jobless in the next few weeks.

However, it appears a bit too premature to call for the demise of administration as a valid and efficient tool for rescuing companies and/or turning around their business. This opinion seems to be shared by Parliament which, back in June 2020, granted to the Government an extension to end of June 2021 to the power to legislate on pre-packaged sales to connected persons. This legislative power was originally granted by the Small Business, Enterprise and Employment Act 2015 but later expired in May 2020.[10] 

At the time of writing, it seems that the Government is willing to legislate in the area before the extended deadline expires. In fact, on 8 October 2020, the UK Government published draft regulations[11] aimed at pre-packaged sales to connected parties which occur by means of an administration proceeding. The term ‘pre-packaged sale’ refers to an arrangement under which the sale of all or part of a company’s business or assets is negotiated with a purchaser prior to the appointment of an administrator and the administrator effects the sale immediately on, or shortly after, appointment.[12]

According to the legislative proposal, where an administrator wishes to dispose of all or a substantial part of a company’s assets within the first eight weeks of the administration to one or more connected persons, then the administrator will need to obtain the creditors’ approval or an independent written opinion by an 'evaluator'. This written opinion will be made available to the creditors and a copy will need to be filed at Companies House.

The provider of the opinion (referred to in the regulations as the ‘evaluator’) must be independent of the connected party purchaser, the company and the administrator, and must meet certain eligibility requirements. In the past, such opinions were provided by an independent body of business experts known as the ‘Pre-Pack Pool’ (‘the Pool’).[13] However, the Pool has so far suffered from a low uptake rate of referrals, mainly due to the voluntary nature of such referrals by the connected party purchaser. Additionally, the Pool has wrongly been perceived as inadequate to identify bad deals. This bad publicity primarily generated from the unfair reports on the Polestar case, where the pre-pack sale fell through for reasons that had nothing to do with the “positive” opinion[14] on the pre-pack sale given by the Pool.[15]

It seems, therefore, unlikely that the Government will rely solely on the Pool for this role. In fact, section 9 of the draft regulations refers to the evaluator as “an individual”, not as a body of experts. Nevertheless, nothing seems to suggest that evaluators could not join independent bodies in order to gain visibility and promote their services on the market. The Pool may, therefore, end up in being one of the evaluators, rather than the only one (as it is the situation today).

It is clear that with these draft regulations, the Government is trying to introduce additional checks and balances in an area where there is a widespread perception of abusive or at least strategic behaviour from businesses. In particular, the Government is concerned that these practices could result in mechanisms to avoid tax and pension liabilities.[16]

It is arguable whether the negative perception around pre-packs, and especially those to connected parties, always reflects the reality. The author is not aware of any recent empirical studies, which suggest an increased use of pre-packs in a strategic or abusive manner. At least, in this context, it is reassuring that the Government, through its Insolvency Service, has not chosen to completely ban pre-packs (despite having such power in light of the Act). It is encouraging that the Government has recognised that pre-packaged sales in administration are a valuable rescue tool in the restructuring toolbox, especially in the current economic and financial situation. For instance, just a few days ago, Paperchase was successfully rescued in a pre-pack deal to a connected party (Permira Debt Managers, an investor in Paperchase since 2015), thus safeguarding around 1,000 jobs in the hard-hit retail sector.[17]

It is questionable whether and to what extent the draft regulations will address the concerns they are designed to alleviate. Their scope may be too broad and there is little clarity on the potential liability of the evaluator in case of perceived mistake (see the Polestar case). With reference to the qualifying criteria to be an evaluator, these have proved particularly controversial in the industry, with some believing that they could open the door to abuse of the system.[18]

It is not clear on which basis the creditors’ opinion could be independently formed in the absence of a report from the evaluator. Additionally, it seems unlikely that creditors will be frequently asked to validate a pre-pack deal, as at least 14 days prior notice is required for their approval. This rather lengthy notice period – if not amended in the final version of the law - jeopardises the main benefits (speed and efficiency) associated with pre-pack sales.

Finally, while the administrator could in theory ignore the evaluator’s opinion, it is difficult to see how an officer of the court could act against the advice of an independent expert. Furthermore, the position of secured creditors in these deals need to receive further attention. A note within the government's report suggests that pre-pack sales to a secured lender to the company will not be caught by the regulations. However, the draft regulations do not expressly include any such exemption at this time.

Nevertheless, this draft legislation seems to strike a balance between the interests of the parties involved in a sale, as well as promote transparency and disclosure in potentially murky deals. It is essential that the newly proposed mechanisms do not result in additional costs and delays for the parties of the proposed deals. At the risk of stating the obvious, it is worth remembering that time and money are of the essence for all companies, but particularly those finding themselves in a situation of financial distress.

 



[1] Sections 10-11 of the Act.

[2] Sections 12-13 of the Act.

[3] Sections 1-6 of the Act.

[4] Schedule 9 of the Act.

[5] Sections 14-19 of the Act.

[6] Paragraph 3, Schedule B1 IA 1986.

[7] By way of example, see: S Butler, ‘Carluccio’s and BrightHouse collapse into administration’ (The Guardian, 30 March 2020) <https://www.theguardian.com/business/2020/apr/14/oasis-and-warehouse-close-to-collapsing-into-administration-coronavirus>; S Butler, ‘Oasis and Warehouse close to collapsing into administration’ (The Guardian, 14 April 2020) <https://www.theguardian.com/business/2020/apr/14/oasis-and-warehouse-close-to-collapsing-into-administration-coronavirus>; S Butler, ‘Peacocks and Jaeger businesses collapse into administration’ (The Guardian, 19 November 2020) <https://www.theguardian.com/business/2020/nov/19/peacocks-and-jaeger-collapse-into-administration-4800-jobs>, all accessed on 2 February 2021.

[8] S Butler and J Partridge, ‘Philip Green’s Arcadia Group collapses into administration’ (The Guardian, 30 November 2020) <https://www.theguardian.com/business/2020/nov/30/philip-green-arcadia-group-collapses-into-administration> accessed 2 February 2021.

[9] M Sweney and Z Wood, ‘Bohoo in talks to buy Dorothy Perkins, Wallis and Burton’ (The Guardian, 29 January 2021) <https://www.theguardian.com/business/2021/jan/29/boohoo-in-talks-to-buy-dorothy-perkins-wallis-and-burton-arcadia>; K Makortoff, ‘Asos buys Topshop and Miss Selfridge brands for £330m’ (The Guardian, 1 February 2021) <https://www.theguardian.com/business/2021/feb/01/asos-buys-topshop-topman-miss-selfridge-arcadia>, both accessed 2 February 2021.

[10] Section 8 of the Act.

[11] Draft Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2020 <https://www.gov.uk/government/publications/pre-pack-sales-in-administration> accessed 2 February 2021.

[12] Statement of Insolvency Practice 16.

[13] < https://www.prepackpool.co.uk/>.

[14] In reality, the Pool does not state if the sale should go through. It only states if the case for a sale to a connected party is not unreasonable, unreasonable or if additional evidence is needed.

[15] J Francis, ‘Polestar sites go into administration’ (Printweek, 25 April 2016) <https://www.printweek.com/news/article/polestar-sites-go-into-administration> accessed 2 February 2021.

[16] L Haddou and J Cumbo, ‘Companies use ‘pre-packs’ to dump £3.8bn of pension liabilities’ (Financial Times, 9 April 2017) <https://www.ft.com/content/f3f574fa-0f2c-11e7-a88c-50ba212dce4d> accessed 2 February 2021.

[17] J Bourke, ‘Paperchase to keep majority of its shops open, safeguarding around 1,000 jobs’ (Evening Standard, 29 January 2021) <https://www.standard.co.uk/business/leisure-retail/paperchase-prepack-administration-b908314.html> accessed 2 February 2021.

[18] J Hillman, ‘Compulsory independent scrutiny of pre-pack sales to connected parties’ (Pinsent Masons, 22 October 2020) <https://www.pinsentmasons.com/out-law/analysis/compulsory-independent-scrutiny-pre-pack-sales-connected-parties> accessed 2 February 2021.

Published on 21 February 2021

Introduction

The Pension Schemes Act 2021 received Royal Assent on 11 February 2021. It brings with it many changes to the Pensions Act 2004 affecting pension scheme trustees, employers, and advisers. Some of these changes also affect insolvency practice. This article tries to clarify the consequences of the Pension Schemes Act 2021 for corporate insolvency practice.

Pension Schemes

There are two main types of private pensions in the UK. More recently, employers have moved towards defined contribution (DC) pension schemes. In DC pension schemes, workers contribute with part of their salaries to a workplace or private pension through their employers. These contributions are usually made on a monthly basis. The money is put into investment by the pension provider and the value of the employee’s pension varies depending on the performance of such investment. The return to the worker depends on how much was paid in the scheme and on the performance of the investment.

The employer’s liquidation or administration is unlikely to affect DC schemes, provided that contributions remained current throughout the employment. The scheme is independent from the employer. Unpaid employment contributions can be claimed from the National Insurance Fund. If the pension provided which runs the scheme enters into a formal insolvency proceeding, the worker can seek compensation from the Financial Services Compensation Scheme.

The traditional type of private pension, however, has always been the defined benefit (DB) pension scheme. A DB pension (also called a “final salary” pension) is a type of workplace pension that pays a retirement income based on the salary and the number of years the employee has worked for the employer. It is irrelevant the amount of money the worker contributed to the pension. Nowadays, most private sector DB pension schemes are closed to new members and/or new accruals. However, DB pension schemes remain an integral part of the UK pensions system, with an estimated 10.4 million members relying on them.[1]

Shortfalls in DB pension schemes are far from uncommon. According to the latest figures available on the PwC’s Skyval index,[2] the funding deficit for the UK’s 5,000-plus corporate DB pension schemes was in the region £120 billion in January 2021.

On a company’s insolvency, the DB pension scheme is protected by the industry lifeboat fund run by the Pension Protection Fund (PPF).[3] Created by the Pensions Act 2004, the PPF is an insurance arrangement and a statutory public corporation accountable to Parliament through the Secretary of State for the Department for Work and Pensions (DWP). The Government is clearly interested in reducing the instances in which the PPF is called to rescue an insolvent DB pension scheme.

TPR Regulatory Powers

The Pension Regulator (TPR) is the body that regulates work-based pension schemes. It became operational on 6 April 2005. One of its goals is to hold directors and shareholders accountable for imbalances in the pension schemes. To achieve this goal, TPR can issue contribution notices and financial support directions.

TPR used to have the power to issue contribution notices[4] as a result of being of the opinion that the “material detriment” test was met.[5] A contribution notice for breach of the material detriment test can be issued if:

  • the act, or failure to act, has been materially detrimental to the likelihood of the accrued scheme benefits being received (whether the benefits are to be received as benefits under the scheme or otherwise);
  • the statutory defence is not met in relation to the act, or failure to act; and
  • it is reasonable to impose liability on the person to pay the sum specified in the contribution notice.

An alternative test (the “main purpose” test) allows TPR to challenge an act or failure to act designed to prevent the recovery of all or part of a debt due to the scheme under the Pensions Act 1995 s 75, or prevent such a debt from becoming due, or reduce or compromise that debt.

A section 75 debt is the money that the employer needs to pay to the pension scheme when he withdraws from it, for instance as a result of the employer’s insolvency.[6]

Contribution notices can be issued up to 6 years after an act, or failure to act, took place. Where section 75 debt notices are issued by the PPF against the insolvent company and rank as unsecured credits, with little chance of being paid, contribution notices are issued by TPR against persons who are associates of or connected with pension scheme employers. There are, therefore, greater chances of them being paid for the benefit of the scheme members.

Unfortunately, the grounds on which contribution notices could be issued were rather narrow, with the results that they failed to have and impact on corporate practice. TPR’s power to issue contribution notices for failure to comply with the material detriment test as well as financial support direction were seen as being largely ineffective. This emerged clearly in the cases of Nortel and Lehman,[7] as well as in the Bernard Matthews affair.[8]

TPR can also issue a financial support direction.[9] This is possible where the sponsoring employer is unable to support the scheme and where an associated party has been deriving financial gain from the sponsoring company (often a parent company or a company within the group structure).

In those situations, TPR can call on that party to put in place a long-term financial support plan for the scheme. TPR can issue a financial support direction if the scheme’s employer was either a service company or “insufficiently resourced”[10] at the relevant time. The procedure can start only up to 2 years after the relevant time. As a result, financial support directions have been few and far between.

Regulatory Changes Introduced by the Pension Schemes Act 2021

One of the most prominent changes introduced by the Pension Schemes Act 2021 – beyond the creation of the Collective Defined Contribution (CDC) pension scheme – has been the power to issue contribution notices if either the employer insolvency or the employer resources tests are met.[11] These two new tests intend to catch a much broader spectrum of behaviours and corporate activity than the current regime.

The “employer insolvency test” will be met if TPR is of the opinion of both of the following:

  • Immediately after an event occurred, the value of a scheme’s assets is less than the value of its liabilities;
  • If a section 75 debt[12] had fallen due from the employer immediately after the event, the act or failure to act would have materially reduced the amount of the debt likely to be recovered by the scheme.

Conversely, the “employer resources test” will be met if TPR is of the opinion of both of the following:

  • An act or failure to act reduced the value of resources of the employer;
  • The reduction was a material reduction relative to the estimated section 75 debt in the scheme if a debt had fallen due immediately before the act or failure to act occurred.

There is a statutory defence to avoid personal liability. This is if the target of the contribution notice can demonstrate that:

  1. They considered the potential impact of the act or failure to act on the pension scheme; and
  2. They reasonably considered there would be no impact; or
  3. They took appropriate steps to mitigate such impact.

In relation to the employer insolvency test only, there is an additional defence that the scheme’s liabilities were not less than its assets at the time of the event. While this statutory defence is problematic in its application, the expansion of TPR’s regulatory powers in case of the funder’s insolvency is welcome news.

To further support the activity of the regulator and discourage wilful or grossly reckless practices on the eve of insolvency, the Pension Schemes Act 2021 introduced two new criminal offences for the improper running of DB schemes: (a) avoidance of an employer debt; and (b) conduct risking accrued scheme benefits.[13] The offences do not just apply to company directors, as they could extend to shareholders, lenders, trustees and their advisers. Furthermore, these offences apply whether or not the perpetrators are aware of the consequences of their actions at the time.

The offence of “avoidance of an employer debt” includes any act or failure to act intended to prevent the recovery of the whole or any part of a section 75 debt. This includes preventing such a debt from becoming due, compromising its amount, or reducing the amount of a debt that would otherwise become due. The reference to a section 75 debt includes any contingent amount.

The offence of “conduct risking accrued scheme benefits” includes any act or failure to act that detrimentally affects in a material way the likelihood of accrued scheme benefits being received where the person knew or ought to have known that such a course of action would be likely to have that effect.

Particularly the latter offence is very broadly defined and wide reaching. It applies to any individual who knew or ought to have known that their conduct would have affected the pension scheme and had no reasonable excuse for their actions. As a result, there seems to be lack of co-ordination between the approach adopted by the legislator and the high threshold of “recklessness” or disregard which was all part of the earlier rhetoric in DWP’s March 2018 White Paper.[14]

Both of these offences carry the risk of a criminal penalty of an unlimited fine and/or imprisonment of up to seven years. Alternatively, the TPR could use its civil fining powers and fine a person committing one of these offences up to £1 million.

Consequences for Insolvency Practice

The Pension Schemes Act 2021 expands TPR’s powers to impose contribution notices on companies or directors, requiring them to make one-off and substantial contributions to pension schemes. These powers increase the chances to recover money from failed employers and third parties beyond the preferential status granted to the pension contributions in the last 4 months before the company’s collapse. However, they also present a significant obstacle for effective rescue procedures.

However, there are some issues, which arise from the implementation of these reforms.

The new tests have been incorporated into the Pensions Act 2004 in such a way that the six-year look-back period is available to TPR even though the Act is not expressly retrospective. Also, with reference to the “employer insolvency test”, this is triggered if the value of the scheme’s assets is less than the value of its liabilities as of the date that the employer became insolvent.[15] It is not clear, however, how this balance-sheet imbalance should be calculated, as courts have only provided occasional guidance on the notion of “assets”.[16]

While it is unlikely that courts will hold accountable directors for normal business activity, the same directors may nevertheless feel uncomfortable in taking swift and radical decisions to turn around their companies on the eve of insolvency absent any professional advice from independent experts. When time is of the essence, as in corporate restructurings and in a very complex geo-political climate caused by the Covid-19 pandemic, this may result in increased business failure rates. 

With regards to new offences, they could capture a variety of players, including insolvency practitioners and other professional advisors – such as trustees and company doctors[17] – commonly involved in a restructuring. Their only defence against personal liability and an order to contribute would be to demonstrate that they acted with “reasonable excuse”, a term not defined in the legislation.

The major issue, however, is represented by the potential risk of a civil claim and fines of up to £1 million. This may well be a risk that insolvency practitioners and company doctors are not willing to accept when seeking to restructure a company that has a DB pension scheme. It may also push lenders to reject calls for additional corporate funding during restructuring. This is because their requests for additional security to support high-risk lending facilities during turnaround efforts may later be challenged as “conduct risking accrued benefits”.

Finally, the Pension Schemes Act 2021 should not be considered in isolation. Less than a year before its introduction, the Corporate Insolvency and Governance Act 2020 (CIGA 2020) also introduced significant changes to the corporate insolvency framework.

One of the most notable changes in the CIGA 2020 is the introduction of a new free-standing moratorium. This causes the directors to remain in control of the company under the supervision of a monitor (a licensed insolvency practitioner) whilst they seek to rescue the company. The moratorium is granted for an initial period of 20 days, but further extensions for a period of up to 1 year are possible. The CIGA 2020 provides that notice should be given to both the trustees of the pension schemes as well as the PPF. Both the trustees and the PPF (for PPF-eligible schemes only)[18] will be asked to consent to those extensions.

The moratorium provides for a stay on any debts due at the date of the moratorium commencing. While the moratorium does not cover contributions to pension schemes arising during the moratorium (at least with reference to employees’ contributions), it covers pre-moratorium debt. The guidance from the Insolvency Service on the CIGA 2020 suggests that liabilities such as contribution notices and financial support directions under the Pensions Act 2004 should be considered to be pre-moratorium debts with a payment holiday. As a result, they will not be paid during the moratorium. Such choice reduces the cash flow to pension schemes for companies in moratorium.

Finally, a moratorium is not a “qualifying insolvency event” for the purposes of triggering a section 75 debt or the start of a PPF assessment period. For this reason, the trustees and PPF will not be able to enforce any contingent asset during the moratorium. Additionally, debt incurred by the company during the moratorium will take "super priority" status as an expense of the procedure should the company fail in its negotiations with the creditors and file for liquidation. This would certainly leave less money for other creditors - including the pension schemes - than in the case the company filed for another formal insolvency procedure from the beginning.

Another notable change is the introduction of “part 26A restructuring plans”, mutated from the schemes of arrangement.[19] A key element of the new part 26A plan is the ability to cram-down dissenting creditors. This is only possible if the dissenting creditors are no worse off in the plan than they would be in the “relevant alternative”. Additionally, one of more creditors who have an economic interest in the relevant alternative should have approved the plan. As a result, the plan may well be approved in face of the trustee’s or PPF’s opposition. At the same time, the plan should result in the survival of the sponsoring employer as a going concern, which should be a positive outcome for the pension scheme.

The CIGA 2020 should have the effect of facilitating employers to remain in business if their companies or businesses are viable. The members of any DB scheme are likely to benefit from the survival of the sponsoring employer in the long-term. At the same time, the trustees’ or PPF’s position as unsecured creditors means that their negotiating position is weaker in comparison with other key creditors. If, however, the position of the sponsoring employer deteriorates further during the moratorium or plan, it is likely that TPR may consider contribution notices against the company’s directors. Such notices, however, are unlikely to be successful, as decisions in these procedures are generally taken under the supervision of a court or insolvency practitioner, and with the consent of the majority of creditors.

Conclusion

One of the key challenges in the UK has been the inability to do deals with the DB pension scheme trustees to reduce or manage the pension liabilities so as to avoid an insolvency process.

TPR’s new regulatory powers are likely to push employers to seek more frequently clearance for future transactions. The ensuing greater trustee involvement may not necessarily protect workers. Opportunities to turn around businesses might be missed, with the results that jobs could be lost.

The same “side-effects” could be observed with the introduction of new criminal offences and related high civil fines. Finally, the purposes of the Pension Schemes Act 2021 - enhance TPR’s powers and ensure greater protection for pension schemes – sit at odd with the goals advocated by the CIGA 2020 – promote the rescue of distressed and viable businesses and enforce fair and reasonable plans on dissenting creditors –.

To conclude, it is hard to overlook the apparent conflicting and unprincipled approach followed by the legislator in reforming this area of law. Conflicting guidelines are likely to give rise to implementation and co-ordination problems for directors, insolvency practitioners, trustees, and regulators.



[1] Department for Work and Pensions, Pension Schemes Bill 2020 Impact Assessment: Summary of Impacts (January 2020) https://publications.parliament.uk/pa/bills/lbill/58-01/004/5801004-IA-Summary-of-Impacts.pdf para 6.

[2] “PwC Pension Funding Index – new funding approach could leave DB pension schemes £70bn in the black, analysis shows” (2 February 2021) https://www.pwc.co.uk/press-room/press-releases/pwc-pension-funding-index-new-funding-approach-could-leave-db-pension-schemes-70bn-in-the-black-analysis-shows.html.

[4] Pensions Act 2004, s 38.

[5] Pensions Act 2004, s 90.

[6] On the impact of section 75 debts in administrations, see: BESTrustees Plc v Kaupthing Singer & Friedlander (in administration) [2013] EWHC 2407 (Ch).

[7] Re Nortel and Lehman Brothers [2013] UKSC 52.

[8] For a detailed analysis, see M Thomas, “Bernard Matthews Limited – the Pensions Regulator’s investigation following the company’s insolvency” C.S.R. (2020) 44(5) 65; M Brown, “Bernard Matthews pension scheme: regulatory intervention report” PLC Mag. (2020) 31(8) 75.

[9] Pensions Act 2004, ss 43-50.

[10] ‘Insufficiently resourced’ means that an employer’s resources are valued at less than 50% of its estimated section 75 debt to the scheme at the relevant time. There also needs to be one or more associated or connected entities that have enough value to make up the difference. See here: https://www.thepensionsregulator.gov.uk/en/about-us/how-we-regulate-and-enforce/anti-avoidance-powers#8d28d91ec6d14ad59e99473428b1ced5.

[11] Pension Schemes Act 2021, s 103, which added to the Pensions Act 2004, ss 38C-F.

[12] Under Pensions Act 1995, s 75 as subsequently amended, participating employers become liable for what is known as a “section 75 employer debt” when they withdraw from the Scheme. This debt is calculated on a ‘buy-out’ basis, which tests whether there would be sufficient assets in the Scheme to secure all the member benefits by buying annuity contracts from an insurance company.

[13] Pension Schemes Act 2021, s 107, which added to the Pensions Act 2004 ss 58A-D.

[14] Department for Work and Pensions, Protecting Defined Benefit Pension Schemes (Cm 9591, March 2018) at 10.

[15] BESTrustees Plc v Kaupthing Singer & Friedlander Ltd (In Administration) [2012] EWHC 629 (Ch).

[16] Re Storm Funding Ltd (in administration) [2013] EWHC 4019 (Ch).

[17] V Finch, “Corporate rescue processes: the search for quality and the capacity to resolve” J.B.L. (2010) 6 502 (listing company doctors as specialists in turnaround practices).

[18] The Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) Regulations 2020 made under the CIGA 2020 (7 July 2020) allow the PPF to exercise the voting rights of the trustees in relation to both a moratorium and a part 26A restructuring plan.

[19] Companies Act 2006 part 26.

Published on 24 March 2021

The UK government has launched a consultation seeking stakeholders’ views on the insolvency rules that set out the detailed requirements for company and individual insolvency procedures in England and Wales to improve their effectiveness. This blog post outlines the purpose of the consultation, and it sheds some lights on some of the challenges of the current system of rules.

 

The Insolvency (England and Wales) Rules 2016

The Insolvency (England and Wales) Rules 2016 (“the Rules”) came into force on 6 April 2017. The Rules set out the detailed procedure for the conduct of company and individual insolvency proceedings under the Insolvency Act 1986, providing the framework giving effect to the regime specified in the Act. They represent the single most significant piece of legislation in respect of the insolvency regime operating in England and Wales, after the Insolvency Act itself; and the largest, with 900+ rules in the main body and numerous additional schedules covering specific topics.

The Rules in their current form represent the consolidation and modernisation of the earlier Insolvency Rules 1986 and the accompanying legislation that had developed in the intervening thirty-year period. The latest iteration of the Rules has been enacted to support changes to the insolvency regime that had been made in the Deregulation Act 2015 and the Small Business, Enterprise and Employment Act 2015 (“SBEEA 2015”), as well as to implement several brand-new policies that aimed to modernise the regime.

The Rules include a requirement, introduced by the SBEEA 2015, to carry out a review of the secondary legislation and publish a report setting out the conclusions of that review. The report must be published within five years of 6 April 2017, the date that the Rules came into force. As part of that review, the Insolvency Service has, therefore, issued a call for evidence in order to gather information regarding the operation of the Rules in the three years since their introduction.

The consultation is now taking place, and stakeholders – including insolvency practitioners, the legal profession, directors, creditors and business and consumer groups – have until the 30th of June at 11:59 pm to submit their views.

 

The Call for Evidence

This call for evidence is to request information regarding the impact that the Rules have had and the way that they have worked since coming into force, with particular focus on whether they succeeded in achieving their objectives.

The primary aim of the Rules is to establish the detailed procedure for the conduct of company and individual insolvency proceedings under the Insolvency Act 1986, giving effect to that Act. That objective was shared with the previous Insolvency Rules 1986 (SI 1986/1925). The Insolvency Service is particularly interested in identifying gaps in the Rules, which may affect the operation of the regulatory framework.

Initial representations from insolvency professionals making direct use of the legislation suggest that for the most part the Rules are operating as intended, but that there remain a number of areas where further changes and clarifications are sought. 

One of the primary concerns is whether the Rules are user-friendly and devoid of ambiguity. The Insolvency Service is seeking views on this point from “traditional” users. However, the extent to which these Rules are clear and unambiguous should not simply be a question for experienced, traditional users. Such question should preferably be asked to a larger audience, including legal professionals and accountants not directly involved with insolvency matters.

Another concern is to assess how the Rules have operated with reference to small businesses. Unlike other common law countries such as the U.S.,[1] it seems that England is not willing to opt to reform its insolvency regulatory framework by introducing separate rules and procedures applicable only to small businesses.

Overall, the questions focus on enhancing the efficiency and effectiveness of the Rules and, as a consequence, of the English insolvency framework.

 

Challenges

A number of issues have been highlighted for reform. Some of these issues include the Rules’ abolition of prescribed forms, the new creditor opt-out from communications, and the use of electronic communications and filing of documents.

At the same time, the Rules have introduced most welcome changes for the management of insolvency procedures. For instance, part 15 of the Rule consolidates the instructions on notices, voting rights, exclusions and appeals. It introduces consistency between the different insolvency and restructuring procedures. Some changes, such as the abolition of physical meetings and the introduction of new decision-making procedures (including deemed consent) are radical in nature.

Arguably, this is the most controversial reform introduced by the 2016 Rules, for which there was very little support during the consultation process. Supporters argue the new Rules reflect the reality of limited creditor engagement and will save both time and money whilst allowing technology to play its part in the decision-making process. Critics argue the abolition of physical meetings will only deter creditor engagement still further as well as depriving creditors of the opportunity to question directors and debtors and compare notes with one another. Yet, such change seems to have worked well in practice, especially in light of the additional issues caused by the Covid-19 pandemic.

It is quite common to dismiss the importance of consultations on rules as procedures. The focus is mainly on the law and its provisions. However, how the law is applied is a central part of any regulatory framework. A good law applied in an inefficient manner may hinder the functioning and attractiveness of a procedure and/or regulatory framework.

It is likely that stakeholders will advocate for further changes, designed to reduce red tape challenges and facilitate the practitioners’ duties and responsibilities in small procedures, where few or no assets are available for distribution. We will update this blog post once the consultation is closed and the Insolvency Service has issued a final report with the key takeaways from the consultation.



[1] Effective February 19, 2020, Congress enacted new bankruptcy legislation granting debtors the option to elect a new subchapter V of Chapter 11 of the U.S. Bankruptcy Code – see Small Business Reorganization Act of 2019, Pub. L. No. 11654, 133 Stat. 1079.

Published on 15 June 2021

As I mentioned in a previous blog post published on this website,[1] the English corporate insolvency framework has gone through significant changes in recent times. The Corporate Insolvency and Governance Act 2020 (CIGA 2020), which completed its progress in the Parliament and received Royal Assent on 25 June 2020, introduced a series of temporary measures and long-term reforms, thus effecting a significant change to the English corporate insolvency framework.

One of the areas, which was not directly affected by the reforms is administration. The administration procedure was introduced by the Insolvency Act 1986 (IA 1986), as amended by the Enterprise Act 2002 (EA 2002). Administration provides a company, limited liability partnership or partnership with a breathing space to allow a rescue package or more advantageous realisation of assets to be put in place. The EA 2002 introduced Schedule B1 to the IA 1986 to make the administration procedure quicker, cheaper and less bureaucratic than before.

Administration should be used to achieve one of the following purposes: rescuing the company as a going concern, achieving a better result than liquidation or, in the last instance, realising the company’s assets to make a distribution.[2] Nevertheless, companies and practitioners find the traditional administration procedure too cumbersome, expensive and lengthy to achieve such results. As a consequence, they devised revised approaches, such as light-touch and pre-packaged administration procedures, to promote the rescue of distressed yet viable companies.

Light-touch administrations differ from traditional administration procedure as the existing management is not displaced by the appointed insolvency practitioner to run the company. In other words, the administrators effectively give this consent to the board to exercise certain powers within agreed parameters.

In pre-packaged administrations (pre-packs), the existing management – frequently under professional advice from an insolvency practitioner – agree on selling the business to a third party before the commencement of the administration procedure.[3] As the sale is effected shortly after the commencement of the procedure, the creditors have no time to vote on the plan before the business and valuable assets are disposed of.

This blog post focuses on pre-packs. As I mentioned in a recent article,[4] pre-packs give rise to concerns of "phoenixism", as the company which buys the debtor’s assets usually continues to operate in the same sector, premises and with a similar name as the now defunct debtor. They also give rise to concerns of collusion, because the debtor is sold to a party, often connected with the lender, for a fraction of the company’s liabilities on the basis of negotiations occurred behind closed doors. It has also been remarked that pre-pack businesses are not marketed in a competitive manner, which may lead to undervalue sales that are short-term fixes to write off liabilities, thus failing to ensure the long-term viability of the company.

There have already been several attempts at reform, including the Graham Review into Pre-pack Administration in 2014[5] which introduced several recommendations including the Pre-Pack Pool, and a revised Statement of Insolvency Practice 16 (SIP 16), introduced in 2015.[6] In the meantime, cases such as Re Moss Groundworks Ltd[7] showed that SIP 16 was still not being fully complied with, and that pre-packs continued to be inherently problematic. Back in June 2020, Parliament granted to the Government an extension to end of June 2021 to the power to legislate on pre-packaged sales to connected persons. This legislative power was originally granted by the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) but later expired in May 2020.[8] 

On 8 October 2020, the UK Government published draft regulations[9] aimed at pre-packaged sales to connected parties which occur by means of an administration proceeding. Such proposal was later approved by Parliament with modifications and resulted in The Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 (SI 427/2021) (Administration Regulations 2021).[10]

The Administration Regulations 2021 came into force on 30 April 2021 and apply to administration procedures commenced on or after 1 May 2021. It also triggers changes to the SIPs. The SIPs were revised following a public consultation by the Joint Insolvency Committee (JIC) with changes affecting SIP 16 (Pre-packaged sales in administrations); SIP 13 (Disposal of assets to connected parties in an insolvency process); and the withdrawal of SIP 4 (Disqualification of directors).

 

The Administration Regulations 2021

In order to reduce the risks of collusion and undervalued sales in pre-packs without unduly affecting – at least in the Legislator’s intent – the speed and efficacy of the procedure, new requirements were put in place to effect pre-packs to connected parties.[11] Under regulation 3, “substantial disposals” by means of one or more transactions of all or a substantial part of the debtor’s business or assets is prohibited in the first 8 weeks from the commencement of the administration unless either of the following conditions are met:

  1. The company’s creditors have approved such disposal;
  2. The administrator has obtained a qualifying report for such disposal.

These requirements are in addition to (and do not replace) existing statutory and regulatory requirements, which apply to administrators.

If the creditors’ approval is sought, the administrator needs to send them a proposal, and the sale needs to be effected in accordance with the creditors’ approval. In practice, it seems unlikely that administrators would choose this approach given the time it can take for consent to be achieved, and the risks associated with the hold-out attitude of some (categories of) creditors.

As for the qualifying report, this has to be commissioned to an independent evaluator by the connected party, who is seeking to buy the debtor’s business or assets. The administrator needs to be satisfied that the individual making that report had sufficient relevant knowledge and experience to make a qualifying report.[12] The report needs to include a statement that the evaluator is satisfied that the consideration to be provided for the relevant property and the grounds for the substantial disposal are reasonable in the circumstances.[13] The report also needs to include the evidence used by the evaluator to reach such conclusion, and the reasons for their advice. The report needs to be shared with the registrar of companies, as well as every creditor of the company.

A negative qualifying report (stating that the grounds for disposal or the consideration are not reasonable) does not prevent the administrator from completing the disposal, However, should the administrator proceed in that way, they must make a statement setting out their reasons for doing so when the evaluator was not satisfied it was reasonable. If the administrator simply states that the disposal is justified without any explanation and reference to the evaluator’s report, then it may be difficult for an administrator to show that they have complied with the requirement to consider the contents of the report.

One of the most striking innovations of the Administration Regulations 2021 is that the evaluator – a role in the past covered sui generis by the Pre-Pack Pool – needs NOT to be an insolvency practitioner. While a long list of exclusions applies,[14] and while the Legislator set out clear criteria to determine whether the evaluator is acting in an independent manner,[15] under the Administration Regulations 2021 the evaluator needs only to have sufficient relevant knowledge and experience,[16] and be covered by professional indemnity insurance against liabilities to the administrator, the connected person, and creditors.[17]

 

Preliminary Comments

It is expected that the most common route to have the pre-pack deal approved and effected will be through the qualifying report of the independent evaluator. As a result, the success of the Administration Regulations 2021 seems to rely on the integrity of the evaluators.

In this context, significant questions are raised by the choice not to rely on insolvency practitioners or the existing Pre-Pack Pool for the role of the evaluator. The Pre-Pack Pool was an independent body and a limited liability company constituting of experienced business people, who are selected following a public recruitment exercise. Its members used to offer an opinion on the purchase of a business and/or its assets by connected parties to a company where a pre-packaged sale is proposed. In other words, the Pre-Pack Pool was doing what evaluators are now asked to do under the newly enacted Administration Regulations 2021.

The Legislator is certainly right in considering that the knowledge and experience needed to make such assessment is not a prerogative of insolvency practitioners. It is also likely that, by expanding the range of people, who could provide such report, costs of such reports are likely to be reduced and the report is likely to be provided in a timely manner.

At the same time, the requirement for insurance might restrict the market to those professionals, who already practice in the field and are regulated by independent bodies. The Insolvency Service, in its guidance on the Administration Regulations 2021, openly admits that certain professions (surveyors, accountants, lawyers with a corporate background and insolvency practitioners) are more likely to have the relevant knowledge and skills required to act as an evaluator.[18]

As these insurances are likely to be expensive, a professional market for evaluators may develop, but such qualifying reports are unlikely to end up being affordable for small and micro-enterprises. Finally, the detailed requirements in terms of the content of such reports may push larger corporate debtors to opt for alternative rescue mechanisms, such as the revised Pt 26A restructuring plans[19] - which, moreover, offers some degree of protection in case one class of impaired creditors decides not to support the restructuring plan -.

In any case, the new Administration Regulations 2021 represent a sea change (from a procedural standpoint) in the way pre-packs can be conducted in this country. They have the potential of further restricting access to a quick and inexpensive way to rescue a company, at a time where small and micro-enterprises are suffering the most and international institutions are calling for tailored mechanisms to promote their rescue and survival rates.[20] It is, therefore, surprising and disappointing to read in the Explanatory Notes to the Administration Regulations 2021 that ‘an impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen’.

In practice, insolvency practitioners have been conducting pre-packaged sales in accordance with the SIP 16 guidelines for a long period of time. The majority of them have developed well-honed internal procedures to ensure that sales to connected parties are justified. The use of evaluators will doubtless increase costs, result in some delay, and push more small and micro-enterprise to liquidate rather than rescue their business.

While some retailers and suppliers welcome the introduction of these new rules,[21] it is submitted that the new Administration Regulations 2021 result in additional hurdles for all the parties involved in a pre-pack, without remarkably reducing the risks of strategic or abusive use of the procedure. As a result, there are reasonable grounds to question the desirability and content of such rules.



[1] E Vaccari, ‘Pre-packaged Administrations in the UK: Nothing New under the Sun?’ (2 February 2021) <https://www.royalholloway.ac.uk/research-and-teaching/departments-and-schools/law-and-criminology/research/blogs/>.

[2] Paragraph 3, Schedule B1 IA 1986.

[3] Statement of Insolvency Practice 16: the term ‘pre-packaged sale’ refers to an arrangement under which the sale of all or part of a company’s business or assets is negotiated with a purchaser prior to the appointment of an administrator and the administrator effects the sale immediately on, or shortly after, appointment.

[4] E Vaccari, ‘English pre-packaged corporate rescue procedures: is there a case for propping industry self-regulation and industry-led measures such as the Pre-Pack Pool?’ (2020) 31(3) I.C.C.L.R. 170, 177.

[7] [2019] EWHC 2825 (Ch).

[8] Section 8 of CIGA 2020.

[9] Draft Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2020 <https://www.gov.uk/government/publications/pre-pack-sales-in-administration>.

[10] While the Administration Regulations 2021 are NOT restricted to pre-packs, such substantial disposals to connected parties usually take place in the form of pre-packs.

[11] “Connected person” is defined in paragraph 60(A)(3)-(5) of Schedule B1 IA 1986. These are relevant persons in relation to the distressed debtor, or companies connected to the debtor. Relevant persons are a director or other officer, or shadow director, of the company; a non-employee associate of such a person; and a non-employee associate of the company. A company is connected with another if any relevant person of one is or has been a relevant person of the other.

[12] Regulation 6(2), Administration Regulations 2021.

[13] Regulation 7(h)(i), Administration Regulations 2021.

[14] Regulation 13, Administration Regulations 2021.

[15] Regulation 12, Administration Regulations 2021.

[16] Regulation 10, Administration Regulations 2021.

[17] Regulation 11, Administration Regulations 2021.

[19] Sections 901A-901L, Companies Act 2006.

Human Rights Law

Published on 26 January 2021

In 2019, Dr Josephine Ndagire (Makerere Law School, Makerere University - @jndagire1) and Professor Jill Marshall (Department of Law and Criminology, Royal Holloway University of London (RHUL) - @JillMarshallLAW) received a networking grant from the Academy of Medical Sciences and the Global Challenges Research Fund (GCRF) to explore how survivors experiences of conflict-related sexual violence (CRSV) could be recorded and better inform the work of Civil Society Organisations, national and international law practitioners, legal educators and academics.

They brought together a multidisciplinary team of regional trainers in the Great Lakes area of Africa in a series of workshops to explore the issues facing survivors of CRSV and used creative methodologies to capture the experiences of the survivors who took part in one of the workshops, so that together we can share positive solutions that could make a long-lasting difference to their health and wellbeing.

In Survivors’ Voices Uganda we took an interdisciplinary approach, incorporating theories of development, law, feminism, health and management. We developed an innovative methodology, working with Ugandan illustrator King (@King_Est94) to capture the experiences of survivors of CRSV and depict visual representations of their voices, which could then be used to inform national and International Human Rights Law and policy.

Creative solutions are unusual in legal research.

Our experience is that the creative methodologies can open up new ways of connecting empirical and experiential data. They have helped us place survivors' experiences at the heart of our work to address the gaps in legislation and policy, bring positive solutions and make a long-lasting difference to the wellbeing of survivors of CRSV. As well as the creation of the testimonies visually and in videos, organising and holding the workshops in February 2020, the writing retreat in the summer of 2020, we also created this website

We are currently preparing for an exhibition event in Kampala in spring 2021, finalising a research article for publication, and other dissemination materials. Caroline Obbo has written this short blog here on related research.

To develop methodologies and strategic approaches for future research projects that support survivors of CRSV in the Great Lakes Region, between May and June 2020 we conducted a month-long virtual writing retreat workshop. Caroline Obbo led the retreat, and, as a starting point, set up an email thread with participants from the first workshop and shared the first report with them. The group agreed areas of focus, and during the retreat, each participant developed a concept within eleven thematic areas, including: transitional justice; children born of wartime rape; child forced marriages and conflict; entry points for male survivors and activists in respect to the project; entry points for grassroots, civil society and non-governmental organizations working directly with survivors; dignity and conflict related sexual violence; implementation of laws, policies and legislative frameworks—both national, regional and domestic; concept of victimology and conflict related sexual violence; story-telling and owning narratives; art and the concept of dignity in international law. During the retreat the team jointly developed methodologies and strategic approaches for a future grant.

Hon. Dora Byamukama, an important women’s rights advocate and former Ugandan parliamentarian, was also engaged in the discussions helping to push forward immediate interventions on behalf of the survivors discussed during the second workshop.

Published on 9 May 2021

 

Do I fall in your line of sight? Do you see me now?

Because I get this feeling that your eyes, they curve around me

(‘Your Eyes’ a poem by Helen Knott, an indigenous woman from Fort St. John, British Columbia)

This is happening

5th May is the Missing and Murdered Indigenous Persons’ Awareness Day and we (should) remember and honour missing and murdered indigenous women. There is then the question of why we should remember them and not remember instead the domestic missing and murdered women cases. Right? Wrong. There is a problem. No, let me rephrase here, there is a crisis which is as relevant and urgent as ever echoing my previous commentaries on femicides.

Let’s take a look at numbers: according to U.S. National Institute of Justice (NIJ) 2016 report on Violence Against American Indian/Alaska Native Women and Men, 84% of American Indian/Alaska Native Women (1,5 million) had experienced violence in their lifetime and 41% had been physically assaulted, stalked and sexually abused by their former intimate partners. In October 2004 Amnesty International generated a report titled “Stolen Sisters: A Human Rights’ Response to Discrimination and Violence against Indigenous Women in Canada” which reiterates the obvious: that violence against indigenous women should be acknowledged as a critical human rights’ issue. It highlighted some pertinent themes around socio-economic marginalisation (within Canadian society), lack of protection by the police and the criminal justice system and the extent to which their vulnerable position make them prey to (some) men for acts of extreme brutality and/or exploitation. #NoMoreStolenSisters  (https://www.amnesty.ca/news/no-more-stolen-sisters-need-comprehensive-response-discrimination-and-violence-against) report that 85% of the 105 women who were sex trafficked, they were first trafficked when they were children, there are 506 missing and murdered indigenous women and girls across 71 cities, 128 cases of missing indigenous women and 280 cases murdered Indigenous women (sources: National Indigenous Women’s Resource Center, Urban Indian Health Institute).

But it’s not only Canada. Look at Mexico where young women go missing every day. It’s usually relatives, the mothers who seek (access to) justice carrying a photo of their ‘missing’ daughters with them in the hope they will be listened. According to the National Citizen Observatory on Femicide (an alliance of 49 human rights’ organizations from all over Mexico) 800 women were murdered in 13 states across Mexico in 2017 from which only 49% of these deaths were seen and investigated as femicides.  But why should we look so at these ‘other women’?

 

If it happens to them, it can happen to you

Mariana Lima (Mexico) decided to leave her abusive husband and informed her mother, Irinea Buendía, that she was going to file for a divorce. She never got that far. The perpetrator (her husband) Julio Cesar Hernandez Ballinas gave Irinea a call to let her know that her daughter committed suicide. Eventually he was arrested and imprisoned but this was a landmark case setting a legal precedent for the way femicides were investigated. It brought up to the surface the need to deal with femicides as human rights’ violation and the need to adopt gender-sensitive approaches in dealing with women’s killings. Ashley Loring (or known as Ashley HeavyRunner), again from Montana, disappeared in 2018. She is still missing.

Hanna Harris, a 21-year old citizen of the Northern Cheyenne Tribe of Montana (USA), went missing in July 2013. Her body was retrieved five days later. It was later reported that she was raped, beaten to death. Murdered. Her body was found in such state that it was difficult to officially confirm causes of death. Her case raised awareness on the levels of violence against native women.

Sarah Everard, a 33 year-old marketing executive disappeared on her way home on the evening of 3rd March 2021 in South London (UK). Days later her remains were found in a woodland area at Kent. Wayne Couzens, a Metropolitan police officer is accused for kidnapping and murdering Sarah. A week ago community officer (PCSO) Julia James was found murdered in Snowdown, Kent. According to police reports she received significant head injuries and the motivation remains unknown. The case is open.

Different countries, different cultures, different stories. Or maybe we are talking about the same thing. Sarah and Julia were not indigenous women but they were women, they were humans, they occupied ‘same spaces’, they disappeared, and they were murdered. Can you see the bigger picture?

 

Can the Law make them Visible?

A year ago after campaigns by the Coalition to Stop Violence Against Women and the National Indigenous Women’s Resource Institute, the Congress (USA) passed two bills: the S.227 Savanna’s Act (the Act was named after eight-month pregnant Savanna LaFontaine-Greywind who was raped and murdered in North Dakota, Minnesota in August 2017) and the Not Invisible Act to tackle the epidemic level of violence against indigenous women in the United States.

Savanna’s Act increases the communication across different sectors of law enforcement, it outlines and clarifies the responsibilities of federal, state, tribal and local law enforcement agencies, it improves data collection and information sharing at all levels of the government and it empowers tribal governments with all the resources and information provided (https://www.congress.gov/bill/115th-congress/senate-bill/1942). The legislation has been seen as of a historic importance development for all Native American women and activists as it sets clear guidelines between federal, government and American Indian tribes for reporting on missing and murdered Native Americans.

These laws are a positive development as long as guidelines are implemented. This remains to be seen under new USA President, Joe Biden and his crew of women in the Congress amongst which Deb Haaland, a 60 year-old Native American, a member of the Laguna Pueblo tribe and one of the first two Native American Women ever elected to Congress.

There are other issues that need consideration as well.

 

Someone’s Sister, Friend, Aunt, Mother. Someone: Awareness and Activism

When thinking about gendered and racialized violence, it is important to take into account the wider context and try to grasp the intersections between different forms of oppression (racial, economic, gender) and locate them within systems of capitalism, patriarchy and race/white supremacy. We cannot start to decipher the complexities of violence against indigenous women if we don’t frame, think and discuss about them in terms of globalisation, inequalities, colonialism. I am sure we all agree that these women deserve our attention and an intersectional postcolonial lens can help towards raising awareness. Perhaps we can start by hanging a red dress from a tree each year on 5th May to honour their presence on earth. I like red. It reminds me of (com) passionate women/spirits.

Published on 17 May 2021

Identities, Patriotism, Fandom and Norwegian Fairytales

On 22nd May this year’s final European Song Contest (ESC) or else known as Eurovision is going to take place in the Netherlands, Rotterdam. The initial idea and purpose of Eurovision song contest was to create an event, a music festival that celebrates unity, enables building up bridges between countries and fosters a sense of belonging to European community and what this represents. However through the years it gradually developed into a contest where (geopolitical) boundaries, identities, political debates, gendered and sexual politics seemed to take over diverting the attention from celebrating music and acknowledging cultural uniqueness. While there are people who consider the contest parochial or kitsch and a space where socio-political interests, ‘friendly’ gestures and alliances are reinforced, refined and sealed, there are others who are fanatic supporters and see the contest as an event of fun and cosmopolitanism. Maybe the truth lies somewhere in the middle. The argument here is that, given Brexit, Covid-19 pandemic, ongoing Israel-Gaza conflict and socio-economic global rearrangement, ESC may prove a useful platform for states to pause, revisit and ideally re-embrace European ideals such as democracy, peace, human rights, equalities and freedoms through art. Or maybe not?

Waterloo, I was defeated, You won the war”: Boycotts, Cliques, Diversity and Human Rights’ Abuses

In many cases the last few decades ESC has become the focal point of controversy, governmental debates and several acts/performances have challenged, parodied or ‘played with’ stereotypical national and cultural characteristics. It is true that the contest has often been very predictable with voting blocs (countries voting for their neighbours due to proximity) and connections made for diplomatic reasons replacing the joy of the anticipation of hearing the name of the winner at the end of the night. At the same time though it is important to look at the non-negligible dynamics and positive elements of ESC. For example it provided a space where post-Soviet countries (e.g. Ukraine and Estonia) were able to rebrand their national images and identities, awarded the prize to Israeli singer, Dana International (first ever trans Eurovision singer) in 1998, and it brought into light, one way or another, cases of countries where human rights are threatened, violated and repressed (e.g. Azerbaijan, Belarus: https://www.reuters.com/article/us-belarus-election-protests-eurovision-idUSKBN2B31RP, https://www.amnesty.org/en/latest/news/2012/05/azerbaijan-eurovision-deaf-human-rights-abuses/). The ESC has often provided the impetus to question taken-for-granted ideas about feminism, whiteness, censorship, and it often made minorities (e.g. Roma) and diverse voices (e.g. dialects) heard and visible. I know that the ESC will always be governed by multilayered politics, and it is much more than just the best song and/or performance. But then I always believed in the power of arts in transforming perceptions and bringing people from all different corners of the world together. And what’s more having the chance to unite through singing and dancing. Isn’t that what this contest was all about in the first place?

Insieme, Unite, Unite Europe’: ESC as a Global Chain of Hope and Humanity

During these turbulent and puzzling times, the European Song Contest has the potential to give a long-awaited chance to people all over the world (not only Europeans) to re-unite and rejoice even under and despite Covid-19 circumstances. It can be seen and used less as a competition and more as a space that allows a meaningful (musical) dialogue. A dialogue of respect, truce and peaceful communication. Music is universal, lyrics can communicate messages, bodies tell stories and dance has a symbolic thrust. I am not sure which country will receive my 12 points. Would it be Nordic beat, Celtic ballad, Balkan sound or Portuguese sweet melancholy? I guess it will be the song that reminds us all how to recapture and reclaim light, humanity and hope. Fingers crossed.

Published on 7 June 2021

When I was a kid, people loved me” – Seid Visin

On Saturday 05th June 2021, Italian and international public was shocked by the news that 20-year old ex-AC Milan footballer Seid Visin committed suicide (hanged himself) at his home in Italy (see here, article in Italian). Seid Visin was born in Ethiopia and was adopted at an early age by a family in Italy. He started playing in Milan’s youth academies, he then focused on his studies but continued playing for Benevento and Atletico Vitalica. He was often described by the press and coaches as ‘enormous talent’ with ‘great potential’. Seid left a suicide note that was shared publicly. In that letter he confided that the last couple of years he was racially abused as a Black immigrant, and that he felt he did not fit in and like a ‘burden’. In his letter he explains:

“Whenever I go, whenever I am, whenever I am, I feel on my shoulders, like a boulder, the weight of sceptical, prejudiced glances… A few months ago I was able to find a job that I had to leave because too many people, mostly elderly, they refused to be served from me”

Before making assumptions about mental health, Seid being ‘fragile’, or start condemning Italian political context and (white) societies, it would be wiser to take a careful look at his note and what it can tell us. From a psychological perspective, there are differences between suicide attempters and completers who leave a suicide note (especially a rich rather telegraphic note coming from a 20-year old). For example, a strong correlation has been found between suicide completion and feelings of despair, burdensomeness and loss of meaning. In addition, medical psychology research on (genuine) suicide notes has shown that the words chosen can demonstrate an attempt to communicate and/or maintain some sort of tie with objects of the live world (see e.g. Gottschalk and Gleser, 1960; Ligier et al, 2019; Gosh et al, 2021). Coldness, disappointment and detachment can lead people to loneliness and despair. He had friends and he was visiting a psychologist but racialized pain is complex. Taking a more socio-political view, his suicide can be also seen as a manifestation of racism and direct result of hostile international climate towards immigrants and foreigners. It is soon to reach a conclusion. There is one thing we can say with certainty: Seid wanted us to know.

 

An equal measure of justice does not mean equal justice” – Kamala Harris

On 21st April 2021 Minneapolis police officer Derek Chauvin was found guilty of George Floyd’s murder and he was convicted of second and third-degree murder and manslaughter making this a landmark case and historical moment in US criminal justice. The murder of George Floyd brought into light once again racial disparities deeply rooted into American society. It was the first time we witnessed (via video) police brutality leading to the death of a Black citizen who was suffocating (‘I can’t breathe’). We’ve read about other cases before with African American women: Breonna Taylor was shot in her bed by a white police officer and Sandra Bland committed suicide in her cell. But these incidents were not recorded. George Floyd’s death was documented and struck another chord. Social movements such as Black Lives Matter movement became louder, expanded and re-introduced terms such as institutional racism, anti-racism, allies, white supremacy, colonialism and racial implicit bias.

Black people and people who have been subjected to all forms of racism over the world expressed their solidarity and talked about being ‘exhausted’ waiting for things to change. Political parties in the UK (e.g. Labour party) promised a Race Equality Act (see also here) and US government has recently announced the introduction of Anti-Asian hate crime bill (see news here). 

 

What We Have to Do, Must be Done in the Now’ – Audre Lorde

The death of George Floyd and the conviction of Derek Chauvin have rekindled a familiar anger for chronic racial injustice(s), and urgent calls for ending impunity and reforming policing. The point here is not just to blame white people or follow policies in the name of political correctness. It is more about using this anger as a catalyst for change, and in a way that will make a difference for next generations of white and non-white, young people.

The very wise Alice Walker once wrote “You got to fight. But I don’t know how to fight. All I know to do is stay alive”. When I was younger and finding life difficult or unfair my granddad used to say that staying alive means fighting. Let’s make sure from now on that young people like Seid stay alive so that they can fight for hope, respect, equality, social justice and our/their right to breathe.

Having a fragile heart does not mean being weak, it means being human, Seid.

Published on 17 June 2021

Somewhere Over the Rainbow - USA

On 12th June 2016, the 29 year-old Omar Mateen walked into the Pulse gay night club and shot 49 people (see BBC documentary: https://www.bbc.co.uk/iplayer/episode/p03z4wn5/stacey-dooley-hate-and-pride-in-orlando). Mass shootings are horrific due to their nature and complex socio-cultural impacts, but I always try to look beyond dominant narratives and find a conceptual frame that will help me understand the underlying causes or else see the bigger picture. Was this a homophobic attack fuelled by hatred or a terrorist act? It may be framed as pure terrorism which then results in discussions about terrorist violence, security measures (politicisation of crime) and debates on radicalism and human rights. Or these rage acts may be seen through a broader lens where homophobia, terrorist violence, misogyny and gender-based abuse co-exist within the same continuum that is underlined by patriarchal values, norms and practices. If we see these acts as such, they can be interpreted as manifestations of heteronormative toxic masculinities where violence and aggression are integral characteristics of manhood. In that sense masculinity constitutes itself through aggressive acts within patriarchal context. And there are strong links between domestic abuse and perpetrators of terrorist acts. Patterns of intimidation, entitlement and hatred are all there and if you re-arrange the pieces you’ll see that we are talking about the same thing: gender-based bias, its dynamics and stereotypical assumptions that often lead to tragic losses.

A boy from Crete - Greece

In 2015, 20-year-old Cretan Vangelis Giakoumakis was found dead near the Dairy School (Ioannina, Greece) where he was studying. Suicide was reported as the official cause of his death. This case was particularly shocking as it revealed the scale of bullying experienced by young people, especially those perceived or labelled as ‘vulnerable’ or ‘different’. Greek society had to confront some uncomfortable truths related to gendered, patriarchal mentalities and attitudes. Vangelis was ridiculed, blackmailed, silenced and led to helplessness by his fellow students. The School’s management did not know how to handle teachers’ complaints about the ‘macho’ and intimidatory behaviour of this clique of male students (and a female) who were torturing Vangelis and it was made evident during the trial that there were no safeguarding measures in place (https://www.ekathimerini.com/news/241904/prosecutor-proposes-guilty-verdicts-in-giakoumakis-trial/) to protect both the complainants and the victim.

Why was Vangelis regarded as a ‘threat’? Are the perpetrators haters or ordinary people who were enabled to abuse by a wider culture of prejudice, fear, ignorance, misbeliefs and disengagement? There are other stories of hatred and missed opportunities.

The Thoughts of Others Are Our Cages’ Virginia Woolf - UK

In 2007, 38-year-old Fiona Pilkington killed herself and her 18-year old severely disabled (learning difficulties) daughter, Francesca Hardwick, after she had been subjected to chronic and relentless bullying and abuse by a gang of young people aged between 8-17 years old, in Barnwell, outside Leicester (Roulstone and Mason-Bish, 2013). Fiona complained about being harassed to Leicestershire police 33 times. The failure of the police and local authorities to protect Fiona and her family led to an Independent Police Complaints Commission (IPCC) investigation which identified that, given the circumstances, the Pilkington family should have been considered as vulnerable or repeat victims. This would have allowed putting appropriate and specific safeguards in place. Fiona and her children were different. They were left to their own devices. Isolated and desperate.

Be yourself. Everybody else is taken’ – Oscar Wilde

I don’t identify or define myself as LGBTQ or disabled so I cannot claim or pretend that I am familiar with the challenges and/or discrimination LGBTQ and disabled individuals may experience in their everyday lives. I perceive myself though as a human being and a citizen and in that sense we are all part of the same messy but diverse global community of people who have equal (human) rights. To medicalise, criminalise, trying to cure, ban or erase ‘difference’ are anachronistic, short-sighted, dehumanising and stigmatising approaches. Education and awareness about issues related to gender spectrum and variance can help towards creating safe and inclusive environments where people are not afraid to be true to their personal identity or forced to conform to traditional gender roles. Talking about his (excellent) acting British actor Ian McKellen has previously explained that he does not lie when he is playing his characters. For him, honesty is the best policy.

I hear you Sir Ian, and I could not agree more.  

Published on 21 June 2021

Blue Moon, You Saw Me Standing Alone” – Billie Holiday (USA)

For some people, "enough is not enough". There is only black or white, it’s all or nothing, perfection or chaos, or both. Billie Holiday, one of the most deeply expressive jazz and blues voices ever, was a heroin addict. She was brutalised, hunted, monitored, arrested and in constant trouble with the law. She was charged with violation of section 147 of the USA Narcotics Act for transportation, concealment and possession of drugs and sentenced to 1 year in prison. Her visible heroin addiction was the cherry on the cake for a black woman who was transgressing norms, singing against lynching in the South, earning her own money, and creating her own lasting legacy (see here for an autobiography on Billie Holliday as an artist rather than as a victim: https://www.penguin.co.uk/books/110/1109902/billie-holiday/9780099592624.html). Her pathos or addictions made her a prey to different forms of threat, abuse and exploitation. There are people who would see her as well as other addicts as junks, junkies, lost cases, knowingly choosing death over life. We are our choices after all.

Billie Holiday was raped as a child. She has been in agony throughout her life. Different kinds of agony: economic, emotional, physical, social. The point is not to judge her habit but to examine what this case can tell us: the extent to which hard-line law enforcement and punishment strategies (e.g. complete abstinence, zero tolerance, imprisonment) are effective in tackling a complex problem such as substance use, or whether instead prevention and harm reduction approaches are better aligned with basic human rights such as the right to human dignity and self-respect.

Traditionally the questions here are whether substance use is a crime, if certain categories of drugs should be decriminalised (Hughes and Stevens, 2010: https://academic.oup.com/bjc/article-abstract/50/6/999/404023?redirectedFrom=fulltext), and finally if substance use disorders are treatable. It is also to be asked if drug users constitute the ideal scapegoats in an era where societies are underpinned by a strong social control, governmentality policy ethos. There are other things that we need to keep asking as drug addicts are often vilified, stigmatised and marginalised by the press, society and politics, and left to battle their own demons. Not only the drug users but their friends, families, communities and/or anyone who has the resilience to go through the torment of seeing someone they care about been consumed or lost by addiction.

 

Will You Still Love Me Tomorrow?’ – Amy Winehouse (UK)

English artist Amy Winehouse, an immensely talented young singer with distinctive voice (influenced by soul/jazz voices such as Billie Holiday, Aretha Franklin) was suffering from drug and alcohol addictions. She died of alcohol poisoning at her Camden house, in London, on 23rd July 2011. She was 27 years old. In her memory, the Amy Winehouse Foundation set up a drug recovery house, Amy’s Place, which gives young women the chance to access rehabilitation for drug and alcohol abuse and rebuild their lives: https://amywinehousefoundation.org/2016/08/01/amys-place-new-recovery-house-women/.) Amy’s Place is an example of different ways to reach out and help (young) people who may feel lost, afraid and unable to move on without using drugs. In my humble view, Amy was searching for perfection inside and outside. And perhaps reassurance and love in all shapes and forms.

 

We are all miracles, miracles made out of traumas’ (song lyrics by P.Voulgaraki/D. Galani)

26th June is the International Day against Drug Abuse and Illicit Trafficking. Covid-19 virus pandemic has changed drug use patterns as a result of lockdowns and associated mental health issues (https://www.sciencedirect.com/science/article/pii/S0376871620306530?via%3Dihub). It is early to assess the impacts of the pandemic on drug and alcohol use (https://academic.oup.com/alcalc/article/56/3/307/5988868?searchresult=1). My suggestion is to look beyond myths about drug addiction and open doors of understanding, seeing (problematic) drug users/addicts as human beings who may have found a hideout and a way of coping with issues of loss, acceptance, abuse, traumas. Perhaps moving away from punitive law enforcement measures and taking a public health approach would prove to be less stigmatising, more humane and certainly more cost-effective (Radcliffe and Stevens, 2008: https://www.sciencedirect.com/science/article/abs/pii/S0277953608002980?via%3Dihub).

Acting genius Philip Seymour Hoffman, died out of drug overdose in February 2014. At some point in ‘Almost Famous’ movie he says that “the only true currency in this bankrupt world is what you share with someone else when you're uncool.” Illicit drug use is a crime, addiction is an illness, drug misusers are humans who deserve honesty and new beginnings. Truths should be spoken instead of being semi-hidden or concealed out of fear of being seen as a failure or a criminal.

When I was working as a psychologist with substance users, I had the opportunity to collaborate with psychiatrists who were facilitating DAA (Drug Addicts Anonymous) and AA (Alcoholics Anonymous) meetings. There in my role as enabler and co-facilitator, I met all types of (beautiful) people and I heard stories of suffering, sorrow, regrets, strength, and love. The meetings would start with introductions and it was about them getting the sense that they were not alone and that they mattered.

Here we go then: My name is Jenny, I am well, and retaining my sense of humour, kindness and humanity in this absurd, often cruel and unfair world is a big task and work in progress. I am a never recovering idealist and a relapsing believer in ‘we can do better than this’ and ‘good things can happen to genuinely good people’. Amen.

Published on 3 July 2021

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty,

And the Pursuit of Happiness

Every year on 4th July millions of American citizens celebrate Independence Day. The day is dedicated in celebrating the 4th July 1776 declaration of 13 colonies amongst which Georgia, Maryland, New York, Virginia, and Carolina as independent from British Empire. The Declaration of Independence has a special value for Americans (and other countries in the world) for it symbolises freedom and constitutes one of the core identity characteristics of what the United States of America (USA) has been traditionally considered to stand for as a nation and as a country – the Land of promise, liberty, ever found happiness. It’s interesting to reflect on what happiness means within current globalised socio-economic, political and cultural Covid-19 pandemic context. We (humans) usually wish people to be happy, proclaim that we are happy, that we are leading a happy life or use the word ‘happiness’ for rather mundane reasons and everyday niceties that help navigate life conventions. But how often do we feel genuinely happy?

Being happy seems to have different meanings and interpretations. For some people happiness is about having a house, a secure job, spending time with family, maintaining good health and having some space for leisure. For others chasing happiness is a utopia, an attainable goal. Some choose to think about happiness at a deeper and philosophical level: are we born to be happy? Is this a religious belief that comfortably sits with systems of (capitalistic/and other socio-economic modes) governance where success, spending, consuming ensure a fair share of happiness? Is being happy an unalienable and undeniable right? Are we entitled to happiness since our birth or do we need to fight for it? How do countries/societies help citizens/people to feel happy? Is independence a prerequisite to feel and be happy? Is happiness linked to being a good person? Is being free synonymous to being happy?  

We are taught from very early on in our lives that happiness is inextricably linked with pleasure and positive feelings (smile, be happy, you look so happy) and that we need to be happy but this is highly dependent on the human values and priorities that underpin the meaning of happiness. Greek philosopher Epicurus (341-270 BCE) argued that happy life is one where pain in minimal. Socrates said that a happy life is an examined life (we all want to know how to live a happy, good life: https://www.penguin.co.uk/books/110/1109153/the-pursuit-of-happiness/9780099592556.html) and Aristotle (another Greek philosopher) perceived happiness as a lifetime painstaking effort to achieve excellence through everyday actions. Pain (in the form of disappointments, challenges, symbolic or real deaths) is an inevitable part of the game called life. Being alive means embracing the painful joys of life and flourish despite them. Or perhaps happiness is what Greek Nobel Prize poet, Odysseus Elytis, with such lyrical integrity described:

Happiness is found in simplicity. I am happy that weeks have Sundays. It is enough that four people love me a lot. It is enough that I love those four people a lot. That I am not afraid to remember. That I don’t care if they remember me. That I can still cry and that I even sing…sometimes…

What do you think then? Should we pursue happiness or just live? Happy Independence Day.

International Law

This post originally appeared on Opinio Juris here. The author thanks Opinion Juris for being authorised to post the article on this website. This blog post was published on 25 March 2021.

 

Introduction

In 2016 the International Court of Justice (ICJ or ‘the Court’) found it had no jurisdiction in the Marshall Islands’ proceedings against India, Pakistan, and the United Kingdom. Since then academics have assessed, for example, whether there has been a turn to formalism in the existence of a dispute and the difficulty of political issues before international courts. However, there are other aspects of the judgment that deserve additional attention, particularly given the perceived ineffectiveness of Article VI of the Non-proliferation Treaty (NPT) after the Marshall Islands’ unsuccessful attempts to find international responsibility for the nuclear weapon states’ failure to disarm. This post examines some important problems for Article VI, including that the ICJ has created a currently irreconcilable issue with the adjudication of Article VI that perpetuates nuclear deterrence.

The ICJ’s findings in relation to the obligations under Article VI

Article VI NPT, reads as follows,

“[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

When interpreting this Article, the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons concludes “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” Due to this finding the Marshall Islands claimed there is an obligation in customary international law on the cessation of the nuclear arms race at an early date that is rooted in Article VI.

The issue here is whether Article VI constitutes a pactum de contrahendo or pactum de negotiando with the latter not requiring parties to reach an agreement but instead to only negotiate in good faith. Nevertheless, in the Marshall Islands cases the ICJ confirmed the finding in the 1996 Advisory Opinion that there existing a pactum de contrahendo to bring to a conclusion negotiations leading to nuclear disarmament.

 

The quandary of multilateral negotiations under Article VI

The ICJ’s interpretation of Article VI in Legality of the Threat or Use of Nuclear Weapons has created a quandary. A quandary which could have been but was not resolved by the Marshall Islands cases. The quandary is that the pactum de contrahendo created by the ICJ in 1996 arguably cannot be successfully adjudicated without further clarification from the Court on the exact nature of Article VI. This is because of the longstanding principle from Monetary Gold that the ICJ will not pass judgment on contentious cases where the interests of third parties, states not party to the current contentious case, are engaged. Under the principle, the Court cannot take a decision which would undertake “an evaluation of the lawfulness of the conduct of another State which is not a party to the case.” In its preliminary objections in the Marshall Islands the UK relied heavily on Monetary Gold as a method of excluding the admissibility of the case on the basis that the other nuclear weapon states had not accepted the ICJ’s jurisdiction.

International lawyers know well the thorny nature of the ICJ’s jurisdiction and the possibility of all nuclear weapon states accepting jurisdiction either through recognising the compulsory jurisdiction of the Court or through the doctrine of forum prorogatum are slim. China, Russia, France, and the US have not made declarations accepting the compulsory jurisdiction of the Court and declined to accept the ICJ’s jurisdiction for the proceedings instituted by the Marshall Islands in 2014.

Following the logic of Monetary Gold the Court could then not have made an order in the Marshall Islands cases requiring India, Pakistan and the UK to conclude negotiations to disarm as there would be no practical way for nuclear weapon states to unilaterally achieve this goal. The UK described the Marshall Islands’ claim as in fact not based on the relationship between the UK and Marshall Islands but instead a claim concerning the UK and its relationship with the other nuclear weapon states. The UK therefore set out its own practical limitations and suggested the Court would need to narrow any order made to fit squarely in the limitations of the UK’s unilateral capabilities. 

 

The consideration of Monetary Gold by the ICJ in the Marshall Islands

This issue was discussed by Judge Peter Tomka in his separate opinion in the Marshall Islands case.  Tomka recognises the reality that where nuclear weapons are concerned a state will not disarm unilaterally and place itself at risk. Tomka was therefore “convinced that the Court cannot meaningfully engage in a consideration of the United Kingdom’s conduct when other States – whose conduct would necessarily also be at issue – are not present before the Court to explain their positions and actions.” 

Judge James Crawford concluded in his dissenting opinion that the Court could determine a third state has breached an obligation but of course there would be no way of enforcing such a decision where the third state has not accepted jurisdiction. Crawford also suggested the scope and application of Article VI would need to be addressed in further detail to determine in the merits to see if such a decision could be taken against a third state.  Judges Xue Hanqin and Dalveer Bhandari also agreed with the respondents that the Monetary Gold principle applies to the case and should have been directly addressed by the Court at the preliminary stage.  In particular, Judge Bhandari explained,

“[t]he other countries, who possess the other more than 97 per cent of the nuclear weapons in the world, are not before the Court and consequently the Court is precluded from exercising its jurisdiction in this matter with respect to those States (the States possessing 97 per cent of the nuclear weapons). Therefore, it is indispensable to have the participation of the other countries who possess such a large quantity of the world’s nuclear weapons.”

For Judge Bhandari the UK’s objections under Monetary Gold were substantial, but the ICJ has potentially missed its opportunity to adjudicate the issue.

The Court has created a situation where nuclear proliferation may persist in perpetuity. Applicants wishing to find state responsibility for nuclear weapon states failing to comply with Article VI are at a double loss. First, if the ICJ persists with its finding that Article VI constitutes a pactum de contrahendo then any future case would likely focus heavily on the Monetary Gold principle. The fact one state cannot conclude negotiations unilaterally means a strong argument can be made that the respondent has not acted in bad faith due to the failures of all nuclear weapon states. Second, if Article VI is found to constitute a pactum de negotiando an applicant would fail in a claim that asserts Article VI requires the conclusion of an agreement to disarm. Instead, the applicant would need to prove the respondent had acted in bad faith during negotiations, a difficult feat given the indeterminacy of good faith as a concept in international law.

What is most confusing about the ICJ’s stance on Article VI is that it is simply illogical to conclude the Article implies an end result but then for multiple judges to speculate the Court would be unable to adjudicate such a multilateral obligation without all nuclear weapons states present. In relation to the disputes between the Marshall Islands and the nuclear weapon states, Alberto Alvarez-Jimenez makes clear the Court “took no measure to prevent this situation from becoming permanent.”

More generally, multiple additional opinions from the judges that speculate on these issues can be enlightening for academics but problematic for dispute settlement. Hemi Mistry has expounded the issue of ICJ judges giving numerous additional opinions discussing how judicial disagreement over the applicable law can lead to lessened legitimacy of the Court’s output and consequently many questions will continue to be asked about Article VI.  The differing views of the individual judges does not lend well to any suggestion that Article VI is a settled area of international law and it is a difficult to see how any future cases concerning the Article can proceed to the merits.

With such a contentious issue such as nuclear proliferation it is unwise for the Court to disagree in multiple additional opinions and then pass the buck to be pursued multilaterally among the different nuclear states.  Nevertheless, the obligation, whether it’s a pactum de negotiando or contrahendo, and the role of Monetary Gold, are legal questions that require further consideration from the ICJ.  If the Court shies away from the issue of nuclear proliferation under the NPT states may simply further stall negotiations as proliferation is only a peripheral issue for some. The difficulty over Article VI is not the complete fault of the Court and partial blame could be attributed to the language of the NPT, but a resolution to adjudicating Article VI may be needed in the future and it will need to come from the ICJ.

 

Conclusion

The conundrum of how to adjudicate Article VI will persist for a number of years to come, particularly given how nuclear proliferation is a sensitive issue for various populations and the refusal of the nuclear weapon states to sign the Treaty on the prohibition of nuclear weapons. In his dissenting opinion in the Marshall Islands, Judge Antônio Augusto Cançado Trindade argued the Court “should have given its contribution to a matter which is a major concern of the vulnerable international community, and indeed of humankind as a whole.”  Trindade’s suggestion may impassion many but as this post has highlighted the Court would have faced a number of difficult questions if the Marshall Islands cases had proceeded to the merits. But these are difficult questions which will need answers. Holding only some of the world’s nuclear powers responsible for failing to conclude negotiations would have produced similar negative critiques of the Court as we have seen arising from the Court’s finding that there was no dispute. As it stands, the requirement imposed by the ICJ to conclude negotiations is a hurdle it has sought to avoid addressing.

Published on 15 June 2021

The twenty-first century has witnessed many global and humanitarian crises such as armed conflict (international and non-international), climate change, and economic instability. These crises have resulted in the displacement of the civilian population and the mass displacement of refugees.

Most of these civilian populations and refugees have become stateless due to being on the move from their country of nationality or habitual residence. For instance, the NATO (North American Treaty Organisation) invasion of Afghanistan in 2001 following the 9/11 attack on the United States and the resulting mass displacement of Afghan refugees, the Iraq war and flow of Iraqi refugees, the conflict in Syria and Yemen resulting in the displacement of Syrian and Yemeni nationals, the mass displacement of Rohingya Muslims from the Rakhine State of Myanmar, and the threat of climate change to coastal and island states such as those in the Caribbean. In each of these cases, the victims were not deprived of their citizenship in law (de jure) but in fact (de facto). In other words, the victims of a global or humanitarian crisis become de facto stateless, despite holding the nationality of a state in law. 

The international legal framework offers protection to stateless persons. However, the extent of these protections is found to be inadequate when mass deprivation of citizenship results in statelessness of persons on a large scale. When people are on the move for a better life due to being heavily affected by global and humanitarian crises, they do not lose their citizenship de jure but at the same time, they do not enjoy their most valuable rights, which are available to citizens of a state.

For instance, de facto stateless persons do not get the same level of legal protection as refugees get despite holding citizenship of a state. They are often deprived of their right to an identity, education, the highest attainable standard of health, family life, and an adequate standard of living. This is due to not only denial of their status as refugees but also de facto statelessness. This is because citizens of a state who are on the move to avoid persecution are recognized as refugees under the 1951 Convention relating to the Status of Refugees but the same does not apply to those who are on the move due to the effect of climate change or economic instability. Moreover, the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness do not apply to them due to the holding de jure nationality of a state.

The main current challenge posed on international statelessness and refugee law is their ineffectiveness to protect the rights of stateless persons who are subject to de facto statelessness on a large scale. For instance, those Syrian nationals who have left Syria following the destruction of their homes and identity documents are not stateless de jure, but they can no longer prove their nationality. Therefore, they are de facto stateless persons. Such de facto statelessness exposed these individuals more vulnerable to harm, detention, and lack of resources, and may even prevent them from seeking refuge outside Syria because of lack of documentation or states’ unwillingness to allow stateless persons to enter their territory (e.g., Palestinian refugees from Syria refused entry into Jordan).

These challenges remain today when we are commemorating the 70th Anniversary of the 1951 Refugee Convention on the 20 June 2021 and celebrating World Refugee Day. 

To date, these deprivations have been examined by academics and practitioners on the phenomenon of deprivation of citizenship of individuals on a small scale on national security grounds. Despite a renewed impetus over the past two decades in the international community’s focus on deprivation of citizenship, attention to the phenomenon of mass deprivation of citizenship resulting from global and humanitarian crises such as armed conflict (international and non-international), climate change, and economic instability is still inadequate. Hence, there is a lot of work that needs to be done to protect the basic human rights of refugees and reduce mass statelessness in the Twenty-first Century. 

Civil and Criminal Law - Harassment and Violence in Domestic Cases

Published on 19 April 2021

Gender-Based Violence: It’s All over the Place, and In Plain Sight

He targeted her, followed her, snapped her, she’s gone. She is not the first, and she won’t be the last one”, said a friend of mine (a reluctant feminist) rather cynically a couple of weeks ago during a Skype call where we were discussing about the kidnapping and murder of Sarah Everard. And then she urged me to write something about the case, the outcry, the vigils, the protests and ensuing chaos, the wider socio-cultural implications, violence against women and deep-rooted patriarchal values, attitudes and endemic misogyny often underpinning such crimes or as she stressed to me in an urgent tone ‘you should write something about the ‘gynophobia’ pandemic’.

Yet what can I write or say that the figures, cases, news and facts do not already reveal about the pervasiveness of violence against women? According to data deriving from 41 police forces in England and Wales (bearing in mind limitations such as ‘dark figure’ of crime, recording inconsistencies, help-seeking barriers and victims’ reluctance to report to the police) in the year to March 2020, the numbers for victims of sexual offences are quite stark: 84% female, 16% male. Moreover, the World Health Organization (WHO) consistently affirms that women are introduced early into intimate partner violence with 1 in 4 young women (aged 15-24 years) who have been in a relationship reporting that they have already experienced violence by an intimate partner by the time they reach their mid-twenties. And this goes on: in January 2021 the End Violence Against Women Coalition (EVAW) highlighted the widespread rise of domestic abuse cases and killings/femicides during the Covid-19 pandemic globally. In the same line, I was disappointed but not particularly surprised to see the Office for National Statistics (ONS) reporting a sharp rise in stalking/harassment cases from 23,543 in the year to September 2019 to 64,265 in the year to September 2020 with separate figures from the annual Crime Survey for England and Wales demonstrating the gendered nature of the crime where women aged 16 to 59 said they had been stalked at least once compared to 2.7% of men. And then again we bitterly repeat every year for a decade now that one woman is killed by a man every three days in the UK, most often by a current of former intimate partner.

But even if we put the stats and figures aside for a moment, everyday coverage of cases in the news keep reflecting the same realities and reiterating same (uncomfortable) truths. Look for example at the case of Ruth Williams who was strangled by her husband, Antony Williams, five days into the first lockdown during Covid-19 pandemic at their home in Cwmbran (Wales, UK) (it is worth noting that Antony Williams received a 5-years’ sentence for manslaughter by diminished responsibility, a decision that is currently under review). At the same time, a series of rape, sexual misconduct and sexual harassment cases have been emerging nationally and internationally in an almost cataclysmic pace: the awakening of #MeToo social movement in Greece with a plethora of victims/survivors (female and male) coming forward to talk about and report their experiences of being raped, verbally/physically abused and sexual harassed in theatre and sports. The relentless rates of women’s killings and femicides (and ensuing impunity) taking place in the often overlooked parts of the Southern world such as Mexico, Chile, Argentina, Colombia and Brazil. The Australian PM Scott Morrison’s sexual abuse scandal revealing the extent of toxic, gendered (male-centred) politics and offering an interesting yet familiar insight into the labyrinthine intersections between utter disrespect towards women, power, control, sexism, inequalities, status quo, and corruption. And more recently the ‘Everyone is Invited’ forum and movement in the UK exposing rape culture in schools and reminding us the gendered uncertainties, agonies and issues children and young people deal with, and the endemic sexual abuse and abuse of power that has been going on for decades in schools and higher education institutions in the UK, drawing strong parallels to similar phenomena in other countries such as USA, France, Canada.

Hence Sarah Everard’s case (as well as the cases of Mary Griffiths, Hollie Gazzard, Tania Moore, Rania Faruqui, Suzy Lamplugh, Shana Grice, and Claire Bernal) has been yet another devastating reminder of what is going on years now. We should condemn and we should definitely be angry but we should not be so much shocked; we are after all somehow ‘accustomed’ to this kind of horror and ‘knowledgeable’ by now readers, bystanders and/or observers. Instead it may be wiser we (society, citizens, academics, psychologists, criminal justice system professionals) to take a step back and adopt a sober, critical stance, reflecting on: “how do we stop this pandemic?”

 

Domestic Abuse Bill 2020: A promising step forward or just another paper from the (archaic, androcentric and racialized) legal apparatus?

The Domestic Abuse Bill 2020 has re-entered public, academic and judicial discourse on Thursday 15th April 2021 as it returned to the House of Lords for the decision on the acceptance and inclusion of a number of amendments. The Bill has been generally regarded as a very positive (some even have described it as a landmark and ground-breaking) development and a step forward in the terms of consolidating VAW governmental pledges and policies, strengthening protection and enabling a more coordinated, holistic and effective approach towards the elimination of violence against women and girls. Indeed, one can confer that the Domestic Abuse Bill has been for a long time awaited and there are some pivotal importance components in it. For instance, it provides a full statutory definition of domestic violence recognising and encompassing other (non-physical) forms of abuse (coercive and controlling behaviours, financial, verbal, and emotional abuse), it introduces a new offence of non-fatal strangulation, it widens the ‘revenge porn’ offence to cover threats to share intimate images, and it removes the ‘rough sex’ defence.

But there is always the question pending: how far the new Bill can and will go? There are obvious issues and limitations such as the rejection by the government of important provisions such Amendment 42 that would have allowed the creation of a national register of stalking perpetrators and serial abusers, Amendment 70 that would have provided support and protection to migrant, often marginalised women, amendments about disabled survivors community-based services and the provision of specialised domestic abuse training to family court judges and magistrates.

Let me be clear here: the Bill seems an excellent opportunity and a very promising step towards tackling widespread violence against women and different forms of abuse and it should not be rejected earlier on and altogether. As I have argued before in my writings, legal change in that sense is welcome for it can send a strong (symbolic) message to society on what is ‘acceptable’ and ‘harmful’ or else what is criminal and/or deviant behaviour. Nevertheless, it cannot be considered as a panacea or all-inclusive remedy to such a complex phenomenon such as gender-based violence, its different forms and long-terms harms. It can only work effectively in consistent synergy with more socio-culturally orientated and informed strategies, frameworks and responses. Legal policies and legislative tools as such can be effective and bring about some sort of social change (bearing in mind again that they spring from an antro-centric and paternalistic ethos that it is problematic on its own right) when they are located within wider socio-structural context and thereby embedded into a (public health) prevention approach that addresses and challenges stereotypical gendered assumptions and norms, sexist and misogynistic beliefs and patriarchal values that often underpin, foster and perpetuate male violence against women and girls.

 

Where Do We Go from Here? Reclaiming the Streets, Reclaiming Our Selves and Reclaiming Hope

The effectiveness and strength of the Domestic Abuse Bill 2020 remains to be seen. I always believed in the power of knowledge, education, awareness, research-informed and empirical evidence supported interventions, responses and interventions. I also believe that we (academics, feminists, women, men, society, criminal justice system professionals, advocates) should be alert and angry and employ different ways to convey this anger and disapproval via different avenues such as teaching, research, wider engagement, and activism. But at the same time I am a firm believer in that change can only come from first taking a brave and candid look at ourselves and our lives before moving on condemning society, the police, the law, or the establishment. What do we do or practice in our everyday lives that makes us consider ourselves as sound ‘moral entrepreneurs’ when discussing or debating about violence against women, misogyny, sexism, patriarchy? Who are the experts or eligible feminist voices and whose voices we don’t hear so much or choose to ignore in relation to gender-based violence? How often do we reflect on the extent to which we (or not) align with or serve interests of patriarchy (consciously or not) in order to survive or exist in the world with the less losses and wounds possible?

I promised my friend to complete this piece with something hopeful. Hope is after all what we are looking for, especially during these extraordinary and turbulent times. Hope for a safe and morally just society where women are free to walk the streets without looking over their shoulders. The following extract from a poem on strong Irish women by Eavan Boland provides an eloquent summary of what I am trying to say here:

And as we/them celebrate this freedom, it is important to remember that freedom is not an abstract, it is not a concept, and it is not an ethic only nor a precept. It can also be a hope raised, then defeated, then renewed. It can be a voice braided into the silences of other women who came before us” (https://www.ria.ie/poem).

In other words, we need to work for and earn hope every day in order to deliver a safer world to next generations of girls and women.

Published on 30 April 2021

Introduction

In the last decade or so we have seen a number of sexual violence and sexual misconduct cases in prestigious and elite Higher Education (HE) institutions coming into the public attention. Most recently a member of Oxford University’s women’s boat club has made a rape allegation against another elite athlete. According to her testimony, the rape took place in October 2020 and based on her account, she could not find relevant support and help in her attempt to avoid the alleged perpetrator. When she moved further up the university’s hierarchy expressing her dismay on available help and support, based on her account, her comments about changing toxic (sexist) culture (objectification and sexualisation of women) at sports’ clubs were seen as far-reaching and she was told that it is all down to a combination of alcohol and young people/male athletes (the usual ‘boys will be boys’ dictum) rather than an endemic cultural issue.

I believe what the complainant might have been referring to is known as ‘rape culture’, that is hostility towards women, acceptance of beliefs condoning sexual violence and widespread sexism. It is interesting how this case echoes similar cases and complaints in the academic terrain and how effectively (or not) these were handled: see, for example, the case of Dr. Peter Hutchinson at Cambridge University (Trinity Hall) who was accused by at least 10 female students for sexual harassment, and as a result he was initially banned from contacting undergraduates, then he was re-admitted, to finally be permanently excluded from the college. Or the ‘Warwick rape chat’ scandal that exposed a number of sadistic rape threats, racist and misogynistic messages exchanged between male Warwick students and led to the ‘Reclaiming Our University’ march against the way the university handled this case (two of the male students had a ten-year campus bans reduced to 12 months).

Of course, there is always the other side of the table arguing that this is a matter of being mindful of people’s reputation and careers, keeping the right balance, respecting all voices and sides of the story. This is fair and anticipated. We all want justice and fairness to prevail after all (depending though how we define justice and fairness, which is a whole other issue). However, it seems like there is some sort of chronic complacency and denial underlying institutional responses in relation to these cases. This is evident not only in the UK but also other countries. Take, for example, France with the recent elite University sexual abuse case at France’s top political science college, Sciences Po and the resultant creation of hashtag #SciencesPorcs (Science Porks) with more than 400 former and current students talking about being sexually assaulted and raped by their fellow students, which when they reported them, they were not taken seriously (as one student said, ‘it is not too chic or elegant’ to report this kind of behaviour or complain about it). Generally, speaking loudly or too much is not ‘recommended’ in these kind of cases (as opposed to keep your head down, ignore and/or accept gendered and/or racial micro-aggressions). A governmental investigation into the case demonstrated what is already known: lack of reporting mechanisms, lack of awareness, training and education on sexual and gender-based violence in colleges. Despite numerous attempts to mobilise, warn and regulate universities either through removal of public funding or specific sanctions, there is a lot and persistent resistance from universities to take and/or learn any lessons and apply adequate safeguarding measures.

Is it all about rape culture and sexism? Is it more about the wider socio-political climate of neoliberalism, marketization of education and embedded values of profit, consumerism and individualism? Is it about what we’ve all known as students and common assumptions about casual dating and ‘hooking-up culture, is it about gender norms, or it all goes back to lack of understanding and specialised sources of help and support?

“Make Her Tipsy, and She Will Show you Good Time”: Student Experience, Laddism and Elitism

It is interesting to think on the way we perceive ‘student experience’ now during Covid-19 pandemic times and before Covid-19. Has anything significantly changed? The key principle I believe remains the same here: to ensure and enhance student satisfaction, foster connections, promote the element of community, offer students up-to-date, modern teaching facilities and encourage them to network and socialise. So far, so good. I am just wondering about the extent to which this encompasses values of moral engagement, collective and democratic thinking, (sexual, relational and intimate) citizenship, building up healthy and respectful relationships, acquiring and developing a clear understanding of what sexual consent means and its dynamics (consent is a complex and contested concept anyhow), promoting alternatives ways of navigating through on-campus and off-campus partnerships and connections.

Perhaps the issue here is how feasible it is to embed these values into a prevalent managerialist ethos and a well-catered and established, through the years, context of laddish attitudes, beliefs taking into account as well the ‘prestigious’ universities highly elitist culture and managerialism further facilitating and/or turning a blind eye to what would otherwise be seen as unacceptable, harmful and/or criminal behaviour. It is to say the least difficult to consider building up a close-knit community between student, staff, academia and beyond when there are unresolved issues of trust, unsaid truths and layers of reluctant ignorance, silence and/or cover-up.

But it’s indeed naïve to think that any such phenomena begin or end in Higher Education institutions, colleges and universities. Sexism and sexual inappropriate conduct seem to be prevalent in secondary education and classrooms as well (see, for example, ‘Everyone is Invited’ forum). I am not sure about the reach, remit and effectiveness of sex education in remedying all the issues above. It is a good start though, as long as this kind of education is carefully thought and designed to represent all voices and issues; in other words, as long it is diverse, pragmatic and holistic, exactly as student experience should be seen.

Do not test the waters, clean them and start making utopian thinking waves: Safer Spaces, and Prevention

A friend who is working in another HE institution in the UK recently said to me: “It’s not that bad and even if it happens, what we can do? Nothing really. We have no power”.

Transforming educational spaces (universities and campuses) is a big and challenging task, especially now, and the academy is far from paradise. Power and control dynamics govern this realm as with other areas in society and life. Yet there is transformative potential. First it is imperative to think in terms of accountability: universities and educational settings are responsible for young people’s well-being. And then it’s about commitment: there is a decision to be made about what counts most, achieving targets or ensuring transparency and maintaining (or restoring) integrity to the university and education ideals?

I am not a polemic of universities. Quite the opposite. I’ve had the privilege and opportunity to study, work and thrive in higher education institutions in both countries I lived, struggled, studied and breathed (UK and Greece) as a student and academic. But I’d like to think universities and campuses not as spirals of corruption or controversy but as spaces of freedom and possibility, hubs of creativity, imagination and innovation. Most importantly as spaces of safety where learning is a gift and a pleasure, where connecting and meeting minds can grow and strong friendships and/or (healthy) romantic and/or intimate relationships can develop.

Transforming cultures is one way to go. In order to change cultures, we need to challenge and change ill-informed mentalities and develop empathy. In order to develop empathy, we need to make an effort and ask: “Why should I care?”. Well, in my view education is not about producing inputs or replicating degrees, it’s about liberating minds. And this is possible only when people feel engaged, safe and confident. I am leaving this (my utopian) truth here, for you to revisit.

Published on 23 June 2021

Professionals are often governed by a code of conduct issued by their regulator. Such codes prescribe how they should behave within their professional life. But to what extent does, or indeed should, such codes govern behaviour in one’s private life? This was the issue under discussion in the recent case of Beckwith v SRA [2020] EWHC 3231. In this case, the appellant appealed a decision made by the Solicitors Disciplinary Tribunal (‘SDT’) stating that his personal behaviour and actions had affected the reputation of the solicitors’ profession.

The SDT found that the appellant, who was a partner in a well-known city law firm, had taken advantage of a vulnerable employee who was an associate solicitor and in a junior position to him. This was because he engaged in sexual activity with the employee whilst she was intoxicated. The sexual encounter took place following after-work drinks at a pub. It was not alleged that it amounted to rape and no criminal investigation had taken place. The employee’s decision-making abilities were said to be impaired because she was intoxicated and because of that, the Tribunal found that the appellant had acted ‘inappropriately’ in engaging in sexual activity with her. The appellant was held to have breached what was then Principle 2 of the SRA Code of Conduct 2011 relating to integrity (now Principle 5 of the SRA Standards and Regulation). The Tribunal also found a breach of Principle 6 (now Principle 2) relating to maintaining the trust of the public.

The issue that was raised on appeal was whether ‘misconduct’ should mean serious misconduct and whether serious misconduct should in turn be confined to professional misconduct. It was argued that other professions would not have considered the facts of the case to amount to misconduct. For example, in the case of doctors who are regulated by the General medical Council (‘GMC’), cases such as Cheatle v GMC [2009] EWHC 645 make clear that misconduct is related to behaviour which would mean that a doctor’s fitness to practise is impaired and Meadow v GMC [2006] EWCA Civ 641 reminds us that misconduct must be linked to either the practice of medicine or something that would bring the profession into disrepute. In the case of the barristers’ profession, the earlier case of Bar Standards Board v Howd [2017] EWHC 210 decided that a barrister who was alleged to have sexually harassed female colleagues and guests at a chambers party was not in breach of the principle of integrity. This was because integrity was interpreted as meaning honesty and ethical behaviour and excluded sexual behaviour. Whilst his behaviour might have damaged public trust, mitigating factors could be found due to the medical evidence that he submitted.

However, the solicitors’ profession has codes of conduct that specifically governs a professional’s behaviour ‘with others’ and it has generally been accepted that this can extend to a professional’s personal life, although it is also recognised that professionals are not expected to be ‘paragons of virtue’ (see Wingate and Evans v SRA [2018] EWCA Civ 366). ‘Trolling’ on social media has been regarded as conduct in personal life that can bring the legal profession into disrepute if the communications on social media are abusive, offensive, or discriminatory. Sexual misconduct, however, has not previously been treated in this way. The appeal decision in Beckwith v SRA changed that by recognising that 1) although inappropriate conduct will not automatically be a breach of integrity it can be if it can be tied to a particular obligation within the SRA Handbook on conduct, and 2) a power imbalance between senior and junior members of staff could breach principle 6 (damaging public trust) if the conduct of the senior member of staff was of a serious and abusive nature.

On the facts, the appellants' appeal succeeded because the court found that his actions did not amount to serious and abusive conduct or breach any obligations that could be specifically found in the Handbook. The success of the appeal, however, should not be confused with a protection of private sexual conduct from scrutiny. The appeal succeeded largely because the SDT had failed to tie their findings closely to the obligations under the SRA Handbook. As the court noted, each case must be determined on its facts and within the specific codes and legislation that govern the profession in question. Whilst not all aspects of a person’s private life will come under scrutiny, behaviour that touches on practice or standing in the profession will.

It is important to note that the SRA Handbook has now been replaced by the SRA Standards and Regulations. Current guidance suggests that sexual harassment will be considered as a breach of public trust. Abusing one’s position or taking unfair advantage of others is also covered under the new code of conduct. Where one profession leads, others will follow, and it is likely that other professions will now take a long hard look at the sexual conduct of its members. The Bar Council is currently consulting on revising its own code of conduct to take account of a less tolerant attitude to sexual misconduct, see https://www.legalfutures.co.uk/latest-news/bar-council-urges-limits-to-mitigation-sexual-misconduct-cases-involving-barristers

Professionalism, it would seem, must therefore be maintained in both work and private life.

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