Category Archives: Business and Law

Beyond Bad Apples: Bullying at the BBC

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This post was contributed by Dr Andreas Liefooghe, a Reader in the Department of Organizational Psychology.

The Respect at Work Report states that ‘uncomfortable levels’ of bullying are being reported at the BBC. Uncomfortable to whom, we might ask.  A corporation that prides itself on people being “our greatest strength” has to cope with increasing levels of criticism of the way it treats and protects its employees. Covering the period between 2005 and 2012, bullying behaviour appeared to go unchallenged by senior managers, with certain individuals “seen as being untouchable due to their perceived value to the BBC”.

BBC director general Tony Hall wants “zero tolerance of bullying”, and emphasized he wants to get rid of the culture of fear, and “get employees to speak out” about bullying. Following in the footsteps of many a Chairman before him, he will focus on changing behaviour from the top. Professor Stale Einarsen from the University of Bergen suggested in a recent lecture at Birkbeck that bullying had little to do with good or bad leadership – it was those leaders that do nothing and create a vacuum that really damage the culture in organizations. People are not huddling in corners in fear of a perpetrator out there, but they are de-spirited and humiliated by ever demanding working practices. For this reason, a policy to ‘get rid of bullies’ in organisations will only have a limited effect, and will not address these organisational issues. Bullying is arguably far more often the system and one’s role in it than individual personalities, stated Prof Einarsen.

It strikes me that Lord Hall is somewhat disingenuous. Employees have spoken out, they may perhaps not have been heard. Bectu (the media and entertainment union) reported as early as 2008 that the culture at the BBC was one of fear. Why was this not picked up then? The Savile Enquiry gave rise to this current report, but it seems that what is being reported goes way beyond some individual culprits and bad bosses. The 500 or so voices of these employees point to something far more akin to institutionalised bullying. If the link is made here with findings on racism, for instance in the MacPherson Report , it becomes clear that it is not just about a few bad apples that need to be removed from the organisation, but the very practices (from recruitment and reward to ‘how things are done around here’) that need to be scrutinised.

The BBC is not alone. My research since 1998 has consistently shown that to stop bullying it’s not personalities but the systems and policies that need to be tackled – many of these are designed to cut costs, not to preserve dignity nor foster respect. Within these systems, managers are put under pressure to increase staff performance, reduce overtime, and cut costs to meet their targets – how employees experience this process is not top of the organizational agenda. BBC employees, like many others elsewhere, feel their respect at work is eroded by being kept in the dark, being serially restructured, not being consulted in earnest, feeling that sauce for the ‘grafting’ goose is definitely not sauce for the ‘talented’ gander. Telling the author of the report that the above is bullying corresponds closely to Bectu’s findings, and indeed the NUJ comments on institutionalised bullying.  Yet BBC responses to the report’s findings seem designed to tackle only bullying of the inter- and intra-personal kind.

Part of coping with bullying is challenging the organisational systems that in an ever increasing, unrelenting fashion erode the self-esteem and self-efficacy of an entire workforce – as evidenced by this recent report. What can be done to stop this organisational bullying and change a culture of fear? Arguably, the answer would be to question all organizational policies that are in place, and evaluate these in terms of their appropriateness with a dignified working life, balancing values with costs. So not just re-writing your bullying policy as suggested, BBC, if you really want to tackle these issues.

Dr Andreas Liefooghe has recently completed an ESRC Seminar Series on bullying at work called Vulnerable Selves, Discipling Others, footage available on line. He is currently analysing data from the first pan-ASEAN research study into bullying at work.

The Gender Agenda in the Business Agenda: of Women’s Empowerment Principles Events and gender equality in marketing

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This post was contributed by Dr Wendy Hein, a lecturer in Birkbeck’s Department of Management.

How to increase women’s leadership positions and empowerment was central to the recent UN Global Compact Women’s Empowerment Principles (WEP) Event which I attended earlier this month. These principles are an initiative, mainly adopted by private sector organisations, to work towards equality based on seven fundamental guidelines. The conference brought a range of leading companies, policy-makers, non-profit organisations and business educators together. The WEP’s main message for equality is that it ‘means business’. Equality is, in fact, seen to drive growth and potential within organisations. There is a resulting importance in retaining talent and maintaining women within the value creation process, to enable them to reach ‘the top’. This certainly touches on some important issues of contemporary work life. In this particular event, the need to mobilise men to participate in the necessary changes was also heard loud and clear. If we are looking to change existing gender dynamics and structures, we should incorporate those who are occupying ‘top spots’, who tend to be men.

Measuring talent, value and work

Yet, more fundamental challenges of how we measure talent, what we perceive as ‘value’, what constitutes ‘work’, or of the cultures that some companies are built on remained implicit. The language in the above paragraph already reflects a culture of organisations that exist from the ‘top’; that are competitive and fast-paced. Rather than seeking to integrate women into organisations that often represent masculine values, and asking them to embrace these, is there not more that women can and should do? Also, when it comes to women’s working lives, all too often it is not just about ‘business’, but also about the ‘personal’. Men’s private lives can certainly play a role at work, but particularly when it comes to maternity and motherhood, women’s families and their commitment to a home life often enter the work arena. Considering the blurring of these lives, and a call for companies to support women and men at work, shouldn’t there also be further support of home life in a similarly equal way? Shouldn’t a mother, father or partner be as valued as the worker? Then we also come to think of those who do not have a job, either in any of these great companies, or those who do not work – what kind of support can they hope for? And if you were thinking of organisations in the UK, change the context into emerging and developing countries – what support do women and men have there for receiving an education, getting work and managing a ‘home’? It just shows how our society can be perceived to value and privilege those who are in ‘producing’ positions – but is being a mother or father not some type of ‘job’ or ‘production’?

The intersection of work culture and private lives

From my own perspective as a marketing and consumer researcher, I find the issues of work cultures and organisations meeting private lives all the more interesting. As we become involved in programmes and projects through our roles as business researchers and educators, we recognise that marketing is one area where the public blurs with the private, business with the personal, and production with consumption. Think about it: the marketing industry has its own cultures – whether we are looking at marketing departments within certain companies, marketing entrepreneurs or advertising agency culture. Marketing ‘produces’, and in very gendered ways. This becomes even clearer through initiatives such as those by Kat Gordon that seek to create a contrast to the well-documented male ‘locker room’ ad agency cultures. Kat is founder of the “3% Conference” (3% being the number of female creative directors in advertising agencies) and founder of the marketing agency ‘Maternal Instinct’, which specialises in marketing for mothers, by women. She has built her reputation on understanding female consumers (who some would argue form the majority of consumers), based on her experience that marketing for these consumers is often produced by men.

Marketing as an educational tool

Now, think about this: most ads that tell women how to be beautiful (‘you’re worth it’), successful, slim, attractive, or taking care of family, house and home, are made by men. On the other hand, these men also tell other men how to shave, how to ‘fool the missus’ into believing they are vacuuming the house (when really they are in the pub), and how a regular teenager can be chased by a herd of super-model women. Of course, I am exaggerating and these are not all the images that advertising and popular culture produces… but, there are quite a few of them. Considering the number of ads and messages that we are exposed to on a daily basis marketing is placed in quite a powerful position to educate mass audiences on gender. This then is another characteristic of marketing – it does not just address the workers of one company or organisation, but can spread much wider. Wouldn’t you think that gender equality plays a more central role here? Then again, what does gender equality mean in marketing?

We started this excursion from the marketing producer side, but clearly marketing also plays a role on the consumer side. Women and men struggle on a daily basis to live their lives through and around stereotypes often perpetuated by marketing discourse, popular culture, and social structures influenced by these. Marketing pervades our public and private lives. It tells us how to be good/bad mothers, good/bad partners, good/bad men and women, often through a creation of norms based on inclusion and exclusion. Doesn’t this clash with our understanding of equality?

Gender in management education

It is surprising to see then how some companies have focused their efforts on creating gender equality as part of internal structures or policies, when our surroundings and homes are often filled with images, discourses and practices that are frequently far from equal. What’s more, if we understand the centrality of gender in business and management (as advocated by UN principles), it is also surprising to see how often gender is (not) taught as part of management education. This however, we can change.

As part of a group of academics from across the globe who cover different business and management disciplines, I am involved in collating material, research, experiences and perspectives on gender education, in my case within the marketing discipline. To view the growing repository of teaching material that members of the PRME working group on gender equality have put together, please visit this site. This work is open to ideas, support and external contributions, so please feel free to share stories, practices (both from marketing producers and educators) or resources.

We hope this initiative leads to a re-thinking of business and management schools, and to placing gender in a more central place across all of its  these disciplines. We also hope to inspire both women and men to challenge existing structures they may encounter in their work AND home lives, and to create new images, discourses and practices that can be gender aware.

Let’s not let this gender agenda fade, for the sake of both women and men, home and work lives, in emerging and developed countries. Whether it’s business or personal, men’s or women’s day, this is too important for all of us to ignore.

YouTube justice UK style

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This post was contributed by Professor Leslie Moran, of Birkbeck’s School of Law and Barbara Villez, Visiting Fellow at Birkbeck Institute for the Humanities, Professor Université Paris 8

The UK Supreme Court has launched a new communications initiative.  As of late January 2013 you can watch, on demand, videos of judges in the highest court in the land delivering summaries of their judgments. Who is the audience for these five minute programmes? Is it the hard pressed smart phone/iPad generation law student, lawyer or legal advisor? No; far from it.  The Court’s press release announcing the launch of the YouTube initiative suggests the target audience is much wider. Lord Neuberger, President of the Supreme Court, is quoted expressing his hope that the videos will broaden the audience for the Court’s work. Are they the next hot internet viral sensation educating the public about the work of the highest court in the land? The short answer is ‘no way’. Are these videos a ‘must watch’ offering valuable insights into the decisions of the court? We have our doubts about that too. But they do make fascinating viewing.

The visual challenge of judicial activity

Judicial activity has been described as ‘visually challenging’. These videos do much to confirm this and do little to meet that challenge. Five minutes watching someone with their head down reading out loud from a set of papers is not great telly by any stretch of the imagination. The way the images are put together adds to this static quality, with each video being made up of two basic types of shot. Throughout, the camera’s presence is unacknowledged by the speaking figure.

There is little in the way of props or costume to attract the eye. Judges in the UK Supreme Court don’t wear special robes in court. These judges look very much like ordinary business men. There is only one female judge, Lady Hale. In contrast to this there is much to distract the ear. The microphones, built into the judicial bench, not only pick up the voice of the judge but also the endless rustle of their papers.  Coughing and other background noises regularly punctuate the proceedings. All tend to obscure the words spoken by the judge.

Adaptation from written texts

What are you going to get out of watching the highest judges in the land reading out loud? The judges, so they tell us in the videos, are ‘giving the judgement of the Court’.  But law students and other diligent viewers beware; ‘giving the judgement of the Court’ is not the actual opinion of the court. What you actually get is an image of a judge delivering a speech adapted from a press summary published on the Court’s website to accompany the judgement itself. Written initially by the judicial assistants, the judges approve these summaries and then adapt them for the ‘live’ presentation in Court. The judgment is a written text. And it is written to be read, not spoken. It is available on the Court’s website, as is the accompanying press summary.

As the videos show, the adaptation of the press summaries into scripts for a courtroom performance is problematic. Despite the rearrangements, these scripts are not easy to speak. Judges stumble over the dense text and struggle to incorporate quotations from the trial judge into oral delivery.

The videos do, however, have much to offer. You not only hear the voice of the judge but also the accent which is a marker of their social class. The folding and refolding hands of a courtroom assistant on screen behind the talking head of the judge add an unexpected physical ‘commentary’.

Television trivia?

But are many of these points indicative of the dangers of putting courts and judges on TV? Are we in danger of getting caught up in what some describe as the trivia of the moving image? Our first response is that image making and image management are central to judicial authority. As the 2008 Judicial Studies Board, Framework of Judicial Abilities and Qualities reiterates time and time again, all the core judicial abilities and skills have to be ‘demonstrated’ and communication is central to this demonstration of authority. The courtroom is one long established context in which these abilities and skills have been performed and communicated. Props, wardrobe, voice and the body all have a role to play in demonstrating and communicating judicial abilities and qualities. Video is a new communication format, context and set of challenges. It has characteristics similar to and different from both face to face courtroom encounters and the more formal and enduring qualities of the text of a written judgment.

The current YouTube videos are a return to primitive television. They are simply the result of the presence of the camera in the court. The camera appears to be no more than a tool that records an event. However as the simple editing shows, the record is subject to a degree of manipulation. The resulting image is not just mediated by the technology but has been subject to judicial control. If essential information about the judgement, the press summary and the full judgement are already available what extra is provided by these judicially approved moving images? It may well be just that there is a camera in court and that camera is a symbol of openness, transparency and a form of accountability.

But is that going to satisfy a public that lives in a culture saturated with sophisticated video imagery.  One problem with them may well be that the public is too sophisticated for primitive television. Viewers have expectations acquired from countless hours of watching complex moving images, generating high levels of visual literacy. The primitive visual aesthetics of the UK Supreme court’s YouTube videos are likely to be a real turn off. If the judges of the UK Supreme Court are going to use video available via the Internet as a means of communicating, then they may have to think harder about the moving image that it is being made and adopt a different approach to the use of the moving image as a means of communication.

Hugo Chávez kept his promise to the people of Venezuela

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This post was contributed by Dr Oscar Guardiola-Rivera, Senior Lecturer in Birkbeck’s School of Law. The post was originally published on the Guardian’s Comment is Free section.

He wrote, he read, and mostly he spoke. Hugo Chávez, whose death has been announced, was devoted to the word. He spoke publicly an average of 40 hours per week. As president, he didn’t hold regular cabinet meetings; he’d bring the many to a weekly meeting, broadcast live on radio and television. Aló, Presidente, the programme in which policies were outlined and discussed, had no time limits, no script and no teleprompter. One session included an open discussion of healthcare in the slums of Caracas, rap, a self-critical examination of Venezuelans being accustomed to the politics of oil money and expecting the president to be a magician, a friendly exchange with a delegation from Nicaragua and a less friendly one with a foreign journalist.

Nicaragua is one of Venezuela’s allies in Alba, the organisation constituted at Chávez’s initiative to counter neoliberalism in the region, alongside Cuba, Ecuador and Bolivia. It has now acquired a life of its own having invited a number of Caribbean countries and Mexico to join, with Vietnam as an observer. It will be a most enduring legacy, a concrete embodiment of Chávez’s words and historical vision. The Bolívarian revolution has been crucial to the wider philosophy shared and applied by many Latin American governments. Its aim is to overcome global problems through local and regional interventions by engaging with democracy and the state in order to transform the relation between these and the people, rather than withdrawing from the state or trying to destroy it.

Because of this shared view Brazilians, Uruguayans and Argentinians perceived Chávez as an ally, not an anomaly, and supported the inclusion of Venezuela in their Mercosur alliance. Chávez’s Social Missions, providing healthcare and literacy to formerly excluded people while changing their life and political outlook, have proven the extent of such a transformative view. It could be compared to the levelling spirit of a kind of new New Deal combined with a model of social change based on popular and communal organisation.

The facts speak for themselves: the percentage of households in poverty fell from 55% in 1995 to 26.4% in 2009. When Chávez was sworn into office unemployment was 15%, in June 2009 it was 7.8%. Compare that to current unemployment figures in Europe. In that period Chávez won 56% of the vote in 1998, 60% in 2000, survived a coup d’état in 2002, got over 7m votes in 2006 and secured 54.4% of the vote last October. He was a rare thing, almost incomprehensible to those in the US and Europe who continue to see the world through the Manichean prism of the cold war: an avowed Marxist who was also an avowed democrat. To those who think the expression of the masses should have limited or no place in the serious business of politics all the talking and goings on in Chávez’s meetings were anathema, proof that he was both fake and a populist. But to the people who tuned in and participated en masse, it was politics and true democracy not only for the sophisticated, the propertied or the lettered.

All this talking and direct contact meant the constant reaffirmation of a promise between Chávez and the people of Venezuela. Chávez had discovered himself not by looking within, but by looking outside into the shameful conditions of Latin Americans and their past. He discovered himself in the promise of liberation made by Bolívar. “On August 1805,” wrote Chávez, Bolívar “climbed the Monte Sacro near Rome and made a solemn oath.” Like Bolívar, Chávez swore to break the chains binding Latin Americans to the will of the mighty. Within his lifetime, the ties of dependency and indirect empire have loosened. From the river Plate to the mouths of the Orinoco river, Latin America is no longer somebody else’s backyard. That project of liberation has involved thousands of men and women pitched into one dramatic battle after another, like the coup d’état in 2002 or the confrontation with the US-proposed Free Trade Zone of the Americas. These were won, others were lost.

The project remains incomplete. It may be eternal and thus the struggle will continue after Chávez is gone. But whatever the future may hold, the peoples of the Americas will fight to salvage the present in which they have regained a voice. In Venezuela, they put Chávez back into the presidency after the coup. This was the key event in Chávez’s political life, not the military rebellion or the first electoral victory. Something changed within him at that point: his discipline became ironclad, his patience invincible and his politics clearer. For all the attention paid to the relation between Chávez and Castro, the lesser known fact is that Chávez’s political education owes more to another Marxist president who was also an avowed democrat: Chile’s Salvador Allende. “Like Allende, we’re pacifists and democrats,” he once said. “Unlike Allende, we’re armed.”

The lesson drawn by Chávez from the defeat of Allende in 1973 is crucial. Some, like the far right and the state-linked paramilitary of Colombia would love to see Chavismo implode, and wouldn’t hesitate to sow chaos across borders. The support of the army and the masses of Venezuela will decide the fate of the Bolívarian revolution, and the solidarity of powerful and sympathetic neighbours like Brazil. Nobody wants instability now that Latin America is finally standing up for itself. In his final days Chávez emphasised the need to build communal power and promoted some of his former critics associated with the journal Comuna. The revolution will not be rolled back. Unlike his admired Bolívar, Chávez did not plough the seas.

Dr Guardiola-Rivera is the author of What if Latin America ruled the world? How the South will take the North into the 22nd century, published by Bloomsbury.

Let’s join the fashion club; or how ‘Rihanna’s horror show’ may represent retail avant-garde

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This post was contributed by Dr Wendy Hein, a lecturer in the Department of Management.

We are still recovering from the glitz and glamour of London Fashion Week (LFW). Arguably, fashion is becoming the ‘big consumer sport of today’ – a participatory sport allowing us to virtually and materially reinvent ourselves. However, it is still an elite space – only those in the front row or the red carpet can legitimately claim their rightful place. There are a select few who seem to be in ‘the know’, while others are desperately trying to join this ‘club’.

New technologies ‘democratising’ fashion

The importance of fashion enthusiasts has not gone unnoticed in the haute couture circuit, and its doors are ajar to participation from outsiders. We could view this as a ‘democratising’ trend. Thanks to new technologies, we can now experience live shows streamed over the internet; we can select our favourite pieces and create an expressive collage of our ideal ‘me’ on Pinterest/Instagram/Tumblr, and can share it with others on Facebook, Twitter, and the many forms of digital exchange. Understanding the importance of these experiences and the size of the growing fashion industry helps us understand its gravity in today’s society. The good news may be that the trickle down from runway to reality is faster. Yet, the divide between the real insiders and outsiders persists. The magic of the front row may not be the same if it wasn’t for its exclusivity. On the other hand, ‘insiders’ would never be recognised for their competence and taste if it was not for fashion’s many fans.

Fashion collaborations

All of this takes place at a time when retail is struggling. With youth unemployment continuing to hit record figures in the UK, the list of retail closures appealing to youth markets is extensive.  High street fashion has, however, recognised the desire for design from the ‘common crowd’ and numerous collaborations have paved the way towards letting some of this fame and fortune rub off:  Karl Lagerfeld, Stella McCartney, Lanvin, Versace or Marni for H&M; Valentino or Pierre Hardy for GAP; or Mary Katrantzou for Topshop.  The power of celebrity and popular culture has equally been tried and tested by retailers; think Topshop and Kate Moss, New Look and Kelly Brook, or H&M and David Beckham. Rather than a claim to design, these celebrities use their star power to lure customers into the shops.  While some retailers have made inroads to high fashion through collaborations, others have gained their own legitimate place in fashion show lineups. TheUS retailer JCrew has earned its place as a stable contributor toNew York fashion week, and the Olsen twins, as well as our very own Victoria Beckham in theUK have claimed their places amongst the fashion glitterati.

Rihanna and River Island

At London Fashion Week AW2013 we see similar scenarios and even a new mix of the above tried and tested formulae. One of the big surprises came with Rihanna presenting her new designs in collaboration with the UK retailer River Island. Her show certainly received marked attention, but not always positive. Of course, this may have been due to the ‘brand’ that Rihanna seeks to represent – rebellious, untamed and youthful (on a good day) –but may have also been linked to reactions of the high fashion club. The Daily Beast labelled it a ‘horror show’ and a ‘tiresome, underwhelming and uninspired marketing exercise’.  We may go along with the mantra that even bad press is good press, but despite these controversies, the deliberate nature of connecting Rihanna’s developing brand and River Island with the runway certainly found its critics. Serious fashion enthusiasts were quick to comment that this show was, once again, not part of the official LFW lineup. I was fortunate to be asked about my views in an interview prior to the show  and I clearly saw a potential mismatch between high fashion,RiverIsland and Rihanna. The homogeneity of audiences and their expectations may not have worked to their advantage. While there may certainly be promise in connecting the high street with haute couture, and pop star kudos with clothes, bringing all three together without extensive previous record may or may not have paid off. Rihanna and Versace – yes; Rihanna andRiverIsland – yes; but could there be a missing link between Rihanna,RiverIsland and LFW?

Marketing milestone or misplaced experiment?

Whether this experiment goes down as the new ‘retail avant-garde’ that will be adapted by others (possibly more experienced), or whether it will be remembered as a marketing experiment, is questionable. What is clear is that fashion continues to seek its share of the desire and exclusivity produced by art & design, but success may increasingly depend on how this is managed. Whether it was achieved in this instance is now up to consumers to decide.RiverIslandlargely depend on the technologies that have facilitated ‘fashion as a new consumer sport’, and the success of its campaign could highlight to what extent these are embraced by the broader (youth) public. It may also be interesting to observe the potential strategies of the fashion elite in creating a division between insiders and outsiders. As argued above, without this distinction, the exclusivity that outsiders crave may not exist.

Lastly, success may also depend on the price of this exclusivity. Rihanna’s line will hit the shops today (5 March 2013) but as I write this piece, prices are rumoured, but not confirmed byRiverIsland. With a youth struggling to find work, yet a retailer looking for fame in high fashion, I for one can’t wait to find out how this pans out.

Would you camp outsideRiverIsland’s store to get your share of Rihanna’s River Island designs?

Australia is playing a dangerous game with Sri Lanka

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This post was written by Dr Stewart Motha, a Reader in the School of Law. It originally appeared on the Guardian’s Comment is Free on 21 February 2013.

It’s election year in Australia, and that means open season on boat migrants. Last year, 17,000 people arrived by boat, with a massive surge of 6,500 from Sri Lanka. These numbers have an alarming impact on Australia’s human rights record as the government puts in place draconian domestic measures to deal with the increase, and plays a foolhardy game of building military and security links with Sri Lanka to stem the flow.

Harsh measures for dealing with people arriving by boat are nothing new in Australia. The Howard government set the tone in 2001 by mobilising special forces to seize the Norwegian freighter MV Tampa after it rescued more than 400 refugees from a sinking vessel and brought them into Australian waters. The “Pacific solution” was then introduced, whereby outer islands were excised from the Australian territory for the purpose of migration and judicial review. Refugee claimants arriving by boat at excised territories were mandatorily detained and transported to harsh offshore camps administered by Australia in countries such as Nauru – a practice stopped in 2008, but reactivated last August.

The Australian government is now constructing permanent facilities in Nauru to detain boat migrants, and also runs a detention camp in Manus Island, Papua New Guinea. The PNG opposition were in court last week, challenging the legality of the Manus Island detention centre.

The migration amendment (unauthorised maritime arrivals) bill 2012 now seeks to implement the Pacific solution throughout Australia. What was an exception is to become the norm. A new category of “unauthorised maritime arrivals” will discriminate against people on the basis of the mode of their journey to Australia. If you arrive by boat, you face mandatory detention in a harsh and remote place. Travel by plane and you will be able to apply for a protection visa on arrival. Given most maritime arrivals are from Afghanistan, Iran, Iraq and Sri Lanka, the legal regime effectively implements a de facto form of apartheid based on country of origin (and here, let us note that article 3 of the 1951 refugee convention obliges Australia to fulfil its protection obligations without discriminating on the basis of “race, religion, or country of origin”). As such, the migration amendment bill seeks to implement a staggering legal artifice for a nation that claims to walk tall among the civilised.

The Australian government has also introduced the dangerous practice of forced repatriations of people it claims are not refugees (last September, Human Rights Watch documented the torture of Tamil men and women repatriated to Sri Lanka by the UK Border Agency). These people are returned within 72 hours of arrival, and with “screening” taking place offshore, this happens without any provision of legal assistance for the returnees, or transparency in relation to the work of immigration officials. The risk of refoulement – the return of refugees with a right to protection to their persecutors – is increased, thus flouting the fundamental obligation under the refugee convention.

Australia’s extreme measures have been prompted by a curious surge in the number of people arriving by boat from Sri Lanka. In 2012 around 6,500 people made this arduous journey. In the previous year the number of Sri Lankan arrivals was a mere 211. Department of Immigration statistics indicate that 5,215 of the 2012 arrivals were Tamil, and 1,027 Sinhalese. In the last month, the number arriving has dramatically reduced to a trickle. What explains these fluctuations, and what is to be made of the Australian reaction to it?

Earlier this month, the Australian reported that Australia’s intelligence agencies suspected an official with a high profile close to President Mahinda Rajapaksa was “responsible for authorising numerous boats in the past 10 months, fuelling the surge of asylum seekers from Sri Lanka”. The Sri Lankan government has denied the allegations. The suggestion is that Sri Lanka can “turn on the tap” and “unleash untold asylum boats”. Australia has chosen an unreliable security and surveillance partner.

The politics of people smuggling is hardly ever only about the people being trafficked and those exploiting their desperation. Because of its hysterical attitude to those seeking asylum, Australia has potentially walked into the trap of being held hostage by any authoritarian regime that colludes in people smuggling. The currency they will demand is a blind-eye to human rights violations, favourable diplomatic attention and security partnerships.

The Australian minister for foreign affairs, Bob Carr, visited Sri Lanka in December and announced training for Sri Lankan naval officers on surveillance and intelligence gathering. The shadow minister for foreign affairs, Julie Bishop, visited Sri Lanka last month and praised its postwar reconciliation and reconstruction efforts. It’s one thing for Australia to throw the refugee convention out the window, and another to weigh in on issues such as reconciliation and militarisation in another country. If they want to do the former they should do it honestly; the latter is gratuitous, unnecessary and harmful.

As Australians look ahead to the renewal they deserve in an election year, is it not time to imagine a different, better Australia? Let’s not add another episode of “unutterable shame” to Australia’s archive of atrocity. Instead, let Australia summon up the sentiments of Henry Lawson’s iconic 1891 poem, Freedom on the Wallaby, for today it is not the rebel’s blood but a callous disregard for the vulnerable that “stains the wattle”.

Does the jury system work?

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This piece was contributed by Dr Adam Gearey, a Reader in the School of Law.

Does the discharge of the jury in the Pryce trial suggest that this most ancient of common law institutions has come to the end of the road? The trial judge, Mr Justice Sweeney, was certainly scathing about the failure of the members of the jury to understand basic points of evidence and their role in the trial. It also seems the press are ready to stick the boot in; fulminating against overpaid lawyers who defend the jury trial as a way of justifying fat fees. The point is that we have to take a sober look at these issues, and not listen to the rantings of the gutter press.

The real difficulty is finding an objective way of thinking about the good and bad features of the jury. One way of doing this is by looking at the rulings of the European Court of Human Rights in Strasbourg (ECtHR). Using Article 6 of the European Convention on Human Rights, the court has been busy developing principles that define a fair trial. Given that these are international human rights standards they offer sound principles for thinking about and assessing the work of the jury.

From the perspective of fair trial rights, the jury is – at first regard- deeply problematic. It is a fundamental principle of a fair trial that a decision maker gives reasons for his/her decision. It should then be clear how the law and facts have been interpreted. If the decision maker is wrong, then there may be grounds for an appeal. The jury does not give reasons for its decision.

Does this mean that the jury is fundamentally flawed? This conclusion would be a mistake. A fair trial involves checks and balances. What the Pryce trial shows is that the trial judge himself was able to give jurors directions and guidance- and- when it became clear that the jury was unable to reach a sensible decision, was able to bring the trial to an end.

“Ah”- say the journalists of the gutter press- “the Pryce trial shows that courts are costly and inefficient”; a line of reasoning that always leads to the same kind of conclusion: human rights keep criminals out of prison; stop ‘us’ deporting immigrants etc etc etc.

Step back and think this through.

Whilst the jury is not perfect it is central to the integrity of the criminal trial. Faith in the jury is faith in our fellow citizens to argue about matters and come to a reasonable conclusion. That the jury is also consistent with European human rights law and measures up to an international benchmark is also worth stressing. Jury deliberations may be hidden from scrutiny – a safeguard necessary to allow full and frank discussion of the issues the trial raises- but we should not allow the Pryce trail knock our belief that the jury is central to the criminal trial.

Perhaps, in the final analysis, the Pryce trial shows that the safeguards do work; and that, to the chagrin of the journalists, lawyers are doing their jobs and that – despite some problems – the jury is an integral part of the criminal trial.

Reflections On Gay Marriage

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This post was contributed by Daniel Monk, Reader in Law, in Birkbeck’s School of Law.

When the result of the House of Commons vote on gay marriage was announced I was surprised not so much by the result – 400 in favour/175 against – but by how moved I was by it.

Full Equality?

If enacted, gay marriage will not add any rights or benefits to those already provided for by the Civil Partnership Act 2004. The marriage rules relating to adultery and consummation (which never applied to civil partnerships) will still not apply to same sex marriage. And Christian gays and lesbians will be prevented from being married by the established Church of England (even if their local clergy wants to). So, while close, it is not full legal equality. And add to this the fact that Prime Minister David Cameron’s support of gay marriage has been seen by many political commentators as an attempt to prove himself to be a moderniser in the run up to the 2015 General Election, a more cautious reaction to the vote might have been in order.

Past injustices

But the reason why it moved me and many other gays and lesbians attests both to the symbolic significance of marriage and to law’s function, too often unacknowledged, as a vehicle for the expression of emotions. Oscar Wilde on being released from Reading Gaol in 1897 is recorded as saying, “Yes, we will win in the end; but the road will be long and red with monstrous martyrdoms”. The overwhelming support for gay marriage by the House of Commons is moving then, not primarily because of what it enables in the future, but because of the perspective it provides for viewing and remembering that long road. For many gay men alive now sex between men was illegal for a major part of their lives and lowering the age of consent to 16 (making it equal for gays and straights) was only achieved in 2000. As an undergraduate student in the 1980s not only was it potentially criminal for me to have any male partners but in family law I read about contemporary cases where lesbians were losing custody of their children simply on the basis of their sexuality. And at the same time the notorious Section 28 in 1986 outlawed the ‘promotion of homosexuality’. In this context the vote for gay marriage, in a bitter sweet way, is experienced as a form of reconciliatory justice, an implicit political acknowledgment and apology for the violence of the law in the past.

Why Marriage?

That marriage has been the vehicle for expressing a commitment to respecting gays and lesbians is not surprising. For those who see analogies between gay rights and the US Black Civil Rights movement, the right to marry (as opposed to entering a civil partnership) is comparable to the right to travel on non-segregated buses. Equal but different simply isn’t good enough. But marriage is a complex institution and its ‘true’ function has always been contested. Gay marriage is only one site of contemporary conflict. Other current debates concern the status of pre-nuptial agreements, the legal distinction between ‘forced’ and ‘arranged’ marriages, and extension of marriage-like rights to cohabitants (conjugal, coupled or otherwise). This broader context opens up the debate to principles other than formal legal equality and reveals alternatives to simply voting for or against gay marriage.

Alternatives

One alternative, which is adopted in many continental countries, is that ‘marriage’ is left totally to the authority of religious bodies and all legal consequences are removed from it, while at the same time opening up civil partnerships to both heterosexuals and non-conjugal relations. One benefit of this is that the rules relating to adultery and non-consummation would not apply to anyone, again a reform adopted in other jurisdictions. Of course this route would require the disestablishment of the Church of England and the separation of Church and State. (Section 3 of the gay marriage Bill refers to the Submission of the Clergy Act 1533; in family law the battle between Church and State goes back a long way!)

A second even bolder alternative would be to leave marriage to religious bodies and to simply dispense with the legal regulation of conjugal couple relationships altogether. This approach asks us to question not ‘why should gays be excluded from marriage’ but ‘why does the State regulate relationships’? This focus requires us to engage seriously with David Cameron’s claim that he supports gay marriage, ‘not despite being a Conservative but because I’m a Conservative’.

These are important questions for the future. But in looking back to the past and fittingly as Birkbeck for the time marks LGBT History Month, gay marriage is unquestionably cause for celebration.

Defence policy for an independent Scotland

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This post was contributed by Ron Smith, Professor of Applied Economics in the Department of Economic, Mathematics and Statistics.

Scottish independence is a low probability event, but low probability events like the break-up of the Soviet Union or of Czechoslovakia do happen, so it is sensible to do some contingency planning. The Scottish Affairs Committee of the House of Commons has been examining the defence policy for an independent Scotland as part of its enquiry into The Referendum on Separation for Scotland. Together with Professor Malcolm Chalmers of the Royal United Services Institute I gave evidence to the Committee on January 23.

The Scottish National Party, SNP, has suggested a defence budget for an independent Scotland of around £2.5 billion with armed forces of 15,000 personnel. A comparison with other small countries with populations of around 5m, like Ireland, Norway, Denmark or New Zealand suggests that these are reasonable numbers for steady state spending and armed forces. However, the transition to steady state is likely to be difficult.

The sort of equipment that Scotland might inherit from the UK is unlikely to be appropriate for an independent Scotland. The obvious example is the Trident nuclear deterrent, which is located in Scotland on the Clyde, on which the Scottish Affairs Committee has already reported.

Scotland is likely to follow those other small countries which inherited nuclear weapons on separation. Belarus, Ukraine & Kazakhstan all denuclearised, and that is SNP policy.  They had aid under the US Nunn-Lugar Cooperative Threat Reduction program to help them repatriate the weapons to Russia. How one would repatriate Scottish nuclear weapons would be a central issue.

A major problem in the transition is that the military or defence civil servants that Scotland inherits from the UK are likely to have UK preconceptions and a mindset that is inappropriate for a small country like Scotland. They would face the same problems that somebody leaving a large company for a small firm faces. Some of the suggestions that have been made for a possible Scottish force structure reflect that mindset.

Because of the SNP’s commitment to the traditional Scottish regiments, their proposed structure is rather infantry heavy, whereas it is likely that naval and air assets for protection of fisheries and oil fields will be more useful. However the ships and aircraft they might inherit from the UK are not likely to be suitable, so they would need to buy new equipment appropriate for a small country.  Heavy investments in infrastructure may also be needed to provide for command and control, training and intelligence.

My suggestion would be that an independent Scotland should follow the example of the appointment of a Canadian as Bank of England Governor and hire a foreigner. Scotland should bring in a defence planner from somewhere like Ireland, Denmark or New Zealand, who understands how to run the defence of a small country.

The Justice and Security Bill – a threat to open justice

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Professor Bill Bowring of Birkbeck Law School, who is also a practising human rights barrister, writes about the potential impact of the controversial Justice and Security Bill.

The Justice and Security Bill, presently going through Parliament, threatens to take Britain back to the 17th century, through the regular use of secret evidence. The Coalition Government intends to expand the use of secret evidence to ordinary civil proceedings. As Liberty has pointed out, enactment of the Bill would be an unprecedented encroachment on the rule of law, and the principles of open and fair trial.

This controversial Bill is a panic reaction to the Labour Government’s defeat in 2010 in the Binyam Mohammed case. Binyam Mohamed was arrested in Pakistan and subjected by the US authorities to ‘extraordinary rendition’. He claimed that a confession that he had been trained by Al-Quaeda had been obtained by torture. Charges against him were dropped, after the US District Court of Columbia vindicated his claim that UK authorities had been involved in and facilitated ill-treatment and torture to which he was subjected while under the control of US authorities. He was released and arrived in the UK on 23 February 2009.

When he claimed damages, the UK Government attempted to exclude the evidence that he had been tortured, despite the fact that this was public knowledge in the US as a result of the judgment. On 10 February 2010 the Court of Appeal dismissed the Labour Government’s appeal against a series of Divisional Court judgments ordering that the Government was not permitted to exclude the information obtained from US sources. Jonathan Sumption QC, who is now a Justice of the Supreme Court, told the Court of Appeal on behalf of the Government that the Divisional Court’s decision was “unnecessary and profoundly damaging to the interests of this country”, and indeed that part of the reasoning of the Divisional Court was “irresponsible”. In fact all the information was already in the public domain.

Binyam Mohamed has now been paid a very large sum in compensation.

The Justice and Security Bill was introduced into the House of Lords on 29 May 2012 by Lord Wallace of Tankerness QC, a Liberal Democrat peer and Advocate General for Scotland. The Bill proposes a new Ministerial power to instigate, by application to the Court, a Closed Material Procedure (CMP), in cases where the Minister considers that disclosure of certain material would be damaging to national security. Until now, CMP has only been available in a very small number of specialist proceedings, such as in relation to “Terrorism Prevention and Investigation Measures”, and Control Orders. CMP takes place entirely in private; only the judge, the Government’s lawyers and a Special Advocate appointed by the Government for the litigant. The litigant and their lawyers are excluded. Unlike normal legal representatives Special Advocates are unable to disclose material to their ‘client’.

On 21 November 2012 Louise Christian of leading civil liberties solicitors Christian Khan chaired a public meeting at Garden Court Chambers, sponsored by the Haldane Society of Socialist Lawyers (of which I am International Secretary) and CAMPACC – the Campaign Against Criminalising Communities. The meeting was addressed by the human rights QC Dinah Rose; Richard Norton-Taylor, journalist on defence and security on The Guardian; Clare Algar, Executive Director of Reprieve; and Saghir Hussain Director of CagePrisoners. The theme running through the meeting was that open justice is a central principle of British law, and the right to a fair trial is a centuries-old feature of the common law and is enshrined in the European Convention on Human Rights.

I agree with the practising lawyers organised in the Bar Council and the Law Society that secret trials and withholding evidence are the standard practices of repressive regimes. The Bill if enacted will erode core principles of justice. The UK’s international reputation for fair trials will be significantly damaged.

Professor Bowring and Birkbeck Law School work closely with solicitors like Christian Khan, and the barristers at Garden Court, for example in the Law School’s annual week-long event “Law on Trial”.