Scottish Feminist Judgments: (Re)Creating Law from the Outside In 9781509923267, 9781509923298, 9781509923281

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SCOTTISH FEMINIST JUDGMENTS An innovative collaboration between academics, practitioners, activists and artists, this timely and provocative book rewrites 16 significant Scots law cases, spanning a range of substantive topics, from a feminist perspective. Exposing power, politics and partiality, feminist judges provide alternative accounts that bring gender equity concerns to the fore, whilst remaining bound by the facts and legal authorities encountered by the original court. Paying particular attention to Scotland’s distinctive national identity, fluctuating experiences of political sovereignty, and unique legal traditions and institutions, this book contributes in a distinctive register to the emerging dialogue amongst feminist judgment projects across the globe. Its judgments address concerns not only about gender equality, but also about the interplay between gender, class, national identity and citizenship in contemporary Scotland. The book also showcases unique contributions from leading artists which, provoked by the enterprise of feminist judging, or by individual cases, offer a visceral and affective engagement with the legal. The book will be of interest to academics, practitioners and students of Scots law, policy-makers, as well as to scholars of feminist and critical theory, and law and gender, internationally.

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Scottish Feminist Judgments (Re)Creating Law from the Outside In

Edited by

Sharon Cowan Chloë Kennedy and

Vanessa E Munro

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Cowan, Sharon, editor.  |  Kennedy, Chloë, editor.  |  Munro, Vanessa, editor. Title: Scottish feminist judgments : (re)creating law from the outside in / edited by Sharon Cowan, Chloë Kennedy and Vanessa E Munro. Description: Oxford ; New York : Hart, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2019034052 (print)  |  LCCN 2019034053 (ebook)  |  ISBN 9781509923267 (hardback)  |  ISBN 9781509923274 (EPub) Subjects: LCSH: Law—Social aspects—Scotland—Cases.  |  Women—Legal status, laws, etc.—Scotland—Cases.  |  Feminist jurisprudence. Classification: LCC KDC318 .S36 2019 (print)  |  LCC KDC318 (ebook)  |  DDC 349.411—dc23 LC record available at https://lccn.loc.gov/2019034052 LC ebook record available at https://lccn.loc.gov/2019034053 ISBN: HB: 978-1-50992-326-7 ePDF: 978-1-50992-328-1 ePub: 978-1-50992-327-4 Typeset by Compuscript Ltd, Shannon

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FOREWORD Written judgments serve a variety of purposes. They are an aspect of fair procedure – they let the losing parties know why they have lost. They communicate with the public what decisions are being made, and for what reasons. They provide a record of the law and the way in which it is applied. The judgments produced in the ­Scottish Feminist Judgments Project communicate the ideas of the writers about law and policy in a particularly engaging way. The feminist judges have themselves revisited judgments in decided cases, in a variety of ways – as a substitute member of an appellate bench, as a dissenting judge, in the role of an appellate court in cases in which no appeal was heard, and sometimes re-imagining the case as the first instance judge. This undertaking, which involves using established conventions of domestic judicial writing, invites consideration of the title of Audre Lorde’s speech: ‘The Master’s Tools Will Never Dismantle the Master’s House’.1 One might in the field of legal writing and reasoning, dispute the premise that the master (however he might be defined) has an exclusive right either to the tools or the house. If the house in this case is a legal system formed historically exclusively by white men, does it really need to be dismantled entirely? Are the foundations necessarily unsound, or can the house be altered, extended and owned and/or inhabited equitably? One might also posit the availability of a range of different, new tools. When viewed and tested by a new group of workers, the existing tools may be found to need adjustment: to be capable of improvement. One might then seek to examine whether the new tools, or the adjusted tools, or both, are as effective as, or superior to, the master’s. And what, in the context of legal practice and judgment writing, are the tools we are talking about? They surely include the various means by which lawyers and judges translate the real life stories – and there always is a story – that form the basis for legal proceedings of all sorts, into legal narratives. Does the fact that judgments have, until recently, all been written by men mean that a male voice has been woven through into the fabric of the law? If that is so, what does it mean when women judges and/or feminist judges adopt the accepted usages of judgment writing? Sandra Berns identified a dilemma for a judge who is an ‘outsider’: Either she violates expectations, or she confirms them … It goes both ways. If her decisions are seen as ordinary, conventional, mainstream, owing nothing to the presence

1 A Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ in A Lorde, Sister Outsider: Essays and Speeches (Trumansburg, NY, The Crossing Press, 1984).

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Foreword of otherness, she can, all too easily, come to be seen as rejecting her status as other, as assimilating, trying simply to be one of the boys. If her decisions reveal the mark of the other … she will at once confirm her position as other, as grammatically marked and critically destabilise the legitimacy of her role in decision making.2

This is a dilemma that the feminist judges have faced and negotiated in this project. There is a diversity of approach as to the extent to which they have brought the personal (and emotional) stories of the litigants to the foreground in ways that might not always occur in professional judicial writing. Although the approach of some of the feminist judges is perhaps more polemical than that of a professional judge would ever be likely to be, it is striking just how well most of the judgments work as judgments. As both legal practice and legal academia have become more specialised there has been, at least in this jurisdiction, a diminution in the contact between the practitioners of each. I personally think this is a shame. The potential for each to enrich the other should be obvious. This project engages academic writers in a task usually undertaken only by practising professional judges. Not only legal academics, but others, including ethicists, have written judgments. The audience for a judgment, while it will overlap with the audience for an academic paper or article, is not the same. A judgment carries with it the potential for enforcement – ultimately an exercise of power. The feminist judges have reflected explicitly on the process of judging, the competing voices informing their reasoning, and the processes of speaking, writing and acting as a judge. The nature and extent of their consideration of these is humbling and thought-provoking to me as a professional judge. It invites me to think in different ways not just about what I do, but how I do it. I am as stimulated by the judgments and commentaries with which I disagree as by those by which I am persuaded. Some of the issues the feminist judges have tackled are ones with which first instance courts are engaged daily, such as the sources of corroboration in cases where sexual crime is alleged. At the present time, the law as to corroboration in cases of sexual offending and domestic abuse is regularly the subject of significant judgments of the High Court of Justiciary Appeal Court. That there is need for reform in relation to similar fact evidence and the Moorov doctrine – which arise frequently in the context of sexual crime – has again been emphasised recently by Lord Pentland, the retiring chair of the Scottish Law Commission. Drury is on the agenda in the current programme of the Commission, in the context of potential reform of the law of homicide. Cases revisited in other areas of law present less obvious potential for feminist analysis, but nonetheless make for rewarding reading. In an adversarial system, arguments, authorities and other materials are only likely to feature in a judge’s reasoning if brought to her attention by the advocates in the case. The feminist judges have acted both as advocate and judge. They have

2 S

Berns, To Speak as a Judge: Difference, Voice, and Power (Brookfield, VT, Ashgate, 1999) 33, 36.

Foreword  vii formulated the lines that they wish to take in revisiting these judgments, and then written them accordingly. Critiquing and commentary by others will no doubt have performed part of the function of advocacy. Working judges on the other hand have at least two competing voices not their own formulating and promoting arguments in each case. The writers in this project have had the challenge not only of being judge, but also sometimes producing and presenting the competing arguments that inform the judgments. In some cases they have introduced materials and arguments not presented to the original court. Where they have done so, however, they have used only materials available at the time of the hearing, and arguments that formed part of contemporary philosophical or legal discourse. A particularly valuable aspect of the writing produced by the judges and commen­ tators is their potential to inspire advocates to analyse legal problems in innovative ways, and to present new and different arguments to the courts for determination. Lawyers, judges and academics and readers outside the legal community, whether or not identifying as feminists, will find much in the judgments, commentaries and personal statements to occasion reflection. The fruits of the project are all the more stimulating where the commentator offers a perspective different from that of the judge, and provides a competing analysis. The celebrated feminist scholar Professor Cynthia Enloe is on record as having said, ‘Never be the most feminist person you know. That’s not going to get you far. You need to have people around you who are differently feminist or more feminist than you are’.3 By that measure, the editors, judges and commentators who have created this work are welcome companions. Ailsa Carmichael April 2019



3 The

Guardian (6 November 2017).

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ACKNOWLEDGEMENTS We are profoundly grateful to all of those who have made the Scottish Feminist Judgments Project (FJP) possible. In that list we include, of course, those who have been involved in sister FJPs in other jurisdictions. These projects inspired us to pursue this Scottish incarnation, and provided valuable methodological frameworks on which we could draw. We are also hugely indebted to all of the judgment writers and commentators, who embraced the project with immense enthusiasm and brought an incredible pool of knowledge and insights with them. We were exceptionally fortunate to benefit from the input of a number of third-sector organisations, as well as legal practitioners, and are much indebted to the experiences and perspectives that they shared with us. Particular thanks are due to the campaigners who took part in our focus group (Rape Crisis Scotland, Scottish Women’s Aid, Shakti Women’s Aid and Scottish Trans Alliance) and to Lady Carmichael who, in addition to providing a Preface to this collection, was kind enough to speak with us about her approach to judging. We are also indebted to Natassa Philomonos for her help in navigating the archives of the Glasgow Women’s Library. We would like to express deep gratitude to Jill Kennedy-McNeill for the patience, determination and energy that she brought to all that she did to coordinate the creative contributions, curate exhibitions and drive forward the artistic aspirations of the project. We are also, of course, honoured to have been able to work with our talented artists (Jill Kennedy-McNeill, Jay Whittaker, Jo Spiller, Sofia Nakou with Becky O’Brien, Rachel Donaldson, Jess Orr and Alison Burns) and to have the opportunity to see law through their eyes as a result of those engagements. Heartfelt thanks are due to Gavin Crichton and Liz Strange of Active Inquiry, for their incredible talents in facilitating our Theatre of the Oppressed workshop with such sensitivity and vision. We are grateful also to Gail Ross, MSP, for sponsoring the Private Members’ exhibition at the Scottish Parliament, and to South Block and Mount Florida Galleries, the Glasgow Women’s Library and Lighthouse (Edinburgh’s radical bookshop) for hosting events and exhibitions. We are also thankful for the support shown by our respective universities (Edinburgh and Warwick), as well as by the Scottish law schools who have agreed to facilitate our running feminist-judging teaching events with their students. Throughout the project, we and our fellow judgment writers have benefited substantially from feedback in diverse forums, including: seminars at the Universities of Aberdeen, Dundee, Edinburgh and Stirling; a roundtable at the 2019 Annual Meeting of the Association for the Study of Law, Culture and

x Acknowledgements the Humanities in Ottawa; exhibitions at the installation of the University of Edinburgh – Ann Henderson; the first anniversary of GenderED; the University of Edinburgh College of Arts, Humanities and Social Sciences 2019 Celebration of Impact; ‘Celebrating a Centenary of Women in Law’ at the University of ­Glasgow; the 2019 Gerald Gordon Seminar on Criminal Law; lectures at the ­Scottish Public Law Group (in conjunction with the Faculty of Advocates), Crown Office and Procurator Fiscal Service; and RebLaw Scotland 2019. Thank you to all who attended and participated in those discussions. In particular, we want to thank Professor Lindsay Farmer, Dr Daniel J Carr and Professor Gillian Calder, for their careful and thoughtful comments and advice on early drafts of chapters one and two. Various aspects of the project benefited from funding from the University of Edinburgh (Innovation Initiative Grant; College of Arts, Humanities and Social Sciences Knowledge Exchange & Impact Award; School of Law Research Fund; and Official Development Assistance Grant) and the University of Warwick (Legal Research Institute; Faculty of Social Sciences Impact Support Funding), which we would like to gratefully acknowledge. This support, together with additional funds that we were able to secure from the Clark Foundation for Legal Education and the Royal Society of Edinburgh (to whom we are also grateful) have been critical to ensuring the success of the project, and in particular to enabling us to extend its reach beyond legal and academic audiences. In the final throes of this project, we were fortunate to benefit from the copy-editing skills of Marie Selwood, and we are grateful to her for her calm professionalism. We are also indebted to the editorial team at Hart Publishing, in particular Sinead Moloney who, as editorial director, was enthusiastic and encouraging about the project throughout. Finally, we are grateful to each another as feminist friends, colleagues and co-conspirators – and to our friends and families (including pets!) – for making the coordination and co-editing of this project one of the most rewarding and positive experiences of our academic careers. We hope that just as we have stood on the shoulders of the FJPs that have come before us, we can offer inspiration to the FJPs and other feminist projects still to come, to push yet further towards new and more radical frontiers. Sharon Cowan Chloë Kennedy Vanessa E Munro

CONTENTS Foreword������������������������������������������������������������������������������������������������������������������������v Acknowledgements������������������������������������������������������������������������������������������������������ ix Notes on Contributors�������������������������������������������������������������������������������������������������xv List of Diagrams�������������������������������������������������������������������������������������������������������� xxi 1. Through the Looking Glass? Feminist Praxis, Artistic Methods and Scottish Feminist Judging�������������������������������������������������������������������������������1 Sharon Cowan, Chloë Kennedy and Vanessa E Munro 2. Devolving Dictum? Legal Tradition, National Identity and Feminist Activism�����������������������������������������������������������������������������������������19 Sharon Cowan, Chloë Kennedy and Vanessa E Munro PART I CRIME, VICTIMISATION AND VIOLENCE 3.

Smith v Lees 1997 SCCR 139������������������������������������������������������������������������������39 Judgment: Ilona Cairns������������������������������������������������������������������������������������������39 Commentary: Isla Callander���������������������������������������������������������������������������������54 Reflective Statement: Ilona Cairns������������������������������������������������������������������������60

4.

McKearney v HM Advocate 2004 JC 87������������������������������������������������������������63 Judgment: Pamela Ferguson�������������������������������������������������������������������������������63 Commentary: Clare McGlynn����������������������������������������������������������������������������77 Reflective Statement: Pamela Ferguson��������������������������������������������������������������83

5.

Ruxton v Lang 1998 SCCR 1������������������������������������������������������������������������������87 Judgment: Sharon Cowan and Vanessa E Munro���������������������������������������������87 Commentary: Liz Campbell��������������������������������������������������������������������������������99 Reflective Statement: Sharon Cowan and Vanessa E Munro��������������������������104

6.

Drury v HM Advocate 2001 SLT 1013������������������������������������������������������������109 Judgment: Claire McDiarmid���������������������������������������������������������������������������109 Commentary: Juliette Casey�����������������������������������������������������������������������������121 Reflective Statement: Claire McDiarmid����������������������������������������������������������126

xii Contents PART II FAMILY, HOME AND BELONGING 7.

R & F v UK Application 35738/05 2005����������������������������������������������������������133 Judgment: Carolynn Gray���������������������������������������������������������������������������������133 Commentary: Becky Kaufmann�����������������������������������������������������������������������147 Reflective Statement: Carolynn Gray����������������������������������������������������������������151

8.

White v White 2001 SC 689�����������������������������������������������������������������������������155 Judgment: Kenneth Norrie�������������������������������������������������������������������������������155 Commentary: Rosie Harding����������������������������������������������������������������������������166 Reflective Statement: Kenneth Norrie��������������������������������������������������������������172

9.

Coyle v Coyle 2004 Fam LR 2��������������������������������������������������������������������������175 Judgment: Jane Mair������������������������������������������������������������������������������������������175 Commentary: Gillian Black������������������������������������������������������������������������������190 Reflective Statement: Jane Mair������������������������������������������������������������������������196

10. Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct ) 71������201 Judgment: Peter Robson������������������������������������������������������������������������������������201 Commentary: Alexander Latham-Gambi��������������������������������������������������������213 Reflective Statement: Peter Robson������������������������������������������������������������������218

Artists’ Statements and Illustrations between pages 222 and 223

11. Rafique v Amin 1997 SLT 1385������������������������������������������������������������������������223 Judgment: Frankie McCarthy���������������������������������������������������������������������������223 Commentary: Bonnie Holligan������������������������������������������������������������������������234 Reflective Statement: Frankie McCarthy����������������������������������������������������������238 PART III RELATIONAL DUTIES, EQUALITY AND DISCRIMINATION 12. Jex-Blake v Senatus Academicus of the University of Edinburgh (1873) 11 M 784������������������������������������������������������������������������������������������������243 Judgment: Chloë Kennedy��������������������������������������������������������������������������������243 Commentary: Stephen Bogle����������������������������������������������������������������������������257 Reflective Statement: Chloë Kennedy���������������������������������������������������������������266 13. Rainey v Greater Glasgow Health Board [1987] AC 224, HL������������������������269 Judgment: Nicole Busby������������������������������������������������������������������������������������269 Commentary: Diamond Ashiagbor�����������������������������������������������������������������282 Reflective Statement: Nicole Busby�������������������������������������������������������������������288

Contents   xiii 14. Commonwealth Oil & Gas Co Ltd v Baxter and Another [2009] CSIH 75��������������������������������������������������������������������������������������������������291 Judgment: Alice Belcher������������������������������������������������������������������������������������291 Commentary: Anindita Jaiswal������������������������������������������������������������������������305 Reflective Statement: Alice Belcher������������������������������������������������������������������309 15. Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68�������������������������������������������������������������������������������������������������313 Judgment: Agomoni Ganguli-Mitra and Emily Postan����������������������������������313 Commentary: Mary Neal����������������������������������������������������������������������������������329 Reflective Statement: Agomoni Ganguli-Mitra and Emily Postan����������������334 PART IV CITIZENSHIP, CULTURE AND PROTECTION 16. Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session������������������������341 Judgment: Nicola Loughran������������������������������������������������������������������������������341 Commentary: Helen Baillot������������������������������������������������������������������������������359 Reflective Statement: Nicola Loughran������������������������������������������������������������364 17. Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527�������������������������������������������������������������������������������������������������������369 Judgment: Dimitrios Kagiaros��������������������������������������������������������������������������369 Commentary: Sandy Brindley��������������������������������������������������������������������������381 Reflective Statement: Dimitrios Kagiaros��������������������������������������������������������384 18. Salvesen v Riddell [2013] UKSC 236���������������������������������������������������������������389 Judgment: Aileen McHarg and Donald Nicolson�������������������������������������������389 Commentary: Shazia Choudhry�����������������������������������������������������������������������404 Reflective Statement: Aileen McHarg and Donald Nicolson�������������������������410 Index������������������������������������������������������������������������������������������������������������������������������413

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NOTES ON CONTRIBUTORS Diamond Ashiagbor, graduate of the University of Oxford and the European University Institute Florence, is Professor of Law at the University of Kent. She researches on labour and equality law; regionalism (the European Union and the African Union); and law and development. She is a member of the Feminist Legal Studies editorial board. Helen Baillot is a Research Assistant at Queen Margaret University, and a graduate of Edinburgh and Strathclyde universities. From 2002 to 2012 she managed advice services for asylum seekers and refugees at the Scottish Refugee Council, Scotland’s leading refugee charity. Alice Belcher is a Professor of Law at the University of Dundee and a graduate of Keele, Cambridge and Manchester universities. An accountant and company director, she is a corporate governance expert and one of the very few academics who has applied a feminist approach to company law. Gillian Black, a graduate of Glasgow University and a qualified solicitor, is a Senior Lecturer in Family Law at the University of Edinburgh. Her main research interests are adult relationships, the parent–child relationship, and the significance of sexual relations in family law. Stephen Bogle is a Lecturer in Private Law at the University of Glasgow, his research interests lie in the fields of obligations, legal history and the intellectual history of Scotland during the seventeenth and eighteenth centuries. Sandy Brindley is the Chief Executive of Rape Crisis Scotland. She has been involved in a number of campaigns to change attitudes to sexual violence, and improve legal responses. Alison Burns is one of the UK’s leading composers for the community choir sector. Her songs can be heard in a variety of settings: theatre, sound installations, education and in the repertoire of many choirs. She has also written widely on inclusive and innovative community-building practice for choir leaders. Nicole Busby is Professor of Labour Law at the University of Strathclyde. Her research focuses on discrimination and inequality in work and access to justice. She has published widely in these areas. Ilona Cairns is a Lecturer at the University of Aberdeen. Her current research focuses on the regulation and reform of the law relating to sexual offences and domestic abuse in Scotland. She is particularly interested in these issues from an

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Notes on Contributors

evidential standpoint, and has several publications on the Scottish corroboration rule and sexual offences. Isla Callander is a Lecturer in Law at the University of Aberdeen and a graduate of the University of Glasgow. She researches in the area of criminal law and evidence, with a particular focus on the law of sexual offences. Liz Campbell is the inaugural Francine McNiff Chair in Criminal Jurisprudence at Monash University, Melbourne. She is a comparative, socio-legal criminal lawyer with particular research expertise in corporate crime, corruption and biometric evidence. Juliette Casey is a practising Advocate at the Bar in Scotland. She lectures on a part-time basis at the University of Edinburgh and has a particular interest in the law of homicide and defences. She has written on the topic of legal defences for battered women who kill. Sharon Cowan is the Professor of Feminist and Queer Legal Studies at Edinburgh University. She has published widely in areas relating to law, genders and sexualities; asylum and refugee studies; critical pedagogy; law and popular culture; and criminal law, particularly focusing on legal responses to sexual violence. Shazia Choudhry is a Professor of Law at Queen Mary, University of London. Her publications and research interests lie in the fields of European and UK human rights law and the interface of those fields particularly with domestic abuse and violence against women. She has also acted as Specialist Adviser to the Joint Parliamentary Committee on Human Rights Inquiry into Violence against Women (2014–15) and as an expert for the European Commission, for the Council of Europe, and for the UNFPA on the issue of violence against women. Rachel Donaldson, a graduate of Edinburgh College of Art, is an illustrator whose work is concerned with her interest in people and human behaviour. By focusing on social commentary and gestural characters, she explores this connection through clear drawing, collage and print work. Carolynn Gray, a graduate of the universities of Strathclyde and Glasgow, is Senior Lecturer in Law and Law Subject Lead at the University of the West of Scotland. Carolynn writes and researches in subjects where the law intersects with the body, and has a particular interest in LGBTQI+ rights. Agomoni Ganguli-Mitra is a bioethicist and Chancellor’s Fellow at the University of Edinburgh School of Law. Her research focuses on global ethics and gender justice in health, with particular focus on vulnerability, exploitation, structural and epistemic injustice. Pamela Ferguson was appointed to the Chair in Scots Law at the University of Dundee in 1999. Her research interests include criminal law, evidence and procedure. Her many publications include Scots Criminal Law: A Critical Analysis, which she co-authors with Dr Claire McDiarmid.

Notes on Contributors  xvii Bonnie Holligan is a Lecturer in Property Law at the University of Sussex and a graduate of the University of Edinburgh. Her teaching and research considers property law from a variety of comparative and theoretical perspectives, with a focus on relational and ecocentric approaches. Rosie Harding LLB (Edinburgh), LLM (Keele), PhD (Kent) is Professor of Law and Society at the University of Birmingham. She has published widely in feminist and socio-legal studies. Her research focuses on law in everyday life and the regulation of intimate and caring relationships in disability, family and healthcare law. Anindita Jaiswal is a PhD researcher in Corporate Law at the University of Edinburgh. Her thesis focuses on gender diversity in corporate boardrooms with emphasis from a regulatory standpoint, more particularly in India. Prior to this, she worked extensively on company law and corporate governance matters with a top-tier law firm in India. Dimitrios Kagiaros is a Lecturer in Law at the University of Exeter. He previously taught on constitutional law, administrative law and human rights law courses at the University of Edinburgh. His research interests include the impact of the European sovereign debt crisis on human rights and the case law of the European Court of Human Rights in relation to Freedom of Expression. Becky Kaufmann is the Justice Policy Officer for the Scottish Trans Alliance. She has worked in the justice sector for more than 25 years. Her work focuses on engagement with justice practitioners to promote human rights and equality for trans people whether they are victims, witnesses or accused of crimes. Chloë Kennedy is a Senior Lecturer in the Law School at the University of Edinburgh. Her research is interdisciplinary, historically informed and often centres on criminal law, law and religion, and law and gender. Alexander Latham-Gambi is a Lecturer in Law at Swansea University. His research interests are in legal and political theory, and he has also published on the relevance of human rights principles in housing law. Prior to becoming an academic he worked as a housing law adviser with the charity Shelter. Nicola Loughran is a graduate of Strathclyde and Cambridge universities, and Principal Solicitor of Loughran and Co Solicitors, Glasgow. She has practised asylum and immigration law for 18 years with a particular interest in gender and the Refugee Convention, on which she has lectured at Glasgow and Edinburgh University Law Schools. Jane Mair is Professor of Private Law at the University of Glasgow. Her work focuses on legal persons and legal relationships, in the family and in the workplace, with a particular interest in the gendered interaction between both domains. Frankie McCarthy is a Senior Lecturer in Private Law at the University of Glasgow. She has published on a range of topics in property law and theory, family law and theory, and the human rights aspects of both.

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Notes on Contributors

Claire McDiarmid is a Reader in law at the University of Strathclyde, Glasgow, and the Head of the Law School. She has published extensively on legal responses to children who offend, and on criminal law more generally, drawing on feminist approaches. Clare McGlynn is a Professor of Law at Durham University. She has over 20 years’ experience influencing and shaping law reform, particularly in the fields of pornography, image-based sexual abuse (including ‘revenge pornography’) and sexual violence. Aileen McHarg is Professor of Public Law at the University of Strathclyde. She previously worked at Bristol and Glasgow universities and is a graduate of Edinburgh University. She is an expert on UK and Scots public law and has published extensively on devolution in Scotland. Jill Kennedy-McNeill, a graduate of Glasgow School of Art, London College of Fashion and Chelsea College of Arts, is a multidisciplinary artist and educator. Working predominantly with textiles, she produces site-specific installations and soft sculpture. As well as exhibiting across the UK, she teaches textiles, construction skills and design at several colleges across London, and heads up the Future Textiles project in association with the Prince’s Foundation. Vanessa E Munro, a graduate of Glasgow University, is Professor of Law at the University of Warwick. She has published extensively on feminist legal and political theory, with a particular interest in the law’s regulation of women’s agency and embodiment. Sofia Nakou is a theatre director and drama facilitator who is currently doing an interdisciplinary PhD in Law and Theatre. In the last few years the focus of her work has been on creating art and theatrical projects with people in crisis, such as refugee and homeless communities. Mary Neal is Senior Lecturer at the University of Strathclyde. She publishes widely in the fields of healthcare law and ethics and legal theory, and her recent and forthcoming work focuses on conscientious objection, the nature of the professional/ patient relationship, human dignity, and vulnerability/the emotions. Donald Nicolson is a Professor and Director of the Law Clinic at the University of Essex. He studied at the universities of Cape Town and Cambridge. He has published on lawyers’ ethics, clinical legal education, affirmative action, evidence, adjudication and criminal law, with specific reference to issues of gender and feminist theory. Kenneth Norrie is presently a Professor at the University of Strathclyde. He was previously at Aberdeen and Dundee universities, and has held visiting positions in Germany, Austria, South Africa, Australia and New Zealand. He is a family lawyer, with primary interests in child protection and same-sex relationships.

Notes on Contributors  xix Becky O’Brien is an Irish dance artist whose work explores gender, identity and sexuality, with a queer/feminist approach. She uses her body as a political force to question the construction of identity and where her female body lies in relation to art and to society. Jess Orr is a PhD student in Contemporary Literature and a workshop facilitator for the charity Open Book. She has worked for a range of literature organisations including the Edinburgh International Book Festival and recently helped to establish the first festival of Scottish women’s writing at the Glasgow Women’s Library. Emily Postan is an Early Career Fellow in Bioethics at the University of Edinburgh. Her interdisciplinary research focuses on the ethical significance of identity, narrative and embodiment in a number of areas, including the governance of genetic and neurological data, reproductive technologies, and participation in health research. Peter Robson LLB (St Andrews), PhD (Strathclyde), is a Solicitor, a Judge in HM Courts and Tribunals Service, and Professor of Social Welfare Law at the School of Law, University of Strathclyde. His most recent publications include Residential Tenancies (2019); Developments in Revenge, Justice and Rape in the Cinema (2019); Ethnicity, Gender and Diversity: Law and Justice on TV (2018); and Spaces of Justice: The Architecture of the Scottish Court (2018). Jo Spiller is an Edinburgh-based photographer, and MScR student at the University of Edinburgh. The portraits she has taken for this project reflect a theme of her Master’s research around the conventions of representation and memorialising of women that she has challenged through the medium of photography. Jay Whittaker’s debut poetry collection Wristwatch (Cinnamon Press) was named Scottish Poetry Book of 2018 by the Saltire Society. In the poems written for this project, she created a found poem from the original judgment, juxtaposed with a response to the institutional writers and two meditations on the victim’s absence.

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1 Through the Looking Glass? Feminist Praxis, Artistic Methods and Scottish Feminist Judging SHARON COWAN, CHLOË KENNEDY AND VANESSA E MUNRO It really is possible to see things – even the most concrete things – simultaneously yet differently; and that ‘seeing simultaneously yet differently’ is more easily done by two people than one, but one person can get the hang of it with time and effort.1

In recent years, feminist judgments projects (FJPs) have flourished in a range of jurisdictions across the globe. These have generated powerful critical insights into the content and operation of national laws and legal institutions. Importantly, moreover, they have each contributed in distinctive and insightful ways to a lively and ongoing international conversation about women’s absence from, and unequal treatment within, the law. Taking on the judicial mantle, feminists who have contributed to these projects have set out to reimagine and recreate the law from the outside in, unmasking the choices that judges make when applying the law, and offering alternative visions of what would have been possible, even while bound by the conventions of precedent, state of knowledge, and structures of judicial decision-making that existed at the time of the original judgment. In so doing, FJPs – in all their diversity – have highlighted not only the maleness of legal concepts and norms, practices and methods, but also a particular kind of injustice that Miranda Fricker in 2007 termed ‘epistemic injustice’ whereby women’s voices, narratives and ways of knowing are systematically silenced or marginalised.2 The enterprise of conscious and collective feminist judgment-writing began with the Women’s Court of Canada, which, in 2006, reinterpreted six Charter of Rights and Freedom section 15 equality cases.3 Since then, feminist judges have 1 P Williams, The Alchemy of Race and Rights (Cambridge, MA, Harvard University Press, 1991) 150. 2 M Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford, Oxford University Press, 2007). 3 D Majury, ‘Introducing the Women’s Court of Canada’ (2006) 18 Canadian Journal of Women and the Law 1. In fact, the first published rewriting project seems to be the US constitutional decision of the so-called ‘Balkin Court’, which rewrote the 1954 case of Brown v Board of Education: J Balkin (ed),

2  Sharon Cowan, Chloë Kennedy and Vanessa E Munro been ‘righting and rewriting’ law in many jurisdictions: England and Wales, Northern/Ireland, Australia, New Zealand, the United States and, most recently, Africa and India. The project conducted in England and Wales, published in 2010, was broader in scope and larger in scale than its Canadian forerunner. Bringing together feminist judges and commentators over a series of workshops, 26 cases – clustered around core themes of parenting, property and markets, criminal law and evidence, public law and equality – were reimagined.4 The Australian project, modelled on the English and Welsh, included 24 cases, with input from academics, practitioners and activists, extending to judgments on tax and environmental law, as well as more familiar feminist concerns around family, gender-based violence, and equality law. Importantly, recognising that a focus on doctrinal law can exclude indigenous sources and perspectives, this project also included contributions from three indigenous scholars, one of whom went beyond the conventional constraints of FJPs to imagine a 1934 decision issued by a future court in 2035. An additional element of the Australian FJP was a series of interviews with judges across Australia who identified as feminist which explored their approaches to, and experiences of, judging.5 The complexities of the relationship between feminist judging and jurisdictional, cultural and historical specificities have been foregrounded in different ways in the Northern/Irish and New Zealand projects, both of which were published in 2017. In the New Zealand project, these complexities are reflected from the outset in the title of its edited collection, Te Rino: A Two-Stranded Rope.6 In this, Elisabeth McDonald and her co-editors develop feminist perspectives on law in a way that is more inclusive of issues relating to mana wahine (Maori women) who make up 15 per cent of the population in Aotearoa (New Zealand).7 With six of the 19 judgments being mana wahine (and these pages being darker in colour than the rest of the book), the editors gave careful thought to the impact of historically white, colonial, patriarchal laws on New Zealand’s indigenous communities, and to crafting methods for what is essentially a blended, intersectional project built on feminist friendships and partnerships. Where appropriate, judges were also encouraged to try to gain access to case files relating to the original decision, in order to shed light on what evidence was available to judges at the time. Reflecting on the New Zealand project, Aoife O’Donoghue – who was a coordinator of its What Brown v Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite A ­ merica’s Landmark Civil Rights Decision (New York, New York University Press, 2002). This volume was closely followed by another, edited also by Balkin, focusing on the abortion case Roe v Wade 410 US 113 (1973): J Balkin (ed), What Roe v Wade Should have Said: The Nation’s Top Legal Experts Rewrite ­America’s Most Controversial Decision (New York, New York University Press, 2005). 4 R Hunter, C McGlynn and E Rackley, Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 5 H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014). 6 E McDonald, R Powell, M Stephens and R Hunter (eds), Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope (Oxford, Hart Publishing, 2017). 7 ibid 29.

Through the Looking Glass?   3 broadly contemporaneous Northern/Irish counterpart – discusses how it offered a vital opportunity to think about what a genuinely inclusive intersectional project looks like.8 This ambition was also close to the heart of the Northern/Irish project, which had to navigate the differences between Northern Irish and Irish judicial identities – and approaches to legal interpretation – which were shaped by colonial activity on the island, as well as continued religious and nationalist struggles.9 Feminist endeavours to bring a gender lens to judging are also now taking place in the United States, where more than 100 feminist academics have come together. Thus far they have rewritten 25 Supreme Court judgments,10 and there are plans for a further seven volumes across a range of areas.11 Meanwhile, in the global south, there are FJPs underway in Africa (which will bring together academics and practitioners in East and South Africa) and India (which involves 75 scholars, including participants from non-legal disciplines such as sociology, history and political science).12 Projects that span such large territories, with a wide range of legal, political and cultural issues, and a history of colonial violence, bring their own challenges, not least the practical ones of connecting dispersed participants and ensuring access to materials. Thus, every FJP is distinct. Each seeks to make its own imprint on the surrounding national legal terrain taking account of its own jurisdictional specificities, including issues relating to socio-political context, national identity, racialisation, class and colonialism. But, importantly, FJPs do not exist independently of each other. As a collective enterprise, FJPs transcend their jurisdictional confines, offering a powerful and sustained critique of the gender norms and stereotypes that underpin the exclusionary practices and legacies of legal adjudication across the globe, at national and supranational levels.13 They are therefore necessarily woven together in an intricate dialogue. In May 2017, we set out to ensure that Scottish voices could contribute to that collaborative, creative and productively conflictual conversation, and to provide powerful tools for public, professional, academic and student engagement, by offering alternative, creative methods of legal writing, reasoning and interpreting Scots law.

8 A O’Donoghue, ‘Book Review: Feminist Judgments of Aotearoa New Zealand Te Rino: A TwoStranded Rope (2019) Social and Legal Studies, available at: doi.org/10.1177/0964663918822415. 9 M Enright, J McCandless and A O’Donoghue, Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Oxford, Hart Publishing, 2017). 10 K Stanchi, L Berger and B Crawford, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge, Cambridge University Press, 2016). 11 See: sites.temple.edu/usfeministjudgments/projects. 12 See: socialandlegalstudies.wordpress.com/2018/11/21/feminist-judging-margin-centre/#more-456. 13 The FJP model has also spawned other ‘critical’ judgments projects and edited collections such as: L Hodson and T Lavers (eds), Feminist Judgements in International Law (Oxford, Hart Publishing, 2019); SW Smith, J Coggon, C Hobson, R Huxtable, S McGuinness, J Miola and M Neal (eds), Ethical Judgments: Rewriting Medical Law (Oxford, Hart Publishing, 2017); H Stalford, K Hollingsworth and S Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Oxford, Hart Publishing, 2017).

4  Sharon Cowan, Chloë Kennedy and Vanessa E Munro

Doing Feminist Judgments: Methods and Praxis At a meeting of representatives from pre-existing, ongoing and new FJPs in Oñati in May 2017, colleagues suggested a range of methods for recruiting feminist judges, including having organisers choose key legal cases and issue a call for papers based around them. This method may make sense in large jurisdictions, such as the United States, where there is a long list of cases that could be reworked through a feminist lens, and the challenge is one of limiting the project’s scope. However, since Scotland is a small jurisdiction, this was not the right approach for us; given the small pool of potential feminist judges, it was unlikely that there would be enough suitably equipped individuals available to rewrite the judgments that we might choose. We were also convinced that a ‘bottom-up’ approach, where, in discussion with all the project members, judges were able to choose their own cases (so long as they originated in Scotland), would make the project more participatory. For these reasons, we decided to reach out to those we knew with Scottish legal knowledge and experience, who were interested in law and gender, and gauge interest in involvement before deciding which cases to focus on. This was a relatively small group which, in turn, means that we present here fewer judgments than some previous FJPs – 16 in total, with 19 judgment writers and 16 commentators, including five men. While recognising the limits of snowballing as a method of inclusion,14 we tried to prioritise diversity throughout the project. We were, unfortunately, somewhat constrained in our ability to do so given that university and legal professional communities in Scotland remain predominantly white, cisgender, middle-class and able-bodied. Nevertheless, we have been able to curate judgments that span a diverse range of topics, applying substantive and methodological feminist interventions to produce more progressive decisions and/or reasoning. In line with other FJPs, this collection includes rewritten feminist judgments alongside commentaries from experts. Commentators were added incrementally and organically, as those with relevant expertise and availability were identified. They include academics (at different career stages), as well as members of the legal profession and representatives from third-sector organisations in Scotland. As discussed in the next chapter, various third-sector representatives also participated in a focus group discussion with the editors about the historical and contemporary triumphs of, and challenges for, feminist activism in Scotland. This discussion helped us to contextualise and support our understanding of what was distinctly Scottish about our project, and the socio-political climate in which it arises. In this FJP, we felt it was important that from an early stage judges and commentators were engaged in a dialogue about the legal issues arising from each 14 G Anzaldúa (ed), Making Face, Making Soul: Creative and Critical Perspectives by Women of Colour (San Francisco, CA, Aunt Lute Books, 1990) 44–45, cited in K Kishimoto and M Mwangi, ‘Critiquing the Rhetoric of “Safety” in Feminist Pedagogy: Women of Colour Offering an Account of Ourselves’ (2009) 19 Feminist Teacher 87, 97.

Through the Looking Glass?   5 case, as well as the surrounding social and political environment. Attendance at all workshops was, therefore, strongly encouraged. At our first meeting, judges and commentators came together to debate the foundational issues that a project of this kind would need to address: questions about objectives, methods, format, judgment crafting and – of course – what we meant by feminist judging. These are challenging questions, which previous FJPs have also had to confront and address in their own distinctive ways. Since there is no one feminist approach, it was inevitable that our project would encompass a range of diverse perspectives. Indeed, this was something we proactively encouraged amongst contributors and, as the project evolved, the issue was revisited iteratively through workshop discussions and editorial dialogue with judges and commentators. A spectrum of feminist approaches to long-standing debates, including formal versus substantive equality and how to resolve competing rights claims, are reflected in this collection. Thus, for example, in White v White (2001 SC 689), we see a sharp distinction between the gender-neutral, formal equality approach of Judge Norrie and the substantive equality analysis adopted by Rosie Harding as commentator. In Greater Glasgow Health Board v Doogan ([2014] UKSC 68), we see our judges, writing in a conjoined identity as Lady Ganguli-Postan, in disagreement with commentator, Mary Neal, regarding the weight that ought to be given to the conflicting rights of those accessing abortion services and those conscientiously objecting to providing them. Meanwhile, in Commonwealth Oil & Gas Co Ltd v Baxter ([2009] CSIH 75), while Lady Belcher and commentator Anindita Jaiswal both acknowledge the benefits of a more relational interpretation of directors’ duties, they disagree on the ramifications of doing so. Constructive debate also arose at various stages regarding how much the project should try to subvert conventional modes of legal judgment-writing. It was accepted, of course, that contributors should push the boundaries of form and content to reflect our feminist and critical perspectives, since traditional legal methods and techniques function both to exclude gender but also to (re)produce problematic gender norms. Resisting these traditions requires us to interrogate the very structures of legal thought and procedure.15 At the same time, however, since the Scottish judicial landscape is still largely conservative, we felt that being overly experimental with the form of the rewritten judgments could risk the project’s insights being dismissed by legal scholars, professionals, students and others, as merely ‘utopian’, thereby reducing their ultimate impact.16 As Rosemary Hunter has argued, one powerful aspect of FJPs is that they show how the cases could have been reasoned or decided differently, even while adhering to the law as it

15 MJ Mossman, ‘Feminism and Legal Method: The Difference It Makes’ (1987) 3 Wisconsin Women’s Law Journal 147. 16 See also R Cover, ‘Nomos and Narrative’ in M Minow, M Ryan and A Sarat (eds), Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor, MI, University of Michigan Press, 1995) 144.

6  Sharon Cowan, Chloë Kennedy and Vanessa E Munro stood at the time.17 Moreover, in undertaking a feminist judgments project, we have retained some residual faith that law can be ‘a bridge linking a concept of reality to an imagined alternative’18 and that legal processes can offer occasions for justice – and of respect.19 In short, while we were committed to finding openings through which to expand the criteria of legal relevance, introduce marginalised perspectives, and probe the interpretation of legal doctrine, we also made a collective decision to accept many of the trappings of standard – constraining – legal methods. This, we felt, would allow us to better harness the transformative power of feminist judging. Another dilemma we confronted collectively at this early stage was whether, in aiming to right the wrongs of a decision for the particular individual(s) involved, in some cases a feminist judge would also run the risk of creating a judgment that ‘may not serve the interests of all women, or may operate to the disadvantage of some women’.20 How to manage that complexity and pursue a more just outcome in the case at hand, while restricting the potential for negative effects in future cases, was a theme that ran throughout many of our subsequent discussions. A judgment might produce deleterious consequences either because a precedent is set that may not be helpful to future litigants, or because of what Zenon Bańkowski21 has termed ‘normative surplus’, whereby a decision supports particular ideas about the world that are in turn fed back into the legal system to legitimate existing practices. Thus, FJPs not only illustrate the gendered effects of a specific decision, but the implications of those effects on future cases and on the framing, language and methods that continue to be relied upon in the judging process. We were also acutely aware, of course, that judges are not the only ones who make (or perform) law.22 This is particularly pertinent in the Scottish context, where – as is discussed further in the next chapter – there has been a significant upturn in legislative activity under the devolved Scottish Parliament. Nonetheless, we were mindful that the radical potential of taking on a feminist mantle to reimagine judge-made law should not be underestimated. As Margaret Davies has observed, ‘the imagined masculinity of the judge has not yet receded, meaning that the female judge – like any woman operating in a strongly male-identified field – has to reinvent the part for herself ’.23 Thus, not only is the act of writing a feminist 17 R Hunter, ‘The Power of Feminist Judgments?’ (2012) 20 Feminist Legal Studies 135, 137; Hunter et al (eds), above n 4, 31. 18 Cover, above n 16, 101. 19 On occasions of respect see W Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19 Feminist Legal Studies 27, 41, where she notes that she is building on the work of Ann Scales and Rosemary Hunter. 20 Hunter, above n 17, 140. 21 Z Bańkowski, ‘The Space to See: Law and the Ethical Imagination’ in Z Bańkowski and M Del Mar, The Moral Imagination and the Legal Life: Beyond Text in Legal Education (London, Emerging Legal Education, Ashgate, 2013) 15. 22 M Davies, ‘The Law Becomes Us: Rediscovering Judgment’ (2012) 20 Feminist Legal Studies 167, 174. 23 ibid 172.

Through the Looking Glass?   7 judgment a substantive form of ‘academic activism’24 that ‘attempt[s] to tackle power and authority not from the distance of critique but on their own ground’,25 it is also an epistemic challenge to orthodox models of knowledge production. Unlike other FJPs, in this Scottish incarnation, we have given the ‘last word’ on each case to the feminist judge, in the form of a brief reflective statement. This provides an important opportunity to reflect on the process of crafting a judgment, including what it meant to write as a feminist judge. We wanted to make our judges’ negotiations and navigations more transparent than those of the original judges, encouraging them to engage openly with the challenges they faced and choices they made when stepping into the decision-maker’s shoes. This also allowed us to create a space in which to explicitly acknowledge feminist theories and processes of knowledge production, and lay bare the norms, standards and practices involved in generating and applying legal knowledge. These reflective statements, read in conjunction with the judgments and commentaries, demonstrate vividly contributors’ efforts to overcome obstacles posed by conventional legal methods, identified by Mary Jane Mossman as including: (i) characterisation of the issues; (ii) choice of legal precedent; and (iii) process of statutory interpretation, especially in determining the potential for statutes to alter common law principles.26 Here, we offer just a few illustrative examples. Mossman argues that in characterising legal issues, judges often construe these narrowly, excluding the social and political context as non-legal and therefore irrelevant, while simultaneously setting out what the ‘real’ legal issues are from a purportedly neutral position. Our judges were encouraged instead to reach for sources of support beyond the strictly legal, taking into account the socio-political context and the scope of potential judicial knowledge at the time. Research findings and statistics on the prevalence of domestic abuse, equality in the workplace, patterns of landownership, and women’s responses to rape are all examples of the sorts of knowledge that our judges incorporated into their judgments which were not included in the original decisions. For instance, Lady Busby holds that the overly narrow comparison of men’s and women’s pay in the original Rainey v Greater Glasgow Health Board ([1987] AC 224, HL) decision precluded the Court from taking into account the deeper structural reasons why men and women’s routes into employment differed, and how the supposedly simple explanation of ‘market forces’ can mask indirect gender discrimination. Similarly, in Ruxton v Lang (1998 SCCR 1), both the judge, Lady Cowan-Munro, and commentator, Liz Campbell, draw attention to the ‘missing’ and underplayed knowledge about the incidence and effects of domestic violence, which was

24 E Rackley, ‘Why Feminist Legal Scholars should Write Judgments: Reflections on the Feminist Judgments Project in England and Wales’ (2012) 24 Canadian Journal of Women and the Law 389. Rackley shows how the scholarly, pedagogical and political benefits of judgment rewriting mean that is an important and valuable feminist project. 25 Hunter et al, above n 4, 8. 26 Mossman, above n 15.

8  Sharon Cowan, Chloë Kennedy and Vanessa E Munro directly ­relevant to the question of whether the accused was in ‘immediate’ danger, and thus whether the defence of necessity was available to her. And in Smith v Lees (1997 SCCR 139), Lady Cairns imports feminist knowledge about women’s responses to rape to provoke discussion of the appropriate role of distress in corroborating a sexual assault claim. In deciding what material to refer to when characterising the legal issues and constructing the factual narrative of a given case, it is clear that judges are also deciding what material to leave aside, where to place an emphasis, and what forms of knowledge to silence. Such practices often involve a marginalisation or erasure of women’s perspectives and experiences, and this was a central target for our feminist judges, who, in various ways, have sought out and engaged explicitly with silenced narratives and alternative frames of knowledge. Regarding the importance of legal precedent, Mossman highlights the constraining force and weight of earlier cases, which become ‘a powerful tool for maintaining the status quo and for rationalizing the denial of new claims … notwithstanding the challenge of feminist ideas’.27 She also acknowledges the ways in which a lack of precedent can support judicial reticence to extend legal protections and rights to women. When change finally does come about, she maintains, it is not because precedent ceases to be an operating principle, but more likely because it is difficult for judges to hold back the tidal wave of shifting social attitudes (or, indeed, because the legislature intervenes). These concerns were also at the fore in the approaches taken by our feminist judges. Indeed, Mossman’s specific e­ xample – of historical resistance to women’s participation in public life – was examined by our feminist judge, Lord Kennedy,28 in his dissenting judgment in the case of ­Jex-Blake v Senatus Academicus of the University of Edinburgh (1873 11 M 784). As the commentator, Stephen Bogle, makes clear, the original decision denied women access to graduating in medicine, at least in part because such a thing had never previously been allowed. Similarly, R & F v UK (Application 35738/05 2005) illustrates that the European Court of Human Rights (ECtHR) had previously allowed the UK government a significant margin of appreciation to decide if and how trans people could enter into marriage. In her judgment, Judge Gray holds that such an approach is too conservative to address the needs of a marginalised, minority group, and her commentator, Becky Kaufman, argues further that the law here is a blunt expression of power that sidelines the interests of the oppressed. These judgments, and the authors’ reflections upon them, illustrate that, just as with decisions about factual relevance, in deciding what precedents are ‘sufficiently similar’ to be applicable, judges make normative rather than neutral choices. Challenging how those normative choices are cloaked and obscured by formal legal processes29 does not necessarily imply that these n ­ ormative choices



27 ibid

159. was impossible for a woman to be a judge in Scotland at the time the original case was heard. 29 Mossman, above n 15, 161. 28 It

Through the Looking Glass?   9 should be discouraged, only that they should be transparent, and that judges should be held accountable for them. As Davies reminds us, cases are decided in a ‘judgment space’, where judges assess the situation ‘both normatively and in its absolute distinctness’,30 but this can easily turn into a site of stagnation, with law becoming culturally ‘moribund, inhibited by dogma, and pointlessly attached to tradition’.31 It is not just the doctrine of precedent that can prove obstructive to feminist aims. As Mossman reminds us, statutory interpretation can also play a repressive role. Indeed, in attempting to read Parliament’s intention from a statute, judges can easily preserve the status quo by engaging in this process conservatively, through a narrow reading of the norms of the time; but they can also focus too much upon technical legal questions, thereby excluding these broader norms altogether. The potential for statutory interpretation to have repressive effects subsists in several of the cases rewritten for this project. Judge Norrie, for example, rewrites White, applying the Children (Scotland) Act 1995 in a gender-neutral way to a post-divorce child contact dispute. In doing so, he questions gender norms about parenting and highlights entrenched heterosexist ideologies about family life. Although this approach confronts stereotypes about who should do childcare, we see here again the ways in which diverging feminist perspectives can lead to different outcomes; thus, Judge Norrie’s commentator, Rosie Harding, offers an alternative feminist view, which highlights the concrete implications of the reality that women bear the disproportionate burden of childcare responsibilities, notwithstanding the gender neutrality of the relevant legislation. Similarly, a substantive equality approach is adopted by Lady Mair, and her commentator Gillian Black, in the feminist rewriting of Coyle v Coyle ((2004) Fam LR 2), which allows the divorcing wife’s many years of caring labour and loss of professional opportunities and income to be considered in the financial provision made on divorce. Another example of ­Mossman’s warning about the inertia of statutory interpretation is offered by Doogan, where, in the original judgment, Lady Hale took a narrow view of the relevant legal issue, focusing solely on the interpretation of section 4 (on conscientious objection) of the Abortion Act 1967. In contrast, our feminist judge, Lady Ganguli-Postan, reflects on the contemporary aims and application of that Act, which she suggests help to determine appropriately the weight to be afforded to the interests at stake and provides greater protection to the rights of women seeking access to terminations. Thus, once more, our contributors – in various and sometimes conflicting ways – engage consciously and reflectively with the role of context in legal interpretation, highlighting the selective ways in which statutes are seen as living instruments. Alongside these efforts to engage with the limitations of conventional legal method identified by Mossman and others, one of the other guiding commitments



30 Davies, 31 ibid

above n 22, 176. 178.

10  Sharon Cowan, Chloë Kennedy and Vanessa E Munro in this FJP was to demystify and democratise judicial analysis and decision-making as much as possible. In particular, we wanted to tackle the issue of accessibility. While not only a feminist issue, accessibility is key to ensuring that legal decisions are transparent, and that legal decision-makers are accountable to the polity. Focusing on the production of accessible judgments allowed us to centre the question of whom the law is for; dense, unintelligible judgment-writing does the law a disservice, alienates law’s subjects from the institutions and systems that govern them, and renders the power and reach of law more difficult to discern and challenge. Again, this required a delicate balance between acknowledging and framing judgments in accordance with existing conventions, while at the same time undermining some of their more exclusionary effects. Contributors were encouraged to write in accessible language wherever possible, and in the case of Baxter, Lady Belcher used diagrams to distil complicated factual circumstances into a more easily digestible format. Further, as discussed below, alongside a commitment to producing more accessible judgments, we were also keen to communicate legal critiques and justice claims through alternative, extra-legal media. In particular, we were able to collaborate with a pool of talented artists, thereby bringing the project to wider, non-specialist audiences. Given how impervious law can be to feminist – or any other external – ­challenge, we might question the extent to which those who are oppressed can learn anything about their lives and the world around them that could be useful for provoking change, while those who hold power over them construct the very ‘tools of thinking’ that explain and justify their reality.32 The primacy of law as a site of feminist resistance and reform is thus by no means unequivocally endorsed, either theoretically or politically. Nonetheless, while we acknowledge that FJPs can only be one tool in the ever evolving endeavour to resist oppressive norms and processes, we believe – even more strongly now, having been involved in this project – that the collective enterprise of ‘righting and rewriting law’ to dismantle the master’s house33 has undeniable resonance and force. Ultimately, for us, feminist judging means a commitment to telling untold stories; using ‘thick’ contextualised accounts of facts and circumstances; reinterpreting precedents and statutory provisions more inclusively; making dense, convoluted judgments more accessible; drawing on a diverse range of knowledge, expertise and experiences to inform our decision-making; engaging deeply with the intersectional nature of gendered and other power imbalances; and, where possible and appropriate, changing the decision to better achieve a (more) just outcome. While some of these aims are not exclusively feminist, they are aims that we self-consciously adopted in formulating and framing our Scottish FJP.

32 Mossman, above n 15, 149, fn 7; see also C Smart, Feminism and the Power of Law (London, ­ outledge, 1989). R 33 A Lorde, Sister Outsider: Essays and Speeches (Trumansburg, NY, The Crossing Press, 1984) 112.

Through the Looking Glass?   11

Art, Law and Judgment ‘Art is a powerful device that can generate resistance, reflection and understanding’.34

Amongst other things, our ambition in this project was to respond to the exclusionary practices of legal power. As noted above, we knew that engagement with jurisprudential argument in and of itself would not be sufficient and that we would need other tools with which to contest mainstream legal orthodoxies. Although we felt it was important to ask ‘the woman question’35 in law, stepping outside the realm of the strictly legal to examine law through an artistic, performative lens also seemed important. Feminist scholars have pointed to the relationship between outsider voices in the academy and the dominant racist, classist and gendered conventions surrounding academic practice, including the valorisation of text over non-text.36 Our project sought to transcend the textual format with which lawyers and legal academics most comfortably engage, using art to speak in a different ‘language’ about issues of law and justice. By fostering a dialogue between these different languages and frames of reference, we also wanted to encourage our readers (as well as those who attended our various artistic exhibitions) to experience hearing and seeing the law in different ways. Artistic contributions have been shown to be particularly beneficial in helping students, academics and practitioners to understand the ethical complexity and impact of legal decision-making upon people.37 They can form an important part of our legal understanding about the vast range of human experiences and can generate insights about the contingent nature of law, while instilling a capacity for empathy. Importantly, they can also create a ‘depth of field’ for law by placing some of the more technical legal aspects in shadow while highlighting the more relational, affective aspects of decision-making.38 As Elaine Webster has suggested, these visions of law can provide ‘an enriched toolkit that can aid [us] to challenge seeming-objectivity, to confront one’s own role within the legal system, and to cultivate a necessary confidence in creative interpretation’.39 Such aspirations clearly have relevance and resonance to any FJP. 34 J Hewitt, ‘How Indigenous Art is Challenging Colonial Law’ (Centre for International Governance Innovation, 27 September 2017), available at: www.cigionline.org/articles/how-indigenousart-challenging-colonial-law. 35 K Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829. 36 T Lillis, ‘New Voices in Academia? The Regulative Nature of Academic Writing Conventions’ (1997) 11 Language and Education 182; The Feminist Geography Reading Group, ‘(Un)doing Academic Practice: Notes from a Feminist Geography Workshop’ (2000) 7 Gender, Place and Culture 435; E Adjin-Tettey, G Calder, A Cameron, M Deckha, R Johnson, H Lessard, M Maloney and M Young, ‘Postcards from the Edge (of Empire)’ (2008) 17 Social & Legal Studies 5; S Cowan and G Calder, ‘Re-imagining Equality: Meaning and Movement’ (2008) 29 Australian Feminist Law Journal 109. 37 Z Bańkowski, M Del Mar and P Maharg (eds), The Arts and the Legal Academy: Beyond Text in Legal Education Vol 1 (London, Ashgate, 2012); Z Bańkowski and M Del Mar, The Moral Imagination and the Legal Life: Beyond Text in Legal Education (London, Emerging Legal Education, Ashgate, 2013). 38 See Cover, above n 16, 102, who refers to law as giving ‘depth of field’ to a normative vision of society. 39 E Webster, From Interpretive Imagination to Contingency in Law: An Argument for Moving Beyond Text’ in Z Bańkowski, M Del Mar and P Maharg (eds), The Arts and the Legal Academy: Beyond Text in Legal Education Vol 1 (London, Ashgate, 2012) 87.

12  Sharon Cowan, Chloë Kennedy and Vanessa E Munro The arts have also provided an outlet for highlighting the injustices or excesses of law in ways that are accessible to those outside the legal community. For example, the stories of victims have been narrated, through art, in powerful ways that connect the artist, viewer and subject of law, and show the limits of jurisprudence to engage us in these human stories.40 Non-academic and non-textual images and interpretations of legal processes and decisions can help us challenge the power of law to define itself. By bringing judges, commentators and artists together in sustained dialogue, we wanted to explore what Costas Douzinas and Linda Nead describe as law’s pretence that it can ‘close itself off from other discourses and practices’41 and provide a concrete testing ground for what Alison Young has maintained occurs within the ‘co-implicated relation between jurisprudence and aesthetics’ whereby ‘we find that which the legal tradition would prefer not to be revealed – uncertainty, affectivity, contingency, difference, the peripatetic and nomadic, the marginal, the image’.42 For these reasons, the Scottish FJP has incorporated the performative, visual and oral to give a glimpse of what it might mean, beyond traditional legal text, to reason, deliberate and come to a decision – as well as the consequences of doing so. Though powerful, there are, of course, limitations to treating art in this way as something ‘outside’ law – a lens through which to view and critique law. Artistic work can also be a performative expression of law, as the Canadian project ‘Testify: Indigenous Laws and the Arts’ has shown by reflecting the way many indigenous communities regard law as expressed directly through objects and artistic forms such as dance, story-telling, sculpture, song and ­paintings.43 Importantly, this reminds us that the relationship between art and law is itself culturally and geographically contingent; for some, art is law.

Art in Feminist Judging Ours is not the first FJP to employ artistic forms to reflect on decision-making. The Northern/Irish FJP included poetry in its edited collection and ran workshops incorporating prose and poetry writing. In the Scottish FJP, we went further, however, by weaving aesthetic perspectives throughout our project, seeking to engage broader and more diverse audiences in conversation about law than could 40 Some recent examples include: Emma Sulkowitz’s performance piece of endurance art where she carried a mattress on campus to protest her alleged sexual assault by another student, available at: www.nytimes.com/2014/09/22/arts/design/in-a-mattress-a-fulcrum-of-art-and-politicalprotest.html; the Danns-Ed performance on sexual violence and the survivor experience, available at: vimeo.com/313777654; and Breach Theatre’s staging of the seventeenth-century trial of the artist Artemesia Gentileschi’s rapist, Agostino Tassi, available at: www.newdiorama.com/whats-on/ its-true-its-true-its-true. 41 C Douzinas and L Nead, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago, IL, University of Chicago Press, 1999) 4, cited in A Young, Judging the Image: Art, Value, Law (London, Routledge, 2005) 9. 42 Young, ibid, 12. 43 See: testifyindigenous.ca.

Through the Looking Glass?   13 have been achieved through legal textual means alone. There were two components of our tryst with the arts: an early theatre workshop and a series of commissioned outputs inspired by the project and hosted at public exhibitions. In the first phase of the project, we organised a theatre workshop led by experts from Active Inquiry, a Theatre of the Oppressed theatre company based in ­Edinburgh. Feminist judges, commentators and several creative contributors were in attendance, such that the relationship between text, theatre and art became symbiotic and iterative from the outset, enabling conversations and connections throughout the life of the project. Themed around ‘feminist judgment’, the objective of the workshop was to use theatre methods to enable an embodied process of reflection on the significance of feminism and the act of judging upon which contributors would embark. The workshop was designed to make us more confident in expressing our own feminist perspectives within the strictures of a legal judgment, and to enhance our understanding of the role of judges by exploring some common issues that we might experience in attempting to ‘walk a mile’ in their shoes. The particular form of theatre we turned to was Augusto Boal’s Theatre of the Oppressed.44 For Boal, theatre, as much as law, can change the ‘real’ world – it is produced by, and becomes part of, that real world. In this way, Theatre of the Oppressed shares some aims with feminist praxis, insofar as feminist theory is grounded in, and intimately connected dialogically with, practice and lived ­experience.45 Embodying law and legal concepts through gestures and images shows how legal norms and concepts are, or can become, powerful and persuasive but also, ultimately, open to challenge, resistance and transformation. As academics are mostly ‘in their heads’, we were also provoked to play with Boal’s idea that ‘the whole body thinks – not just the brain’.46 We were encouraged to leave behind our instincts to intellectualise and to confront our more visceral and embodied reactions to what feminism, for each of us, entails. This created a productive space for airing a range of responses that focused on the importance of community, voice and empowerment – key themes that guide and inform this project in its academic and artistic media. Themes around remaining conscious of audience (including the Scottish context) and what voices are and are not present and heard (and why) also began to emerge. This made our participants more mindful of those for whom the decision, and its reasoning, matters and fostered a stronger commitment to creating intelligible judgments. Further, the theme of discomfort with the process of judging was recurrent, as was the emotional impact of judging. As one of our judges, Jane Mair, describes in her reflective statement, the experience of being

44 A Boal, Theatre of the Oppressed (New York, Theatre Communications Group, 1985). Theatre of the Oppressed is a form of theatre Boal developed in Brazil, using scripts and stories developed from participants’ experiences to empower them to try to change their lives. 45 Smart, above n 32, 70, 72. 46 A Boal, Games for Actors and Non-Actors, A Jackson (trans) 2nd edn (London, Routledge, 2002) 49.

14  Sharon Cowan, Chloë Kennedy and Vanessa E Munro asked to use her body to express ideas, concepts and emotions – including what it means to be a judge – left her feeling exposed. But it also allowed her to empathise with what a ‘real’ judge might face in the courtroom, particularly in terms of the emotional burden of making decisions that affect the individuals before them. This echoes Sandra Berns’ insights on the way that feminist judges are offered a terrifying moment of freedom to act, but then must take responsibility for that action (or lack thereof).47 Challenging legal traditions and the hegemonic power of law thus requires creativity and imagination, as well as, at times, a sense of discomfort. It is striking that such discomfort is not unique to our feminist judges. Indeed, Lord Hope, who was Lord President (Scotland’s most senior member of the judiciary) from 1989 to 1996, reflected in his diaries on the difficulty of writing judicial opinions. He described it as ‘a very demanding job’ of ‘great importance’ but one which he found laborious, struggling sometimes to find the words to express himself, to avoid becoming too embroiled in detail and to ensure that he wrote sufficiently ‘clearly and sensibly’ for his audience.48 While Lord Hope’s apprehension was, in the main, confined to whether academics and peers would accept his judgments as accurate in a technical sense, our judges’ concerns were more expressly affective, focused on the emotional burden of dealing with difficult cases. The theatre workshop, then, played an important role in opening up participants’ perspectives on emotionality, feminism and judging. This enabled a variety of modes of engagement with individual cases within the project, but also illuminated connections between judging and the wider vectors of political power, national identity and feminist methodology. These interwoven themes continued to permeate the subsequent interactions we had with one another as judges and commentators, as well as with the project’s creative contributors. Led by Jill Kennedy-McNeill (textile artist),49 our creative contributors were: Jo Spiller (photographer), Jess Orr (writer), Sofia Nakou (theatre practitioner, working with choreographer Becky O’Brien), Jay Whittaker (poet), Rachel Donaldson (illustrator) and Alison Burns (composer). These artists participated in various events alongside academics, including the theatre workshop, a two-day judgments-inprogress workshop, and impact and knowledge exchange events where their work was shown. Alison Burns and Jay Whittaker have responded to the case of Drury v HM Advocate (2001 SLT 1013), with profoundly moving contributions on the absence of the murdered victim. Meanwhile, Jo Spiller, Sofia Nakou (with Becky O’Brien) and Jess Orr have responded to Jex-Blake, and the lack of representation of women in public life and spaces. Jill Kennedy-McNeill has created three

47 S Berns, To Speak as a Judge: Difference, Voice, and Power (Brookfield, VT, Ashgate, 1999) 51–57. 48 JAD Hope, Lord President, 1989–1996 (Edinburgh, Avizandum, 2018) 44. 49 We would like to express our immense and profound gratitude to Jill Kennedy-McNeill for coordinating the artistic strand of the Scottish FJP. Without her imagination, passion and determination, this crucial part of our project would have been severely impoverished.

Through the Looking Glass?   15 affective, interactive pieces responding to Salvesen v Riddell ([2013] UKSC 236) and the themes raised by the project more generally; and Rachel Donaldson has produced bold illustrations on the theme of feminist judging, one of which has become the cover art for this collection. Together, and through diverse media, these works have formed an integral part of our FJP, appearing not only in this collection and on our website, but also across Scotland in a number of galleries and other ­exhibition spaces, including at a private member’s exhibition at the Scottish Parliament in 2018. Producing artistic interpretations, and publicly exhibiting these, has allowed us to demonstrate that although we are subjects of law, we need not passively perceive and accept its norms and effects. Creative contributions can provoke and implicate the viewer in new ways, asking them to interpret and ‘judge’ for themselves. The work produced by our artists has allowed us to ‘harness the power of non-verbal communication by combining visual images, our embodied selves and text as a means of connecting with our readers’.50 Thus, the two strands of our project – academic and artistic – have reinforced each other, stimulating discussion about the disciplinary and personal challenges and opportunities for artists working in and on a ‘legal’ project; for legal academics working with artists, who challenge notions of the supposedly ‘natural’ or ‘logical’; and also for legal professionals, activists and artists working collaboratively towards social justice.

Scottish/Feminist/Judgments: Navigating Connections and Constraints The judgments selected for feminist rewriting within this FJP traverse a broad range of legal areas, from the archetypically feminist – sexual violence, domestic abuse, reproduction and family rights and duties, and equal pay – to subjects that are typically considered to have no obviously gendered features, such as company law, land reform, standing and alterations to heritable property. Reflecting this array of substantive topics, the judgments are grouped in this collection under four headings: crime, victimisation and violence; family, home and belonging; relational duties, equality and discrimination; and citizenship, culture and protection. Within and across each of these groupings certain core themes and narratives have emerged, which animate, expressly or latently, the feminist judgments, commentaries and reflective statements offered here. Amongst others, these include: the public/private distinction; work, family life and professionalism; intersectionality; agency and representation; and embodiment and consent. We will say something briefly here about each of these, and how they are reflected in the judgments.



50 Adjin-Tettey

et al, above n 36, 9.

16  Sharon Cowan, Chloë Kennedy and Vanessa E Munro A number of the judgments are structured around complicating the distinction between ‘public’ and ‘private’, which remained largely uncontested within the original judgment. This distinction, as many feminists before us have shown, has long prevented legal interventions that would help alleviate the suffering of women or promote their advancement. The effect of assumptions about what kinds of matters are private and public, and the proper presence of the state, and women, in each locale is clearly evident in the Scottish FJP. For example, the notion that the ‘household’ is a domain of heteropatriarchal control not only serves, as demonstrated in Ruxton, to curb the state’s ability to recognise the nature – and harm – of domestic abuse, it also serves, as shown in Scottish Special Housing Association v Lumsden (1984 SLT (Sh Ct) 91), to disadvantage men who are deemed to have exercised this form of patriarchal control ineffectually. In R & F v UK (2005), the ongoing allowance by the ECtHR of a margin of appreciation to the UK in respect of its rules governing marriage for trans people accepted the premise that, while marriage is a matter of public concern, the decision of a trans person to transition is a private one that cannot usurp matrimonial law. Furthermore, the idea that women are ill-suited to occupying positions of public power and authority obviously underpins the marginalisation of would-be women graduates in Jex-Blake. Unsettling these gendered assumptions and expectations is part of how the feminist judgments in this and other FJPs show the contingency of such assumptions, but also make visible the damage wrought when they are allowed to subsist. Several judgments also explore issues of work, family life and professionalism. The question of equality in the workplace is highlighted, for example, in the critique of the very narrow interpretation of the Equal Pay and Sex Discrimination Acts taken by the court in Rainey. Meanwhile, the obscuring and undermining of caring responsibilities and other marginalised forms of work is raised in the ­financial provision in the divorce case Coyle. In White, the assumption that it is women who should be performing child care is tested. And in Baxter, the focus on individual duties at the expense of collective responsibilities highlights the privileging of a particular kind of professional autonomy in contemporary capitalist business practices that are themselves highly gendered. The compartmentalisation of gender from other powerful discourses and norms is problematised by a number of our judgments. In Rainey, for example, ‘market forces’ are deemed to be detached from any kind of gender (or other structural) analysis; and in the asylum appeal of Helen Johnson (AP) v IAT (2004 (P340/04), Court of Session), politics, culture, religion and gender are shown to be disaggregated in ways that fail to recognise the intersecting forms that persecution and discrimination often take. Critique and reimagining of these approaches demonstrate the need to be attentive to deeply embedded patterns of intersecting ‘othering’ that occur at structural and interpersonal levels. Lady McHarg and Lord Nicolson’s rewriting of Salvesen v Riddell and Lady McCarthy’s judgment in Rafique v Amin (1997 SLT 1385) also illuminate the ways in which a gender lens can interact with a distinctly Scottish

Through the Looking Glass?   17 socialist/communitarian critique to highlight the inequitable effects of classbased models of power distribution and neoliberal, individualistic approaches to property ownership. Importantly, these cases also make space for an idea of ‘home’ and responsible landownership that extends beyond individual rights and attends to culture, heritage and geographical specificities. Agency and representation are also themes that cut across our judgments; many of our judges drew attention to the silencing of certain voices, particularly where the absence of those voices precluded their agentic ability to shape the course of their own interaction with law, as in Ruxton. The invisibility of the victim’s own narrative is also especially poignant in Drury. In other cases, narrow rules of evidence and proof have acted as exclusionary forces against the public recognition of harm, thereby limiting the degree to which women’s experiences can be truly represented in the legal forum (eg, McKearney v HM Advocate 2004 JC 87, and Smith v Lees). In a more general sense, these cases also highlight the very real cost to individuals – and the impoverishment of the development of law more generally – of overlooking or suppressing the narratives of women and women’s representatives. As Lord Kagiaros’ feminist rewriting of Rape Crisis Centre v Secretary of State for the Home Department (2000 SC 527) makes clear, the impact of denying women’s voices and agency reverberates across all kinds of communities, stifling far more than those whose particular perspectives are silenced in the case. Unsurprisingly, perhaps, the issues of embodiment and consent arise in a number of cases, posing questions about the relationship between individual autonomy and broader contextual factors. In Doogan, the refusal of two labour ward nurses to be involved in abortion processes puts two sorts of competing and legitimate autonomy claims (bodily autonomy and the right to conscientious objection) into conflict; but the resolution of this conflict requires consideration of structural concerns about access to state resources in the form of healthcare. And in Helen Johnson, the immigration tribunal effectively ignores the fact that an individual mother’s consent to FGM being performed on her daughters is all but meaningless in a context where over 90 per cent of girls are cut, and refusing to engage in injurious bodily practices leads to community ostracisation. The criminal cases of McKearney and Lees clearly illustrate the ways in which law looks to the female body as a way of discerning consent and the challenges faced by complainers of corroborating a lack of consent within the Scottish rules on evidence and criminal procedure. Sexual and bodily autonomy and integrity are shown here to be in conflict with stubborn heteronormative socio-sexual assumptions about gender roles, the sexual availability of women and ‘appropriate’ responses to sexual violence. These cases explore the political cadences of consent, how law can alienate women from their most intimate experiences, and the decontextualisation and depoliticisation of their embodied realities. Across the following chapters, this collection offers the reader a vision of an imagined reality in which alternative judgments and creative interpretations bring gender equity concerns, which are too often neglected, to the fore. By gathering academic, activist, practitioner and artistic contributors together, we have sought

18  Sharon Cowan, Chloë Kennedy and Vanessa E Munro to expose the power, politics and partiality of law. In the next chapter, we map out the distinctive Scottish socio-political context in which our project is situated, detailing the historical and contemporary relationship between Scots law, politics and national identity and the shifting terrain upon which feminist activists in Scotland engage with law and policy-makers.

2 Devolving Dictum? Legal Tradition, National Identity and Feminist Activism SHARON COWAN, CHLOË KENNEDY AND VANESSA E MUNRO Often what small or vulnerable cultural groups need is … a construction or reconstruction of a ‘usable’ past, an awareness of a cultural tradition which will allow them to preserve or develop a sense of their own distinctive identity, their constituting difference.1

Like its counterparts, the Scottish Feminist Judgments Project has been conditioned by the peculiarities of its specific national context. That context has structured, and continues to structure, the relations between the legal and the political in ways that can facilitate and/or hinder feminist attempts to rework the law. This is not surprising: as Robert Cover reminds us, ‘[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning’.2 In Scotland, that narrative is one which has been shaped in part by several long and continuing associations with other nations, whose influences and impositions have made a mark not only on Scotland’s legal institutions but on the way those institutions have become emblematic of the contours of national identity and sovereignty. Scotland is a small jurisdiction that has a complicated relationship with its nearest neighbour, England, which has been perceived over time as both coloniser and companion. From this, a strong nationalist sentiment has been forged, reflected both at the personal and political level. Scotland is thus a nation that engages every day with the duality of its existence as being simultaneously independent of, and in-dependence upon, the rest of the UK. In recent years this has, amongst other things, brought to the fore challenging questions about ­Scotland’s place within and future connections (legal, political and cultural) to 1 R Crawford, Devolving English Literature (Oxford, Clarenden Press, 1992) 5, quoted in P Maharg, ‘Imagined Communities, Imaginary Conversations: Failure and the Construction of Legal Identities’ in L Farmer and S Veitch (eds), The State of Scots Law (Oxford, Butterworths, 2002) 142. 2 R Cover, ‘Nomos and Narrative’ in M Minow, M Ryan and A Sarat (eds), Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbour, MI, University of Michigan Press, 1995) 95–96.

20  Sharon Cowan, Chloë Kennedy and Vanessa E Munro Europe, and, indeed, the rest of the world. Thus, understanding Scottish national identity, and the practically and symbolically crucial place of law within it, requires tracing the spaces in which its sovereignty has been denied or repressed as much as those spaces in which it has been afforded recognition. The two obvious milestones in the story of Scottish legal and national identity to date are the Union of Parliaments in 1707, at which point Scotland ceased to be an independent sovereign state,3 and the establishment in 1999 of the devolved Scottish Parliament,4 when Scotland regained some degree of independence with respect to its own legislature and political sphere. With the first development, the connection between Scottish legal and national identity was intensified as Scots law and the legal system came to represent bastions of­ Scottish identity that had survived the Union. Indeed, under the terms of the Union of Parliaments, the distinctiveness and relative autonomy of Scots law was to a large degree preserved (with exceptions relating to trade, custom and excise), as were the Scottish courts, subject to their reform for the ‘better administration of justice’.5 Despite this, from 1707 until devolution in 1999, legislation affecting Scotland could, of course, only be passed by the Westminster Parliament. This period was marked as a result by a decline in the amount of legislation passed for Scotland6 and concerns about Scottish parliamentary representation.7 But there was also a perception that judges were well placed and appropriately mandated to ameliorate this legislative neglect by developing the law in response to Scotland’s changing needs.8 In developing the law in this way, the Scottish judiciary turned to various non-legislative sources of law. Crucial amongst these was the common law of ­Scotland, the meaning of which had changed by the mid-eighteenth century from ius commune – the Roman laws common to Europe – to cases decided by the national courts, as reported and systematised in specialised legal treatises. Relying on these sources often afforded judges in Scotland a good amount of discretion, especially since in both the civil and criminal spheres it was possible to draw on the courts’ inherent equitable and declaratory powers to develop the law in accordance with societal needs and justice.9 Another major source of law was the ‘institutional writings’ – seventeenth- and eighteenth-century juristic texts 3 Union with Scotland Act 1706 and Union with England Act 1707. The Union of Crowns in 1603 brought Scotland and England under the same monarch, but the 1707 Union led to greater legal and political unity and the founding of the UK. For a more nuanced account of this, see M Pittock, ‘Scottish Sovereignty and the Union of 1707: Then and Now’ (2012) 14 National Identities 11. 4 Scotland Act 1998. 5 Arts XVIII and XIX. 6 P Loft, ‘Litigation, the Anglo-Scottish Union, and the House of Lords as the High Court, 1660–1875’ (2017) 61(4) The Historical Journal 943. 7 HT Cockburn, ‘Parliamentary Representation of Scotland’ (1830) 52 Edinburgh Review 208. 8 JW Cairns, ‘Legal Theory’ in A Broadie (ed), The Cambridge Companion to the Scottish ­Enlightenment (Cambridge, Cambridge University Press, 2003) 232. 9 C Kennedy, ‘Declaring Crimes’ (2017) 37 Oxford Journal of Legal Studies 741; DJ Carr, Ideas of Equity (Edinburgh, Edinburgh Legal Education Trust, 2017) ch 2.

Devolving Dictum?  21 (all produced by men) that have repeatedly been relied upon by courts and, because of this, are usually considered authoritative sources of law today.10 In the spirit of Sarah Ahmed’s contention that ‘[c]itation is feminist memory’,11 the continued use of these sources has been a critical target for several of our feminist judges. Despite the periods of political union between Scotland and England, therefore, Scots law originated and has continued to evolve quite differently from its English counterpart, leaving Scotland in many ways more closely connected to these historical canons, and dependent on judicial interpretation, to ensure that its law reflects and responds to modern society. Indeed, despite the move towards the doctrine of stare decisis (abiding by previous judgments) that occurred in Scotland, and England, in the nineteenth century,12 a significant degree of judicial discretion subsisted. For example, it has been argued that the Court of Session and the High Court of Justiciary – which are the highest courts in Scotland, h ­ earing matters of civil and criminal justice respectively13 – still retain a rule-building capacity, which makes it possible for judges to search for the principle, policy or standard underlying a given rule and then decide whether to diverge from this, or to extend it in novel ways.14 Use of this discretion has often been characterised by a reticence to look beyond Scotland’s national borders for guidance15 and a tendency to turn almost exclusively to English or, in more recent years, the European Convention on Human Rights (ECHR) and EU law jurisprudence when drawing on ‘nonnative’ sources.16 This may change in due course, especially if – as some have 10 JW Cairns, ‘Institutional Writings in Scotland Reconsidered’ (1984) 4(3) Journal of Legal History 76. 11 S Ahmed, Living a Feminist Life (Durham, NC, Duke University Press, 2017) 15. 12 G Maher, ‘Judicial Precedent’ in The Laws of Scotland: Stair Memorial Encyclopaedia (Oxford, Butterworths, 1986) paras 251–52. 13 The highest UK court that hears Scottish cases is the Supreme Court, which deals with all civil cases and criminal cases that raise matters pertaining to devolution, ECHR rights and EU law (­Scotland Act 1998, s 44(1)(c), s 57(2), sch 6). Below the Court of Session and High Court of Justiciary are the Sheriff Courts, which hear a mixture of civil and criminal cases that are not sufficiently serious to be heard at first instance in either of the two superior courts: https://www.scotcourts.gov.uk/the-courts/ sheriff-court/about-sheriff-courts. In addition to these, a Sheriff Appeal Court with criminal and civil jurisdictions was established in 2015, and decisions from this court are binding on all Sheriff Courts in Scotland: https://www.scotcourts.gov.uk/the-courts/sheriff-appeal-court/sheriff-appeal-court https:// www.scotcourts.gov.uk/the-courts/sheriff-appeal-court/sheriff-appeal-court--civil. Justice of Peace Courts, staffed by lay magistrates, exist to hear the least serious criminal cases: www.scotcourts.gov.uk/ the-courts/jp-court. There are also a number of other courts with specialist remits: many of these are tribunals, organised into First-Tier Tribunal chambers and an Upper Tribunal, the latter of which hears appeals on determinations of the First-Tier chamber (Tribunals (Scotland) Act 2014). 14 NR Whitty, ‘Borrowing from English Equity and Minor Shareholders’ Actions’ in E Reid and D Casey-Miller, A Mixed Legal System in Transition: TB Smith and the Progress of Scots Law (­Edinburgh, Edinburgh University Press, 2005) 115–17. In the criminal law context, see L Farmer, ‘The Idea of Principle in Scots Criminal Law’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh, Edinburgh University Press, 2010). 15 See, eg, L Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge, Cambridge University Press, 1997). 16 C McDiarmid, ‘The Turning of the Tide’ (1999) 3 Juridical Review 156; E Orücü, ‘Comparative Law as a Tool of Construction in Scottish Courts’ (2000) 1 Juridical Review 27; HL MacQueen, ‘Mixing It? Comparative Law in the Scottish Courts’ (2003) 11 European Review of Private Law 735.

22  Sharon Cowan, Chloë Kennedy and Vanessa E Munro suggested – the alterations wrought by the Brexit referendum vote17 push Scottish law schools to embrace a more internationalist and global outlook.18 Historically, however, the relative self-sufficiency of the Scottish legal environment has been seen as emblematic of Scotland’s distinctive identity and has bolstered nationalist sentiment. During the post-war era, in particular, a variety of Scottish legal nationalism dubbed the ‘Cooper–Smith ideology’,19 came to prominence, the core characteristics of which included commitment to the idea that Scots law is a mixed system, ie, that its private law comprises a Roman or Civilian underpinning, overlaid since 1707 with English law; adherence to principle rather than precedent; belief that juristic writers and judges have a vital role in enunciating these principles; and faith in the preservation of Scots law through enhancement of its ­Civilian ­components.20 Though this certainly suggests an openness to comparative perspectives, celebrants of Scots law’s purported mixité have often focused on strengthening those features that distinguish it from English law, and on championing Scots law as a template for greater inter-systemic integration. This latter ambition has occasionally been endowed with explicitly imperialist aspirations,21 some of which, controversially, critics have associated with contemporary projects to codify or harmonise laws across Europe.22 This criticism has also highlighted the unfortunate omission of customary laws in the depiction of South Africa as a fellow ‘mixed system’ composed of a ‘simple mix’ of Roman–Dutch Civil Law and English Common Law – an omission that Scots lawyers seeking to invoke the parallel have seldom challenged.23 Some of the tensions within Scotland’s legal and political consciousness have become even more pronounced since devolution in 1999. Indeed, the resurrection of a Scottish ­Parliament has provided the Scottish courts (and the UK Supreme Court)24 with powers to scrutinise Scots law and legal practice not only on the basis of its compliance with human rights and EU law but also, in the case of statutes, on the basis of legislative competence.25 As a consequence, although Scotland is now

17 It is not clear, at the time of writing, what these will be! 18 S Da Lomba, M Fletcher and R Zahn, ‘Scottish Legal Education after Brexit’ (2019) Law Teacher doi: 10.1080/03069400.2019.1572269. 19 ID Willock, ‘The Scottish Legal Heritage Revisited’ in JP Grant (ed), Independence and Devolution: The Legal Implications for Scotland (Edinburgh, W Green, 1976); L Farmer, ‘Under the Shadow of Parliament House: The Strange Case of Legal Nationalism’ in L Farmer and S Veitch (eds), The State of Scots Law (Oxford, Butterworths, 2002). 20 HL MacQueen, ‘Two Toms and an Ideology for Scots Law: TB Smith and Lord Cooper of Culross’ in E Reid and D Casey-Miller, A Mixed Legal System in Transition: TB Smith and the Progress of Scots Law (Edinburgh, Edinburgh University Press, 2005) 46. 21 Farmer, ‘Under the Shadow of Parliament House’, above n 19, 158. 22 A Rahmatian, ‘The Political Purpose of the “Mixed Legal System” Conception of the Law of ­Scotland’ (2017) 6 Maastricht Journal of European and Comparative Law 843, 857. 23 ibid 844 and 852. 24 Formerly the House of Lords (Constitutional Reform Act 2005). 25 Human Rights Act 1998; Scotland Act 1998, s 29.

Devolving Dictum?  23 well placed to consolidate and produce its own set of idiosyncratic laws that uphold a distinctive Scottish legal tradition, this will only occur if its devolved Parliament chooses to do so, and only if this accords with the legal frameworks that constrain­ Scottish legislators. In that sense, while Scotland’s political identity may have gained increased (formal) recognition, the devolution of legislative powers that brought an end to a long period of legislative inattention and lack of political accountability, may also have reduced the necessity of, and mandate for, judicial creativity.26 The potential consequence of this is that the distinctiveness of Scots law might, somewhat ironically, be increasingly diluted post-devolution.27 To put the point slightly differently, the greater political and legislative autonomy effected by the creation of the Scottish Parliament means that the Scottish judiciary can now less plausibly be conceived as the primary conduit for, and defender of, either Scottish nationalism or even a peculiarly Scottish legal tradition.28 Recent manifestations of Scottish political nationalism – including the election to government of the Scottish National Party in 2007 and the 2014 referendum on independence – might even more clearly signal the obsolescence of a judicially mediated relationship between law and politics on which Scottish national identity rested for so long.29 It is clear, then, that Scotland’s history – as a nation oscillating between independence and ‘in-dependency’ – has had a particular impact upon the remit, operation and significance of Scottish legal institutions to the present day. Having been recognised and protected in the Acts of Union, Scots law and the Scottish legal system came to represent, for many, emblems of national identity,30 with the effect that perceived encroachments upon Scottish laws and legal institutions were often treated as tantamount to encroachments on the nation itself. But the advent of devolution, and recent calls for full independence, have arguably displaced, to a certain extent, the role of the judiciary as a creative force in developing legal principles in uniquely Scottish ways. What exactly the resurrection of the Scottish Parliament means for Scottish legal and national identity is a complex, intricate and ongoing question, but what can barely be disputed is that Scotland has always seen itself in its relations with other parts of the UK – and arguably beyond – as

26 See, eg, J Chalmers, ‘Developing Scots Criminal Law: A Shift in Responsibility?’ (2017) 1 Juridical Review 33. 27 HL MacQueen, ‘Quo Vadis?’ (2017) 1 Juridical Review 9. 28 See HL MacQueen, ‘A Post-Positivistic Outlook from the Thistle’ in N Walker (ed), MacCormick’s Scotland (Edinburgh, Edinburgh University Press, 2012) on Neil MacCormick’s remark, at 12: ‘It is as though we no longer need the symbolic nationalism of a Walter Scott now that the political nationalism at least of an Andrew Fletcher is gaining ground’. 29 Farmer, ‘Under the Shadow of Parliament House’, above n 19, 163. See also BD Osborne, Braxfield (Glendaruel, Argyll, 1997), who writes, at 61, of the eighteenth century that ‘law was not only a substitute for politics in a nation without many of the trappings of the state – it was politics’. 30 A MacIntyre, Whose Justice? Which Rationality? (London, Duckworth, 1988) 220.

24  Sharon Cowan, Chloë Kennedy and Vanessa E Munro something of a nation apart: ‘this deep well of difference helps to account for the resilient distinctiveness of the Scottish legal system both in formal and substantive terms’.31 In different ways, the judgments, commentaries and reflective statements in this collection have sought to explore this distinctiveness, both real and perceived. Our rewritten judgments aim to reconstruct Scotland’s ‘usable past’ in order to create more inclusive forms of national identity, as well as to celebrate difference beyond its constraints. In the rewriting of the Jex Blake case, for example, Lord Kennedy relies on evidence from other jurisdictions to make a case for allowing female students to graduate in medicine from the University of Edinburgh, despite protestation from some of the original judges that only the Scottish historical experience mattered. Meanwhile, in Lady McDiarmid’s rewriting of Drury v  HM Advocate (2001 SLT 1013), Lady Cowan-Munro’s rewriting of Ruxton v Lang (1998 SCCR 1) and Lady McCarthy’s rewriting of Rafique v Amin (1997 SLT 1385), we find creative and progressive uses of institutional writings, which expose the ways in which the conservative effects of the tendency to refer to authoritative texts, written centuries ago, can be reduced and even subverted by the existence of a tradition of judicial law-creation in S­ cotland, designed to evolve with shifting conditions.32 Meanwhile, in Lord Kagiaros’ rewriting of Rape Crisis Centre v Secretary of State for Home Department (2000 SC  527), as well as Lady McHarg and Lord Nicholson’s rewriting of Salvesen v  Riddell ([2013] UKSC  236), we see how gestures towards a more equitable outcome invoke more complicated ideas of national identity, which can also intersect in complex ways with gender and class.

Diversity and Discretion in the Scottish Courts One consequence of the fact that Scots law has not embraced the same strong distinction between law-creation and law-application that some other jurisdictions endorse (at least in theory) is that judges have long been considered as more than neutral interpreters of legal authorities. Indeed, the legitimacy of exercising judicial discretion to mould broad legal principles responsively to social changes has been explicitly recognised. In that context, the value of an FJP that engages directly and critically with judicial decision-making, and the form, ­function and consequences of judicial creativity in individual cases, is particularly pronounced. However, this also bestows upon us an even greater responsibility to interrogate the judge’s role, and to reflect – amongst other things – on the extent to which

31 N Walker, ‘Final Appellate Jurisdiction in the Scottish Legal System’ (Edinburgh, Scottish Government, 2010) 18, available at: www.gov.scot/Publications/2010/01/19154813/0. 32 On the creative potential of institutional writings, see A Rahmatian, ‘The Role of Institutional Writers in Scots Law’ (2018) 1 Judicial Review 42.

Devolving Dictum?  25 judicial authority in Scotland speaks with a sufficiently diverse and nuanced voice.33 The most common route into the legal profession in Scotland is completing a Bachelor of Laws degree at one of the 10 Scottish universities where it is offered, followed by a traineeship.34 But although women now make up the majority of Scots law students and more than half of solicitors in Scotland, the Bar and judiciary remain overwhelmingly male, with men constituting 73 per cent and 77 per cent of each profession respectively.35 Admission to the Faculty of Advocates, which became increasingly oriented towards Scots, rather than Civil, law during the eighteenth century, is today dependent on passing the requisite exams followed by a year’s ‘devilling’ (pupillage).36 Judges in Scotland, of whom the most senior are senators of the College of Justice, are frequently drawn from legal practice and are now appointed through a process that is more independent and transparent than before, when consultation with the Lord Advocate (a member of the Scottish government and director of the Scottish prosecution service) was persuasive.37 This change was partly designed to promote greater inclusivity, something that is now increasingly an aim for the legal profession as a whole, especially with respect to gender,38 but also sexual orientation39 and ethnicity.40 In short, times have changed significantly since the appointment of the first woman senator of the College of Justice, the then Sheriff Hazel Aronson QC, in 1996, but it is not clear whether, in the words of Lord Hope, women now require any less ‘courage … to operate in our male-dominated environment’.41 This is important, because although it is clear that not all women judges will be feminist judges,42 and also that not all feminist judges are women, Scotland has never had a

33 On the need for a diverse judiciary, see, eg, K Malleson, ‘Diversity in the Judiciary: The Need for Positive Action’ (2009) 36 Journal of Law and Society 376; Lady Hale, ‘Making a Difference? Why We Need a More Diverse Judiciary’ (2005) 56 Northern Ireland Legal Quarterly 281. 34 See: www.lawscot.org.uk/qualifying-and-education/qualifying-as-a-scottish-solicitor. 35 Kay Springham QC and David Stephenson QC, ‘Perception of Advocates as White Men is Outdated’ The Scotsman (12 February 2018), available at: www.scotsman.com/news/opinion/kay-springham-qcand-david-stephenson-qc-perception-of-advocates-as-white-men-is-outdated-1-4686746; ‘Tracking a Century of Progress for Women in the Judiciary’ (First Hundred Years Project, 12 July 2017), available at: first100years.org.uk/tracking-a-century-of-progress-for-women-in-the-judiciary-in-scotland. 36 JW Cairns, ‘Historical Introduction’ in R Zimmermann and K Reid, A History of Private Law in Scotland: Introduction and Property (Oxford, Oxford University Press, 2012), www.advocates.org.uk/ about-advocates/becoming-an-advocate/admission-regulations. 37 Scottish Executive, Judicial Appointments: An Inclusive Approach (Edinburgh, Scottish Government, 2000), available at: www.gov.scot/Publications/2000/04/5626/File-1; www.judicialappointments. scot. 38 See, eg, the Women in Law network, established in 2015: https://www.scottishlegal.com/article/ women-in-law-scotland-to-soft-launch-in-glasgow-and-edinburgh. 39 See: @GlassNetworkSco 40 Scottish Ethnic Minorities Lawyers’ Association: www.semla.org.uk. 41 JAD Hope, Lord President, 1989–1996 (Edinburgh, Avizandum, 2018) 179. 42 E Rackley, Women, Judging and the Judiciary: From Difference to Diversity (London, Routledge, 2013); R Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119.

26  Sharon Cowan, Chloë Kennedy and Vanessa E Munro leading feminist judge in the mould of Ruth Bader Ginsburg,43 Claire L’HeureuxDubé, or Bertha Wilson,44 Beverley McLachlin45 or Brenda Hale.46 The need for greater diversity within the Scottish legal profession, including the judiciary, has been remarked upon publicly by Lady Cosgrove (formerly Sheriff Aronson) and by more recent judicial appointee, Lady Dorrian.47 When compared against other jurisdictions, the dearth of women judges in the UK, as a whole, is particularly striking. In 2014, for example, UK jurisdictions had the lowest proportion of women judges in Europe. In a context in which the Europe-wide average at that time was 51 per cent, only Azerbaijan (11 per cent) had a lower percentage than Scotland and Ireland (both 23 per cent). Scotland was also placed in the unenviable category of countries where 90–100 per cent of court presidents are men.48 For centuries, then, the execution of legal justice in Scotland has been ­predominantly carried out by older, white, privileged men in exclusively male domains49 and the impact on the construction of the Scottish legal tradition, as well as its doctrinal development, has been significant. As this and previous FJPs have made plain, it matters deeply who is exercising judicial discretion and to whose benefit. In the past, it has been male judges in Scotland who have wielded these powers of ­discretion – often with marked confidence50 – with a supporting cast of

43 Associate Justice of the US Supreme Court since 1993. 44 Justices of the Supreme Court of Canada, elevated in 1987 and 1982 respectively. 45 First woman Chief Justice of Canada, appointed to the role in 2000. 46 The only woman to serve in the House of Lords (joining in 2004) and first woman President of the UK Supreme Court (appointed in 2017). 47 J Cunningham, ‘The New She Who Must be Obeyed’ The Herald (18 January 2003), ­available at: www.heraldscotland.com/news/11905537.The_new_she_who_must_be_obeyed_profile_lady_cosgrove_ She_is_a_fervent_champion_of_women_furthering_their_careers__particularly_in_law__but__ Jennifer_Cunningham_discovers__there_is_much_more_to_Scotland_apos_s_first_and_formidably_ successful_legal_Lady; see also N Evans, ‘Tracking a Century of Progress for Women in the Judiciary in Scotland’ (The Attic, 12 July 2017), available at: theattic.london/2017/07/12/ women-in-the-judiciary-in-scotland. 48 European Commission for the Efficiency of Justice, European Judicial Systems: Efficiency and Quality of Justice (CEPEJ Studies No 23, Brussels, European Commission for the Efficiency of Justice (CEPEJ), 2016) 21–22, available at: rm.coe.int/european-judicial-systems-efficiency-andquality-of-justice-cepej-stud/1680788228. 49 Even the Travellers Club, where lawyers from Scotland stayed when in London on business was described, on reflection, as an ‘essentially male world’ (JAD Hope, Senior Counsel 1978–1986: Lord Hope’s Diaries (Edinburgh, Avizandum, 2017) 69. 50 For example, ‘I thoroughly enjoyed the challenge because it meant working everything out for myself ’ (J Wheatley, One Man’s Judgment: An Autobiography (Oxford, Butterworths, 1987) 160); and the alleged comments of Hill Watson (Lord Hunter): ‘I’ve no difficulty making up my mind … I may be right or wrong, but I make up my mind and make a decision. A judge who dithers is no use at all’ (G  Stott, QC’s Diary 1954–1960 (Edinburgh, Mercat Press, 1998)). See also Lord Stott’s own remark: ‘I had no difficulty making up my mind, and for the most part, I thought, managed to achieve a substantial amount of justice’ (G Stott, Judge’s Diary 1967–1973 (Edinburgh, Mercat Press, 1995)). cf the discomfort voiced by our feminist judges at the prospect of judging, as discussed above. See also: www.sfjp.law.ed.ac.uk/2017/10/16/hello-world.

Devolving Dictum?  27 women in the background.51 While this has occasionally been to further the interests of women,52 such judgments have nevertheless sometimes been accompanied by sexist attitudes or punitiveness. For example, when charging the jury that committing to ‘a little sexual fun’ would not necessarily amount to committing to ‘receiving the male sexual organ’, Lord Mackay reportedly emphasised that this remained true even in an age – 1953 – when women accepted lifts from men in lorries and exposed their ‘limbs in very attractive guise’.53 And in 1958, when Lord Wheatley strove to avoid ‘sex discrimination’, this was so that he might examine a woman’s moral character to determine whether it was likely that she was committing adultery, just as the law allowed in respect of men.54 These views are not purely relics of the past: indeed, as highlighted by our feminist judge, Lord Robson, and his commentator, Alex Latham, in Lumsden v Scottish Special Housing Association (1984 SLT (Sh Ct) 91), even judges in more modern times have assumed a certain heteropatriarchal model of marriage and the family, which has operated to the prejudice of both women and men. Likewise, as Judge Gray shows in R & F v UK (Application 35738/05 2005), problematic sex and gender norms persist, notwithstanding the formal equality brought about by the apparently progressive Civil Partnership Act 2004 and Gender Recognition Act 2004. That said, it remains ever possible that judicial power and responsibility might be used more effectively in the pursuit of social justice, as our feminist judges show in subsequent chapters: the application of feminist methods, and the inclusion of feminist knowledge, has enabled a more expansive and positive approach to decision-making. Similarly, notwithstanding the continued preponderance of men in the upper reaches of the Scottish legal profession, the increased involvement of women (even if not all feminist) in this community is to be celebrated. The appointment of more non-Scottish colleagues in Scottish law schools55 might also contribute to a further diversification of legal knowledge and increase the influence of alternative sources and concepts in Scottish legal practice. Greater diversity, in terms that also extend beyond gender, would clearly be a welcome development: while official data is often lacking in respect of race, disability and other protected characteristics, the

51 In addition to their wives, who ran the households and provided meals (see the then Lord Advocate Gordon Stott’s astonishment that he was able to fry an egg while his wife was ill (G Stott, Lord Advocate’s Diary 1961–1966 (Aberdeen, Aberdeen University Press, 1991) 110)), judges, at the beginnings of their career, relied on the caretaker of the Juridical Library, Mrs Windebank, who ‘mothered the young bachelors … and provided them with tea and cakes’ (DW Brand, An Advocate’s Tale: The Memoirs of Lord Brand (Newbattle, Scottish Cultural Press, 1995) 9). The ‘ladies’ who specialised in letting rooms to ‘young and not-so-young’ advocates and catering for them seemed to play a similar role (Wheatley, above n 50, 61). 52 For example, S v HM Adv 1989 SLT 469, in which the High Court of Justiciary held it was no longer appropriate for husbands to be immune from prosecution for rape. 53 Brand, above n 51, 40–41. 54 Wheatley, above n 50, 161–63 (recounting the case in 1987). 55 On the internationalisation of Scottish law schools in the last 20 years see MacQueen, ‘Quo Vadis?’, above n 27, 14; for scepticism about the willingness to hire non-Scots see Rahmatian, ‘The Political Purpose’, above n 22, 856.

28  Sharon Cowan, Chloë Kennedy and Vanessa E Munro preponderance of white, male and able bodies in the Scottish legal practitioner and judicial landscape has been widely acknowledged. This, then, is the context – both historical and contemporary – in which judges, feminist and otherwise, operate in Scotland. It points towards the need to diversify the judiciary, and legal profession more generally, in ways that include but also cut across gender. The absence of a legal profession that is broadly representative of society is underpinned by legacies of privileges and exclusions related to class, ethnicity, religion and doubtless many other characteristics beyond gender. These are legacies that are not easily or rapidly undone, and their effects are felt beyond the world of legal practice. Indeed, these social and political contexts have also had a profound effect on feminist attempts to engage with and rework the law more generally. Activists in Scotland have agitated for gender-sensitive reforms in an atmosphere in which receptivity to these reforms has fluctuated significantly in line with shifts in governance and resourcing commitments. This trajectory of feminist campaigning cannot, and should not, be ignored when seeking to explore the place of feminist judging in Scotland. Understanding the feminist activist environment in Scotland is key not only to producing plausible feminist judgments of the past, but in thinking strategically about how FJPs, NGOs, legal professionals, educators and students, and civic society more generally, might work together in future to best effect the ambitions of feminist law reformers of all stripes. In this next section, therefore, we excavate in more detail this deeply textured feminist political landscape.

Feminism and Activism in a Shifting Scottish Landscape It is clearly not possible to do justice here to the diversity and complexity of feminist activism in Scotland. Substantial books have been written on this topic, and rich oral histories of feminist organisations have been curated, all of which give vibrant insights into shifting social and political landscapes, and how they have impacted upon the content and force of Scottish feminist engagement.56 What follows is intended only as a brief sketch of some of the key milestones in, and characteristics of, feminist campaigners’ engagement with law and policy in the Scottish context. It relies heavily on materials that were obtained during visits – by ourselves and our research assistant, Natassa Philomonos – to the excellent archives of the 56 See, eg, S Browne, The Women’s Liberation Movement in Scotland (Manchester, Manchester University Press, 2014); S Henderson and A MacKay (eds), Grit and Diamonds: Women in Scotland Making History 1980–1990 (Edinburgh, Stramullion and The Cauldron Collective, 1990); and for an analysis of the trans movement in Scotland, including its relationship to feminism, see J Morton, ‘A Scottish History of Trans Equality Activism’ in C Burns (ed), Trans Britain: Our Journey from the ­Shadows (London, Penguin, 2018) 231–46. Extensive archives on Scottish Women’s Aid and Rape Crisis ­Scotland are housed at the Glasgow Women’s Library.

Devolving Dictum?  29 Glasgow Women’s Library, as well as a focus group discussion that brought together key figures in organisations that campaign for equality and women’s rights in Scotland, including Rape Crisis Scotland, Scottish Women’s Aid, Shakti Women’s Aid57 and Scottish Trans Alliance,58 to reflect on their experiences of activism. It was during the 1970s that grass-roots organising for feminist purposes became a prominent modus operandi in Scotland, as in many other jurisdictions. Local women’s liberation groups which produced their own newsletters were set up in Edinburgh, Glasgow and Aberdeen, while the groups in St Andrews and Dundee collaborated to produce the Tayside Women’s Liberation Newsletter. During this period, in accord with broader second-wave feminist ideology, there was a strong emphasis on breaking down boundaries between the personal and the political, and a focus on feminist consciousness-raising, as well as a priority afforded to practical issues around women’s health and the need for improved childcare to support, in pragmatic terms, the potential for women’s equality. While the Rape Crisis Network began operating in England and Wales in 1973 and the National Women’s Aid Federation soon followed in 1974, it was not until 1976 that branches of these organisations began to operate in Scotland (rolling out on a gradual basis to Scottish cities throughout the late 1970s and early 1980s). Although these examples might indicate a coordinated approach, the late 1970s was also a period of schism in Scottish feminism, particularly between so-called radical and socialist approaches. This was reflected, amongst other things, by the launch in 1979 of Nessie, a radical newsletter, produced by the St Andrew’s Women’s Liberation Group. By its seventh issue, in 1980, Nessie had already received and published a reader’s letter which expressed concerns about radical feminism becoming ‘mystified’ and trapped in theory, creating a ‘gulf between our theories/ ideals and the day to day practical living that we go through’, which the author believed had made it harder to fight for, and work alongside, a diversity of women. Such schisms continued into the 1980s but, mirroring feminist debates more internationally,59 became marked also by other forms of identity politics and critiques, including, for example, around race and sexuality. Rowena Arshad describes how, in 1985, the Black Women’s Group began meeting in ­Edinburgh, driven by ‘frustration and isolation’ and a desire to create spaces in which to discuss more intersectional forms of oppression and their eradication.60 This was followed by 57 Shakti Women’s Aid is an Edinburgh-based organisation that provides advice and support to BME women, children and young people who have experienced domestic abuse, see: shaktiedinburgh.co.uk. 58 Scottish Trans Alliance is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland: https://www.scottishtrans.org. 59 See, eg, A Rich, ‘Compulsory Heterosexuality and Lesbian Existence’ in A Snitow, C Stansell and S Thompson (eds), Powers of Desire: The Politics of Sexuality (London, Virago, 1983); K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-discrimination, Doctrine, Feminist Theory and Anti-racist Politics’ (1989) 1 Chicago Legal Forum 139; A Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 43 Stanford Law Review 581. 60 R Arshad, ‘The Scottish Black Women’s Group’ in S Henderson and A MacKay, Grit and Diamonds: Women in Scotland Making History 1980–1990 (Edinburgh, Stramullion and The Cauldron Collective, 1990) 118.

30  Sharon Cowan, Chloë Kennedy and Vanessa E Munro the creation of a Bangladesh Women’s Group in Edinburgh in 1987 and the AfroCaribbean Women’s Association in Glasgow in 1988. Thus, it has been suggested that, during the 1980s, the imperative in feminism to come together ‘as women’ declined, with the effect that – amongst other things – it was ‘easier for lesbians to be pushed back into the closet’.61 This was also a period in which there was a more general shift from women’s rights to human rights, for example in relation to nuclear disarmament, gay rights, and HIV/AIDS, which allowed diverse groups to coalesce more often around specific issues. Highlights of feminist activism and engagement in the 1990s, a decade that commenced with Glasgow’s reign as European City of Culture, included the launch of a national and high-profile campaign against domestic violence – the Zero Tolerance campaign – as well as Scotland’s first Pride march in 1995, which set a tone for the establishment in Scotland of the LGBT Equality Network in 1997 and a fully trans-inclusive Pride march in 1998. In 2000, Stonewall opened in Scotland with an explicit trans-inclusive mandate that had not hitherto marked its English and Welsh predecessors. This was a period in which activism in ­Scotland also focused on campaigning against UK-wide reforms, such as the repeal of section 28 of the Local Government Act 1988, which prevented a local authority from presenting homosexuality as an ‘acceptable’ lifestyle in school sex education classes.62 With the establishment of a devolved Scottish Parliament in 1999, recent decades have been marked by activism targeted around specific legislative initiatives, including the Prostitution Public Places (Scotland) Act 2007, the Sexual Offences (Scotland) Act 2009, and policy interventions such as the ‘Equally Safe’ Action Plan on Violence against Women and Girls in 2014.63 In addition, throughout this period, there have been a number of public education campaigns, which have targeted problematic attitudes towards gender equality, as well as – more broadly – other forms of discrimination, which placed women’s rights firmly on the domestic social and political agenda. One prominent example of this was Rape Crisis Scotland’s ‘This is Not an Invitation to Rape Me’ campaign, which used arresting imagery to challenge popular myths regarding responsibility for sexual assault, with established positive educational impacts.64 Post-devolution, these initiatives have been facilitated by a centralised, partnership approach to governmental funding for support providers, which has ensured a more secure environment for specialist services than that existing in England during this period.

61 JB Kerr and P Jennings, ‘Scottish Feminism in the Eighties’ in S Henderson and A MacKay, Grit and Diamonds: Women in Scotland Making History 1980–1990 (Edinburgh, Stramullion and The ­Cauldron Collective, 1990) 47. 62 s 28 was later repealed by the Scottish Parliament in one of its first pieces of devolved legislation, some three years prior to counterparts in the rest of the UK doing the same. 63 Equally Safe: Scotland’s Strategy for Preventing and Eradicating Violence against Women and Girls (Edinburgh, Scottish Government, 2018), available at: www.gov.scot/publications/equally-safescotlands-strategy-prevent-eradicate-violence-against-women-girls. 64 See: www.rapecrisisscotland.org.uk/publications/TINAITRM-final-evaluation.pdf.

Devolving Dictum?  31 Alongside Scotland’s relatively compact geography, this has facilitated increased collaboration and unity amongst third-sector service-providers, heightening their engagement with Scottish policy-makers. As a result, there has been a growing recognition of their expertise and standing to contribute to the development of law and policy. It is therefore important to explore their views and experiences of the process of doing so.

Speaking Out and Speaking Up: Activist Focus Group We were fortunate, as part of this project, to benefit from the input of a number of key figures in the current feminist activist landscape in Scotland, some of whom also provided commentaries on our feminist judgments. To learn more about their sense of what it means to be a ‘Scottish feminist’, we held a focus group discussion in May 2018. The activists who participated told us about their experiences of engaging with Scots law and Scottish courts in order to seek to bring about progressive change, and how those experiences may have shifted over time and context as a consequence of expansions and retractions in Scotland’s political autonomy and resources. Clearly, this only provides a snapshot insight into the feminist activist scene in Scotland, and reflects the perspectives of those organisations which were represented – namely Rape Crisis Scotland, Scottish Women’s Aid, Scottish Trans Alliance, and Shakti Women’s Aid – but the discussion (which we had the consent of participants to record and analyse) highlighted key themes and tensions that inform the broader context within which our project has developed. In particular, it echoed the claim made earlier that the current political context, including an active, devolved Scottish Parliament, has offered many more opportunities for campaigners to engage with, and influence, law-makers in the pursuit of more inclusive policies and practices that respond to the social justice challenges facing Scottish society. Participants in our focus group spoke candidly about gaining increased access to law and policy-makers over the past decade, which they described as having been ‘quite transformative and empowering’, and as making it ‘a much easier context in Scotland to be more radical’. Rather than engaging with a remote Westminster Parliament and UK government officials whom they felt did not always take them seriously because ‘we were from the provinces’, there was now more scope for direct lobbying and influence, and a perception that their expertise was being increasingly recognised. For participants, this had been made possible in particular by the concentration of many key legal, political and campaigning professionals and other stakeholders in a compact geographical area, and the associated forms of community which regular contact with each other cultivated. Also deemed important was the existence of a centralised and relatively stable approach to funding from the Scottish government, which – with a focus on supporting independent, strategic intermediaries – ‘set people up in a position to become experts on things’

32  Sharon Cowan, Chloë Kennedy and Vanessa E Munro and avoided the localised ‘commissioning culture’ now dominant in England and Wales. While this latter approach has put activist groups south of the border in competition with one another for resources, in Scotland, a collaborative approach has been preserved with ‘an underlying ethos that we will defer to the people who are the experts on that issue’ – whether that be sexual violence, domestic abuse, forced marriage, or trans equality. This partnership and mutual respect amongst and between the activist communities was seen as important in terms of sustaining relationships – but it was also felt to be strategically valuable since ‘a loud and unified voice gets more stuff done’ and ‘if we’re not in consensus, it can be easy for agencies to use that to undermine us’. It was felt that, in other jurisdictions, competition had become the norm, and feminist organisations were under ‘so much pressure in terms of their funding that it becomes almost entirely focused on service provision and they lose what they’re supposed to be about which is also that radical edge of activism in changing society’. In contrast, in the Scottish context, participants saw activist engagement as crucial to their overall mission, particularly given the view that the devolved Parliament had opened up fertile ground for such influence. At the same time, though, this narrative of recent greater collaboration with the Scottish Parliament, and its associated arms of governance, as well as with the legal profession more broadly, was not without its plot twists. Specifically, the complexity of interactions between reserved and devolved law and policy, and the challenges of navigating cross-border influences were noted. It was felt to be crucial that the progressive sentiment of Scottish civil servants was not tempered by what was sometimes perceived to be a more conservative sentiment amongst counterparts in Westminster. The risk that too close a connection to statutory agencies could result in accusations of co-option from others was also raised as a concern. Participants were clear, however, about their independence from ­government – ‘we’ve never been pressured by anybody that we work with in government to say we want you to say this about this’. They noted that when working in close partnership with justice agencies, it is vital to be proactive in retaining the space to be critical – ‘you really need to look at how you navigate that’. In addition, to the extent that securing this credibility as ‘experts’ had been contingent on engaging with law and policy-makers on their terms and using the language and frameworks of state obligations, they also emphasised the importance of ensuring they can still ‘get “real” women’s voices heard’ and that grass-roots concerns are not ‘academicalised’ out of recognition. So, on the one hand, participants remarked on substantial progress in terms of their credibility with the legal profession and Scottish law and policy-makers, which they felt had translated into an increased profile for, and concern about, gender equality issues. One discussant observed that not only have you got ‘politicians standing up in the chamber and talking about domestic abuse’, but ‘somebody even mentioned patriarchy’, and she joked that ‘when I first started … I don’t think the “P word” would have been mentioned anywhere, but there you go, that’s a reflection of the work that everybody has done to push it’. But, on the other hand,

Devolving Dictum?  33 there was some circumspection about how much of this had yet translated into concrete change and improvement for individuals. As one participant put it, there’s been huge progress in many, many ways around the recognition our movement has, and the funding we have, the strategies we’re involved in and the engagement from statutory bodies, but ultimately … what has actually changed for rape complainers in Scotland, I don’t think that much … it’s still an extremely violating experience … there’s the sense of change coming but I think legal change is very slow.65

In their judgments in this collection, both Lady Ferguson and Lady Cairns offer concrete illustrations – in the landmark sexual assault cases of McKearney v HM Advocate (2004 JC 87) and Smith v Lees (1997 SCCR 139) – of how, if they had been minded to, the courts could have quickened that pace of change. There was a marked contrast in the focus group discussion, then, between the broadly optimistic tone struck in relation to the potential for, and engagement with, progressive legislative reform in the still novel and evolving context of a devolved Scottish Parliament and the more pessimistic register used to discuss experience within the courtroom to date. Despite the scope for judicial creativity and flexibility that many defenders of the unique value of the Scots law system have lauded, the on-the-ground experience of activist participants did not reflect this sense of radical opportunity. This is corroborated to a significant degree, of course, in the decisions of our feminist judges who have had to push against the judicial failure to incorporate gender-sensitive perspectives, and who have tried to create new spaces for more imaginative encounters with law. These endeavours, as discussed in chapter one, have been made across a range of substantive areas, reflecting the extent to which engagement with gender offers fresh insights into the realms of company, property and public law, as much as family and criminal law. Importantly, however, the pessimism expressed by activists was often tied less to the doctrinal fluidity of Scottish jurisprudence, and more to the procedural barriers to participation that – though increasingly removed in the legislative arena – had remained staunchly in place in the judicial environment. Participants reflected on the ‘life-changing’ effect for complainers of having an advocate who could support them through the justice process66 and on the importance of ensuring that complainers have access to high quality legal representation. But they also observed that their ability to push for real change was limited by external restrictions upon legal aid funding, as well as procedural rules of standing that limit advocacy groups’ access to the courts in order to pursue strategic litigation. As Sandy Brindley recounts in this collection in her commentary on Lord ­Kagiaros’

65 For further discussion, see S Cowan, ‘Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence’ (2019) 23 Edinburgh Law Review 22. 66 Evaluation of the Rape Crisis Scotland National Advocacy Project, Final Report 2018 (Glasgow, Scottish Centre for Crime and Justice Research, 2018), available at: www.sccjr.ac.uk/publications/ evaluation-of-the-rape-crisis-scotland-national-advocacy-project-final-report-2018.

34  Sharon Cowan, Chloë Kennedy and Vanessa E Munro rewriting of Rape Crisis Centre v Secretary of State for the Home Department, it is not always possible, let alone desirable, to ask a victim of abuse to run the risk of further trauma caused by participation in the justice process.67 Yet, without an identifiable and specific victim as primary participant, it can be difficult for organisations, for all their knowledge and legitimate interest, to be recognised as a party to court proceedings. Activists suggested that the respect for expertise that they had started to win in the legislative arena was less apparent in this judicial forum, with a more ‘patronising’ perception of their role in court being to ‘hold the victim’s hand’ rather than participate meaningfully in substantive discussion of legal tests and state obligations. Nonetheless, it was clear that our participants did not intend to resign themselves to this restrictive approach – on the contrary, they commented positively on recent experiences of strategic litigation and saw it as an activist tactic that they ‘are looking at more and more’. They noted that ‘the resources that would be necessary to climb that legal mountain are less than the resources necessary to get legislative change’ – which is obviously an issue in the charity sector ‘where you have limited resources’. They also observed that they have a duty ‘not only to help make the law but to challenge it’ and to ensure that ‘nicely crafted and embroidered pieces of legislation’ are enforced by the justice system, including the courts. Sometimes, this requires strategic litigation, as it did in the Rape Crisis case. Amongst other things, the Scottish FJP focuses on that potential for opening up the courtroom to marginalised voices and recognising and respecting alternative forms of expertise. In concrete cases, this would allow judges to deploy the flexibility inherent in abstract legal principles to develop more gender-sensitive responses to contemporary social problems. Participants in the focus group saw that as important, both for its own sake and also as a corollary to feminist legislative activism. In re-imagining their cases, several of our feminist judges have prioritised the need to contextualise the legal issues at hand by attending more closely to the personal narratives of the parties at trial, and situating those narratives alongside external sources of knowledge that render them more intelligible. In Ruxton, for example, Lady Cowan-Munro brings the accused’s experience of domestic abuse from the periphery to the centre of the judgment, together with an enriched reflection on what this experience might mean for her evaluations of risk and ‘prudent’ alternatives. Activist participants echoed this sense that including appropriately contextualised individual experiences within the courtroom has the potential to offer a useful counter to policy-level discussions in which there was too often a tendency to disengage from the complexity and messiness of everyday life, including in respect of intersectional forms of inequality. All participants agreed that there was a tendency amongst statutory agencies to ‘silo’ issues – ‘we’re going to talk about women’s issues today, but what about 67 For further discussion, see L Ellison and V Munro, ‘Taking Trauma Seriously: Critical Reflections on the Criminal Justice Process’ (2017) 21 International Journal of Evidence and Proof 183.

Devolving Dictum?  35 poor women? Well, the hearing on poverty is next week. What about gay people? Oh, we’re doing LGBT the month after next’. This silo-ing is also something of which judges can be, and have been, accused, but the feminist judgments in this collection, including in the cases of Rainey v Greater Glasgow Health Board ([1987] AC 224, HL), Helen Johnson (AP) v IAT (2004 (P340/04), Court of Session) and Salvesen, provide concrete illustrations of how this may be avoided. Our activist participants suggested that they had been increasingly able to promote this more contextualised and intersectional mode of engagement to law and policy-makers as a result of the collaborative nature of their organisational relationships: [W]e’ve started making efforts to help each other with each other’s work … so when we get in front of the policy-makers, we can go, well, let’s not forget, we’re talking about mental health, but we need to talk about the mental health of LGBT people, we need to talk about the mental health of women who are domestic abuse survivors, instead of just talking about mental health.

Challenging one-dimensional analyses was seen as crucial because it helped to ensure that issues such as race, poverty and disability are also understood as issues that affect women’s lives. Taking this intersectional approach was also seen to best reflect the strengths and values of feminism. As one participant put it, feminism’s legacy … goes far beyond the empowerment of women. Feminism’s legacy to the world is ultimately what it’s done for all disadvantaged groups, for the ability for lesbian, gay, bi, trans people to speak out, for people of colour to speak out.

As noted in chapter one, throughout this project our judges have sought to honour and contribute to that legacy by highlighting in concrete cases the ways in which a feminist analysis of law must go beyond a monolithic account of gender and be grounded in recognition of the complexities of cross-cutting, lived experience of inequalities. These are based not only on gender but also on class, race, sexuality, national identity and immigration status, and their respective intersections. While our discussion with feminist activists in Scotland was inevitably partial, it thus highlighted important themes about how we, as feminist judges, construct and recognise legislative and judicial authority, define the boundaries of what and who counts as relevant considerations within law, translate formal rules into lived experience, and engage meaningfully with complexity and diversity, in order to transform the legal landscape into a more egalitarian terrain. These are themes that the academic and creative contributors to our project have also grappled with in various ways. That there is something distinctive, in this historical and constitutional moment, about engaging in feminist activism in Scotland was a prominent theme amongst the participants in our focus group discussion, reinforcing our argument that there is a distinctively Scottish national contribution to the broader comparative and global context of responses to gender equality. Participants spoke with optimism about the direct forms of engagement housed within Holyrood as distinct from the Westminster Parliament, but equally were clear that feminist

36  Sharon Cowan, Chloë Kennedy and Vanessa E Munro goals could only be fully realised by continuing to engage in a variety of supportive, strategic and critical ways with the courtroom environment. They were also keen to highlight that such engagement required an inclusive feminist approach in which a diversity of gendered experiences could be represented, valued and respected. In coming together to create a distinctly feminist critique and reimagine a series of key legal cases, throughout this Scottish FJP our contributors were motivated by common goals – to challenge gender inequalities and the role of law in their construction and continuation, and to offer, through feminist legal and artistic methods, new ways of illuminating and challenging traditional masculinist forms of legal reasoning and decision-making. We sought to do this without stifling or privileging any particular feminist perspective on how best to achieve those objectives. Our project speaks within a context framed by the peculiar histories, challenges, opportunities and tensions of our Scottish national, legal, political, social and cultural landscape. We have brought our unique Scottish voices to a vibrant international conversation between FJPs, creating an interwoven tapestry of rich resources for legal professionals, educators, students, artists and activists, with which to push towards true(r) equality.

part i Crime, Victimisation and Violence

38

3 Smith v Lees 1997 SCCR 139 LJ-G Rodger, LJ-C Ross, Lord McCluskey, Lord Gill and Lady Cairns 28 January 1997 Opinion of Lady Cairns (Dissenting) [1] Rape, attempted rape, indecent assault, clandestine injury, sodomy and lewd, indecent and libidinous practices. All of these serious and all too common sexual crimes give rise to exceptional difficulties of proof in the Scottish courts. At the very heart of this appeal is the issue of how our laws of evidence can address these difficulties in a manner that minimises, as far as possible, the risk of unjust conviction. This case raises fundamental questions not only about the purpose of our long-standing corroboration rule, which is viewed by many as a distinctive pillar of the Scottish criminal justice system, but about the way harms of the most intimate and insidious nature are dealt with by our courts. [2] The case before us is an appeal arising from a conviction for lewd, indecent and libidinous practices directed towards a 13-year-old girl. The appeal is against both conviction and sentence. The specific task before this court is to decide upon the proper scope of the doctrine that allows a complainer’s distress to corroborate other evidence. In this regard, the appellant’s argument is rooted in the proposition that, at trial, the sheriff stretched our corroboration rule beyond acceptable limits, and has thus shifted the scales of justice too far in favour of the complainer. My learned colleagues appear to agree, and have held that the complainer’s distress cannot corroborate her evidence of the acts that were done to her. This is because, in their view, a jury could not use the evidence of distress to draw an inference that the particular activity described in the libel occurred. I respectfully disagree with this conclusion. My opinion is that, in a case like the present, a jury could legitimately draw an inference, from evidence of a complainer’s distress and the context surrounding it, that the complainer’s account was more convincing than any alternative explanation, and thus that the precise activity complained of indeed took place. [3] In reaching their decision, the majority have overturned the decision in Stobo v HM Advocate 1994 JC 28 in which it was held that a complainer’s distress could corroborate her account. I, however, share the opinion of the Lord Justice General

40  Ilona Cairns (Lord Hope) in Stobo that it should be for the jury to assess the weight and quality of a complainer’s account and evidence of distress. Although my decision upholds the approach in Stobo, I do not concur with all aspects of the Lord Justice General’s reasoning in that case. In particular, I disagree with his description of the limits that should be placed on the distress doctrine. [4] Before turning to the facts of the present case and to a more comprehensive overview of the legal points that are at issue in this appeal, it is necessary to paint a fuller picture of the wider issues at stake. In so doing, I take a very different approach to my Lordships who all appear to share the view of Lord McCluskey, whose opinion I have had the benefit of reading, that this case ‘does not raise and … should not be thought to raise any question of policy, any question as to what the law ought to be’. Barriers of Proof in Sexual Offence Cases [5] Since the 1970s, there has been an upward trend in the number of sexual offences recorded in Scotland. Official Scottish statistics, published yearly by the Court Affairs, Prisons and Offenders Analytical Team, show that the number of sexual crimes recorded by the police is increasing. In 1996 there were just under 6,000 sexual crimes recorded, compared with approximately 5,000 in 1988. While this climbing figure may partially be explained by changes in policy, policing, offence definitions, and a rise in the reporting of historical sex offences, acknowledging the various factors that may explain the rise should not obscure its significance. Moreover, we should not lose sight of three other crucial realities: first, that the majority of sexual crimes are still not reported to the police; secondly, that many sexual crimes reported to the police are not subsequently recorded; and, thirdly, that the percentage of both reported and prosecuted cases resulting in conviction has remained more or less stagnant despite an increase in reporting and recording. Rape statistics provide the most glaring example of this last fact. In 1995, the year that the crime forming the basis of this appeal allegedly took place, there were 403 reports of rape, and 28 convictions. Twenty years ago, in 1977, there were far fewer reports – 178 in total – but 35 convictions. These two years reflect a more general trend. From 1990 to 1994, more than twice as many rapes (1730) were reported than from 1980 to 1984 (830), but there were only 12 more convictions overall. [6] There is no simple or single explanation for the consistently high attrition rate in sexual offence cases. The fact that such crimes typically occur without witnesses gives rise to inherent difficulties with proof, and it is easy to see why our corroboration rule is often perceived to exacerbate these difficulties. In requiring that the ‘essential’ or ‘crucial’ facts of every crime (the facta probanda) are proved by two independent sources of evidence (Walker and Walker: The Law of Evidence in Scotland, chapter 5) the rule means that a complainer’s account, no matter how credible or persuasive, is never sufficient on its own. At a minimum, the facta probanda include that the crime libelled was committed (‘commission of the crime’) and that the accused was the perpetrator (‘identity’). As the Lord Justice

Smith v Lees 1997 SCCR 139  41 General (Lord Rodger) has explained in his opinion, the facta probanda in each case vary depending on the substantive offence requirements. In a rape case, for example, the Crown is required to corroborate (1) that there was penetration of the complainer’s vagina, (2) that this penetration was by the accused’s private member, (3) that this penetration was forcible, and (4) that the penetration took place without the complainer’s consent. In a case such as this, involving lewd, indecent and libidinous practices, the Crown is required to prove the activity that is described in the complaint: that the appellant placed his hand upon the complainer’s hand and caused her to handle his naked private member. Corroboration of the appellant’s identity is not at issue in this case because the appellant does not deny that he was at the locus of the alleged offence. [7] Due to the fact that many sexual offences go unwitnessed, proving the essential facts in each case can be extremely challenging for the prosecution. In recognition of this, our predecessors have attempted to minimise the risk of unmerited acquittals in this area. Aside from the distress doctrine, discussed in more detail shortly, the doctrine of mutual corroboration – which originated in Moorov v HM Advocate 1930 JC 68 – allows that where separate crimes are charged together and there is a sufficient connection in ‘time, place and circumstances’ the account of one complainer can corroborate the account of another. Below, I consider further examples of judicial attempts to render our corroboration requirement less onerous. [8] In delivering my opinion, I consider it essential to take account of both the high attrition rate in sexual offence cases and the considerable, and unique, barriers of proof that exist in these cases. I have been struck by these difficulties first-hand during my many years on the bench. Unfortunately, it is impossible to be sure either that Scotland’s corroboration rule serves its purpose of preventing unjust convictions or that judicial modifications directed towards relaxing the rule have reduced the protection offered to the accused. I have no firm evidence before me that supports either proposition; perhaps such evidence is impossible to collate. Nevertheless, faced with overwhelming evidence of the difficulties surrounding the prosecution of sexual offences, it is imperative not to overestimate the protective value of the corroboration rule, especially when this prevents its modification where there is a sound and justifiable basis for doing so. My opinion is that such a basis exists in respect of the corroborative potential of distress, and this is supported by the facts of the case before us. The Facts and Appeal [9] My learned colleagues have already set out the facts of this case in some depth, so I will recount them only briefly. In December 1995, the appellant was convicted of using lewd, indecent and libidinous practices and behaviour towards a 13-yearold girl. He pled not guilty to the charges, which arose following an overnight camping trip with his brother-in-law, Mr C, and five children: three girls and two boys. The complainer was one of these children. She had gone to sleep in a tent

42  Ilona Cairns with the other two girls, and gave evidence that she awoke to find that the appellant had put his penis in her hand, put his hand on top of hers, and moved his penis up and down against her hand. She testified that she made noises of the kind that she had been told she makes when sleeping in order to pretend that she was asleep. She said that she then left the tent, crying and upset. On leaving the tent, her distress was observed by her uncle, Mr C, who was still by the camp fire. According to Mr C’s evidence, the complainer had exited the tent quickly with a tear in her eye, but would not tell him what had happened. This was, according to the complainer’s evidence, because she was too upset. However, clearly concerned about what may have happened in the tent, Mr C took the complainer to see his sister-in-law the next day, and the complainer then made a de recenti statement which is consistent with her other evidence. [10] At trial, the sheriff found the complainer to be a credible witness and was satisfied that her distress corroborated her account. Accordingly, the charge against the accused was found to be proved and he was sentenced to three months’ imprisonment. An appeal against both this conviction and sentence has been remitted to this court, so that we may reconsider the case of Stobo. Counsel for the appellant submits that Stobo was decided incorrectly and that distress should never be able to corroborate any of the complainer’s evidence. The basis of this argument is that distress is insufficiently independent. It is thus the same as a de recenti statement, which can bolster credibility but cannot corroborate. My learned colleagues in this case have correctly and unanimously rejected this argument. As Lord Gill has explained: ‘[T]he distress of the complainer can be as objective a feature of her condition as a bruise; and, if it is, it is a source of evidence independent of the complainer’. I agree with that conclusion. However, I diverge from my learned colleagues on the more specific question of whether the complainer’s distress can corroborate her account of the precise activity that took place in the tent. [11] Although this appeal centres on the corroborative value of the complainer’s distress, it is important to note that there were other adminicles of evidence in this case. First, in addition to observing distress, the complainer’s uncle, Mr C, confirmed that he had heard the strange noises which the complainer said she made in the tent. Secondly, Mr C stated that the appellant had said to the complainer ‘you can go back into the tent now’ when he followed her out of the tent. Thirdly, the appellant chose to go into the girls’ tent to sleep, rather than the boys’. Finally, and perhaps most pertinently, the appellant offered an alternative explanation for the complainer’s distress while being interviewed by the police. He maintained that he had accidently touched the complainer’s chest while he was sleeping, and that she had awoken him to tell him what had happened. I accept that each of the adminicles of evidence that support the complainer’s account are incapable of providing corroboration, a point conceded by the Solicitor General. Yet, it is my opinion that they are relevant to the question of whether the complainer’s distress can corroborate her account of what happened, and their relevance has been overlooked by my fellow judges. Taken together, they could assist a jury with

Smith v Lees 1997 SCCR 139  43 drawing an inference as to the cause of the complainer’s distress, a point to which I will return below. Distress as Corroboration [12] The difficulties in proving sexual offences are not new, of course; neither is the idea that the ‘condition’ of the complainer can corroborate the case against the accused, which can be traced back as far as Alison (Alison, I, 244, 247i). However, it was not until the rape case of Yates v HM Advocate 1977 SLT (Notes) 42 that evidence of the complainer’s distress shortly after the incident (which is somewhat peculiarly referred to as ‘a transaction’ by the Lord Justice General in the current case) was allowed to corroborate her account that force was used. A decade later, Gracey v HM Advocate 1987 JC 45 definitively confirmed that distress could serve this purpose (the ‘distress doctrine’), emphasising that it is for the jury to decide whether the distress is genuine and connected to the incident. The value of distress as ‘spontaneous’ and ‘independent’ evidence (Moore v HM Advocate 1990 JC 371) thus turns on the jury’s assessment of its authenticity and weight. To put it another way, distress can corroborate a complainer’s account, but it will not always and automatically do so. This is how the law works in respect of other circumstantial evidence such as physical injuries or torn clothing which, like distress, could be self-inflicted or feigned. [13] Although a key decision, Yates did not place clear limits on the scope of the distress doctrine. It did not specify, for example, whether it applies only in cases of rape, or elaborate upon precisely what a complainer’s distress can or cannot corroborate. Previous authority shows some willingness to apply the doctrine in non-rape cases (Bennett v HM Advocate 1989 SCCR 608; Horne v HM Advocate 1991 SCCR 248), although it must be noted that, in these cases, there was other evidence to support the complainer’s account. In other words, the complainer’s distress was only part of the evidence relied upon for corroborative purposes. A number of cases, such as Begg v Tudhope 1983 SCCR 32 and McLellan v HM Advocate 1992 SCCR 171, have also suggested that a complainer’s distress can corroborate her evidence of the precise acts that were done to her. In McLellan, the Lord Justice General (Lord Hope) made an obiter statement that: [T]he question whether or not it [distress] can afford corroboration of the complainer’s evidence must depend upon the nature of the activity which she has described, and there will be cases where this point can safely be left to the jury to decide. If the activity is one which in itself is so distressing that a jury would be entitled to hold that it would be liable to distress the victim, then evidence of the victim’s distress will be capable in law of corroborating the complainer’s evidence without further evidence to corroborate every detail of the crime (page 992). [14] The issue of whether distress can corroborate a complainer’s account of what happened to her arose again in Stobo, where an appeal against a conviction for

44  Ilona Cairns indecent assault was made on the basis that the sheriff had misdirected the jury when he told them that they could accept evidence of the complainer’s distress as corroboration of her account of what had taken place. Counsel for the appellant argued that distress could only show that force had been used against the complainer (or that something else had been done to overcome her will to resist), but that it could not corroborate the particular activity described in the libel on the basis that it is impossible to determine precisely what had caused the complainer’s distress. The court rejected this argument and upheld the appellant’s conviction. [15] In delivering the opinion of the court, the Lord Justice General (Lord Hope) emphasised that, in order to provide corroboration, circumstantial evidence (including distress) must only support a complainer’s account. There is no requirement that the evidence be incriminatory or that it describe the details of the event itself. In contrast to eyewitness evidence, the significance of circumstantial evidence is a matter of inference, the strength or weakness of which will depend upon the circumstances of each case. Thus, the court’s view was that any unique features of distress, including its inability to be examined medically or forensically, ‘raise practical questions of fact and degree, rather than issues of law, as to the weight which might be attached to it’. It is therefore proper that evidence of distress should be put before the jury, whose role it is to assess its weight and quality. If the jury are satisfied that the complainer’s distress is genuine and connected to the incident, an inference may be drawn that her distress was caused by the particular activity described, and the corroboration requirement will be satisfied. [16] Although I disagree with particular aspects of the Lord Justice General’s judgment in Stobo (aspects that I will come to later in my judgment), I concur with the court’s expansive interpretation of the distress doctrine. My learned colleagues have overturned Stobo by holding that a complainer’s distress can show that she was subject to distressing conduct, but cannot confirm the nature of that distressing conduct. They have concluded that the complainer’s distress in this case cannot corroborate the crucial fact that the precise crime libelled was committed. The appellant’s conviction will therefore be quashed. The consequences of this d ­ ecision are farther reaching, however: it has restricted the scope of a doctrine which undoubtedly assists with the proof of sexual offences in Scotland. Securing justice in individual cases (accepting that justice is, for many complainers, synonymous with conviction) will be more difficult to achieve from now on. [17] In contrast to the decisions of my learned colleagues, my decision to uphold Stobo thus endorses an expansive interpretation of the distress doctrine, and is intended to increase the prospects for justice in sexual offence cases. It should not be assumed, however, that sexual offence complainers will universally benefit from this interpretation. The distress doctrine can operate to reinforce certain ‘rape myths’, defined by scholar Martha Burt as: ‘[P]rejudicial, stereotyped and false beliefs about rape, rape victims and rapists’ (M Burt, ‘Cultural Myths and Supports

Smith v Lees 1997 SCCR 139  45 for Rape’ (1980) 38(2) Journal of Personality and Social Psychology 217, 217). It is obvious that ‘rape myths’ are relevant to a far broader category of sexual crimes and impact on how these offences are reported, investigated, prosecuted. This was confirmed by Justice L’Heureux-Dubé in the Canadian case of R v Seaboyer [1991] 2 SCR 577 with reference to sexual history evidence. It is clear to me that these myths are also relevant to how our corroboration rule operates in sexual offence cases in Scotland. [18] The myths that most obviously relate to our corroboration requirement, and to the facts of this case, are those which cast doubt on a complainer’s credibility: that false allegations of sexual offences are common, and that an honest and credible complainer is more likely to appear visibly distressed after experiencing a crime of a sexual nature. Use of the term ‘myth’ is not to deny that false allegations are sometimes made, or that complainers will often display distress after experiencing a sexual offence. Rather, it conveys the idea that these beliefs are commonly assumed to be universally true, and that they sustain and perpetuate misunderstandings about the extent and causes of sexual violence, the circumstances in which such violence tends to occur, and how a ‘typical’ victim reacts in response. [19] The myth that victims of sexual offences will always manifest visible distress has been disproved by a comprehensive body of evidence on the effects of trauma, which demonstrates that there is no such thing as a predictable or typical reaction to a sexual offence (J Temkin, Rape and the Legal Process (London, Sweet  & Maxwell, 1987); Z Adler, Rape on Trial (London, Routledge, 1987)). Despite this, other research has shown that the likelihood of complainers being perceived as credible by third parties grows in line with the increased level of distress that they display (F Winkel and L Koppelaar, ‘Rape Victims’ Style of Self-presentation and Secondary Victimization by the Environment’ (1991) 6(1) Journal of I­nterpersonal Violence 29). I have witnessed first-hand that jurors and criminal justice officials tend to greet calmness on the complainer’s part with suspicion. [20] Although not directly raised in this case, consideration of the more general effects of the distress doctrine requires that I briefly discuss the requirement that distress be observed within a particular time frame. Cases such as Moore and Cannon v HM Advocate 1992 JC 138, both rape cases, are authority for the rule that distress loses its corroborative potential if it is not observed soon after the alleged incident (also supported by obiter comments in Begg). The logic underlying this position is that the lapse of time makes it more difficult to see the connection between the distress and the alleged offence, and therefore to rule out the possibility that the distress was caused by a factor unrelated to the alleged incident. While these cases stop short of holding that delayed distress is incompatible with having been raped, they perpetuate the idea that distress exhibited soon after the alleged incident is less likely to be feigned. That distress loses its corroborative

46  Ilona Cairns potential if it does not comply with what has been shown to be a factually unsound assumption sits very uncomfortably with me. [21] Despite my favouring a more expansive approach to the distress doctrine than my fellow judges in this case, it is also incumbent upon me to stress that admitting evidence of distress may have a number of drawbacks. It may perpetuate a culture in which complainers are expected to respond in a very particular way to sexual violence, or else risk finding themselves alienated, discredited and cast beyond the law’s reach. It also, at least temporarily, diverts the court’s focus away from the accused’s conduct and onto the behaviour of the complainer. Thus, while expanding the distress doctrine would benefit individual complainers, including the complainer in this case, it may come at the cost of exacerbating difficulties of proof and perpetuating misunderstandings around sexual violence. [22] On the other hand, it is possible to envisage our law developing in a way which may mitigate these risks. Future judgments may adopt a less strict approach to the time gap between the alleged incident and the distress, or even permit evidence of other emotional states, such as anger or confusion, to provide corroboration. Statutory provisions which permit the admission of expert psychological or psychiatric evidence relating to the behaviour of a complainer following a sexual offence, or which allow for the giving of jury directions to the same effect, could counterbalance the unintended consequences of admitting evidence of distress. I  have therefore reached the conclusion that, while there may be dangers to expanding the doctrine, it is more dangerous to restrict it. I am also convinced that an expansive reading of the doctrine is required in order to secure justice in this particular case. [23] I should add at this point that I do not share the view that restricting the doctrine can be justified by an interest in preventing miscarriages of justice. Any evidence of distress would still be scrutinised by jurors, who are rigorous arbiters of fact and credibility. Furthermore, the corroboration rule has been substantially weakened elsewhere in our law without the resistance displayed in the judgments of my learned colleagues in this case. For example, with respect to the identification of the accused, which is a crucial fact requiring corroboration, it has been held that ‘where one starts with an emphatic positive identification by one-witness, then very little else is required’ (Ralston v HM Advocate 1987 SCCR 467, page 472). In the case of Murphy v HM Advocate 1995 JC 16 a second witness’s description of the accused, at an identification parade, as resembling the assailant in height and hair colour was accepted as corroboration because it was ‘consistent’ with the primary witness’s positive identification. This rule exists even though it is well known that mistaken eyewitness identification is a leading cause of miscarriages of justice (E Borchard, Convicting the Innocent: Errors of Criminal Justice (Oxford, Oxford University Press, 1932)). [24] Likewise, the corroboration requirement is fairly easily satisfied where the accused has confessed to the crime, in spite of the fact that research has often demonstrated a strong link between false confessions and wrongful convictions.

Smith v Lees 1997 SCCR 139  47 The development of the concept of a ‘self-corroborating’ or ‘special knowledge’ confession in Manuel v HM Advocate 1958 JC 41 means that a confession that contains information which would only be known to the perpetrator can provide corroboration. This concept has been expanded to such an extent that jurors have been left to assess the weight, and thus corroborative merit, of confessions containing information both inconsistent and consistent with the crime (Gilmour v HM Advocate 1982 SCCR 590), or which was known to the police and disseminated by the media (Wilson v HM Advocate 1987 JC 50). Further, the fact that the corroboration requirement may be satisfied by only one piece of DNA evidence, provided that two forensic scientists testify to the existence of a match, is another example of how our corroboration doctrine may not offer as strong a degree of protection as many may initially assume. [25] This ‘dilution’ of the corroboration rule by our courts undermines the strength of the argument that a restrictive distress doctrine can be justified in the sexual offences context by the need to reduce the risk of miscarriages of justice. To see the inconsistency, one need not agree that these other rules are unproblematic, nor deny that they reduce the protection offered to the accused or heighten the risk of miscarriages of justice (although, as I have already mentioned, this is almost impossible to determine). In these other contexts, our courts have been willing to stretch the corroboration rule quite far in the interest of avoiding unmerited acquittals. The reluctance to do the same in the context of sexual offences might plausibly be linked to the tenacious hold of the myths referred to earlier, including that complainers in such cases are inherently less reliable or more likely to lodge a false claim. [26] The existence of these assumptions cannot be denied. Indeed, they are so prevalent and powerful that, until very recently, they could be found in the law of jurisdictions with whom we share common history and values. In England and Wales, for example, until the coming into force of section 32 of the Criminal Justice and Public Order Act 1994, sexual offence complainants were viewed as so suspect that judges were required to issue a warning to jurors about the dangers of convicting in the absence of corroborative evidence. Mandatory warnings also previously existed in jurisdictions such as Canada and Australia. It would be foolish to think that we in Scotland are completely immune to the influence of the outdated, and frankly sexist, beliefs that underlay such corroboration warnings, and conscious reflection about how they may subconsciously inform how we interpret the law is required. I cannot do this for my learned colleagues, and do not intend to speculate on the factors that have influenced their approach. Instead, I now set out why I disagree with their conclusion that distress cannot corroborate a complainer’s account of the precise acts done to her. Juries and Inference [27] I agree with my Lordships that the complainer’s distress upon emerging from the tent in this case cannot, on its own, reveal precisely what happened to her. This is obvious. I do not, however, agree that this precludes distress from supplying

48  Ilona Cairns corroboration because the evidence in this case, taken in the round, appears to me to permit an inference to be drawn as to what occurred. This is entirely consistent with the rules of corroboration, as they exist. As stressed by the Lord Justice General in Stobo, it is well settled that circumstantial evidence can corroborate direct evidence that the crime was committed. As he explained: [C]ircumstantial evidence differs from that of an eyewitness, because unlike the evidence of an eyewitness it is incapable of describing the event. Its significance must be left to inference, and the strength or weakness of the inference to be drawn from it will vary according to the circumstances. In a case like the present, if a jury were to infer that the complainer’s account was more likely than the appellant’s, based partly on the distress she exhibited – and it is of course by no means certain that they would – then there would be corroboration of the crucial fact that the crime libelled was committed. The complainer’s account would serve as the principal piece of evidence, and her distress would provide corroboration. The overarching purpose of the requirement of ­corroboration  – which is to prevent convictions based on one piece of unsupported evidence – would thus be served. [28] My Lordships consider that there is no basis in this case, or others like it, upon which a jury could infer that the precise activity described by the complainer took place. The Lord Justice General has indicated that a jury could not draw such an inference because there are other possible explanations for the complainer’s distress. All the complainer’s distress can show, he opines, is that something upsetting occurred – this could have been the showing to her of a pornographic photograph, a physical assault, or even a nightmare. In fact, the appellant offered such an alternative explanation for the complainer’s distress in his police interview: that he accidently touched her chest while she was sleeping. This evidence is clearly relevant, and I can see no reason why it should not be put before a jury so that they can consider whose account they deem the more credible, and thus whether to draw an inference as to the nature of the event. To suggest that the distress might have an alternative cause than that offered by the complainer, but then to rule out any consideration of this possibility on the basis that this ­possibility exists, is – to my mind – rather self-defeating. [29] In this particular case, it is my view that many jurors would consider the fact that the complainer was observed in an upset state immediately following her exit from the tent to be more consistent with an indecent assault than with an accidental touching. Whether such an assumption is warranted or justifiable is another matter: the point is that it is an inference a jury should have been permitted to consider and potentially draw. [30] An inference of this kind would be even better supported if a jury were also permitted to take account of the full circumstances surrounding the distress, including the other adminicles of evidence referred to above (paragraph 11).

Smith v Lees 1997 SCCR 139  49 While  these adminicles are insufficiently probative on their own, they provide context to the complainer’s distress and a jury might well consider them more consistent with the complainer’s version of events than the appellant’s. It is my opinion that the contextual value of these other adminicles of evidence, and the role that they might play in assisting a jury to draw an inference as to what happened to the complainer, has been overlooked by my learned colleagues. Of course, a jury may more easily draw an inference in cases where an alternative explanation for the distress is provided by the accused than in cases where the accused offers no explanation. This is because, in the former situation, the range of possible explanations that a jury would be encouraged to consider is immediately narrowed. Nevertheless, there may be cases where a jury would conclude that the context and circumstances alone support an inference that the complainer’s account is true. In any event, it is likely that in sexual offence cases an accused will offer an explanation for the complainer’s distress in an effort to protest his (for it is most often a male) guilt. [31] Before I move on to set out another flaw with the majority’s reasoning, let me make one final point by way of a fictional example. Assume for a moment that the appellant in this case had provided an explanation for the complainer’s distress that was highly implausible or even fantastical. Say, for example, he had told the police that she was distressed because she had been carried off by a herd of three-headed lions. To remove from the jury the opportunity to draw an inference in these circumstances would, in my view, defy logic. The implausibility of the accused’s explanation would itself provide a clear basis upon which a jury could infer that the activity described by the complainer took place. The drawing of such an inference would mean that the circumstantial evidence of the complainer’s distress would confirm or support her direct evidence and corroboration would be supplied. I am, therefore, convinced that the blanket ban on allowing evidence of distress to corroborate the complainer’s account of the crime, created by the majority decision, is patently and unduly restrictive. [32] My disagreement with my learned colleagues’ reasoning does not end here. I also depart from the distinction they have drawn between cases of rape, in which corroboration of lack of consent is required, and cases such as the present where the specific activity described in the libel must be corroborated. Broadly speaking, the consensus they have reached is that: ‘If a couple have sexual intercourse and immediately afterwards the woman is observed exhibiting emotional distress which is genuine and unfeigned it is perfectly sensible to infer that the sex took place without her consent’ (per Lord McCluskey). This is, in their view, because it can be inferred from her distress that force must have been used to overcome her will and thus that there was no consent. However, just as there may be other possible explanations for the complainer’s distress in the current case, there may surely be alternative explanations for someone appearing upset after intercourse. A distressed reaction could be triggered by a man’s attempt to remove a condom at

50  Ilona Cairns any point during intercourse, by one of the parties saying something upsetting, or by aggressive or unexpected behaviour short of force. Briefly put, distress does not definitively tell us that the intercourse was forced and therefore non-consensual. Rather, it only points towards that conclusion, thereby rendering it more likely that the complainer’s account is reliable and credible. [33] Based on their judgments, I presume that my learned colleagues would say that the key difference between such cases and the one now before us is that in the former the crucial fact of intercourse is established by corroborative evidence, whereas in the current case (and in Stobo) there are not two independent sources of evidence establishing that the alleged activity occurred. The essence of this argument is that the crucial fact – that lewd, indecent and libidinous practices were committed – cannot be corroborated by way of distress, whereas the crucial fact of lack of consent in rape cases can be. It is hard to see why this should be so. In rape cases where there is a dispute over consent, such as Yates, there may be agreement on intercourse but still disagreement over a crucial fact – the existence of consent – and it is impossible to establish precisely what happened. There is, in short, an inference, drawn on the basis of the distress, which can amount to corroboration of a crucial fact, in both types of cases. As I have already established, such inferences are unproblematic: our case law is clear that direct evidence, which often takes the form of the complainer’s testimony, can be corroborated by circumstantial evidence, the significance of which is left to the jury’s judgment. There is no reason to draw a distinction between the current case and rape cases in which there is a dispute over consent. The suggestion that the inference necessary to supply corroboration can be drawn in the latter but not the former is unsustainable. Limits to the Distress Doctrine [34] The next question that must be addressed is whether there are any aspects of the complainer’s account that distress should not be able to corroborate. In Stobo, the Lord Justice General (Lord Hope) was clear that certain limits should be placed on the distress doctrine. Delivering the opinion of the court, he stated that he remained ‘of the opinion that the question of whether or not distress can afford corroboration of the complainer’s evidence must depend upon the nature of the activity she has described’. The Lord Justice General went on to give examples of what, in his opinion, distress cannot corroborate: Distress cannot of course corroborate her evidence as to the identity of the assailant, and it cannot provide corroboration in those cases of assault where the evidence that it resulted in physical injury requires to be corroborated. I continue to think that where corroboration of penetration is needed in rape cases, distress will be incapable of providing this, because the other acts involved in the rape to overcome the complainer’s resistance will be sufficiently distressing in themselves to explain the distress.

Smith v Lees 1997 SCCR 139  51 For the same reason, the Lord Justice General opined that distress alone is incapable of corroborating a complainer’s account ‘that what had begun as an indecent assault on her was pressed home to the extent necessary for this to be an attempted rape’. [35] I disagree, however, with this description of the limits that should be placed on the distress doctrine. My learned colleagues have claimed that the Lord Justice General’s attempt in Stobo to delimit the scope of the distress doctrine is illogical on two principal grounds: first, penetration is undoubtedly distressing in the context of rape and, secondly, if a complainer’s distress can corroborate her account of forced oral sex (as in Stobo) or of the accused placing his penis in the complainer’s hands (as in the present case), then it follows that distress should also be capable of corroborating the complainer’s account of non-consensual penetration or attempted rape. I agree with these criticisms. Indeed, I must say that the attempted rape example is particularly puzzling to me: if the Lord Justice General (Lord  Hope) is satisfied that distress alone can corroborate the complainer’s account of indecent assault, then why should that distress lose its corroborative merit in the process of the crime becoming more serious, and potentially more distressing, to the complainer? For the distress doctrine to operate in this manner would, in my view, be simply nonsensical. [36] In his judgment in the present case, the Lord Justice General (Lord Rodger) has suggested that Lord Hope’s reasoning in Stobo was influenced by assumptions about the kinds of acts required to overcome a complainer’s resistance in certain types of cases. Take, for example, his Lordship’s opinion that a complainer’s distress cannot corroborate her evidence that what began as an indecent assault developed into attempted rape, on the basis that the acts involved in overcoming her resistance to indecent assault would be sufficiently distressing to explain any distress caused by the attempted rape. This claim seems to rest upon the assumption that certain acts are typically used to overcome resistance to indecent assault and that complainers will react in the same way to these acts. This overlooks the fact that indecent assaults can occur in all sorts of circumstances and may not necessarily be accompanied by overt and distressing acts (for example, if the complainer is caught off guard and/or is not immediately aware that she is being indecently and deliberately assaulted). [37] Similarly, his Lordship’s logic in Stobo that distress cannot corroborate the crucial fact of penetration assumes that the perpetrator would use physical force to overcome the complainer’s will and that this would cause her distress. However, let us assume for a moment that the requirement of force is one day removed from the actus reus of the Scots law of rape and the crime is redefined as intercourse without active consent. If our law were reformed in this manner (and it is my sincere hope that it will be) far more cases in which women allege that they have been raped in their sleep or while intoxicated are likely to come before our courts. In such cases, it is far less likely that there would be potentially distressing acts preceding the

52  Ilona Cairns penetration. Indeed, it is possible to envisage cases where a woman would simply wake up to find that she is being penetrated without her consent, and in which the prosecution would want to rely on evidence of her distress to corroborate her account that penetration took place (where this is in dispute). If the Lord Justice General’s reasoning in Stobo were strictly followed, this would be impermissible. But such a result would surely undermine the legal progress brought about by any such redefinition of rape. Indeed, this example highlights the intimate connection between substantive and evidential rules, and the way that reform of the former may have unfortunate and unpredictable effects on the latter. [38] To summarise, the idea that assumptions about the kinds of acts that are necessary to overcome a complainer’s resistance should shape the limits to our distress doctrine troubles me. This is partly because there is no uniform or ‘normal’ manner in which individuals react to force or pressure, and there is a wide spectrum of possible acts which may cause an individual to resist such coercions. In other words, the extent to which an individual resists, the point at which they do so, or whether they do so at all is entirely context dependent. The distress doctrine is problematic enough insofar as it risks reinforcing the myth that credible victims will exhibit distress following a sexual offence. Limiting the doctrine in line with the Lord Justice General’s reasoning in Stobo would, in my view, compound these difficulties. [39] Returning to the current case, the Solicitor General has also suggested that a complainer’s distress alone cannot corroborate evidence of penetration in a rape case on the basis that ‘according to ordinary human experience, penetration is not in itself distressing’. More generally, the Solicitor General has proposed that distress should be able to corroborate the details of the complainer’s account ‘where the complainer gives evidence of conduct towards her which, according to ordinary human experience, is likely to provoke distress’. While application of the distress doctrine inevitably involves some degree of theorising about what type of behaviour is likely to cause distress, I am uneasy about endorsing a test that requires future courts to consider what is distressing as a matter of ‘ordinary human experience’. Such a test may encourage jurors to assume – mistakenly, in my view – that there is such a thing as an ‘ordinary human experience’ that they can apply in deciding sexual offence cases. Moreover, application of this test could lead to the categorisation of specific acts as either intrinsically ‘distressing’ or ‘non-distressing’. This is clearly problematic in light of the fact that human beings do not experience distress in homogeneous ways. Conclusion [40] For the reasons above, I do not intend to set out a prescriptive list of what activity, facts or aspects of a complainer’s account distress should or should not be able to corroborate. I am not suggesting, however, that no limits whatsoever should be placed on the distress doctrine; but rather that any such limits should be determined on an ad hoc, case-by-case basis.

Smith v Lees 1997 SCCR 139  53 [41] Our task as a court has been to consider the precise question of whether, on the facts of this case, the complainer’s distress can corroborate her account of the activity that took place in the tent. On the basis that an inference can be drawn, from the available evidence and the context surrounding it, that the complainer’s account is more likely to be true, I have answered in the affirmative. This is entirely consistent with the mechanics of our corroboration doctrine, which permits corroboration of a principal piece of evidence, such as a witness statement, by circumstantial evidence that is not directly probative. Accordingly, I uphold the decision in Stobo and dismiss the appeal against conviction and sentence. [42] On a final note, it must be remembered that deciding in accordance with the opinion I have set out in this case would not mean that distress would corroborate a complainer’s account of precisely what happened in all, or perhaps even most, future sexual offence cases. While my judgment, in contrast to those of my learned colleagues, opens the door to this possibility, the ultimate decision on the corroborative merit of distress would, of course, continue to rest with the jury in solemn cases. This raises a new set of concerns. As I have noted, when tasked with assessing the genuineness and reliability of distress jurors could well be influenced by the very myths that the distress doctrine can be understood to embody and perpetuate. But adopting a blanket rule, which precludes a jury from ever assessing whether a complainer’s distress can corroborate the precise activity that she has described is, with the greatest of respect to my learned colleagues, not only illogical but obstructive to justice.

Commentary on Smith v Lees ISLA CALLANDER

Introduction The requirement of corroboration in Scots law dictates that the ‘crucial’ facts of a crime must be proved by two independent sources of evidence. This longstanding ‘safeguard’ against unjust conviction holds a prominent place in the ­Scottish legal tradition. As Sir Gerald Gordon once stated, it is ‘generally regarded by Scots lawyers as one of the most notable and precious features of Scots ­criminal law’.1 Yet the problems of proof in sexual offence cases that arise out of this requirement have equally been recognised. The rule can operate to prevent prosecutions or act as a barrier to conviction in court because a complainer’s evidence, however credible, can never on its own be sufficient, and securing corroborative evidence for each crucial fact in ‘private sphere’ crimes can be difficult.2 Furthermore, confession evidence, which has often been relied upon for corroborative purposes, may also have become scarcer following the Supreme Court’s decision in Cadder v HM Advocate,3 which recognised a suspect’s right, in Scots law, to legal advice prior to interview.4 Dissatisfaction over the operation of the corroboration rule in sexual offence cases has intensified in recent years,5 with this consideration playing a prominent role in the Scottish government’s controversial proposal in a 2013 Bill to abolish the rule.6 This proposal was extremely divisive for a number 1 GH Gordon, ‘“At the Mouth of Two Witnesses”: Some Comments on Corroboration’ in RF Hunter (ed), Justice and Crime: Essays in Honour of The Lord Emslie (Edinburgh, T&T Clark, 1993) 33. 2 I Cairns, ‘“Access to Justice” for Complainers? The Pitfalls of the Scottish Government’s Case to Abolish Corroboration’ in P Duff and PR Ferguson (eds), Scottish Criminal Evidence Law: Current Developments and Future Trends (Edinburgh, Edinburgh University Press, 2017) 54–55. 3 Cadder v HM Advocate [2010] UKSC 43. 4 See PR Ferguson, ‘Repercussions of the Cadder Case: The ECHR’s Fair Trial Provisions and Scottish Criminal Procedure’ (2011) 10 Criminal Law Review 743. Under the Criminal Justice (Scotland) Act 2016 suspects in police custody have the right to a consultation with a solicitor at any time (s 44) and to have a solicitor present while being interviewed (s 32). 5 See F Raitt, ‘Corroboration in Cases of Gender Violence: A Case for Special Treatment?’ (2014) 18 Edinburgh Law Review 93; I Cairns, ‘Does the Abolition of Corroboration in Scotland Hold Promise for Victims of Gender-Based Crimes? Some Feminist Insights’ (2013) 8 Criminal Law Review 640. 6 See Criminal Justice (Scotland) Bill as introduced 20 June 2013, s 57. The proposal followed the recommendation of Lord Carloway who recommended abolition as part of his review of aspects of Scots evidence law and procedure following the Cadder decision: Lord Carloway, The Carloway Review: Report and Recommendations (Edinburgh, Scottish Government, 2011). While Lord Carloway’s case for abolition was not predicated upon the difficulties the rule poses in sexual offences cases, the Scottish

Commentary on Smith v Lees  55 of reasons and was ultimately put on hold.7 The requirement of corroboration therefore remains in place in Scots law. Against the backdrop of the problems of proof caused by Scotland’s unique corroboration rule, over time the courts have developed various ‘fiddles’8 which allow the requirement to be met. The distress and Moorov doctrines have assumed particular significance in the context of sexual offences. In terms of the scope of the distress doctrine in practice, Smith v Lees remains a pivotal case today. It deals with what has been described by Duff as ‘the most problematic issue’ encountered by the courts in delineating the extent of the doctrine – the question of what exactly the complainer’s distress can and cannot corroborate.9 The significance of this question cannot be underestimated because it determines whether certain sexual offence cases are effectively cast ‘beyond the reach of the criminal law’ in Scotland.10 In Stobo v HM Advocate, an appeal case decided three years before Smith v Lees, the Lord Justice General (Lord Hope) held that a complainer’s distress could corroborate her account of the precise acts libelled, and it should be for the jury to assess the weight and quality of a complainer’s account and evidence of distress.11 In Smith v Lees, however, a bench of five judges overturned Stobo and unanimously held that the complainer’s distress could not corroborate her account of the nature of the conduct that caused her distress. Distress could not therefore corroborate the crucial fact that the precise crime libelled (lewd, indecent and libidinous practices) was committed, and the appellant’s conviction was quashed. The decision has undeniably had a significant impact on Scots law, by making it more difficult to prove sexual offences. Indeed, as Lord Sutherland conceded, cases of this type would face ‘insuperable difficulties’ of proof if distress could not corroborate the complainer’s account of what occurred.12 With this in mind, it is not difficult to see why Smith v Lees has been identified as an important judgment to rewrite as part of this project.

The Original Decision and the Feminist Judgment Bartlett describes the distinction between traditional and feminist legal method as relat[ing] less to differences in principles of logic than to differences in emphasis and in underlying ideals about rules. Traditional legal methods place a high premium on the government sought to frame abolition within an ‘access to justice’ argument – for analysis, see Cairns ‘“Access to Justice”’, above n 2. 7 The 2013 Bill was later passed without the provision to abolish corroboration. 8 P Duff, ‘The Requirement for Corroboration in Scottish Criminal Cases: One Argument against Retention’ (2012) 7 Criminal Law Review 513, 513. 9 ibid 521. 10 Lord Hope of Craighead, ‘Corroboration and Distress: Some Crumbs from under the Master’s Table’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh, Edinburgh University Press, 2010) 13. 11 Stobo v HM Advocate 1994 JC 28. 12 Smith v Lees 1997 JC 73, para 118 (Lord Sutherland).

56  Isla Callander predictability, certainty, and fixity of rules. In contrast, feminist legal methods, which have emerged from the critique that existing rules overrepresent existing power structures, value rule-flexibility and the ability to identify missing points of view.13

This distinction is reflected in the contrast between the original decision in Smith v Lees and the feminist judgment. Subsequently described by Lord Hope as a decision which, in overturning Stobo, was concerned with ‘restoring the purity of the law’,14 the original judgment restricts the use of distress evidence in a way that overly prioritises the certainty and fixed nature of rules. Yet such a narrow focus upon the doctrinal issues comes at the expense of undervaluing the wider social context of the decision. Indeed, this restricted focus is explicit in the original judgment, with Lord McCluskey stating that Smith v Lees, ‘does not raise and … should not be thought to raise any question of policy, any question as to what the law ought to be’.15 By contrast, Lady Cairns’ convincing dissent challenges the original decision and, dismissing the appeal, affirms the legitimacy of the more expansive interpretation of the distress doctrine taken in Stobo. Lady Cairns’ judgment, which remains situated within the wider development of the corroboration rule and its accompanying ‘fiddles’, shows the scope for arriving at this alternative outcome when a premium is placed upon rule flexibility, identifying missing points of view, and attending to context. Unlike the original judgment, the feminist judgment explicitly engages with, and is responsive to, the wider social context and potential impact of the decision on other complainers. Judicial consciousness of the wider impact of not allowing distress to corroborate the precise nature of conduct in these ‘private sphere’ offences was clearly influential in the prior decision of Stobo. Lord Hope was later to describe his decision as influenced by the realisation that a different decision would mean that certain sexual offences (indecent assaults with only the complainer present) could be ‘repeated up and down the country with impunity’.16 Lady Cairns’ judgment also recognises the implications of reaching a different decision, contextualising her decision against the evidence of the consistently high rate of attrition in sexual offence cases. In the feminist judgment, credence is given to ‘missing points of view’, particularly the perspective and interests of the complainer. In the original ­ ­judgment, the court held that the complainer’s distress could not confirm or support her evidence because it did not permit an inference to be drawn that the precise activity described by the complainer occurred. Yet the result of that approach is that, as Lord Hope once remarked, ‘it might perhaps be said, the law forgets the victim if it will not accept evidence of her distress as meeting the requirement because it is the best that is available’.17 By contrast, the f­eminist

13 K

Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829, 832. Hope, above n 10, 25. v Lees 1997 JC 73, 102 (Lord McCluskey). 16 Lord Hope, above n 10, 15. 17 ibid 25. 14 Lord

15 Smith

Commentary on Smith v Lees  57 j­udgment does not forget the complainer or disqualify her evidence. Instead, it accepts her evidence as the best available and carefully explains why the role and significance of other possible explanations for the complainer’s distress are ­overstated in the majority opinion. The judgment makes a cogent case for why the available evidence and surrounding context would permit a jury to infer that the complainer’s account is more likely to be true than any alternative explanation, and shows how this would satisfy the corroboration requirement. While upholding the more expansive approach to distress taken in Stobo, Lady Cairns also carefully departs from the limits imposed on its use by Lord Hope. Instead, she declines to set out a constitutive test and holds that the question of whether distress can afford corroboration should be determined on a case-bycase basis. This can be seen as reflecting the value of rule flexibility, seeking to avoid automatically excluding ‘differently situated’ complainers from utilising the doctrine in future cases.18

Contribution of the Judgment The decision in Smith v Lees was handed down more than 20 years ago, and there have since been developments in the application of the distress doctrine. In some ways the doctrine has been broadened with, for example, case law showing that the courts are taking a less strict, and more contextualised, approach to the requirement for temporal proximity between the alleged incident and the manifestation of distress.19 In the recent case of Ferguson v HM Advocate, the Lord Justice General (Lord Carloway) noted that, in some earlier cases, ‘the court appeared to be reaching a view on what might, or might not, be expected to occur by way of complaint or distress after a woman had been raped’ and cautioned that ‘great care’ should be taken if such views are intended to ‘define what is to be regarded as reasonably explicable’, and that ‘[e]ven greater care … must be taken before excluding the occurrence of distress after an interval of time as constituting corroboration’.20 Other vexatious issues have arisen involving the relationship between distress and mens rea,21 although in the recent case of Maqsood v HM Advocate the Lord Justice General (Lord Carloway) held that there is no requirement to corroborate lack of reasonable belief in consent in rape cases.22 Despite these developments, it is clear that the limits imposed on the use of distress evidence in Smith v Lees retain their impedimentary force today.

18 R Hunter, ‘The Power of Feminist Judgments?’ (2012) 20 Feminist Legal Studies 135, 141. 19 See, eg, RWP v HM Advocate 2005 SCCR 764; Wilson v HM Advocate 2017 JC 135. 20 Ferguson v HM Advocate [2019] HCJAC 1, para 16 (Lord Justice General (Carloway)). 21 For commentary see J Chalmers, ‘Distress as Corroboration of Mens Rea’ (2004) Scots Law Times (News) 141; S Cowan, ‘Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence’ (2019) 23 Edinburgh Law Review 22. 22 Maqsood v HM Advocate [2018] HCJAC 74.

58  Isla Callander When contemplating the contribution of this feminist judgment, one might question what difference it would have made at the time. That, of course, is difficult to measure – one can only speculate, and one must accept that these projects are written, however subconsciously, with the benefit of hindsight. Furthermore, as Rosemary Hunter has pointed out, there are questions about how, and when, the ‘success’ of a given judgment can or should be measured.23 With these points in mind, if Lady Cairns’ opinion had been the majority decision it would, in confirming Stobo, have had a significant impact on Scots law in assisting the prosecution of sexual offence cases and increasing the possibility of convictions in such cases. However, even a dissenting judgment, such as Lady Cairns’, would undoubtedly have had important symbolic value at the time. In addition, as Hunter points out, ‘[t]oday’s dissent may become tomorrow’s orthodoxy’:24 a sentiment which seems apt for two reasons. First, had Lady Cairns’ dissent been delivered it would have brought to the fore the issues of ‘rape myths’, assumptions and stereotypes, which some 20 years later are now recognised as ubiquitous problems that afflict sexual offence prosecutions. Indeed, the traditional explanation that the difficulty in securing sexual offence convictions is exclusively caused by a deficit of evidence has increasingly been supplanted with a new ‘orthodoxy’ that, ‘it is not necessarily the lack of evidence that matters but the attitude towards the evidence that matters’.25 Indeed, part of the value of this feminist judgment at that time would have been that the reasoning goes beyond recognition of the barriers to proof in sexual offence cases as posed by a lack of evidence, examining the impact of ‘rape myths’, including in relation to judicial interpretation of the distress doctrine itself. The feminist judgment also recognises that, if distress were able to corroborate the complainer’s account, the decision on its corroborative merit would naturally lie with the jury and would therefore give rise to a new set of concerns about their decision-making. Today, this conclusion is firmly supported by a well-established literature that evidences prejudicial attitudes amongst jurors, which can influence decision-making in sexual offence cases.26 Secondly, had Lady Cairns’ dissent been delivered two decades ago, it would have made a firm and explicit statement that disallowing distress to corroborate the precise acts libelled could be considered ‘obstructive to justice’. It might too have catalysed efforts for reform at this earlier time, expediting contemporary challenges to the corroboration rule based on its tendency to prevent legal remedies for complainers.27 23 Hunter, ‘The Power of Feminist Judgments?’, above n 18, 140. 24 ibid. 25 J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Oxford, Hart Publishing, 2008) 209. 26 See, eg, L Ellison and VE Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49 British Journal of Criminology 202; L Ellison and VE Munro, ‘A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ (2010) 13 New Criminal Law Review 781. 27 Raitt, above n 5, 93.

Commentary on Smith v Lees  59

Going Forward The legal response to sexual offences remains challenging in Scotland today, both in terms of the substantive and evidential legal rules and concerns about jury decision-making.28 Given that Smith v Lees remains law, this feminist judgment is significant in that it suggests a viable reform option to the distress doctrine that could be explored. Importantly, as Lady Cairns recognises, while allowing distress to corroborate the precise acts libelled would remove an evidential barrier to proof in sexual offences cases, its practical impact might be limited by the existence of an extra-legal barrier: prejudicial attitudes amongst jurors. Similarly, the problems posed by prejudicial juror attitudes have been identified as a reason why the wholesale abolition of the corroboration rule – which would consequently remove the technical requirement of the distress ‘fiddle’ in the first place – is not a panacea for complainers of sexual crimes.29 With this in mind, it is clear that any changes to the law must be accompanied by a sustained focus on educating the public and jurors. Some inroads have been made with, for example, the introduction of jury directions targeting public misconceptions about delayed reporting or the absence of force or resistance in sexual offence trials.30 Furthermore, the judgment is valuable because it shows that the distress doctrine itself can be understood to reinforce certain ‘rape myths’ about how ‘genuine’ or ‘typical’ complainers appear. The scope for unintended consequences of otherwise progressive measures and reforms is an all too common problem in the context of sexual offences.31 The judgment is therefore useful because it encourages reflection on recent educative reforms and ways in which these could be strengthened to mitigate the impact of any adverse consequences arising out of the use of the distress doctrine. This could include, for example, expanding the scheme of jury directions to incorporate a direction about emotional demeanour, whether at trial or post-assault.32

28 See Cowan, above n 21. 29 See I Cairns, ‘Does the Abolition of Corroboration in Scotland Hold Promise for Victims of Gender-Based Crimes?’, above n 5; Raitt, above n 5, 95–96. 30 Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 6, inserting a new s 288DA into the Criminal Procedure (Scotland) Act 1995. 31 See, eg, I Callander, ‘The Challenge of “Best Evidence” in Rape Trials: The Victims and Witnesses (Scotland) Act 2014’ (2014) 18 Edinburgh Law Review 279. 32 I Callander, ‘Jury Directions in Rape Trials in Scotland’ (2016) 20 Edinburgh Law Review 76, 80–81.

Reflective Statement: Smith v Lees ILONA CAIRNS

Writing in 2012 after the completion of the Feminist Judgments Project in England and Wales,1 Rosemary Hunter identified a number of risks associated with the endeavour of rewriting a judgment from a feminist perspective.2 One of these risks is that ‘judges necessarily decide on a case by case basis but, from a f­ eminist perspective, a good result for one woman may not serve the interests of all women, or may operate to the disadvantage of some women’.3 Negotiating this ­‘individual good’ versus ‘collective good’ dilemma was the most challenging aspect of ­rewriting the judgment in Smith v Lees as a fictional dissenting judge, ­substituting for Lord Sutherland.4 As I explicitly acknowledge in the judgment, allowing the complainer’s distress to corroborate her account of what occurred in the tent is an ostensibly ‘just’ result for the individual complainer in this particular case, but one that does not come without potential costs for other women5 who have ­experienced sexual violence. If one understands the distress doctrine to be rooted in an understanding that emotional distress is the expected or ‘typical’ way to react to a sexual offence, then interpreting it in an expansive manner (in the way I do in my judgment) can be understood as a move which further reinforces this myth. This may, in turn, make it even more challenging for women whose e­ xperiences do not fit the distress ‘mould’ to have those experiences recognised by law. In the feminist judgment, I attempt to ‘grapple conscientiously’6 with the above risk in a number of ways. First, taking heed of Hunter’s observations on how the 1 R Hunter, C McGlynn and E Rackley, Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 2 R Hunter, ‘The Power of Feminist Judgments?’ (2012) 20 Feminist Legal Studies 135. 3 ibid 140. 4 It was necessary to substitute for a judge in the original case as the High Court of Justiciary cannot sit as a court of six. 5 Of course, men also suffer sexual violence. However, statistics illustrate that women are ­disproportionately victims of sexual offences in Scotland. For example, it is estimated that 10 per cent of Scottish women have experienced rape compared with 2 per cent of men. See E Fuller et al, Natsal-3: Key Findings from Scotland (Edinburgh, Scottish Government, 2015), available at: www2.gov.scot/ Resource/0047/00474316.pdf. A gendered understanding of sexual violence informs my feminist ­judgment, although it is worth emphasising that, at the time of the original judgment in Smith v Lees, the common law position was that men could not be raped. Since the coming into force of s 1 of the Sexual Offences (Scotland) Act 2009 this is no longer the case. 6 Hunter, above n 2, 141.

Reflective Statement: Smith v Lees  61 judgment writers in England and Wales managed this dilemma, my j­udgment avoids crafting principles that may ‘foreclose the possibility of a different outcome for differently-situated women’.7 Thus, in the final section of my judgment, I refuse to unduly restrict the scope of the distress doctrine through setting out a prescriptive test, partially on the basis that doing so could be restrictive and preclude differently situated complainers from having recourse to the doctrine in the future. Second, I draw direct attention to the consequences of expanding the distress doctrine for individuals other than the complainer and weigh these against the consequences of limiting the doctrine in line with the majority decision. While there is no ideal solution, the feminist judgment reflects my own conclusion that interpreting the distress doctrine in an expansive and more flexible manner is more ‘feminist’ – both in terms of the symbolic message it sends, and the practical effect it may have in individual sexual offence cases. The appropriateness of such an approach is even more obvious in light of the fact that the law has revealed itself to be capable of developing in a way that, to some extent at least, lessens the impact of any unintended consequences. As Isla Callander explains in her commentary on the feminist judgment, since the decision in Smith v Lees there has been an ­explosion of knowledge on rape myths and how they affect legal responses to sexual offences; jury directions have recently been introduced in Scotland with a view to tackling myths relating to delay in reporting and lack of physical resistance or physical force (although notably not relating to lack of distress or delayed distress);8 the Scottish courts have adopted a more flexible approach in cases where there has been a time gap between the alleged offence and the distress being observed;9 and the High Court of Justiciary has recently held that there is no requirement to corroborate lack of reasonable belief in rape cases.10 This last development is particularly significant as decisions in which the Scottish courts had attempted to negotiate the requirement that mens rea be corroborated, and to answer the question of whether distress can provide corroboration in that regard, had further exacerbated the inherent difficulties with proving sexual offences.11 Faced with the seemingly intractable dilemma described above, at various points during the rewriting process I questioned whether I should in fact aim to reach the same decision as the original bench in Smith v Lees, albeit for very different reasons. However, it is an inescapable fact that delivering such a ­decision would have entailed acceptance that practically every complainer who alleges that they were victim of a private indecent act, and whose complaint cannot be prosecuted together with another in line with the Moorov doctrine, would never 7 ibid. 8 Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 6. 9 See, eg, RWP v HM Advocate 2005 SCCR 764; Wilson v HM Advocate 2017 JC 135; Ferguson v HM Advocate [2019] HCJAC 1. 10 Maqsood v HM Advocate [2018] HCJAC 74. 11 For discussion of the challenges that the courts have faced in this area, see J Chalmers, ‘Distress as Corroboration of Mens Rea’ (2004) Scottish Law Times (News) 141. See also the judgment by Pamela Ferguson in this collection (ch 4).

62  Ilona Cairns see their alleged attacker brought to justice. This, to answer the question posed by Lord Hope in a published commentary on the law in this area, is not acceptable in a civilised society.12 Nor is it acceptable from the perspective of those who have most tirelessly campaigned to increase the visibility of private harms and for more effective criminal law responses to sexual violence: feminists. Thus, short of recommending wholesale abolition of the corroboration doctrine, which could have been perceived as either too radical, unrealistic or as judicial overreach, I took the view that opening up the possibility for a complainer’s distress to corroborate her account was the most viable option on the table for a feminist judge. It is also important to acknowledge that the abolition of corroboration is a topic fraught with controversy, from both a feminist perspective and otherwise. Following Lord Carloway’s highly controversial proposals in 2011 to abolish the corroboration requirement,13 I drew on feminist arguments relating to legal reform to argue that abolition would be unlikely to improve conviction rates for sexual offences or domestic abuse and could, in fact, have a number of unintended consequences for complainers in such cases.14 More recently, I have argued that the rhetoric used by the Scottish government during the corroboration debate – that abolition of the requirement is necessary to deliver ‘access to justice’ to ­complainers in sexual offence and domestic abuse cases – sent the misleading message that the criminal justice system is ‘therapeutic’ and obscured alternative perspectives on what justice constitutes for complainers.15 In light of these concerns, and given that abolition is unlikely to occur any time soon, efforts may be better directed (for the time being, at least) towards encouraging further adjustments to the corroboration rule in order to improve how it operates in sexual offence cases. The High Court’s decision in Maqsood, referred to above, is an example of recent progress in this regard. My feminist judgment in Smith v Lees highlights another possible avenue of reform, at the same time as drawing further attention to the complexities of seeking to make the law more just for complainers in sexual cases.

12 Lord Hope of Craighead, ‘Corroboration and Distress: Some Crumbs from Under the Master’s Table’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Oxford, Oxford University Press, 2010) 13. 13 The Carloway Review: Report and Recommendations (Edinburgh, Scottish Government, 2011). 14 I Cairns, ‘Does the Abolition of Corroboration in Scotland Hold Promise for Victims of GenderBased Crimes? Some Feminist Insights’ (2013) 8 Criminal Law Review 640. 15 I Cairns, ‘Access to Justice for Complainers? The Pitfalls of the Scottish Government’s Case to Abolish Corroboration’ in P Duff and PR Ferguson (eds), Scottish Criminal Evidence Law: Current Developments and Future Trends (Edinburgh, Edinburgh University Press, 2017).

4 McKearney v HM Advocate 2004 JC 87 LJ-C Gill, Lord McCluskey and Lady Ferguson 16 January 2004 Opinion of Lady Ferguson Introduction [1] This appeal addresses the issue of mens rea in the common law crime of rape. The appellant argues that his conviction for the rape of the complainer, his former girlfriend, should be quashed on the basis that the trial judge misdirected the jury. I agree with the majority of this court that the appeal must succeed. However, some of my reasons differ from those which your Lordships have expressed. It is therefore proper that I should state the basis on which I concur in this disposal. The Evidence [2] The appellant broke into the complainer’s flat in the early hours of the ­morning – a fact which he admitted during his police interview. The complainer became aware of this intrusion into her home when she was awakened by the appellant sitting astride her, compressing her throat. In an ordeal which lasted for several hours the appellant repeatedly threatened to kill her. She was terrified, believing that he intended to carry out these threats. On more than one occasion he again put his hands around her throat. Some four hours after the initial assault, the appellant instructed the complainer to go back to her bed and to sleep. She was reluctant to do so, but the appellant told her to lie on the bed. She did so and the appellant lay down beside her. He inserted his penis into her vagina. The complainer’s testimony was that she did not consent to this. [3] The solicitor advocate who represented the appellant at trial suggested to the jury that they should acquit his client if they found that he had acted under an honest belief that the complainer had consented to intercourse. The trial judge instead directed the jury to disregard the question of ‘honest belief ’ and to convict the appellant of rape if they found that intercourse had taken place, and that this was against the complainer’s will. The jury deleted some words from the charge, including that the appellant had attempted to murder the complainer, and he was convicted of having forced entry to the flat, repeatedly threatening to kill her, assaulting her by compressing her throat, and raping her.

64  Pamela Ferguson The Issues [4] As Lord Justice Clerk Gill notes, the appellant’s submission raises four issues: (1) whether the trial judge failed properly to direct the jury on the question of mens rea; (2) whether he erred in directing them to disregard the question of honest belief; (3) whether distress de recenti on the part of the complainer was evidence of mens rea on the part of the appellant; and (4) whether the jury was entitled to hold that the complainer remained frightened of the appellant when he had intercourse with her. In order to determine these issues, we must consider the development of the definition of rape in our law. The Actus Reus [5] In his Commentaries on the Law of Scotland Respecting Crime (Bell’s edition, 1844) Baron David Hume defined rape as ‘carnal knowledge’ of a female person which has been obtained ‘against her will, and by force’ (Hume, I, page 302). While it had to be proven that the accused had overcome the complainer’s will, the amount of resistance the complainer was expected to offer varied according to the circumstances, including her age, health and robustness. According to Hume, intercourse could be said to have taken place ‘against the complainer’s will’ where she was too frightened to offer much resistance: It is evidently no consent, to do away with the guilt of rape, if the woman only discontinue her resistance out of fear of death (ibid). In Barbour v HM Advocate 1982 SCCR 195, Lord Stewart directed the jury that: The important matter is not the amount of resistance put up but whether the woman remained an unwilling party throughout. The significance of resistance is only as evidence of unwillingness (pages 197–98). In the recent Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466, this court decided that the use of force was no longer an essential element in the definition of rape, and that its actus reus consists in having sexual intercourse with a person who does not consent. The previous insistence that the accused had to have overcome the complainer’s will had meant that a sleeping woman could not be raped, nor could one who had become incapacitated due to intoxication through alcohol or drugs where these had been voluntarily consumed, since in neither of these situations could it be said that that complainer’s will had been overcome by the accused. In focusing on a lack of consent, the redefinition in Lord Advocate’s Reference (No 1 of 2001) means that rape is committed where the accused has sexual intercourse with a woman who is not a willing participant, but there is no longer a requirement for the Crown to prove that the complainer offered resistance, nor that the accused had ‘overcome’ this.

McKearney v HM Advocate 2004 JC 87  65 The Mens Rea [6] As this court noted in Lord Advocate’s Reference (No 1 of 2001), Hume did not address the issue of the mens rea of rape. Few other cases have considered this aspect of the definition, in large part because, prior to that case, proof that the accused had used force in order to achieve intercourse was taken also to constitute proof that he was aware that the complainer was not a willing party. Lord Cullen in Lord Advocate’s Reference (No 1 of 2001) defined the mens rea of rape as being present where the accused knows that the woman is not consenting or at any rate is reckless as to whether she is consenting (page 476, paragraph 44). Similarly, the Lord Justice Clerk addresses the requirement of mens rea in the case before us, at paragraph 8 of his judgment: [T]he mens rea of the crime consists of an intention on the part of the accused to have intercourse with the complainer, together with knowledge on his part that she does not consent, or with recklessness on his part as to whether or not she does. I concur with the Lord Justice Clerk’s conclusion that where the Crown cannot rely on the use of force as evidence that the accused was aware that the complainer was not consenting then a specific direction on this point is now essential. Since the trial judge gave no such direction, I agree that the appellant’s conviction must be quashed, giving the Crown the opportunity to consider whether they wish to seek authority for a fresh prosecution in accordance with section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995. [7] Given that this First Ground of Appeal is sustained, it may be thought unnecessary to consider the remaining grounds. However, since they raise fundamental aspects of the mens rea of rape they too require to be addressed. As the Lord Justice Clerk’s formulation of the second issue makes clear, the appellant maintains that the trial judge should also have instructed the jury about the effect of an honest but mistaken belief in consent. In response, the Lord Justice Clerk finds: If the jury hold that the complainer did not consent, because they believe her evidence to that effect, they must nevertheless consider whether or not the accused honestly believed that she did. In all such cases, in my view, the judge should give a specific direction on the point (page 91, paragraphs 12–13). In addressing this point, Lord McCluskey relies upon the cases of Meek and Others v HM Advocate 1982 SCCR613 and Jamieson v HM Advocate 1994 JC 88, 1994 SLT 537. He cites Lord Justice General Emslie’s statement in the latter that in rape cases, the man’s belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal (1994 JC 88, page 93).

66  Pamela Ferguson Both Meek and Jamieson followed the English case of DPP v Morgan [1976] AC 182, [1975] UKHL 3, [1976] AC 182, in which the appellants were convicted of rape. Three of the defendants, who were RAF officers, maintained that Morgan, their senior officer, had invited them to his house after a night of heavy drinking and informed them that although his wife would resist having sexual intercourse with each of them she would in fact be consenting. The trial judge directed the jury that if it found that the three junior officers had acted under an erroneous belief that Mrs Morgan had been consenting, it could only acquit them if it also found that this belief was a reasonable one for them to have formed in the circumstances. It is worth noting that the complainant had made it quite clear that she was not consenting, and that she required medical treatment for injuries she received during the attack. In granting leave to appeal, the Court of Appeal certified a question of public importance: Whether in rape the defendant can properly be convicted, notwithstanding that he in fact believed that the woman consented, if such belief was not based on reasonable grounds ([1976] AC 182, page 205). The House of Lords answered this question in the negative, holding that in a charge of rape there was no requirement that an erroneous belief in consent had to be reasonably held. [8] Delivering the opinion of the court in Meek, Lord Emslie observed that: [A]n essential element in the crime of rape is the absence of an honest belief that the woman is consenting. The criminal intent is, after all, to force intercourse upon a woman against her will and the answer to the certified question given by the majority of their Lordships in Morgan is one which readily accords with the law of Scotland (page 618). This observation was obiter dictum, the court having decided that in the circumstances of the case there was no need for a direction to be given on the effect of a mistaken belief in consent. The dictum was not supported by any previous Scottish authority on mistake and was expressed without reference to any such authorities. Meek has been criticised as a decision which is difficult to reconcile with other areas of our criminal law – a point to which I will return below. Despite this, Lord Emslie’s approach was approved in Jamieson by Lord Justice General Hope: [T]he mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of belief that she was consenting is an essential element in it. If a man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape … [I]t will be open to the jury to accept his evidence on this point even if he cannot give grounds for it which they consider to be reasonable, and if they accept his evidence they must acquit him (1994 JC 88, page 92). The principle in Meek was also applied to indecent assault in the case of Marr v HM Advocate 1996 JC 199, 1996 SLT 1035.

McKearney v HM Advocate 2004 JC 87  67 [9] In my opinion, this court took a wrong turn in following Morgan in Meek and Jamieson and requiring that a mistaken belief in consent need not be a reasonable one in order to exculpate the accused. This court is slow to reinterpret the common law, and rightly so, but when it has made an egregious error – as I believe it did in these cases – it is in its power to correct this. The case before us presents an appropriate occasion on which to set the law back on its proper course. There are four arguments for doing so, namely: (i) in other aspects of substantive criminal law, English and Scottish law differ in their approaches to errors which affect mens rea; (ii) there is no principled basis for holding that errors relating to consent in rape cases should be treated differently from other types of error; (iii) in any event, Morgan is no longer good authority in English law; and (iv) the approach taken in Morgan, Meek and Jamieson is wrong in principle. (i) The English and Scottish Law Approaches to Errors which Affect Mens Rea [10] In deciding Morgan as it did, the House of Lords noted that the law took a different approach to errors in cases of bigamy: in R v Tolson (1889) 23 QBD 168 the defendant had remarried after she had been informed that her first husband had been lost at sea. She was afforded a defence of error only if her mistaken belief that her husband was deceased was both honest and reasonable. Prior to Morgan, errors in self-defence likewise had to be based on reasonable grounds: R v Rose (1884) 15 Cox CC 540; R v Chisam (1963) 47 Cr App R 130; R v Fennell [1970] 1 QB 428. These cases were followed, post-Morgan, in Albert v Lavin [1982] AC 546, where at issue was whether a person might be convicted of assault if he mistakenly and without reasonable grounds believed that he himself was being assaulted. Hodgson J noted that: [T]here appears to be no reported instance of a man being convicted of an assault … when he acted, as he believed, in self-defence, but the belief was held to be unreasonable. However, nearly all the authorities, when considering self-defence, require that a mistaken belief must be reasonable (pages 553–54). Morgan was, however, applied by the Court of Appeal in the later case of R v Williams (Gladstone) (1984) 78 Cr App R 276, at page 281, a case involving self-defence. The appellant had gone to the aid of a youth who appeared to be under attack from a man, but in fact the youth was a robber and the man was in the process of detaining him. Williams’ conviction for assaulting the victim of the robbery was quashed since the trial judge had misdirected the jury that the appellant’s error required to be reasonably held. According to the Chief Justice, Lord Lane: If the [erroneous] belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant … [T]he jury should be directed … that … if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of

68  Pamela Ferguson the facts; that is so whether the mistake was, on an objective view, a reasonable mistake or not (page 281). Morgan was also applied in a subsequent case involving erroneous belief in selfdefence to a charge of murder: Beckford v The Queen [1988] AC 130. [11] In contrast to the approach taken in Williams, it is well established in Scots law that a mistake in self-defence will exculpate only if that error was both honestly held and reasonable, in the circumstances. The authority for this proposition is the case of Owens v HM Advocate 1946 JC 119 in which the appellant had been convicted of murdering a man named Falconer, by stabbing him with a knife. The appellant contended that he had acted in self-defence under the mistaken belief that Falconer also had a knife. The presiding judge had directed the jury that the accused was not justified in using a lethal weapon if he had been ‘completely wrong in thinking’ that Falconer had a knife in his hand. The conviction was quashed on appeal, the Lord Justice General (Normand) stating: [S]elf-defence is made out when it is established to the satisfaction of the jury that the panel believed that he was in imminent danger and that he held that belief on reasonable grounds. Grounds for such belief may exist though they are founded on a genuine mistake of fact (page 125). What amounts to reasonable grounds was considered in Crawford v HM Advocate 1950 JC 67: [W]hen self-defence is supported by a mistaken belief rested on reasonable grounds, that mistaken belief must have an objective background and must not be purely subjective (page 71). In McCluskey v HM Advocate 1959 JC 39, the trial judge directed the jury: Before you could find that the accused was justified in killing [the deceased] you would have to be satisfied that he struck the fatal blow for his own protection and to ward off danger to himself, either danger which was actually threatened or danger which might reasonably be anticipated by him. It would not be necessary to find that there was actual danger to the accused; you could uphold the special defence [of self-defence] … if you were satisfied that the accused believed that he was in danger and if you were also satisfied that he had reasonable grounds for so thinking (pages 39–40). This formulation was approved in Jones v HM Advocate 1990 JC 160, 1990 SLT 517. [12] The approach which Scots law takes to errors relating to self-defence applies more generally. In Dewar v HM Advocate 1945 JC 5, 1945 SLT 114, the appellant was the manager of a crematorium who was convicted of stealing hundreds of coffin lids and two coffins. In modern parlance, one could say that he had recycled the coffin wood, using it to make tea-trays and furniture, or for firewood.

McKearney v HM Advocate 2004 JC 87  69 His  defence was that he believed that this behaviour was common practice in British crematoria. In his charge to the jury the trial judge quoted Macdonald’s Criminal Law (4th edn, page 24): If a person takes, believing that what he takes is his own, or that he has the owner’s concurrence, he is not guilty of theft, but his belief must be reasonable and he must prove it. Dewar’s appeal was dismissed, the Lord Justice General (Normand) noting that the presiding judge had instructed the jury to consider whether the appellant might have entertained an honest and reasonable belief, based on colourable grounds, that he was entitled to treat the coffins as ‘scrap’ … The direction could not have been more favourable to the appellant than it was (page 13). In short, Scots law generally treats ‘unreasonable errors’ quite differently from the way in which they have been treated in English law. (ii) Should Errors Relating to Consent in Rape Form an Exception? [13] I can find no basis for holding that unreasonable errors relating to consent in rape cases should form an exception to the general approach our law takes to erroneous beliefs which impact on an accused person’s state of mind. Indeed, to make an error as to consent is, in my view, generally far more reprehensible than one concerning self-defence. A person who comes across what appears on the face of it to be an assault by ‘A’ on ‘B’ must make a split-second decision about what is taking place. If that decision turns out to be mistaken – if, in fact, contrary to appearances, it is ‘B’ who is the aggressor (as transpired in both Williams and Beckford, referred to above), it may be considered harsh to condemn the person who acts from the best of motives, but under an erroneous belief, and this is so even if that belief can be objectively assessed, with the benefit of hindsight, as being one which was not formed on reasonable grounds. The situation in a case of alleged rape is markedly different. In Morgan, for instance, the ordeal suffered by the complainant lasted for some considerable time. As Lord Bridge recounted, Daphne Morgan struggled and screamed and shouted to her son to call the police, but one of the men put a hand over her mouth. Once on the double bed the defendants had intercourse with her in turn, finishing with her husband. During intercourse with the other three she was continuously being held, and this, coupled with her fear of further violence, restricted the scope of her struggles, but she repeatedly called out to her husband to tell the men to stop (page 186). His Lordship later refers to ‘the general picture of a forcible rape against clear protest and resistance on the part of the victim’ (ibid). If, then, the defendants had indeed made an error as to Mrs Morgan’s consent, this was no split-second decision. Rather, they must have ignored her protestations for the duration of

70  Pamela Ferguson the multiple acts of intercourse. Indeed, in any act of sexual intercourse there is sufficient time to reflect on the willingness or otherwise of the complainer. This, then, is qualitatively different from the momentary lapse of judgement made in rushing to a person’s aid in the mistaken belief that they are being assaulted. The law – rightly, in my view – does not allow such a momentary lapse to exculpate an attacker in a case of self-defence, unless the error was one which a reasonable person could have made, in the circumstances. There seems even less justification for excusing one who makes an unreasonable error about whether someone is consenting to sexual intercourse. (iii) The Status of Morgan in English Law [14] The decision in Morgan was reported in the press as affording a ‘rapist’s charter’ and attracted a great deal of criticism. In his Commentary on Meek, Sir Gerald Gordon noted: It is ironic that the High Court should now declare the identity of the English and Scots law of rape as the basis for their acceptance of such a narrow and controversial decision as Morgan. In Morgan a three-to-two majority in the [House of] Lords overruled a unanimous Court of Appeal; one of the majority peers (Lord Cross of Chelsea) said that a contrary decision would not have been unjust … one of the minority (Lord Edmund-Davies) dissented because he held that the trial judge’s statement of the law was correct on the authorities, but thought that the majority decision was more just … the Lord Chancellor (who was of the majority) later said that ‘The Court of Appeal had formulated the question in a way which I think was probably misleading. I wish that I had refused to answer the question at all and had given my opinion in terms of my speech and said that the question was perhaps not a wise formulation of the problem’ (1982 SCCR 613, page 622). The law in England and Wales was subsequently amended by section 1 of the Sexual Offences (Amendment) Act 1976 such that the mens rea of rape is at present defined as knowledge that the complainant is not consenting or recklessness as to consent. [15] The law south of the border has recently been amended again; the Sexual Offences Act 2003 received royal assent two months ago (on 20 November 2003). This legislation follows a UK government White Paper: Protecting the Public: Strengthening Protection against Sex Offenders and Reforming the Law on Sexual Offences (Cm 5668), published in November 2002, which describes the current law as ‘archaic, incoherent and discriminatory’ (page 9, paragraph 8,) and states that the government intends to change the law on sex offences to reflect the fact that the society in which we live is significantly different from that of 50 years ago, which was when most of the present law originated (page 8, paragraph 5).

McKearney v HM Advocate 2004 JC 87  71 The White Paper states that the test of mistaken belief in relation to consent ought to be one of reasonableness under the law. This will make it clear that, where the prosecution can prove that there is reasonable room for uncertainty about whether someone was consenting and that the defendant did not take reasonable action in the circumstances to ensure that the other person was willing to take part in the sexual acts, he will commit an offence. ‘Reasonable’ will be judged by reference to what an objective third party would think in the circumstances (page 17, paragraph 34). Rape is defined by section 1 of the 2003 Act as follows: (1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. Once the 2003 Act is brought into force, therefore, an erroneous but unreasonable error as to consent will no longer exculpate in a charge of rape. [16] Since Meek and Jamieson followed Morgan, which is no longer considered good law, this court should now take this opportunity to overrule these cases. This would mean that an error as to consent is required to be both honest and reasonable; that is, the mistake must be one which a reasonable person could have made. (iv) Morgan, Meek and Jamieson: Wrong in Principle? [17] Returning to the second of the Lord Justice Clerk’s issues, the solicitor advocate in the case before us invited the jury to consider whether the appellant had mistakenly believed that the complainer had been consenting to intercourse. The presiding judge did not give a specific direction to this effect, but he can only be faulted for failing to do so if there was some evidential basis from which the jury could conclude that the appellant may have made such an error. This requires more than the mere ipse dixit of defence counsel. An accused facing a charge of rape may choose not to put forward any defence, may claim that the complainer did in fact consent, or may claim that he made an error as to consent. As a matter of logic, the last of these alternatives means that he subsequently realised that there was in fact no consent. In the present case, the appellant maintained during his police interview that the complainer had ‘encouraged’ him to have intercourse. Since the appellant did not give evidence at his trial, the only evidential basis to

72  Pamela Ferguson support a contention that he formed an erroneous belief as to consent must come from the complainer’s testimony. A brief reminder of that testimony is therefore required at this point. [18] As the trial judge has narrated, the complainer testified that she awoke to find the appellant astride her, having broken into her home in the middle of the night. He compressed her throat until her eyes bulged. At one point he stated: ‘I’m just going to kill you now’ and went to put his hands around her throat again. She began to cry and he let her go to the bathroom. While she was there she heard the appellant talking to himself, saying: ‘Just do what you came to do. Just kill her’. She came out of the bathroom and was crying again. He then moved his hand on to her left breast. The complainer made clear that she did not want to have sexual contact with him. He reacted by becoming angry again and accused her of being willing to have sexual intercourse with other men, but not with him. He then said that he had had enough and was going to ‘do it’, which the complainer took to mean that he was intending to kill her. He again put his hands around her throat. There followed an argument about the appellant’s lack of access to the complainer’s son. The appellant appeared to calm down. When he told the complainer to go to bed, she made clear to him that she did not want to do so. Her acquiescence in doing so on the appellant’s insistence would not be taken as an indication of consent to intercourse by any reasonable person. When he told her to lie down, she did so. When he began rubbing her back and then rubbing his body up and down against her, she did not respond. When he moved her underwear to one side, she did not respond. When he began to rub his penis against her bottom, she did not respond. When he inserted his penis into her vagina, she did nothing, because she was terrified. As the trial judge noted: She just lay there. She was frightened. He ejaculated. The complainer did not want to have intercourse with him. He did not even ask her if she wished to have intercourse (paragraph 28). Given that the jury convicted the appellant of rape, they must have accepted that the complainer’s account was both truthful and accurate. On what basis, therefore, could they also have found that the appellant may have believed that she had nonetheless consented to intercourse? The complainer lay on the bed, one might say, like a plank of wood. She was entirely passive. At no point did she do or say anything which might be taken to indicate that she was a willing participant, far less an ‘enthusiastic’ one, as the appellant later claimed. [19] Submission to intercourse and a lack of resistance do not equate to consent. Women often ‘freeze’ when being sexually attacked, and the disparity in physical strength which generally exists between the parties makes it unlikely that any resistance would be effective. That the complainer in this case did not shout and scream, physically attack or rebuff the appellant when he began his sexual advances could not be taken by any reasonable person to indicate consent to what followed. Indeed, her account was that she did not have intercourse with him. Rather, he

McKearney v HM Advocate 2004 JC 87  73 did various things to her. There was no reciprocation. She expressed no pleasure or enjoyment. The jury could not have accepted her testimony while simultaneously finding that the appellant had formed a reasonable belief that the complainer consented to intercourse. In sum, the jury in this case was presented with two very different versions of events: the complainer’s version as described in the preceding paragraphs; and the appellant’s police statement that her approach to the intercourse had been ‘enthusiastic’. There was no evidential basis for a third ‘mistaken’ approach, since no right-thinking person could have construed the complainer’s behaviour as tantamount to consent. As was made clear in Quinn v HM Advocate 1990 SCCR 254, a direction on error as to consent is not required when the sole issue is whether or not the complainer consented and there is ‘no room for any halfway house’ (per the Lord Justice Clerk (Ross), page 263). It therefore follows that the trial judge in the case before us was not at fault in failing to give a direction on mistaken belief in consent. I would accordingly dismiss this ground of appeal. [20] The majority of this court applies Meek and Jamieson to the case before us. This may be because it is considered to be unfair to condemn and punish a person who makes a mistake, even an unreasonable one. To err is human, and it is generally less reprehensible to cause harm while labouring under an erroneous belief than to do so intentionally. But we do not always absolve those who act through error. Much depends on the magnitude of the error and the consequences for others of making it. When important rights are at stake, one can be blamed for giving them insufficient attention – or for failing to consider them at all. References to the reasonable person, reasonably based errors and the requirement of a reasonable belief in consent may create a misleading impression if this conjures up the image of a completely rational being who gives due consideration to all potential consequences before embarking on any course of action. This is not the standard set by the law. Where an accused person persists in sexual intercourse in the circumstances libelled in an indictment such as the one in the present case, the resultant conviction is not founded on a failure to act ‘reasonably’ in the sense of having failed to assess the situation in a logical fashion. Rather, the conviction is merited on the basis that such a person has failed to display even the most basic sense of decency and consideration for others; in acting as he did, such an accused has treated the complainer as a ‘thing’, rather than as a person. It has rightly been suggested that the harm in rape is that it involves the sheer use of a person. The harm caused when a man has sexual intercourse with a woman who is not consenting is a particularly grave one. It is therefore incumbent on him to take especial care to ascertain whether or not the woman is a willing participant. The simple expedient of asking an unenthusiastic woman whether she wants to have sex removes any erroneous belief in consent. Distress Constituting Corroboration of Mens Rea [21] Turning to the third of the Lord Justice Clerk’s issues (paragraph 4, above), the majority of this court declines to give a definitive answer to the penultimate

74  Pamela Ferguson question, since the appeal can be disposed of on other grounds. Nevertheless, the matter it raises is an important one which merits further consideration. The Crown has conceded that the mens rea of rape is a factum probandum, an essential fact, and that as such it must be proved by corroborated evidence. The question which then arises is whether distress exhibited by the complainer at some point after the incident is capable of corroborating her testimony, not only that she did not consent to intercourse, but that the accused knew that she did not consent, or was reckless as to consent. The Lord Justice Clerk concludes, albeit obiter: [I]t has not been suggested hitherto that such distress is capable of providing evidence of the existence of mens rea … the de recenti distress of the complainer may tell us about her lack of consent; but I fail to see how it tells us anything about the accused’s state of mind.(page 91, paragraph 16). I concur with his Lordship’s assessment that the testimony of a third party that the complainer exhibited distress shortly after the incident may corroborate the complainer’s evidence that she did not consent to intercourse, but that it cannot establish that the accused was aware of a lack of consent at the time of intercourse. This is a well-established principle: Gracey v HM Advocate 1987 JC 45; Smith v Lees 1997 JC 73; Fox v HM Advocate 1998 JC 94. I do not, however, accept that the mens rea of an accused person requires to be established by corroborated evidence. No authority has been cited to us on the need for corroboration of mens rea, and it is my opinion that the Crown’s concession ought not to have been made. [22] It is, of course, correct that our law requires the essential facts of a criminal charge to be proved by means of two separate pieces of evidence. These essential facts in each case are that: (i) a crime was committed; and (ii) the accused was the person who committed it. These refer to the actus reus of the crime: in a theft charge, for instance, there must be corroborated evidence that the accused appropriated someone else’s property without that person’s consent; in an assault charge there must be corroborated evidence that the accused attacked the complainer. But the mens rea is commonly proved by inference from the circumstances of the actus reus: we infer that the person who took an item from a shop without proffering payment for it intended to steal that item; we infer from the fact that the accused was seen to punch the complainer in an unprovoked attack that the accused intended to cause personal injury to the complainer, and so forth. Hume explained the rationale for the corroboration requirement: No matter how trivial the offence, and how high soever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape (II, page 383). This makes clear that the requirement serves to minimise wrongful convictions based on mistaken testimony, a particular danger when the identification of the

McKearney v HM Advocate 2004 JC 87  75 accused is a live issue at trial – hence the need for corroborated evidence that the accused was the perpetrator of the crime. Witnesses may not only be mistaken, they may also lie, and the requirement for two independent sources of evidence helps to safeguard against both of these contingencies. If a woman accuses a man of raping her, her word alone is insufficient – as with any other crime. But it is not the purpose of the corroboration rule to act as an insurmountable hurdle to conviction, and a requirement that the accused’s mens rea be proved by corroborated evidence would make rape a crime which could rarely be proved. Sexual offences are generally committed in private, with only the accused and complainer present. From where would the inference come that the accused knew the complainer was not consenting, other than from her testimony? It is my view that corroborated evidence that intercourse took place, coupled with the complainer’s evidence that she did not consent to this, if accepted by the jury, raises the inference that the accused was aware of the lack of consent, and establishes the crime of rape. The State of Mind of the Complainer [23] The final issue the Lord Justice Clerk addresses is whether the jury was entitled to hold that the complainer remained frightened of the appellant when he had intercourse with her. Since this raises a question of fact and is therefore properly a question for the jury, I agree with his Lordship that this is not a proper basis for appeal. Lord McCluskey takes a different view, however, and I feel bound to address this point. It seems that about four hours had elapsed between the appellant’s initial threats of violence against the complainer (and indeed his assault on her by placing his hands around her throat) and the act of intercourse. The presiding judge’s account of the evidence does not, however, tell us how long an interval had elapsed between the last acts of violence, or threats of violence, and the sexual intercourse. Be that as it may, Lord McCluskey holds that it would have been possible for the jury to have concluded that at the point at which he directed the complainer to lie on the bed, the appellant may have believed that she had forgiven him for the previous assaults and threats to kill her and was now willing to have sexual intercourse with him. As his Lordship puts it: [O]ne view of the facts that the jury might have properly taken was that the sexual activity leading to full intercourse was a separate chapter of events from those involving violence and menacing behaviour on the part of the appellant … Thus there was clearly room for the jury to form the view that, although the complainer did not consent to the intercourse, and that therefore the actus reus was established, nonetheless the possibility that the appellant acted in the belief that she was consenting was not excluded (page 100, paragraph 34). In saying that this approach might ‘properly’ have been taken by the jury, Lord McCluskey must surely mean that, as a matter of law, such a position would be in keeping with the rulings in Meek and Jamieson, as previously described, namely that any erroneous belief – no matter how unreasonable – can absolve an accused from liability. This further illustrates the pernicious effects of these cases, since no

76  Pamela Ferguson reasonable person, and thus no reasonable jury, could hold that there was any basis on which the appellant could have formed a reasonable belief that the complainer consented, in the circumstances of the present case. The implications of Meek and Jamieson are that a man who genuinely believes that any woman who says ‘no’ to sex always means ‘yes’ merits an acquittal, as does a man who believes that his attractions and charms are such that no woman could be serious when she rejects and indeed resists his sexual advances. An acquittal is also required for a man who treats dating like a contract, believing that having wined and dined a woman, the quid pro quo is that she must then have sexual intercourse with him. Such mindsets should find no succour in our law. Conclusion [24] This court should give an affirmative answer only to the first issue raised by the appellant. This court should now overrule Meek and Jamieson. It then follows that, since the mens rea of rape requires knowledge that the complainer is not consenting, or recklessness as to whether or not she is consenting, a person who ignores an obvious and serious risk that there is no consent acts recklessly, and an error as to consent is reckless if there is no reasonable foundation for such a belief. As previously noted, the crime of rape continues to be defined by the common law. Other English-speaking jurisdictions have modernised their sexual offence laws, such that rape is now defined to include male complainers, and is no longer limited to penile penetration. A comprehensive re-examination of Scotland’s sexual offences is long overdue, to be carried out by the normal processes of law reform.

Commentary on McKearney v HM Advocate CLARE McGLYNN

Introduction When judgment was first given in McKearney v HM Advocate there was a ­considerable media storm, with debate focusing on understandings of consent.1 Its controversial nature, and a common view that it was wrongly decided, was also said to be one of the reasons behind the decision of the Scottish government to ask the Scottish Law Commission to review the whole area of sexual offences, which led to the Sexual Offences (Scotland) Act 2009.2 Many years on, while the law itself has changed, there remain multiple obstacles to securing justice for rape victims through the conventional criminal justice system. Pamela Ferguson’s ­feminist judgment tackles head-on some of these continuing barriers to securing rape convictions, with her arguments being as pertinent now as they were nearly 15 years ago when the judgment in McKearney v HM Advocate was first given.

McKearney v HM Advocate In summary, the case upheld an appeal against a conviction for rape by McKearney of his former girlfriend on the basis that the trial judge failed to properly direct the jury. The accused broke into his former girlfriend’s home, choked her, threatened to kill her and, towards the end of this four- to five-hour ordeal, had sexual intercourse with her against her will. The trial judge instructed the jury to disregard any question of ‘honest belief ’ by the accused that the complainer consented and directed the jury that, if they found that intercourse had taken place against the complainer’s will, they should convict. The case was controversial as it arose not long after the decision in Lord ­Advocate’s Reference (No 1 of 2001)3 where it was held that force was no longer an 1 ‘MSPs in Call to Clarify Rape Law’ The Herald (27 May 2004); J Chalmers, ‘Distress as C ­ orroboration of Mens Rea’ (2004) Scots Law Times 141. 2 G Maher, ‘Principles and Politics in Law Reform: Sexual Offences in Scots Law’ (Research Paper No 2013/40, Edinburgh School of Law, 9 October 2013). 3 Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466.

78  Clare McGlynn essential element of the actus reus of rape. The actus reus, therefore, was sexual intercourse without consent, with the mens rea present where the man ‘knows the woman is not consenting or at any rate is reckless as to whether she is consenting’.4 This change was significant because, as considered in McKearney, if force is no longer an element of the actus reus, mens rea cannot be inferred from the proof of actus reus alone. This raises the questions of proof, corroboration and mens rea considered in McKearney. Lady Ferguson concurs with the majority judgment that, as the law in ­Scotland no longer required proof of force as evidence that the accused was aware that the complainer was not consenting, then a specific direction on this point was required. What makes this a particularly valuable feminist judgment is that, while the outcome of the appeal against conviction remains unchanged, the nature of the judgment is markedly different from the original and, had it been given, could have set the law in a different direction, as well as encouraging a different ­perspective on some commonly held beliefs and assumptions.

Honest Belief in Consent The defence in McKearney suggested that the jury should have been given the opportunity to consider whether the accused had a genuine, albeit mistaken, belief in consent. Such a belief would have provided a full defence, leading to an acquittal, following Jamieson v HM Advocate.5 In McKearney the trial judge held that there was no evidence to support such a defence and directed the jury not to consider the question of honest belief if they took the view that the intercourse was against the will of the complainer.6 There was, therefore, no direction to the jury on the mens rea required. The difficulty is that, prior to the Lord Advocate’s Reference case, there was generally no need for such a direction as a finding of force was sufficient to infer mens rea. But post-Lord Advocate’s Reference, this was no longer the case as force was no longer required to be proven. As there was no direction on the question of mens rea, the jury were misdirected and the appeal succeeded. The other issue to be considered was whether distress was capable of corroborating mens rea. As the appeal was granted on the basis of the misdirection, this issue did not need to be determined, but obiter comments that distress was not capable of providing such corroboration were offered. 4 ibid 476. 5 Jamieson v HM Advocate 1994 JC 88. See the following works which examine the honest belief defence that were drawn on by Lady Ferguson in drafting her feminist judgment: EM Curley, ‘Excusing Rape’ (1976) 5 Philosophy & Public Affairs 325; RA Duff, ‘Recklessness and Rape’ (1981) 3 Liverpool Law Review 49; J Faulkner, ‘Mens Rea in Rape: Morgan and the Inadequacy of Subjectivism or Why No Should not Mean Yes in the Eyes of the Law’ (1991) 18 Melbourne University Law Review 60; J Temkin, Rape and the Legal Process, 2nd edn (Oxford, Oxford University Press, 2002) 11. 6 McKearney v HM Advocate, para 32 (Lord McCluskey).

Commentary on McKearney v HM Advocate  79

Mistakes as to Consent Prior to McKearney, Scots law in Meek then Jamieson stated that ‘the man’s belief need not be shown to be based on reasonable grounds’ (Jamieson 1994 JC 88, page 93). However, Lady Ferguson points out that the statement in Meek on this point, which was followed in Jamieson, was obiter.7 Moreover, this obiter dictum was not supported by any Scottish authority on mistake or related areas. Lady Ferguson’s judgment goes on to set out the reasons why this approach should not have been taken. She reasons that there is no justification for the law treating mistakes as to consent differently from mistakes in other areas of law. This is an important point of principle in view of arguments often made that sexual offences require separate treatment, often equating to a higher threshold of proof. In her feminist judgment, Lady Ferguson also discusses in detail why an honest belief approach is inappropriate – ‘wrong in principle’ – in rape cases. In relation to the question of submission and consent, Lady Ferguson’s approach to the facts of this case demonstrates the value in a feminist judgment premised on the idea of mutuality of consent. In McKearney, the complainer’s evidence was that after the sustained physical assaults and threats, she did not resist the sexual intercourse. As Lady Ferguson’s judgment points out, there was no scream or shout; she was ‘entirely passive’. Expanding on this point, Lady Ferguson emphasises that the complainer’s account was that she ‘did not have intercourse with him’, but rather that ‘he did various things to her’ (original emphasis). There ‘was no reciprocation’. In this subtle way, and in contrast to the original judgments, Lady Ferguson conveys a different approach to consent, one based on mutuality. It shifts the expectation that women simply ‘agree’ to the advances of men, towards an understanding of sexual activity as mutual. This emphasises an important aspect of the role of judgment writing. It is not always about the outcome, but about the ways in which we understand a range of issues, and how we reason towards an outcome. Not only is Lady Ferguson saying that an honest belief in consent is inappropriate, but she also writes into the judgment a different understanding of consent. Similarly, in rejecting the idea that the law should not punish errors, the judgment emphasises the significance for the victim of errors in sexual offence cases. Lady Ferguson reasons that a conviction is merited where there is an unreasonable error, on the basis that the perpetrator has ‘failed to display even the most basic sense of decency and consideration for others’.8 The straightforward nature of this statement should not be overlooked. Its power lies in its simplicity; namely that ‘all’ we need in this world is to treat

7 Lady Ferguson suggests in her judgment that Meek is difficult to reconcile with other areas of the criminal law, drawing on C Gane, Sexual Offences (Oxford, Butterworths, 1992) 42. 8 Lady Ferguson also discusses the harms of rape, referring to the ‘sheer use of a person’, drawing on J Gardner and S Shute, ‘The Wrongness of Rape’ in J Horder (ed), Oxford Essays in Jurisprudence (Oxford, Oxford University Press, 2000).

80  Clare McGlynn each other with dignity, kindness and respect. To paraphrase Judith Herman when ­talking about the importance of ‘honouring’ victim-survivors, seeking ‘decency’ may appear a ‘modest’ aim, but it is actually ‘profoundly radical’.9

Distress and Corroboration A further issue considered in this judgment is the question of corroboration. While corroboration is a requirement across Scots criminal law, its role in sexual offence cases is subject to ongoing critique.10 In this particular case, the Crown conceded that corroboration was required to prove mens rea and the issue arose as to whether or not recent distress on the part of the complainer could fulfil such a corroboration requirement in a context where there was no ‘force’. The issue itself was not decided in the original judgment as it was not deemed necessary in order to determine the outcome. Nonetheless, Lady Ferguson rightly addresses the issue as being one of importance. The significance of this aspect of the original ­judgment was noted by James Chalmers at the time who commented that if ‘evidence of distress de recenti cannot be used for the purposes of corroborating mens rea in such cases [of non-forcible rape], then allegations of rape will frequently be legally unprovable in the absence of an allegation of force’.11 Lady Ferguson accepts the rationale of the corroboration requirement, namely that it serves to reduce wrongful convictions, but continues that this does not mean that it should provide an ‘insurmountable hurdle’ to conviction. Lady ­Ferguson’s approach is not that distress can be used to corroborate the mens rea of the accused, but that an inference can be drawn that the accused had the ­requisite mens rea from corroborated evidence that the intercourse took place, without consent. Lady Ferguson concludes that, if there is a requirement that the mens rea of the accused must be proved by corroboration, this would ‘make rape a crime that could rarely be proved’.12 9 J Herman, ‘Justice from the Victim’s Perspective’ (2005) 11 Violence Against Women 571, 599. 10 C Marshall, ‘Call for Legal Change amid Falling Rape Convictions in S­cotland’ The Scotsman (28 February 2018), available at: www.scotsman.com/news/politics/call-for-legal-changeamid-falling-rape-convictions-in-scotland-1–4697729. 11 Chalmers, above n 1. 12 On the issue of corroboration of mens rea, Mutebi v HM Advocate [2013] HCJAC 142 affirmed that the accused’s state of mind is an essential fact which requires to be proved by corroborated evidence. However, the soundness of the Crown’s concession to that effect in McKearney was questioned in Drummond v HM Advocate [2015] HCJAC 30 (para 20). Furthermore, in the recent case of Graham v HM Advocate [2017] HCJAC 71, the Appeal Court stated: ‘The notion that there required to be corroboration of the accused’s state of knowledge [that is, knowledge that the complainer was not consenting to intercourse] appears to have arisen from an oblique obiter dictum in [Lord Advocate’s Reference (No 1 of 2001)] … Such a concept is not part of the proof in any other crime. Nevertheless, it was adopted in McKearney v HM Advocate’ (para 21, Lord Justice General, Lord Carloway). The Court also noted (para 22) that: ‘With the exception of Lord McCluskey, “mens rea” was regarded [by the other judges in McKearney] as an inferential fact’. See further, S Cowan, ‘Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence’ (2019) 23 Edinburgh Law Review 22.

Commentary on McKearney v HM Advocate  81

Context and Belief in Consent The McKearney judgment was also significant for what it revealed about Lord McCluskey’s perspective on consent and, specifically, the impact of violence and threats on how a complainer reacts to rape. The ordeal of the victim lasted a number of hours. Lord McCluskey emphasised in his judgment that, between the first assaults and the subsequent rape, there was a gap of around four hours. He suggested that, as there had been such an elapse of time, it was possible that the jury could conclude that the appellant had held the belief that the complainer consented to sexual intercourse.13 Lady Ferguson, first, points out that Lord McCluskey only notes that there was around four hours from the first assault to the rape, but does not detail the gap between the last assaults and threats and the rape. This different analysis and dissection of the facts again demonstrates the value of a feminist judgment, even one that does not reach a different conclusion: it is the fresh description of the facts that identifies variations in how a narrative is interpreted and presented to the court. Lady Ferguson also robustly rejects the idea that any reasonable juror could consider that the time lapse meant that the appellant could form a reasonable belief in consent. Lady Ferguson opines that such submission and lack of resistance ‘could not be taken by any reasonable person to indicate consent to what followed’. Further, she explains that a common response to sexual assault is to ‘freeze’.

Conclusions Fifteen years after the judgment in McKearney, we are still debating what ­constitutes consent.14 Corroboration requirements continue to provide a focus for law reform efforts, and, with rape myths remaining pervasive, the role of jury directions has been the subject of further legal change.15 Perhaps unsurprisingly, therefore, more fundamental aspects of the justice system are being examined. In particular, a number of civil cases have been successful in holding perpetrators to

13 This has echoes of the English judgment R v Bree [2007] EWCA Crim 256 where it was held that despite evidence of extreme intoxication, including vomiting by the complainant, a few hours later it was possible to assume there was consent and/or reasonable belief in consent. 14 Further, cases similar to McKearney continue to come before the courts, such as the recent Irish case where a defendant admitted assault charges but claimed the sexual activity was consensual. He was acquitted of rape: ‘Man who Admitted Cutting a Woman’s Hair before Shaving it off is Cleared of Raping her during her Ordeal’ Irish News (6 December 2018), available at: www.irishnews.com/ news/2018/12/06/news/man-who-admitted-cutting-a-woman-s-hair-before-shaving-it-off-is-clearedof-raping-her-during-her-ordeal-1501910/?param=ds441rif44T. 15 See, eg, I Callander, ‘Jury Directions in Rape Trials in Scotland’ (2016) 20 Edinburgh Law Review 76.

82  Clare McGlynn account, indicating an alternative means of seeking redress,16 with other survivors expressing broader ideas of justice, beyond conventional justice systems.17 Had Lady Ferguson’s feminist judgment become law, it would have led to a more mutual approach to consent, as well as a fairer interpretation of evidential requirements that better respected the rights and perspectives of complainers. Unfortunately, however, it was not a feminist judgment that was handed down, but one which helped to entrench outmoded ideas and enabled the justice gap in rape cases to grow. For that reason, this feminist judgment not only remains relevant to current debates about specific aspects of law reform, but also to wider discussions about judicial and public attitudes to sexual violence.

16 S Carroll, ‘Scottish Civil Court Rules that Acquitted Man did Rape Student’ The Guardian (5 October 2018), available at: www.theguardian.com/uk-news/2018/oct/05/scottish-civil-court-rulesthat-acquitted-man-did-student. 17 See, eg, C McGlynn and N Westmarland, ‘Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perspectives on Justice’ (2018) Social and Legal Studies, available at: doi. org/10.1177/0964663918761200.

Reflective Statement: McKearney v HM Advocate PAMELA FERGUSON

My judgment replaces that of Lord Kirkwood. When invited to contribute a judgment, I knew immediately that I would want to focus on a case relating to rape. In 1993, I had drawn attention to s­ hortcomings in the law,1 and I later floated the idea that the corroboration requirement could be abolished in some types of rape cases2 – this was 11 years before Lord C ­ arloway made a similar, more general, recommendation.3 But it was not only this longstanding desire for reform which led me to choose this case for the F ­ eminist Judgments Project. Even after rape was redefined by the 2009 Act, I would mention McKearney so that the students were aware of the historical ­position. On each o ­ ccasion, describing the case aroused in me a mixture of dismay and anger. Students would sometimes approach me after the lecture to share similar emotions. There was often a sense of disbelief that this was indeed the law. McKearney offers a dispiriting view of sexual relationships, describing as it does a world in which men use violence and threats to intimidate women into submission. It is commonplace that some men rape. Women grow up under the shadow of rape; we choose our routes home, limit the occasions in which we are alone with some men, and regulate many other aspects of our behaviour on a daily basis, all through fear of sexual attack. As a former member of the fiscal service, I was well aware of the nature and frequency of such crimes, and the difficulties in securing convictions. But McKearney is not merely yet another example of an u ­ nsuccessful rape prosecution. Its most depressing aspect is the implications of accepting Lord McCluskey’s perspective. His Lordship held that the jury ought to have been allowed to consider that the accused may really have believed that the complainer

1 PR Ferguson, ‘Controversial Aspects of the Law of Rape: An Anglo‑Scottish Comparison’ in RF  Hunter (ed), Justice and Crime: Essays in Honour of The Lord Emslie (Edinburgh, T&T Clark, 1993). See also PR Ferguson, ‘Reforming Rape and Other Sexual Offences’ (2008) 12 Edinburgh Law Review 302. 2 PR Ferguson, ‘Corroboration and Sexual Assaults in Scots Law’ in M Childs and L Ellison (eds), Feminist Perspectives on Evidence (London, Routledge, 2000). 3 The Carloway Review: Report and Recommendations (Scottish Government, 2011) para 4.0.14.

84  Pamela Ferguson was consenting to have sex with him, despite his earlier assaults and threats to kill her. Adopting this perspective means, at best, that McKearney was prepared to have sex with someone who was entirely unresponsive, who lay rigidly on the bed. To quote again from the trial judge’s notes, the complainer testified that ­McKearney ‘did not even ask her if she wished to have intercourse’.4 The case shows us that some men see women as a means to an end and have little regard – or indeed no regard whatever – to what a woman herself might need, or want. We knew that this was so before McKearney was decided, and we know that it remains so now, 15 years later; one need look no further than the current US President, on record for remarking about women that: ‘You have to treat’ em like shit’,5 and accused of having referred to ‘grabbing’ women ‘by the pussy’.6 The really ­depressing aspect of McKearney is not that this is how some men view the world, but that a Scottish court ruled that those who hold this view, and who act on this view – those who ‘grab pussy’ – and those who do far worse, are entitled to an acquittal. All that mattered was that the accused believed that his behaviour was acceptable, and that a lack of response from the woman in question was irrelevant. We have seen a shift in society from the widespread view that ‘no’ sometimes means ‘yes’ to greater acceptance of the view that ‘no’ actually does mean ‘no’. It has, however, been pointed out that both these views treat women as the ‘gatekeepers’ of sex, according to which ‘men initiate sex, and women either give or deny them access’.7 If we move away from this approach and instead consider that a woman might actually ‘be in it for pleasure’,8 then we should be encouraging a man to ask himself whether his partner is enjoying this particular encounter9 (or perhaps – radical thought! – encouraging him to ask his sexual partner this question). The law has come a long way since McKearney was decided. In particular, in the recent case of Maqsood v HM Advocate,10 decided several months after I had finalised my judgment, the appeal court ruled that, in relation to the current definition of rape, a trial judge should continue to direct a jury that its definition includes an absence of reasonable belief in consent, but that ‘no further direction on reasonable belief is required unless that is a live issue at trial’.11 The court continued: That issue will be live only in a limited number of situations in which, on the evidence, although the jury might find that the complainer did not consent, the circumstances were 4 My emphasis. 5 The remark was made in an interview with New York Magazine, and quoted in E Spiers, ‘We Expect Trump to be Awful to Women. It’s Part of his Brand’ Washington Post (20 February 2018), available at: www.washingtonpost.com/news/posteverything/wp/2018/02/20/we-expect-trump-to-be-awfulto-women-its-part-of-his-brand/?noredirect=on&utm_term=.dc11c7a7196e. 6 ‘Trump Obscene Remarks were Real – TV Host Billy Bush’ BBC News (14 December 2017), ­available at: www.bbc.co.uk/news/world-us-canada-42224660. 7 M Adshade and N McArthur, ‘Beyond Consenting, Women actually Want to Enjoy Sex’ Globe and Mail (19 January 2018), available at: www.theglobeandmail.com/opinion/when-it-comes-to-sexwomen-are-more-than-just-gatekeepers/article37665153. 8 ibid. 9 ibid. 10 Maqsood v HM Advocate [2018] HCJAC 74. 11 ibid (Lord Justice General Carloway) para 17.

Reflective Statement: McKearney v HM Advocate  85 such that a reasonable person could nevertheless think that she was consenting. That does not normally arise, for example, where an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding.12

Crucially, it was held that ‘it is only intentional penetration and lack of consent that require to be proved by corroborated evidence’.13 This is the antithesis of the approach in McKearney.



12 ibid. 13 ibid

para 18.

86

5 Ruxton v Lang 1998 SCCR 1 Lang v Ruxton (appeal against Ruxton v Lang) High Court of Justiciary (1998) Lady Cowan-Munro, Lady Stewart and Lady Gillespie Judgment of the Court given by Lady Cowan-Munro The case before us is an appeal, by virtue of section 175 Criminal Procedure ­(Scotland) Act 1995, against conviction at Linlithgow Sheriff Court for the offence of driving with excess alcohol under section 5(1)(a) of the Road Traffic Act 1988. This is an offence of strict liability, which does not require the Crown to prove mens rea. The appellant, Ms Fiona Lang, does not dispute that she had been driving with excess alcohol on the evening of the offence (15 December 1996). However, she seeks to rely on the defence of necessity. Ms Lang asserts that she was compelled to drive, despite being over the legal blood alcohol limit, as she was escaping to a place of safety while in fear for her life, having been threatened with a knife by her ex-partner, Mr Callum Scott. Sheriff Ross, the trial judge, rejected Ms Lang’s plea of necessity. Counsel for the appellant now argues that, given the circumstances in which Ms Lang was acting, Sheriff Ross erred in rejecting this plea and so convicting her of the offence. At the core of this case is the interpretation of the defence of necessity. Though it has been recognised as part of the common law of Scotland, this is a defence which has been pled infrequently, and rarely successfully. It requires an assessment of the circumstances in which the accused claims that she was compelled to commit a crime, and, more specifically, consideration of whether those circumstances posed an immediate threat of danger of great bodily harm. It raises questions about how courts should evaluate the immediacy of the threat of harm that the accused faced, and the ease with which an alternative course of action that avoided criminal wrongdoing might have been pursued. These questions are at the heart of this case. So too is the issue of domestic violence. The precise details of the relationship between the appellant and Mr Callum Scott are not known to this court. However, it was accepted by the court at first instance that Mr Scott’s violence towards the appellant on the night in question was not an isolated incident. In our view, the centrality of this domestic violence to the appellant’s claim of necessity has been

88  Sharon Cowan and Vanessa E Munro neglected by the trial judge in this case. Domestic violence impacts its victims in significant and complex ways, and any evaluation of the appellant’s response to coercive control and violence, including where it involves apparent criminality, must, therefore, be understood in this context. For the benefit of this court, the trial judge, Sheriff Ross, identified five questions that could appropriately be considered on any appeal. For the most part, this court will confine its response to questions 1–3, which were articulated by Sheriff Ross as follows: (1) Did I err in finding that, when driving in Boghall Drive (the point in her journey at which the appellant was stopped, breathalysed and charged with the offence), the appellant was not in any immediate danger of great bodily harm? (2) Did I err in finding that, before the appellant was seen by the police, she could have ceased driving? (3) Did I err in holding that the defence of necessity or duress of circumstance was not established? In closing, I also offer some brief remarks on the matter of sentencing, which was raised as a further question by Sherriff Ross; but those remarks are not tied directly to the substantive conclusions that have been reached by this court regarding the definition and application of the necessity defence, and upon which myself, Lady Stewart and Lady Gillespie agree. The Facts The appellant, Ms Fiona Lang, had previously been in an intimate relationship with Mr Callum Scott, and they had cohabited as a couple at 16 Weaver Place, Bathgate. We do not know precisely how long that relationship lasted or when it ceased but, at the time of the incident, Ms Lang and Mr Scott were still living in the same accommodation, pending reallocation of Ms Lang and her four-year-old son to alternative local authority housing. On 15 December 1996, Ms Lang and a male colleague, who had been out drinking together, returned to her home in the early hours of the morning. Mr Scott – who had been drinking alcohol elsewhere – also returned to the premises shortly thereafter and, on discovering the appellant was with a companion, became violent. Sheriff Ross acccepted the following as facts: Mr Scott slashed the coat of the appellant’s companion and physically threw him out of the house. Mr Scott then turned to the appellant, threatening her with a knife, whereupon, reasonably fearing for her life, she grabbed the keys for her car, ran out of the house and entered the vehicle. Mr Scott followed the appellant and attempted to enter the car. In order to escape the attack, Ms Lang started the engine and drove towards her brother’s flat, which was less than two miles away. At this point, Mr Scott returned into the home he shared with Ms Lang and called the police to inform them that the a­ ppellant

Ruxton v Lang 1998 SCCR 1  89 was driving while over the specified limit for alcohol. Consequently, as Ms Lang approached the street on which her brother lived, she was stopped by police officers and breathalysed. She was found at this time to have 141 milligrammes of alcohol in 100 millilitres of her blood, a quantity which exceeded the prescribed driving limit of 80 milligrammes of alcohol per 100 millilitres of blood. She was then arrested. There is no indication from the materials available to this court that Mr Scott was formally questioned or arrested by the police in relation to his assault upon either Ms Lang or her male companion. Less than three hours after the violent incident took place, the appellant was returned to her home by the police. The officers who returned Ms Lang reported that, having spoken with Mr Scott, they were satisfied that any danger had passed. It is not apparent from the facts before us that those officers discussed with Ms Lang her own assessment of the ongoing threat posed by Mr Scott, or asked her whether she would have preferred, instead of being returned home, to be conveyed to her brother’s house or a local domestic violence refuge. We note that this court has been provided with no information as to the whereabouts of Ms Lang’s four-year-old son during the evening in question. The Sheriff ’s Decision At trial, counsel for Ms Lang relied on the recent decision of Moss v Howdle (1997 JC 123), in which the Lord Justice General (Rodger) clarified the criteria of the defence of necessity, confirming its potential availability – including in relation to strict liability offences, such as speeding – when an accused is faced with immediate danger to life or of serious injury. Ms Lang claimed that, as she had only driven with excess alcohol because she was in such danger, the defence of necessity should be open to her. Sheriff Ross accepted Ms Lang’s testimony that she was crying, frightened and in fear for her life when she left the property at Weaver Place. Further evidence was provided by the arresting police officers, which confirmed that Ms Lang was still ‘fairly upset’ and ‘crying’ at the point when her car was pulled over on Boghall Drive, and that ‘it was difficult to make out what she was saying’ on account of her distressed state at this time. The sheriff noted that Ms Lang knew that the local police station in Bathgate was closed, and that while driving she had not passed any telephone boxes at which she could stop and leave the car in order to call for help. However, he concluded that the defence of necessity was nonetheless unavailable in the circumstances, since a central requirement of the defence is that the danger of life-threatening or serious injury must be immediate. Sheriff Ross held that, while the threat Ms Lang faced in the driveway of her home may have been immediate, she could have stopped driving at some point in her journey prior to being pulled over and detained by the police in Boghall Drive, by which time the threat she faced had passed. Therefore, at the time of arrest, the

90  Sharon Cowan and Vanessa E Munro threat that Ms Lang faced was no longer immediate and the defence of necessity could not apply. As a result, Ms Lang was convicted of the offence charged, and a fine of £400 was imposed, along with 11 penalty points on her driving licence. The Defence of Necessity A defence of necessity can be raised where the accused has been compelled to act under the threat of danger to life or serious harm. The existence of such a defence in Scots law is acknowledged by Hume in his Commentaries on the Law of Scotland Respecting Crimes, where he takes as paradigmatic situations where, due to great commotion or extensive danger, individuals may be forced to commit crimes for their self-preservation – times of war or rebellion, for example. However, there is no need for the defence to be so restricted; indeed, Hume acknowledged that ‘there may even be situations … of a more special and private sort of violence, which shall be judged by the same rule’ (Commentaries, I, page 52). The present case arises in the context of an archetypical ‘private sort of violence’ – that between an abuser and his victim in a domestic setting and within an intimate relationship. The relegation of domestic violence to the ‘private’ sphere, as a matter for individuals to resolve rather than the sort of behaviour that merits state sanction, has now been roundly challenged. Scotland has begun to address such violence as an issue of public concern. A Scottish Office report last year on the extent of domestic violence in Scotland cites high-profile research on the serious public health consequences of domestic abuse, and earlier this year a national domestic violence public awareness campaign – ‘Zero Tolerance’ – was launched. Thus, while domestic abuse is rightly no longer considered to be purely a private matter, it could be said to fall within the ‘private’ sorts of violence that Hume indicated have the potential to exonerate compelled criminality, even though at the time of his writing it is unlikely that Hume had such an example directly in mind. Thus, the broad approach to necessity that Hume allowed for in his Commentaries can provide a kernel from which a progressive interpretation of the common law can now flourish. In Moss v Howdle (1997 SCCR 215), further guidance on the requirements of the necessity defence was provided by the Lord Justice General (Rodger), who identified the following broad principles: first, that the defence remains available even where the offence in question is one of strict liability; secondly, to be successful, the defence must relate to an immediate danger of death or great bodily harm; but, thirdly, there is no relevant legal difference between necessity arising from the actions of a third party and necessity arising from a set of circumstances, including medical necessity. The first of these requirements is accepted by this court, and the third is not at issue in this case. In respect of the second requirement, the court in Moss v Howdle did not give further guidance on the meaning of ‘immediacy’, other than to cite

Ruxton v Lang 1998 SCCR 1  91 the stipulation in Thomson v HM Advocate (1983 SCCR 368, page 382), a coercion case, that ‘for the defence to operate, the coercion or duress must have dominated the mind at the time of the act and that it was by reason of that domination that the act was committed’. That said, in evaluating the availability of the defence, the Lord Justice General (Rodger) did indicate that immediacy involves more than a simple assessment of temporality. It entails an assessment of whether the illegal action taken was ‘necessary’ in the sense that there was no other ‘prudent’ course of legal action open to the accused (page 224C). This places the emphasis more appropriately on the question of whether the harm threatened could have been avoided, rather than – as the court asked in Thomson v HM Advocate – whether it dominated the mind of the accused. Applying this avoidability test to the present case requires that immediacy be established both temporally and with reference to the absence of a prudent alternative course of action. (1) The immediacy of the threat of death or great bodily harm Mr Scott had attacked Ms Lang’s companion and threatened them both with a knife, which itself constitutes a further assault. Armed with a knife, Mr Scott then chased Ms Lang out of 16 Weaver Place, at which time the appellant sought refuge in and began to mobilise her motor vehicle. Mr Scott attempted to enter the car as she tried to escape. It is therefore not in dispute that at this time Ms Lang was facing danger of death or great bodily harm. What is at issue is whether that danger was immediate at the ‘material time’. Sheriff Ross held that the material time was when the appellant was stopped by the police in Boghall Drive, and that by that point the danger posed by Mr Scott had subsided. For the purposes of criminal liability, it is expedient to identify a particular moment at which the elements of an offence are made out. During a course of criminal conduct, such as driving under the influence of alcohol, it is reasonable – if somewhat artificial – that the law should focus on the point of police apprehension as the material time. We do not dispute this. However, this court does not accept Sheriff Ross’s conclusion that the danger that Ms Lang faced was no longer immediate at that time. While there is scant jurisprudence in this area, the case of Tudhope v Grubb 1983 SCCR 350 is apposite. Here, the accused was assaulted by a group of men and, in order to avoid further attack, had locked himself in his car, having drunk six pints of lager beforehand. The accused was unable to drive away to escape the situation because the car’s battery was flat, but he was charged under section 6(1) of the Road Traffic Act 1972 for being ‘in charge of a motor vehicle’ while over the legal driving limit. He pled the defence of necessity at trial and was acquitted. The sheriff concluded that, although the assailants were no longer at the scene when the police arrived to find the accused intoxicated in his motor vehicle, the plea of necessity could succeed since the danger the accused faced was sufficiently immediate. What

92  Sharon Cowan and Vanessa E Munro seems to have been crucial to the sheriff in reaching this conclusion was that the assailants remained in the local vicinity, poised to resume their attack. Indeed, when the assailants returned, intent on damaging the car shortly after the accused had been taken away, the police were able to apprehend them. In other words, by virtue of the fact that the individuals posing the relevant threat were physically proximate and could resume their attack quickly, the court saw the danger as ongoing and therefore sufficiently immediate at the material time. In line with the test established in the parallel defence of coercion, as laid down in HM Advocate v Docherty and Others (1976 SCCR Supp 146), this court takes the view that, in assessing a plea of necessity, the proximity of threat should be judged objectively. But in making this assessment, we follow the approach in Tudhope v Grubb of taking into account the broader circumstances of the case. There, the sheriff could have taken the view that the instant the assailants left the scene, the accused was no longer in immediate danger. Such a strict test was not imposed, however, and rightly so in our view, for there must be some accommodation for the fact that the behaviour of others is unpredictable and that a temporary cessation of violence, or even an act of physical retreat, do not always indicate the end of an attack or, more broadly, the disappearance of a threat. Nowhere is this more pertinent than in situations of domestic violence, where a strict interpretation of immediacy, which focuses solely on the most recent event within a broader series of incidents, may distort the seriousness – and proclivity to resurgence – of the danger faced. For too long, the legal system – and society in general – has diminished the longterm and chronic effects of domestic violence on its victims. A person who has been subjected to such treatment faces the prospect of repeated and escalating violence and, in some cases, even death. Where there is a history of its infliction by one partner upon another, domestic violence should not be understood simply as a series of isolated incidents but rather as a pattern of ongoing abuse and assault, causing fear and intimidation beyond the moment of each individual attack. The harms suffered and threatened in the context of domestic violence can be more frequent and serious, and indeed more traumatic, than other harms, not least because of their ongoing and systematic nature and the breach of trust involved. The law must acknowledge that, in such abusive contexts, the precise parameters of the risk of serious violence posed by any one incident depend on a background pattern of behaviour and cannot be evaluated in isolation or with exacting precision. This does not surrender us to the accused’s subjective view, but it does require consideration of this broader context of domestic violence, and its effects upon Ms Lang’s culpability on the night in question. In the context of the case before us, an appropriate assessment of the severity and immediacy of the threat, and the ways in which self-preservation is sought, must take into account the gender dynamics and relationship norms that underpin the domestic sphere, as well as the well-documented challenges that victims of violence in such settings can face when seeking justice and securing safety.

Ruxton v Lang 1998 SCCR 1  93 This court has not, unfortunately, been provided with a full account of Ms Lang’s and Mr Scott’s relationship. We do not know the exact frequency, severity and longevity of the domestic violence inflicted. This information would have helped the court to understand properly the nature of the danger that Ms Lang faced. What we do know, however, is that their intimate relationship had recently come to an end. The period following cessation of an intimate relationship may be one in which there is a particular risk of violence being perpetrated, and it is fair and reasonable to describe the threat Ms Lang faced as ongoing. Her vulnerability was potentially heightened, moreover, by the fact that she remained in residence at the shared property, pending reallocation by the local authority of herself and her four-year-old son, for whom she was the primary carer. Indeed, as Dobash and Dobash, leading researchers based at Stirling University, have convincingly illustrated, providing speedy access to alternative, safe accommodation to victims of domestic violence and their families can be vital to ensuring an end to their victimisation (‘Love, Honour and Obey: Institutional Ideologies and the Struggle for Battered Women’ (1977) 1 Contemporary Crisis 403). While we also do not know the extent of Mr Scott’s intoxication on the night in question, we do know that alcohol consumption can be a trigger for domestic violence. Indeed, this has been as a source of particular concern in Scotland in the context of marital breakdown. All these factors foreground the danger of the situation in which Ms Lang found herself. In the present case, it is true that Ms Lang had driven almost two miles from the site of the incident involving Mr Scott. Mr Scott was not in the immediate vicinity at this stage but, in our view, and building on the approach endorsed by the court in Tudhope v Grubb, this does not mean that he no longer posed an immediate risk of serious harm. He had chased Ms Lang out of the house with a knife and attempted to enter the car. Given their history, it was quite reasonable for Ms Lang to fear that Mr Scott – who would have likely anticipated that Ms Lang would seek sanctuary at her brother’s house – would pursue other means to intercept her and thwart her efforts to escape. It was also quite reasonable for her to believe that she risked further violence at his hands on her return home. Mr Scott’s broader conduct evidenced a pattern of controlling and intimidatory behaviour – for example, in attempting to control Ms Lang’s association with other men, and indeed reporting her driving with excess alcohol to the police. Experts in ­Scotland – and internationally – have long identified these sorts of tactics as being characteristic of perpetrators of ongoing, familial forms of abuse. In our view, the accused remained in immediate danger, therefore, until such time as she secured protection. Ms Lang had commenced on a continuous act of travelling from a place of vulnerability to a place of (at least temporary) sanctuary at her brother’s home. Given the events of that night, and context of a history of violence inflicted by Mr Scott, we find that the threat posed by him remained sufficiently proximate to justify the defence of necessity being available to her. Therefore,

94  Sharon Cowan and Vanessa E Munro in response to Sheriff Ross’ first question, namely, whether he erred in finding that, when driving in Boghall Drive, the appellant was not in any immediate danger of great bodily harm, this court answers in the affirmative. Turning to the second of the stated questions, whether the sheriff erred in finding that, before the appellant was seen by the police, she could have ceased driving, this requires consideration of the second limb of the necessity defence – that is, whether there was a prudent alternative course of action open to the accused. (2) Was there a ‘prudent’ legal alternative available to the accused? Again, there is limited jurisprudence on what constitutes a ‘prudent’ legal alternative. The term clearly speaks, however, to a requirement of acting with forethought or exercising sound judgement in the circumstances in which the accused found herself. To be prudent means to act in ways that are not irrational, rash or ill conceived, and this requires an assessment grounded in the context within which an individual is required to act. The court in Moss v Howdle rephrased that question as whether or not the accused had a ‘real choice’ (page 224C) to avoid committing the offence. The court took the view in that case that the accused could have taken steps to cease driving in order to ascertain the seriousness of the threat posed to his passenger’s health, rather than continuing to drive above the legal speed limit in pursuit of medical assistance. Even bearing in mind the anxious state in which the accused was operating, we agree that this would have been a more appropriate – and legal – response, readily available to him in that particular situation. The facts of that case can be distinguished sharply, however, from those before us. For one thing, the situation facing Mr Moss and his travelling companion involved an isolated threat, and Mr Moss had no appreciation of the nature and scale of his companion’s affliction. By contrast, the threat posted to Ms Lang by Mr Scott was a recurring one, the nature and scale of which would have been abundantly clear to her. If the test is one of ‘real choice’, then such contextual factors must be relevant to evaluating what counts as a prudent course of action. For Mr Moss, that may well have been to pull the car over to establish the severity of the harm threatened. In Ms Lang’s case, given that she was already aware of the risks she faced, what ‘real choices’ were available to her in that situation? It was accepted by Sheriff Ross that Ms Lang could not have availed herself of help from the police since the local police station was closed. Neither could she have contacted the police through other means since she did not drive past a public phone box during her journey towards her brother’s home. Nonetheless, the ­sheriff took the view that a prudent and legal course of action would have been to stop the car at some point during the journey in order to avoid further driving with excess alcohol. We respectfully disagree, and do not consider that this was a prudent or ‘real choice’ open to Ms Lang in the circumstances that she faced.

Ruxton v Lang 1998 SCCR 1  95 Given that the whole journey from 16 Weaver Place to Ms Lang’s brother’s home was around two miles, it is conceivable that, even if intoxicated, Mr Scott would have been able to follow the car on foot for at least some if not all of that distance. In those circumstances, we do not think it is possible for any court to lay down with certainty the point at which Ms Lang would have been able prudently to conclude that she had safely outdistanced her angry, violent ex-partner and should stop the car. In considering a defence of necessity, we do not suggest that the test for what ­constitutes a ‘prudent’ course of action is purely subjective. Nonethless, in evaluating the prudence or otherwise of the accused’s chosen course of action, it is important to understand the surrounding circumstances within which the choice was made. Given the seriousness of the attack that evening and the history of prior violence, Ms Lang would quite reasonably have experienced a heightened sense of danger and anxiety. While in such a distressed state, it would be a demanding expectation indeed that, within the space of a two-mile car journey, she should have felt sufficiently safe to cease driving and calmly consider her alternative options (of which there appeared to be none) for resolving the situation. Furthermore, we do not accept the suggestion that was made by counsel at trial that, since Mr Scott’s previous use of violence made this incident predictable, Ms Lang would likely have been less upset by it. In our view, the evidence has not ‘merely established that she had an argument with her boyfriend’, as the Crown argued. Indeed, to describe domestic violence in this way underplays the significant danger that Ms Lang and other such victims face. Mr Scott committed an assault by threatening her with a knife, which is an extremely serious offence, whether the weapon is brandished at home in private or in a public space. Relatedly, the question arises as to what Ms Lang, in exercising prudent sound judgement, should have done next in the event that she had stopped the car. Defence counsel argued that it would be ill advised for her, as a lone female, to walk in the locality in the early hours of the morning while under the influence of alcohol and having recently suffered a traumatic attack. Sheriff Ross was unpersuaded by this, primarily on the basis that he had ‘heard no evidence about the locality’ which would have enabled him to make such a finding. It is incumbent upon this court to consider more closely the sheriff ’s assessment and the vantage point from which it is made. Whether she attempted to walk to her brother’s house or back to her own home in the hope that Mr Scott no longer posed a threat there, it is reasonable to surmise that Ms Lang would have put her physical safety in jeopardy. Public safety campaigns supported by, and designed on behalf of, police forces regularly warn women against walking alone at night, particularly if they have been drinking, since this may increase their vulnerability to attack. To suggest, as Sheriff Ross did, that he needed specific evidence that the locality was not one in which the appellant could safely walk alone late at night, while distressed and intoxicated, is to ignore this evidence. It instead takes for

96  Sharon Cowan and Vanessa E Munro granted the erroneous assumption that public spaces are by default safe spaces for women. Though we wish it were otherwise, lamentably this is not the case. All too often the Scottish criminal courts are called upon to respond to the consequences of this reality, and it was prudent of Ms Lang, in the circumstances in which she found herself, to seek to avoid this risk. Ceasing to drive and remaining inside the vehicle for any length of time may likewise not have been a prudent choice. It would have left Ms Lang vulnerable to harm by a stanger or to being intercepted by Mr Scott. Moreover, it would have done little to aid her legal predicament since she would have been liable to prosecution for being in charge of a vehicle with excess alcohol in her blood, under section 5 of the Road Traffic Act 1988. In Ms Lang’s circumstances, since there was not only a ‘background’ threat of repeat violence but also the risk of very real and immediate life-threatening harm from Mr Scott – and potentially from other perpetrators – exercising sound judgement meant trying to reach the closest place of safety and sanctuary. In her case, safe haven would have been with her brother, two miles from the home she shared with a violent ex-partner. In our view, this was the only ‘real choice’ and prudent course of action available to her. Therefore, in response to Sheriff Ross’ second question, this court would also answer in the affirmative. As a consequence of these responses to his first and second questions, we also conclude that Sheriff Ross erred in holding that the defence of necessity was not established. It is clear in our view that Ms Lang was in immediate danger of lifethreatening or great bodily harm, and that no other prudent alternative course of action was open to her as a ‘real choice’ in the circumstances. Given the context of a history of domestic violence, the seriousness of the threat on the night in question, the fear and intimidation experienced by the appellant, the lack of means of calling for help or assistance from the police, and the potential danger to which Ms Lang might have been exposed by walking alone late at night, while intoxicated, the sheriff should have properly afforded her the defence of necessity. Finding for the appellant, we quash the conviction under the Road Traffic Act 1988, section 5(1)(a). Before concluding, and I do not presume to speak for my learned colleagues on these matters but only for myself, I would like to take this opportunity to remark briefly, obiter, on certain aspects of the handling of this case. I note, first, that the police responded quickly to the call made by Mr Scott reporting Ms Lang for driving under the influence of alcohol. Since the journey from her home to her brother’s was less than two miles, it is remarkable that the police were able to intercept Ms Lang so swiftly. While commending the officers for their speedy intervention to prevent the commission of a crime, this can be juxtaposed against police response times to calls of domestic violence, which can often take much longer. This court does not wish to underplay the seriousness of drink-driving in any way, but if we

Ruxton v Lang 1998 SCCR 1  97 were to consistently see such prompt reactions to the very prevalent problem of ­domestic violence, it is beyond dispute that its victims would be far better served and protected, as suggested in the House of Commons Select Committee ‘Report on Violence in the Family’ (1975, page xvi). It is also noteworthy that, as recounted above in the facts of the case, while the police officers accepted Ms Lang’s account of the violent attack upon her and her companion, and confirmed her distressed state, they did not seem to have treated that incident as criminal. In light of the history of domestic violence, and the threat to her life on the night in question, it seems remarkable that the police officers returned Ms Lang to the place where the threat was made without charging Mr Scott. Indeed, it is not clear that Mr Scott was even questioned about the threats made, or the fact that he was brandishing a knife in public, in possible contravention of section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995. In recent years, the police in Scotland have increasingly focused attention on knife crime in schools and public places, but it is questionable whether domestic attacks involving dangerous weapons, including knives, have received the same level of attention. The European Court of Human Rights, whose jurisprudence is now authoritative, recently made clear in Osman v UK (87/1997/871/1083) that Article 2 of the European Convention on Human Rights requires states to ‘take appropriate steps to safeguard the lives of those within its jurisdiction’ by, amongst other things, ‘putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of such provisions’ (para 115). Though there are limits to the duties that this imposes upon police as agents of the state, it is accepted that in situations where officers know, or ought to know, of the existence of a real and immediate risk to an identified individual as a result of the criminal acts of a third party, they have a responsibility to ‘take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (para 116). From the facts presented, it is unclear whether the officers involved in this case adequately discharged that responsibility. Such unsatisfactory experiences with the criminal justice process may dissuade victims of domestic violence from reporting in the future, placing them at increased risk of escalating harm. Further, though it no longer applies to this particular case, in light of the conviction being quashed, I would also take this opportunity to note that for someone in Ms Lang’s position, the imposition by the sheriff of a fine of £400 would have a disproportionately negative impact. At the time of the incident, Ms Lang was attempting to extract herself from an abusive relationship but without recourse to alternative accommodation for herself and her four-year-old son. By the time of the trial, she was about to take up employment in a local solicitor’s firm earning £120/week, which presumably would have helped put her and her son’s

98  Sharon Cowan and Vanessa E Munro future safety on a more secure footing. Ms Lang had estimated weekly outgoings of £80, and the sheriff imposed a fine repayable at a rate of £10/week. This would have substantially reduced her disposable income and diminished her prospects for independent living for almost one year. In my view, justice demands that, in cases such as this, where the offender is the primary carer of a young child, a court should consider more fully than it did here the implications of the proposed penalty for the entire family unit, and weigh those concerns in the balance alongside the public’s interest in the prosecution and punishment of criminal wrongdoing.

Commentary on Ruxton v Lang LIZ CAMPBELL

In the context of the criminal law, the defence of necessity can be characterised as involving a choice between an unlawful act and an act of greater evil: such a plea arises where an accused person argues that she committed the offence only because circumstances forced her to, and crucially, that her decision to break the law was justified. Though now recognised as a defence in numerous jurisdictions, there is significant judicial and academic caution about its use and extension,1 and questions as to whether it is a justification or excuse; arguably, only justification defences, where they apply, can be seen as encouraging the proscribed behaviour.2 This wariness about necessity is based on the belief that, as a complete defence that leads to acquittal, it could encourage or enable law-breaking, on the grounds that the accused believed (or at least claimed) that her criminal actions were for the greater good. The case being rewritten from a feminist perspective here, Ruxton v Lang, concerned an unsuccessful plea of necessity by Fiona Lang in her prosecution for driving with excess alcohol. Fiona Lang was intercepted by the police near B ­ athgate while driving with an alcohol concentration above the prescribed legal limit and was charged under section 5 of the Road Traffic Act 1988. At trial in the Sheriff Court she pleaded necessity, arguing that she had driven in such a condition only because she was in immediate danger of serious or life-threatening injury due to the violence of her former partner, Callum Scott, and was seeking to escape this by driving to her brother’s house.3 Her plea was rejected, as was her application for leave to appeal against conviction. At the time of Fiona Lang’s trial, necessity had been recognised by and applied in the Scottish courts, though in a very limited number of cases, especially at the appellate stage.

1 See P Glazebrook, ‘The Necessity Plea in English Criminal Law’ (1972) 31 Cambridge Law ­Journal 87S; S Gardner, ‘Direct Action and the Defence of Necessity’ [2005] Criminal Law Review 371; I Dennis, ‘On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse’ (2009) 3 Criminal Law and Philosophy 29. 2 J Dressler, ‘Reflections on Dudley and Stephens and Killing the Innocent: Taking a Wrong ­Conceptual Path’ in D Baker and J Horder (eds), The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams (Cambridge, Cambridge University Press, 2013). 3 Ruxton v Lang 1998 SCCR 1.

100  Liz Campbell As is outlined and explained in the rewritten judgment, the High Court of Justiciary provided some general guidance in Moss v Howdle,4 but even now the jurisprudence on necessity is brief and conceptually thin, and so the defence remains underdeveloped and under-theorised in Scotland.5 Moreover, all but one of the reported appeal cases in Scotland relate to accused men, though this gendered dimension is neither articulated nor examined. This should give us pause for thought, though it is unclear whether this is because necessity is conceived of and deployed in instances relating to men’s actions predominantly, or whether this merely reflects the larger proportion of men charged in the criminal process. Regardless, this means there is scant consideration of the types of circumstances in which women accused of crime in particular might need or seek to rely on the defence, and the extent to which the defence as defined and applied currently might be problematic in a gendered sense. It is the application and interpretation of the test for necessity that is contested in this rewritten judgment. Reconsideration of the defence is predicated on an imagined appeal court hearing, since leave to appeal was not granted in the original case. Thus, Lady Cowan-Munro, sitting as one of a bench of three, delivers the judgment on behalf of the High Court of Justiciary. The first aspect to be grappled with by the Court is the issue of the immediacy of the threat, and the second is whether a prudent alternative course of action was available to Fiona Lang. The rewritten judgment suggests, rightly, that in relation to both strands, Sheriff Ross did not acknowledge and take account adequately of the ongoing fear, violence and coercive control that the accused had experienced, both prior to and on the night of the incident. The rewritten judgment adopts an incremental approach in following the Scottish criminal law orthodoxy of judging defences and, in this instance, the immediacy of the threat and the real choice open to the accused, by an objective standard. While the more radical option would have been to impose a subjective test, this would be questionable in terms of legal precedent, such as it is. Moreover, the imposition of a subjective test in other areas of the criminal law is not unproblematic – not least in terms of gender norms – in enabling somewhat dubious decisions, such as honest but incorrect and unreasonable belief in consent, to be validated. An objective standard can at least impose some expectations on the actor’s behaviour. The rewritten judgment understandably and strategically advocates a comparable approach to that in Tudhope v Grubb in which the Sheriff Court acquitted an accused who had attempted to drive with excess alcohol in his blood on the basis that he was trying to escape an attack, after taking into account the broader

4 Moss v Howdle 1997 JC 123. 5 That said, this is not unique to Scotland – the jurisprudence on necessity in England and Wales also lacks coherence, though at least is elaborated more fully: see R v Dudley & Stephens (1884) LR 14 QBD 273; Re A (Children) (2000) 4 All ER 961.

Commentary on Ruxton v Lang  101 circumstances in making its assessment.6 This contextualised approach gives more scope for reinterpreting the question of the High Court of Justiciary in Moss v Howdle: ‘Was there a legal way out?’7 I would suggest that this, if not the wrong question, certainly is not complete. Instead, the question should be ‘Was there a legal way out that did not imperil the accused further?’, and that this question can only be answered by viewing her particular situation, as well as that of all women alone at night, through a grounded feminist lens. This does not constitute a rejection of the objective approach, but rather ensures that consideration of the defence is informed by a richer conception of what an alternative course of action might be: one that is cognisant of particular and general gendered concerns. Shifting focus somewhat, a further issue to be flagged in relation to necessity is the lack of thorough consideration of the instigator of the danger. This was not a case where dangerous circumstances prompted this choice; rather the danger was caused by Callum Scott. This, I argue, is important, as it bears on the accused’s inter­pretation of the prudent course of action. Closely examining the accused’s interpretation might be seen as a double-edged sword – in other criminal law contexts there is a danger of focusing inappropriately and disproportionality on the behaviour of the victim. Regardless, here we have an insufficient focus on the initiator of the dangerous circumstances. Callum Scott’s actions are not examined, and thus he has the ability to abrogate responsibility and evade any focus. The rewritten judgment questions rightly the failure of the police to question Mr Scott about his behaviour or charge him with any offence, though is constrained in commenting further. It is truly remarkable that the policing and prosecutorial attention was on Fiona Lang alone, given how serious and protracted the abuse was alleged to be. A feminist judgment like that of Lady Cowan-Munro would have changed the approach in the subsequent case of D v Donnelly, where the appellant had been sexually assaulted but, like Fiona Lang, was denied the defence of necessity to a charge of drink-driving.8 The appellant had gone for a couple of drinks at a social function and, as the sheriff found: ‘Late in the evening she was in a motor vehicle outside [the] club with four males who made sexual advances towards her. She was sick. Said sexual activity was not consensual’.9 While factually true, and not dissimilar to the recording of a reported crime, the use of such blunt language in a judgment is striking and lacking in sensitivity as to the crime committed against her. It was accepted at her trial that she was then taken from the vehicle by one of the men, who placed her within her own car, and indecently assaulted her. She was partially dressed and in a state of distress. Despite all this, the sheriff found that, as the man had left her car and returned to the function, there was no immediate threat to her life or threat of serious injury and, as she had her mobile phone with

6 Tudhope

v Grubb 1983 SCCR 350. v Howdle 1997 SCCR 215, 223, citing Perka v R [1984] 2 SCR 249, 251–52 (Dickson J). 8 D v Donnelly [2009] HCJAC 37. 9 ibid [3]. 7 Moss

102  Liz Campbell her, there was a reasonable alternative to driving in that she could have telephoned the police or someone else for assistance. This was upheld by the High Court of Justiciary, which dismissed the appeal. Though the High Court of Justiciary stated that ‘of course immediate danger of sexual assault of the type described here would qualify, if the circumstances merited it’, it did not find that the sheriff erred in his assessment. This is a remarkable finding, and one which blithely overlooks the (objectively sustainable) assessment of immediacy of threat and the prudent choice open to women in such circumstances. The rewritten judgment in Lang v Ruxton would have provided grounds for recognising the defence in Donnelly, in such grim and egregious circumstances. While the narrow delineation of the parameters of the defence might imply that Ruxton v Lang and Donnelly are merely conservative decisions, I would argue that this in fact is anti-feminism dressed up as formalism. Were the feminist judgment in Ruxton v Lang to be followed, this would enable a broader and more contexualised consideration of necessity in particular, and criminal defences more broadly, in Scotland. Beyond the judgment itself, it is regrettable that the police focus seemed primarily to be on Fiona Lang as an accused rather than someone who was leaving a problematic relationship, the time at which a partner is often in most danger. While the speediness of the police response and their action in relation to drinkdriving is laudable, it is most unfortunate that it was not matched by a robust approach to the violence by Callum Scott. While a primary police priority at that time was knife crime to the neglect of such violence in the domestic setting, now the policy context has altered considerably, suggesting that a comparable scenario to Fiona Lang’s may be addressed in a different manner today. Intimate partner and family violence is recognised and sought to be addressed much more robustly and holistically in Scotland. Equally Safe: Scotland’s Strategy for Preventing and Eradicating Violence against Women and Girls sets out how Scotland will take action on all forms of violence against women and girls and prioritises prevention through early and effective interventions, as well as focusing on men’s need to desist from all forms of violence against women and girls and how perpetrators of such violence should receive a robust and effective response.10 The strategy’s analysis places the different forms of violence against women within the gendered reality of men’s and women’s lives and has committed the government to both early and sustainable longer-term change. In addition to this policy shift, the Domestic Abuse (Scotland) Act 2018 creates a specific statutory offence of domestic abuse and makes a number of associated changes to criminal procedure, evidence and sentencing, such as prohibiting an accused person in a domestic abuse case from personally conducting the defence in court and permitting certain expert evidence relating to the behaviour of the complainer in such cases. All this is particularly 10 Scottish Government, Equally Safe: Scotland’s Strategy for Preventing and Eradicating Violence against Women and Girls (Edinburgh, Scottish Government, 2018), available at: www.gov.scot/ publications/equally-safe-scotlands-strategy-prevent-eradicate-violence-against-women-girls.

Commentary on Ruxton v Lang  103 pertinent to a situation like Fiona Lang’s and aids us in reframing who was responsible for the offence, and how best to respond to a scenario like this. Ultimately, this feminist judgment is seeking to remedy the harm to Fiona Lang in terms of her conviction based on a rejection of the defence of necessity, as well as paving the way for a potentially broader application of this defence in future cases of gendered violence and patterns of coercive and controlling interpersonal relations.

Reflective Statement: Ruxton v Lang SHARON COWAN AND VANESSA E MUNRO

When we sat down to write this reflective statement, the first thing that we discussed was whether we should identify headings to act as a structure, or write instead with ‘free-flow’ consciousness. We immediately disagreed! This demonstrates both the challenges and the joys of writing collaboratively. It also reflects the tension inherent in the very enterprise of writing a feminist legal judgment: between respecting existing procedural and temporal constraints to craft a ‘credible’ and coherent resolution to the case at hand; and creatively confronting legal norms and structures that have diminished women’s opportunities for equality, protection and justice. In our decision in Ruxton v Lang, we – like all the other judges in this collection – consciously sought to navigate this fraught terrain. Having previously been co-authors, we knew that we did not have to face the prospect of negotiating differences of feminist perspective as, broadly speaking, we sing in harmony. But writing this judgment has still been, for us, a learning process. To take on the persona of a judge, to speak with one voice, and to curb our urge to exhaustively provide academic references in support of our conclusions, has required a new way of writing. Whether by accident or design (and in truth we suspect it was a bit of both), in pursuing that new way of writing, we abandoned our past practice of exchanging drafts by email, and instead wrote the judgment literally together, wordsmithing every sentence and interrogating each stage of the substantive argument in front of a shared computer screen. Choosing and weaving our words together in this spontaneous and iterative way was an incredibly collaborative experience for us. And since we were writing with one voice, and our judgment was the product of joint labour, it made sense also to write as one judge. Ruxton v Lang was not, perhaps, an obvious choice for the project. It is a very short first instance judgment, where the sheriff convicted the accused, Fiona Lang. She applied for leave to appeal to the High Court by ‘stated case’ (where the ­sheriff states some questions that form the basis of the appeal), but the High Court refused leave to appeal. No reasons were provided for this refusal, which in itself is unusual and at odds with the procedure as stipulated by the Criminal Procedure Scotland Act 1995, section 180(1)(b)(i).1 In our feminist judgment, we decided to imagine an alternative course of events in which leave to appeal had been granted,

1 We

are indebted to Pamela Ferguson for explaining this to us!

Reflective Statement: Ruxton v Lang  105 with the High Court reviewing the stated questions set out by the sheriff, in light of the evidence available to it at the time. In a sense, the reason we chose to rewrite this case was less about what it said and more about what it did not say. Domestic violence was the reason that this case arose, and it was clear that the sheriff had been made aware of the violence that Fiona Lang had suffered at the hands of Callum Scott. Yet her abuse, and its impact upon her, was barely acknowledged in the original judgment. For this, and other reasons, the case made us angry. It still does. But writing this feminist judgment gave us an opportunity to draw attention, with all the power of judicial voice, to how violence against women is often minimised or occluded, even where – as in this case – its presence and consequences are glaringly obvious. Of course, we had to be mindful not to invest the court with a level of sophistication in its understanding of domestic violence that would have been unlikely at the time. An excavation of the Glasgow Women’s Library archives made it abundantly clear, however, that by 1998 there was a wide appreciation of the issue of domestic abuse; and a particularly acute concern in the Scottish context regarding the relationship between alcohol and domestic violence. This was evidenced by newspaper articles, government reports and academic research (Dobash and Dobash had, for example, been writing since the 1970s). A high-profile, national ‘Zero Tolerance’ campaign was well under way by the time this case was heard, and in 1998 there would even have been a branch of Women’s Aid based in ­Bathgate (where the original offence took place). Thus, while the existence of domestic violence was – at best – like background ‘wallpaper’ in the sheriff ’s original judgment, there was scope for us to bring it to the fore, and, in so doing, provide a more adequate understanding of why Fiona Lang might have behaved as she did that evening. It was remarkable to us that even after more than 20 years of campaigning around domestic violence, the issue was not considered more fully by the court. Thus, like many of our sister feminist judges, we wanted to bring to life – in all its complexity – the story of our protagonist. We wanted her, and her experiences of domestic abuse, to be more present. But we were restricted by the highly partial account provided in the original judgment. We searched archives of press reports, and conducted online searches, to try to find out more details about the background facts of the case, but to no avail. So, without pursuing lengthy freedom of information requests or trawling through the Crown Office and Procurator Fiscal Service archives (assuming that we were able to get the relevant consent to do so), there remains a great deal that we do not, and cannot, know about Fiona Lang’s story: for example, regarding the whereabouts of her four-year-old son on the night in question; whether the police spoke with her about seeking refuge accommodation; or whether Callum Scott was ever punished for his actions towards her. While we could not ‘fill these gaps’ in the narrative in our judgment, we were keen both to draw attention to these absences and to highlight their ramifications. We were also concerned to ‘call out’ some of the language used in the original judgment, which betrayed a lack of sensitivity to the dynamics of domestic abuse

106  Sharon Cowan and Vanessa E Munro or a propensity to blame victims who do not leave violent relationships. Throwaway references in the case belittled the assault perpetrated by Callum Scott upon Fiona Lang as a ‘mere domestic disagreement’, and suggested that the distress she experienced was likely lessened by her familiarity with abuse. The remark that the police returned her by her own ‘request’ to the home she shared with Callum Scott also implied that her living conditions could not really have been that bad, or at least not bad enough to found a defence of necessity. These sorts of comments, which illuminate a fundamental misunderstanding of the realities of domestic violence, were highlighted and challenged wherever possible. So too was the gendered assumption of the trial judge that public spaces are by default safe spaces for women. We wanted to change the outcome for Fiona Lang. To do this, we had to find some way of allowing her circumstances to be taken into account when assessing whether her actions – in driving the car while under the influence of excess alcohol – were ‘necessary’. The defence of necessity is not one that has attracted nuanced attention in Scots law, but its interpretation in other jurisdictions – including England and Wales – has indicated a potential for attending to context and motivation in a way that is often otherwise carefully guarded against in criminal law doctrine. In our judgment, we struggled with how best to reflect and regulate this potential. Using the contemporaneous case of Moss v Howdle (1997 JC 123), we interpreted the test for necessity as two-pronged: was there a immediate threat of death or great bodily harm, and was there another prudent course of action open to the accused? Such cases as previously existed had typically answered those questions through an objective lens.2 We wanted to create scope for greater sensitvity to, and consideration of, the context and conditions under which Fiona Lang acted. But we were conscious that embracing a purely subjective test would have reflected such a significant shift in the general framing of the necessity defence as to potentially undermine the credibility of our feminist judgment; it would also give rise to its own difficulties in respect of less ‘sympathetic’ parties in future cases. Fortunately, however, we found jurisprudential support in Tudhope v Grubb (1983 SCCR 350) for folding into an otherwise objective approach more of the surrounding context. This enabled us to place Fiona Lang’s experiences of domestic abuse in the foreground of judicial reasoning when assessing, as the defence of necessity requires, her motives for action, risk-assessment and prudent alternatives. Like any other judge, a feminist one must consider the consequences of her decision for cases and individuals beyond those immediately before her. We hope our approach provides sufficient flexibility for future courts to consider the reasons for action by other survivors of violence without surrendering criminal liability to a resolutely subjective standard.

2 This has been criticised as being unfair, especially for an accused who has limited intelligence or learning disabilities, as in the coercion case of Cochrane v HM Advocate 2001 SCCR 655.

Reflective Statement: Ruxton v Lang  107 Like other feminist judges, in crafting this route through necessity doctrine – both in broad terms and specifically in respect of the relevance of domestic abuse – we also had to negotiate a ‘complicated’ relationship with Scotland’s institutional writers. Sara Ahmed has drawn attention to the impact upon both text and reader of the authorities that are (or are not) used, reminding us that citation is a feminist issue.3 Mindful of this, we debated taking a principled decision in this judgment not to cite institutional writers at all. In the end, however, since there was scant authority on necessity, we felt that the looming presence of Hume was too substantial to ignore. Instead, therefore, we worked to subvert Hume’s statements on the necessity defence, finding within them the seeds of a progressive potential for domestic abuse contexts that – though we cannot know for sure, of course – we are persuaded he would never have envisaged. This initiated a powerful moment of transgressive intervention, which highlighted the latent malleability of Scots criminal law doctrine, even when it is systematically inclined towards a backward-looking respect for authorities that are genuinely patriarchal in all senses of that word. Of course, we also chose to cite feminist and other sources to evidence our argument that domestic abuse should have been considered by the sheriff as a relevant and significant context for the purposes of evaluating Fiona Lang’s defence of necessity. We hope that in 2019, some 20 years after the decision in Ruxton v Lang, and especially with the coming into force of the Domestic Abuse (Scotland) Act 2018, judges – feminist or otherwise – will now have no choice but to give consideration to the various ways in which violence, abuse, coercion and control can constrain women’s choices to escape and report their abusers.



3 S

Ahmed, Living a Feminist Life (Durham, NC, Duke University Press, 2017) 15–16.

108

6 Drury v HM Advocate 2001 SLT 1013 Lady McDiarmid I have had the benefit of reading in draft the judgments of the Lord Justice General Lord Rodger, Lord Cameron of Lochbroom, Lord Johnston, Lord Nimmo Smith and Lord Mackay of Drumadoon. Having considered both the factual basis of the matter and the long, if rather chequered, history of the partial defence of provocation in the law of Scotland, I have come to reach a different conclusion from them. This is a case of homicide, with the death having been brought about through a violent and savage assault (to the head, neck and face) with a weapon, carried out by a male accused against his former female partner. I would like, first, to reiterate that there is no question but that the accused in this case killed the deceased, nor that he did so in such a way as to render him criminally culpable for her death. The sole issue with which this appeal is concerned, as was the original trial, is whether that killing amounts to murder or to culpable homicide. It is first necessary briefly to recount the facts. The Facts The fatal incident took place in the early hours of the morning of 5 September 1998. The deceased, Marilyn McKenna, lived in the east end of Glasgow. She had three children. The evidence of the accused, Stuart Drury, was that he had arranged to go to her house at about midnight on the evening of 4 September. This being a homicide, it is impossible to confirm the veracity of this account since only one party to the agreement survives. Drury had been drinking. Again, on his evidence, he had consumed about six bottles of beer. He knocked on the door of Ms McKenna’s house, but no one answered. He shouted through the letterbox but received no response. He states that he heard people running about inside. Finally, a blond-haired man ran out into the street and the deceased ran out behind him. The accused followed Ms McKenna and the blond-haired man around the corner into the next street, where other witnesses observed an argument taking place between the three of them, and one of the men leaving. Drury had brought with him from the deceased’s house a claw hammer which, according to him, was left at the back of the property for occasions when the deceased lost her keys. The accused inferred from the fact that he had observed the other man ­adjusting his

110  Claire McDiarmid shirt, and from the fact that Ms McKenna said, ‘What do you think?’ in response to a question from him about what was going on, that she and the other man had been having sex. This enraged the accused, and he proceeded to attack Ms McKenna with the hammer, causing head and neck wounds. One of the Crown pathologists described the facial injuries as the worst she had ever seen. The fatal blow was to the carotid artery in the neck. These are the facts of the killing. The accused’s defence was based on further factual evidence about the nature of his relationship with Ms McKenna, to which I will return. The Legal Issue Accepting that he had unlawfully killed Ms McKenna, the accused sought to lead evidence to the effect that the partial defence of provocation was available to him. Where the charge is murder, and such a defence is successful, the outcome will be the return of a conviction for culpable homicide. The principles of provocation are well known. It requires a provoking act (which must be either an initial assault by the ultimate victim or the discovery of sexual infidelity), an immediate loss of selfcontrol and an appropriate response – a response which the law determines that any person in those circumstances might have given. In assault-type provocation, the law requires that that response should demonstrate ‘some equivalence between the retaliation and the provocation so that the violence used by the accused is not grossly disproportionate to the evidence constituting the provocation’ (Low and Reilly v HM Advocate 1994 SLT 277, 286, per Lord Justice Clerk Ross). The substance of Drury’s appeal is that violence is incommensurable with the discovery that a sexual partner has been unfaithful so that any proportionality test is simply wrong in such circumstances. At his trial, the judge had charged the jury in these terms: Well, you must take into account all that the advocate depute said to you on the issue of provocation. You should also consider whether or not the degree of violence used by the accused was, or was not, grossly disproportionate to the provocation. If it was grossly disproportionate, then the plea of provocation cannot succeed. Counsel for the appellant alleges that there is no requirement in law for such proportionality in relation to the discovery of sexual infidelity, and nor could there be. Unlike a violent response to a physical attack, it is impossible to measure an emotional upset against physical violence in this way. Provocation on the grounds of the discovery of sexual infidelity was permitted as early as 1731 in the case of James Christie ((1731) Hume I, page 245) but little or no consideration was given in that case, or subsequently, to the way in which the violent response provoked by such a discovery should be constrained in law. In other words, it is not clear what the equivalent of the ‘not grossly disproportionate’ test in assault-type provocation should be in sexual infidelity cases. This appeal requires us to clarify, or indeed to set out, that

Drury v HM Advocate 2001 SLT 1013  111 test. That this court has now had to be convened as a bench of five to consider, apparently for the first time, what that test is, shows that the law on the sexual infidelity exception has always lacked precision on this extremely important point. I see no mandate in any aspect of the way in which this case has been presented to the Court to reimagine the general law of homicide or, in particular, the mens rea of murder. My view has always been, and remains, that the crime of murder has two possible and alternative mentes reae, which are an intention to kill or such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences (JHA Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn, Edinburgh, W Green, 1948, page 89). The concept of a ‘wicked intention to kill’, as proposed by the Lord Justice General, seems to me to be rather too abstract to be of practical utility. Except in so-called ‘mercy killings’ it is difficult to see how an intention to kill can be anything other than sufficiently ‘wicked’ (or abhorrent or callous) to justify a conviction for murder. I do not intend to say anything further on this issue, but rather I will concentrate on the parameters of the provocation defence in cases of the alleged discovery of sexual infidelity. The Law on Provocation The defence of provocation has ancient roots. In modern times, Macdonald’s definition is generally accepted: ‘The defence of provocation is of this sort: – “Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing”’ (Macdonald, 5th edn, 1948, page 94). This has been applied, for example, in HM Advocate v Kizileviczius 1938 JC 60, page 63; and Thomson v HM Advocate 1986 SLT 281, page 284. It is clear, however, that it relates specifically to provocation by violence. Provocation where the provoking act is the discovery of sexual infidelity, as in the present case, has always been taken to be an exceptional form and treated rather differently. The Historical Basis of the Sexual Infidelity Exception Our law on this exception is drawn from the writings of Baron David Hume, who published the first edition of his Commentaries on the Law of Scotland in Matters Criminal in 1797. Hume allows the exception only where a wife is found by the accused in the act of committing adultery (James Christie (1731) Hume I, 245). He says: ‘If the husband catch the adulterer in the act, and kill him on the spot, he is excusable for this transport of passion on such an injury’ (Hume I, 246). Macdonald, writing first in 1867, effectively echoes Hume’s position, down to citing the same case (Christie): The only exception, and a most proper one it is, to the rule that the person killing must be in reasonable dread [of injury] in order to reduce his crime to culpable homicide, is the case of a husband instantly killing the seducer of his wife, when caught in the act of adultery (Macdonald, 1st edn, 1867, page152).

112  Claire McDiarmid It is noteworthy that the exception is applied only to the killing of the paramour. There is no discussion as to the position where the accused kills his wife. Macdonald recognises that, in such cases, the accused husband will not be ‘in dread’ of further injury (as would be the case in assault-type provocation). Hume goes further. He states that though the provocation is high, yet is it in some respects not so favourable as that of some other injuries; because the homicide is here done on the principle of rage and revenge, unaccompanied with that fear of further violence, or that trepidation and alarm, which, in the ordinary case of an assault on the body of the killer, concur with his resentment, and materially strengthen, his defence (David Hume, Commentaries on the Laws of Scotland Respecting Crimes, 2nd edn, 1819, vol I, page 240). Thus, Hume expresses misgivings about the strength of the provocation of sexual infidelity, and its excusatory value, by comparison with the ‘standard’ form of a hot-headed response to a physical attack. Overall then, for more than 250 years – that is since Christie – the law was that a husband, catching his wife in the act of having sexual intercourse with another man, could plead provocation where he, there and then, killed the seducer. If successful, his conviction would be for culpable homicide rather than murder. These principles are tolerably clear, but we must bear in mind that they derive from Hume. It might be said that Scots law relies too much, in 2001, on such institutional sources, originally written, as this was, for the eighteenth-century context. Caution should always be exercised in considering such law because of its antiquity. This is, perhaps, particularly so in the areas touched upon by the sexual infidelity exception. Sexual mores and relationships, and the role of women, and of men, in society have changed out of all recognition since Hume’s time. We no longer consider, for example, that a gentleman’s honour must be protected, which is one of the original bases for the provocation defence. Indeed, this court expressly recognised in S v HM Advocate 1989 SLT 469 that it is entirely appropriate to depart from principles espoused in past centuries where social conditions have changed: [E]ven if the sentence in Hume, declaring that in the late 18th century and early 19th century a husband was immune from prosecution upon a charge of raping his wife, contained a sound statement of the law of Scotland then the reason or supposed justification for that immunity has long since vanished (page 472, per Lord Justice General Emslie). That case, like the instant one, related to the area of intimate relationships and the criminal law. It abolished the marital rape exemption, which prevented the prosecution of husbands for the rape of their wives. There is, therefore, a history of judicial recognition that ancient writings do not necessarily continue to constitute a good basis for modern laws, particularly in areas of dynamic social change.

Drury v HM Advocate 2001 SLT 1013  113 The law on the exception was, nonetheless, settled, in that no case seems to have considered, or deviated from, Hume’s statement of its terms, until the middle of the 20th century. In HM Advocate v Hill 1941 JC 59, the High Court departed from Hume’s exposition of the exception to widen its application, without, in my view, any obvious and principled basis for doing so. The decision was that of a single judge and it is only an extract from his charge to the jury which is reported. Given that the statement in Hume requires a cautious approach due to the changed social context since it was written, the expansion of the defence in HM Advocate v Hill is out of keeping both with sexual infidelity’s historical parameters as a narrow exception to the established rules on provoked killings, and with the mores of contemporary society. Therefore, the law on this issue took a wrong turning, beginning with Hill, for reasons which I will now set out. Development of the Defence in the Mid-Twentieth Century Hume’s exception was extended somewhat by the case of HM Advocate v Gilmour 1938 JC 1, which allowed the accused a defence for killing the male paramour in situations where the act of intercourse may not actually have been taking place at the time of the accused’s violent response but was clearly about to occur (or had already occurred). However, that case did nothing to change the principles of the law. By contrast, HM Advocate v Hill departed from the central tenets of the defence. It is worth setting out the facts of that latter case in some detail. Hill was a member of the military police who sought and obtained leave to travel from his base in England back to his home in Glasgow because he suspected that his wife was having an affair. He had first gone to a Glasgow police station to ask a police officer to accompany him to his house. The police had refused because they understood his request to be motivated by the desire to recover evidence for use in divorce proceedings, which was a civil and not a criminal matter. It is clear from this that Hill was expecting to find that his wife had been unfaithful. The trial judge, Lord Patrick, drew a distinction between something the accused knew as a certainty and something which he merely strongly suspected (HM Advocate v Hill 1941 JC 59, page 62). Lord Patrick’s view was that confirming such a strong suspicion would amount to the ‘discovery’ of sexual infidelity. In my view there was, at least, some difficulty in saying that this would constitute a discovery. Hill had obtained his leave on the basis of his wife’s alleged unfaithfulness. It would not, therefore, have surprised him to have this confirmed. Although the confirmation may have caused him to lose self-control, one could not describe this as a chance and sudden discovery. Hill killed his wife and her lover with a rifle (his service weapon). The case report makes reference to the presence, at the time, of his own child. He shot each victim twice. He did not witness his wife’s adultery; rather it was confirmed to him verbally by her. The only evidence of the events surrounding these shootings came from the accused himself.

114  Claire McDiarmid As I have said, the store set by words written by Baron Hume in the eighteenth century can constitute a source of concern at the beginning of the twenty-first. In this instance, however, there is nothing to suggest that even Hume would have recognised the circumstances in which Hill found himself as giving rise to a legitimate provocation plea; Hill killed his wife – apparently an issue with which the law had not previously had to engage – as well as her new partner and he did not catch them having intercourse. Another novel aspect of Hill is its rejection of the further principle stated by both Hume (I, 241) that ‘no provocation of words, the most foul and abusive … is of sufficient weight in the scale, materially to alleviate the guilt [of murder]’ and Macdonald (1st edn, 1867, page 145) that ‘[w]ords of insult, however strong, will not form the slightest justification of a murderous attack’. Hill was informed using words only that there had been infidelity. Thus, there was a further extension of the law in that this appears to be the first time it was accepted that words alone could form the basis of a provocation defence. In summary, then, Hume stated that a partial defence of provocation was available where a man caught his wife in the act of committing adultery and, in a state of extreme anger, he killed the paramour. Macdonald reiterated the position. There appear to be no reported cases of the use of the plea until the twentieth century. The effect of Hill was that losing self-control when a strong suspicion of adultery was confirmed verbally would be treated as of the same order of provocative conduct as, wholly unexpectedly, finding your wife having intercourse with another person. In short, it allowed the provocation defence to be pled where: the accused killed more than one person; killed his wife where previously the law had endorsed only the killing of the paramour; killed without the distress of finding the parties having intercourse; and was provoked only by words (informing him of the adultery). These are substantial changes to a principle – which was exceptional in the first place – that rested on values belonging to a bygone age, such as elevating the value of a husband’s honour, seeing women only by reference to their husbands and treating them, in certain respects, as property. It extended the circumstances in which the law offered protection, under the guise of recognising human frailty, to jealous husbands who killed in murderous anger. Such a significant expansion in the law should not, in my view, have been effected in the charge to the jury of a single judge. The Development of the Law following Hill Over the 60 years following Hill, the law continued to recognise the sexual ­infidelity exception. By allowing a successful defence in circumstances which were quite different from the original form, Hill paved the way for a less than rigid approach in subsequent cases. Paradoxically, some of the developments do demonstrate an enlightened recognition of the social acceptance of different forms of relationship. Equally, extreme responses to infidelity, based in anger and jealousy, continue to be privileged over the loss of self-control in response to any other event. A brief overview of the intervening cases demonstrates this.

Drury v HM Advocate 2001 SLT 1013  115 In HM Advocate v Callander 1958 SLT 24, a wife was discovered by her husband ‘pursuing her course of Lesbianism’ (per Lord Guthrie, page 24), and he assaulted (though did not kill) her and her female partner with a bottle. The only innovation was the overt recognition that the discovery of a same-sex relationship could ground the defence in the same way as discovery of a heterosexual one. (­Provocation can be pled as a defence to assault but, if successful, its only effect will be to mitigate the sentence imposed.) In McDermott v HM Advocate 1973 JC 8, the accused was cohabiting with his female partner. Here, there was no allegation of sexual intercourse between the partner and the male paramour (who was killed by being stabbed with a knife which McDermott had taken with him when he went after the deceased). The court accepted that the knowledge of the ‘illicit association’ (page 11) (involving kissing and the female partner’s expression of a preference to be with the other man) was sufficient. This decision is in some respects progressive, recognising an equivalence between cohabitation and marriage, as well as a flexible approach to triggers for a sense of betrayal (in the absence of a specific allegation of sexual intercourse). Nonetheless, both of these aspects expand the parameters of the partial defence to protect acts arising from jealous anger that are qualitatively different, and ­arguably less provocative, than those originally covered by the exception, or even those recognised in Hill. In HM Advocate v McKean 1997 JC 32, the law acknowledged overtly and for the first time that a woman making the discovery of sexual infidelity could plead provocation. Finally, in Rutherford v HM Advocate 1998 JC 34, the accused killed his former partner by stabbing her and then dropping her body over a bridge into a river. The court’s decision to accept the plea of provocation endorsed the view that, where the fact of infidelity had already been revealed, an accused person may still have the benefit of the defence of provocation where ‘there was evidence which the jury could have accepted to the effect that, on the [subsequent] occasion when he killed her, the deceased gave the appellant fresh information which cast a new light on her infidelity’ (per Lord Justice General Rodger, page 45). As with Hill, this does not seem to me to constitute a ‘discovery’ of sexual infidelity in the sudden way which the exception – as originally devised – anticipated. I have set out the history of the use of the sexual infidelity exception in Scots law from Hill to the current case. It has moved from discovering a wife in the act of having sexual intercourse with a third party to include the (not unexpected) revelation of sexual infidelity; the communication of this verbally; the killing of the partner as well as, or separately from, the paramour; the inclusion of relationships other than marital ones; displays of affection such as kissing; and confirmation that the exception may be used by women as well as by men. Taken together, these represent a substantial expansion. It is significant that four of the cases identified (Gilmour, Hill, Callander and McKean) were decided by a single judge at

116  Claire McDiarmid first instance. Only McDermott and Rutherford have had the benefit of scrutiny by this court. This is important because the expansions to the sexual infidelity exception have not been wrought through principled and reasoned argument, nor are the limits of this expansion clear. I am concerned that this somewhat unprincipled extension creates a danger that simply being angered by finding out, at a distance, about sexual infidelity, or, indeed, some lesser display of affection towards another person, alongside the causing of death, will be regarded as sufficient for a successful provocation plea, a point to which I will return. I propose now to consider the elements of the provocation defence as they apply in the present case. The Provoking Act The law concentrates on whether, at the specific moment of the fatal attack, the accused had been provoked. The alleged provoking act in the present case is the discovery of sexual infidelity according to the Hill model (finding out after the event) rather than the Christie model (coming upon the parties in the act of having sex). The criminal law is generally concerned with a snapshot of the moment at which the actus reus of any given offence comes together with the mens rea. But the establishment of provocation by the discovery of sexual infidelity requires that other aspects of the lives of the accused and the deceased are considered, in a longer temporal context. In particular, the jury has to determine if they were in a relationship in which sexual fidelity could be expected. To pursue the metaphor of the image, this approach is more akin to that of a film than a still photograph. There is no doubt that, in this case, the accused caused the destruction of the victim’s life (actus reus). By its verdict, the jury also accepted that, as he did so, he demonstrated the mens rea of wicked recklessness or an utter indifference as to whether Ms McKenna lived or died. Drury’s evidence about the ongoing and monogamous nature of his relationship with Ms McKenna must also have been accepted by the trial judge in allowing the partial defence to go to the jury. Nonetheless, my view is that the deceased’s position in relation to the existence of that relationship has not been fully represented here. Her death and therefore her inability to speak directly to it give the requirement for scrutiny of the evidence of the relationship between her and the deceased further cogency. The onus of disproving the partial defence rests on the Crown, but some evidence must first be adduced by the accused of the basis on which sexual infidelity is expected. It is not disputed in this case that the accused and the deceased had lived together for a period of around 16 months, until December 1996. The trial court appears to have accepted that they continued to see each other and to have a sexual relationship after that point. That is the highest point of the defence evidence on which to establish that the accused was ‘entitled’ to expect fidelity. The Crown’s position was that Ms McKenna wanted nothing more to do with Drury at the end of their period of cohabitation. Indeed, it is a matter of record, strikingly as part

Drury v HM Advocate 2001 SLT 1013  117 of a debate on stalking and harassment in the Scottish Parliament on 11 January of this year, that Ms McKenna had tried to use both the civil law and the criminal law to prevent Drury approaching her (Meeting of the Parliament, 11 January 2001, column 186, Scottish Parliament Official Record, volume 10, no 2). Overall, then, the facts accepted by the trial court require me to proceed on the basis that sexual fidelity was expected between the accused and the deceased. However, this is an unusual case in which, despite the victim’s death, we are able to gain a sense of her experience of the relationship with the accused from a public record of the Parliament which suggests that, near the time of her death, Drury had been stalking Ms McKenna. This surely casts doubt onto his basis for ­expecting such fidelity. The Immediate Loss of Self-Control The second element of provocation is the immediate loss of self-control in response to the provoking act. Drury alleges that, on surmising that Ms McKenna had had sex with another man that evening, he ‘lost it’ and attacked her. In general, the ability to use the defence requires evidence of that heightened (provoked) emotional state which brings about, or which constitutes, the loss of self-control. Macdonald’s definition uses the words: ‘agitated and excited, and alarmed by violence’ (my emphasis). Cases relating to the sexual infidelity exception have tended to use a different formulation. HM Advocate v Gilmour refers to acting ‘in the first transport of passion’ (at page 3 per LJ-C Aitchison) and this was repeated in HM Advocate v Delaney 1945 SC 138 (page 140, per Lord Moncrieff). HM Advocate v Hill refers to the accused acting ‘in the heat of passionate indignation’ (pages 61–62, per Lord Patrick) and acting ‘in the heat of sudden and overwhelming indignation’ (page 62, per Lord Patrick). Sixty years later, Rutherford v HM Advocate also referred to the accused being ‘swept with sudden and overwhelming indignation’ (page 45, per LJ-G Rodger). Each of the terms in the accepted, classic, assault-type definition of provocation describes a strong sentiment and the conjunctive form is used to link them: ‘Being agitated and excited, and alarmed by violence’. The use of the word ‘alarmed’ seems to me to import an element of fear as, indeed, is to be expected where the accused is responding to a physical attack. For assault-type provocation, then, fear acts as a brake on anger, a brake that seems to be absent where the provoking act is the discovery of sexual infidelity. As I have stated earlier, both Hume (Commentaries on the Laws of Scotland Respecting Crimes, 2nd edn, 1819, vol I, page 240) and Macdonald (A Practical Treatise on the Criminal Law of Scotland, 1st edn, 1867, page 152) expressed misgivings about the wisdom of allowing the sexual infidelity exception at all because of this absence of fear. If there is no longer a requirement that the accused’s emotional reaction that causes the loss of self-control be based, even partly, in fear, then the law is recognising as human frailty, and consequently treating as mitigatory, a state of ‘pure’ anger,

118  Claire McDiarmid partly arising from jealousy, on the part of the accused. The criminal law has dealt with the question of anger as a mitigating factor, outwith the homicide context. C v Harris 1989 SC 278 was an appeal against a decision of a children’s hearing and therefore, strictly a civil matter. Nonetheless, one of the points at issue was whether a mother had committed an assault on her child (by physically chastising her). The case specifically considered whether the fact that the mother was angry when doing this could form part of the evidence of mens rea – that is, whether the mother had an evil intent to cause immediate bodily harm. The court held that it could not. Here, then, even though Lord President Emslie termed it ‘understandable anger’ (page 280), it was simply disregarded. C v Harris provides a conceptual basis, then, for the law to treat the accused’s (pure) anger as a neutral fact. The Appropriate Response Provocation is a partial defence based on a hot-blooded response to a provoking event. As explained previously, in assault-type provocation, that response is to be measured against the violence so that the test is whether or not it was proportionate (Low and Reilly v HM Advocate, page 286). Where the provoking act is an assault, violence is initiated by the ultimate deceased and violence is returned by the accused. At some level, then, the quality of these acts is comparable. The discovery of sexual infidelity, on the other hand, is of a completely different order. I accept the accused’s argument that it is not commensurable with a violent response. It is, however, notable that no case has been cited to us which specifies the test for provocation in circumstances of sexual infidelity. Gilmour, Hill, Delaney, Callander and McDermott all seem to accept that finding out about sexual infidelity and killing ‘in the first transport of … passion’ (Gilmour, page 3, per LJ-C Aitchison; Delaney (citing Gilmour), page 140, per Lord Moncrieff) or ‘under the immediate impulse of his discovery’ (Callander, page 25, per Lord Guthrie) is all that is required. In McKean, Lord MacLean asked the jury whether the accused ‘reasonably consider[ed] that [her partner] was unfaithful to her in [the] situation and that [the paramour’s] arrival in the house and in bed was a threat to her relationship with [her partner]’ (page 33). None of these offers any standard by which the accused’s response to the discovery of the infidelity is to be measured or determined. I am of the view that the sexual infidelity exception should no longer operate in our law. Others take a different view. However, if it is retained, then it is clearly not sufficient to allow a defence of provocation to succeed simply because there has been unfaithfulness that has made the accused lose self-control. The jury must at least be asked whether the response was an appropriate or an excessive one (though some scepticism must be expressed as to whether it is ever acceptable to be unable to control anger at least to the extent of not killing another person). Where, then, do we find the test? In the instant case, his Lordship in the Chair has drawn on a number of Scottish and English authorities, together with Hume’s recognition that certain situations

Drury v HM Advocate 2001 SLT 1013  119 which may be encountered in life ‘require a more than ordinary strength of mind, and command of temper to withstand them’ (Hume I, pages 243–44, LJ-G Roger’s emphasis), to provide the following formulation, which I have had the advantage of reading in draft: But even though the mores of society may have altered … and, with them, the expectations of how the reasonable man or woman should deal with [relevant] situations, the fact remains that ordinary men and women will continue to fall short of the ideal. In particular, in some cases, when provoked, they may resort to violence and kill their assailant or their unfaithful partner … So, when an accused overreacts in the way that ordinary men and women may tend to overreact, the law recognises that the accused is weak rather than wicked … He is therefore to be treated not as a murderer but as a killer whose fault and crime are less serious, though still grave. But that approach … must equally mean that, if the killer reacts in a more extreme manner than the ordinary man or woman, he is not entitled to that strictly limited allowance which the law makes for the human frailty of ordinary men and women. Where, therefore, the accused has reacted to provocation in a way in which no ordinary man or woman would have been liable to react, a jury can rightly conclude that he acted with that wickedness which justifies a conviction for murder. Where the sexual infidelity exception is engaged, then, the jury is asked to judge whether the accused’s overreaction was more extreme than would have been expected of ‘ordinary’ men or women (Lord Rodger expresses no view on provocation arising from an initial assault). If it was more extreme, the partial defence will be unsuccessful and the accused will be convicted of murder. This does, at least, recognise the need for the law to identify a restraint on the accused’s behaviour so that losing self-control in response to infidelity is not, in itself, sufficient. The question remains, however, as to whether an ordinary person would ever kill in such circumstances. Abolishing the Sexual Infidelity Exception I believe that there is an outstanding question as to whether the law ought, in 2001, to continue to place such a high mitigatory value on the jealous rage generated by the discovery of sexual infidelity. Indeed, my interpretation of the facts of the present case suggests that it is possible that each party to the same relationship may hold a different view of its nature as ‘faithful’ or otherwise. In my view, allowing the discovery of sexual infidelity to justify the return of a culpable homicide verdict on a murder charge is an expression of outdated norms. Such norms include the idea of ownership of women passing from a father to a husband. They also encompass the notion of sexual ownership generally, and of exclusive rights to sexual access to the body of another. This permits a loss of selfcontrol engendered by a sense of sexual entitlement to provide mitigation of the act of killing. I do not believe that these are norms to which twenty-first century Scottish society either adheres, or ought to adhere.

120  Claire McDiarmid Further, Scots law recognises only two partial defences to murder: diminished responsibility and provocation. Fairness dictates that these should, insofar as reasonably practicable, be as available to, and as useful for, all the population equally. In fact, examination of the official homicide statistics supplied by the ­Scottish government suggests that this is not the case. For the 10-year period from 1989 to 1998, 57 per cent of female victims aged between 16 and 69 were killed by their partners compared with only 8 per cent of male victims ­(Homicide in S­ cotland 1998 CrJ/1999/7, paragraph 6.6). In that same period 91 per cent of homicides were perpetrated by men (Homicide in Scotland 1998 CrJ/1999/7, table  B). The sexual infidelity exception will generally (though not exclusively in that it may be the paramour who is killed) apply to partner-on-partner homicide. The defence was developed historically for men to protect their honour and, indeed, their property. It was open originally only to husbands. It has always provided a concession to those who act in a jealous, murderous fury. These current statistics suggest that it may still be disproportionately available to male accuseds because they are more likely than their female counterparts to kill an intimate partner. The partial defence should not reflect at any level these historical norms of masculine honour and supremacy within the private sphere. For these reasons, and following the precedent set in the case of S v HM Advocate, that the law can depart from ancient principles when these are not justified by modern social conditions, my view is that the sexual infidelity exception should no longer apply. I have also explained in some detail the wrong turning, leading to unprincipled expansion of the exception, which I consider was taken in the case of HM Advocate v Hill. This appeal provides the opportunity to cease to follow that path. Taken together, these arguments strongly support abolition. Conclusion In conclusion then, my view is that the so-called sexual infidelity exception in relation to the defence of provocation was only originally available in Scots law where an accused person found ‘his’ spouse in the act of having sexual intercourse with another person and killed that third party. The expansion in the law starting with, and following from, Hill was not based in principle, was only indirectly validated by this court as late as 1973 (in McDermott) and sanctions a view of relationships as based in sexual ownership which is not supported by the mores of society in 2001. Rejecting the appeal on this basis, as I do, makes it unnecessary for me to consider, in fuller detail, what would constitute the appropriate test for this ­exceptional form of the partial defence.

Commentary on Drury v HM Advocate JULIETTE CASEY

Introduction Critically analysing the decision in Drury v HM Advocate1 from a feminist legal perspective is timely. The Scottish Law Commission published its tenth programme of law reform in February 2018 in which it announced its intention to reform the law of homicide, culpable homicide and defences. Particular reference was made to Drury and the fact that the court in that case considered that the law of p ­ rovocation should be reformed and restated in statutory form. In this commentary, I begin by sketching how provocation – and particularly the sexual infidelity exception – has been analysed in recent cases. I will then look briefly at one model for reforming the law on provocation, contained in the ­Coroners and Justice Act 2009, which now operates in the rest of the UK. Finally, I will draw on lessons derived from the implementation of those reforms in practice, particularly as they apply to sexual infidelity.

Provocation and the Sexual Infidelity Exception in Scots Law Lady McDiarmid articulated in her judgment the general rule in Scots law which limits provocation to cases of violent assault.2 The case of sexual infidelity is treated as an exception to this rule,3 as Drury itself illustrates: in these cases the provoking act and the accused’s attack are actually incommensurable.4 Probing a little deeper, however, Lady McDiarmid considered that the sexual infidelity exception is, in fact, an outdated norm. This norm is based on honour and 1 Drury v HM Advocate 2001 SCCR 583. 2 JHA Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn (Edinburgh, W Green, 1948) 94. 3 David Hume wrote that it might have been recognised in Scots law as early as 1510: Commentaries on the Law of Scotland in Matters Criminal, Vol I, 245, fn 3). 4 For a discussion of the challenges with the proportionality test in cases of sexual infidelity see J Casey, ‘Gillon v HM Advocate: Provocation, Proportionality and the Ordinary Person’ (2006) Scots Law Times 193.

122  Juliette Casey the influence of the ‘man of honour’ on the doctrine of provocation in the late seventeenth and early eighteenth centuries has been comprehensively examined by Professor Horder.5 The man of honour was expected to follow a code that determined how he was to feel and express anger. The approach permeates the 1707 landmark case of Mawgridge6 where adultery was described as being ‘the ­highest invasion of property’.7 While no longer articulated in terms of the ‘man of honour’, Lady McDiarmid considered that this approach to provocation involving sexual infidelity had no place in society in the twenty-first century and that the sexual infidelity exception was, in any event, too widely applied on the facts of Drury. In the recent Court of Criminal Appeal8 case of Nico Donnelly v HM Advocate,9 the first woman Lord Justice Clerk in Scotland (Lady Dorrian) also reconsidered the approach adopted in Drury. The focus of the Court in Donnelly was whether provocation could arise from acts of the deceased towards a third party and, as such, it was concerned with the case of provocation by violence rather than sexual infidelity.10 Nonetheless, the Court took the opportunity to note that ‘[t]he reasons for the existence, and continuation, of the infidelity exception may withstand very little scrutiny in the twenty-first century’.11 While these remarks are, strictly speaking, obiter, they nevertheless reveal an ongoing uneasiness about the recognition of sexual infidelity in provocation cases.12

5 J Horder, Provocation and Responsibility (Oxford, Clarendon Press, 1992). 6 R v Mawgridge (1707) 84 ER 1107. 7 ibid 1115. The fourth category of provocation was described in the following way: ‘[F]ourthly, when a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of the man, and adultery is the highest invasion of property … If the thief comes to rob another, it is lawful to kill him. And if a man comes to rob a man’s posterity and his family, yet to kill him is manslaughter. So is the law though it may seem hard, that the killing in the one case should not be as justifiable as the other’. 8 When the Scottish High Court of Justiciary hears criminal appeals, it is known as the Court of Criminal Appeal. 9 Nico Donnelly v HM Advocate [2017] HCJAC 78. 10 On the facts of that case, third-party provocation could never have succeeded and the appeal was refused. The Court noted that ‘[t]here was no assault by the deceased on Ferguson [the third party], nor even any threatening gesture towards him, and the highest the case amounted to was an allegation that verbal threats had been made’ (para 41). 11 The full quote is at para 40 where the Court considered that ‘[t]he reasons for the existence, and continuation, of the infidelity exception may withstand very little scrutiny in the twenty-first century, and [the court reasoned further] it must be highly questionable whether the modern interpretation that it is based on the fact of a relationship in which fidelity is expected was really the basis upon which the exception was based, but the modern interpretation would accord with the notion of provocation as a personal plea’. This reference to provocation being a personal plea seems to relate to the explanation that provocation is a concession to human frailty. Hume, Commentaries on the Law of Scotland in Matters Criminal, described this rationale in Vol I, 239–40. 12 A similar unease was expressed in an intervening case, Gillon v HM Advocate 2006 SLT 799, which was described as being ‘a sequel’ to Drury. In Gillon, Lord Osborne, while not expressing a view, recognised that a criticism may be made of the fact that, although a woman may kill while provoked, most often it is a man who is the killer and a woman who is the victim (para 38).

Commentary on Drury v HM Advocate  123

A Model of Legislative Reform for Provocation During the course of argument, the Court in Donnelly was referred to the recent legislative reforms introduced by the Coroners and Justice Act 2009.13 This Act abolished the much criticised defence of provocation in England, Wales and Northern Ireland and replaced it with a new partial defence of ‘loss of control’. This was designed partly to better address the gendered contexts within which a large number of homicides are committed. In particular, the reforms were designed to tackle the imbalance between, on the one hand, the law’s failure adequately to accommodate the contexts in which women kill an abusive male partner,14 while, on the other, continuing to accommodate the excuses of jealous and controlling men who kill a female partner.15 The 2009 Act requires, amongst other things, that the defendant’s loss of control at the relevant time16 must have had one of two qualifying triggers. Section 55(3) recognises the first qualifying trigger as a fear of serious violence from the victim. This inclusion sought to cater primarily for circumstances in which an abused woman kills, by recognising ‘the close connection between the emotions of anger and fear and thus between provocation and self-defence’.17 The second qualifying trigger is to be found in section 55(4)(a) and (b) and it pertains to something ‘done or said’ (or a mixture of actions and words) which constituted ‘circumstances of an extremely grave character, and … caused D [the defendant] to have a justifiable sense of being seriously wronged’.18 Section 55(6)(c) goes on to state that, when assessing whether the qualifying trigger has been met, ‘the fact that a thing said or done constituted sexual infidelity is to be disregarded’. This inclusion of ‘fear of serious violence’ as a qualifying trigger, combined with the exclusion of 13 This Act was brought into effect in October 2010 by the UK Parliament. The legislative changes were brought into force following the Law Commission’s Report on Partial Defences to Murder, published on 6 August 2004, available at: s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/ uploads/2015/03/lc290_Partial_Defences_to_Murder.pdf. 14 See generally LE Walker, ‘Who are the Battered Women?’ (1977) 2 Journal of Women’s Studies 52. This work resulted in widespread discussions about the use of expert testimony on ‘battered woman syndrome’. See also the article of K O’Donovan, ‘Defences for Battered Women who Kill’ (1991) 18 Journal of Law and Society 219. 15 Although the UK has not ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence, which entered into force on 1 August 2014 (the ­Istanbul Convention), a tapestry of recent reform measures influenced by the Convention exists. Perhaps most notable for present purposes is the Domestic Abuse (Scotland) Act which received royal assent on 9 March 2018. The UK government published its draft Abuse Bill on Monday 21 January 2019: www. gov.uk/government/publications/domestic-abuse-consultation-response-and-draft-bill. 16 Partly in response to feminist criticism, the Act states that loss of self-control does not always have to be at the exact time of the killing. Also, loss of self-control, like diminished responsibility, is available to complicit parties, whose contribution (as by encouragement or assistance) following a loss of selfcontrol may precede the killing. 17 O Quick and C Wells, ‘Partial Reform of Partial Defences: Developments in England and Wales’ (2012) 45 Australia & New Zealand Journal of Criminology 337. 18 s 55(5) applies if D’s loss of self-control was attributable to a combination of the matters mentioned in s 55(3) and (4).

124  Juliette Casey the experiences of men seeking to excuse behaviour following discovery of sexual infidelity, on the face of it, represents a seismic shift in moral thinking. However, as we will see, the relevance of sexual infidelity is not quite so clear-cut as a matter of practice.

Lessons from Practice The Court of Appeal in England and Wales in R v Clinton, Parker and Evans19 explored the full effects of the sexual infidelity prohibition.20 This was a difficult task, not least since there is no definition of sexual infidelity in the 2009 Act. On the one hand, the statutory provision is unequivocal in that loss of control triggered by sexual infidelity cannot, on its own, qualify as an appropriate permissible trigger for the purposes of section 55.21 On the other hand, it is not clear whether a consequence of the provision is that sexual infidelity is similarly excluded when it arises in the context of another, or a number of other, features of the case which are said to constitute an appropriate permissible qualifying trigger.22 In R v Clinton, Parker and Evans, the Court concluded that sexual infidelity is not, in fact, subject to a blanket exclusion when the loss of control defence is under consideration. First, it may be relevant to the question – under section 54(1)(c) and (3) of the 2009 Act – whether a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of the defendant, might have reacted in the same or in a similar way. Further, to meet the simple reality of the day-to-day working of the criminal justice system, in which events cannot be isolated from their context, the Court went on to find that, where sexual infidelity is integral to, and forms an essential part of, the context in which to evaluate whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition does not operate to exclude it.23 This lack of clarity as to the ongoing relevance of sexual infidelity is disappointing and it risks reducing the significance of the statutory reform. Jeremy Horder and Kate Fitz-Gibbon24 examined a further limitation of these reforms in the context of sentencing in murder cases. They focus particularly on post-2009 cases in which a jury rejected the loss-of-control plea and convicted of murder, where the sole or main evidence for the loss of control related to sexual infidelity. They argue that, in sentencing offenders in the post-reform period, the higher courts have failed to carry forward the spirit of reforms under the

19 R v Clinton, Parker and Evans [2012] EWCA Crim 2. 20 ibid paras 14–29 and 34–44. 21 ibid para 20. 22 ibid para 21. 23 ibid para 39. 24 J Horder and K Fitz-Gibbon, ‘When Sexual Infidelity Triggers Murder: Examining the Impact of Homicide Law Reform on Judicial Attitudes in Sentencing’ (2015) 74 Cambridge Law Journal 307.

Commentary on Drury v HM Advocate  125 substantive law, by effecting a corresponding change in sentencing practice. In other words, courts have continued to regard evidence of sexual infidelity as justifying a significantly lower minimum term of imprisonment.25 While this may be attributable to the sentencing regime for murder cases introduced by section 269 (Schedule 21) of the Criminal Justice Act 2003, the authors nevertheless advocate a holistic approach to the task of law reform which considers the effect of reform measures not only at the level of the substantive law, but also when sentencing.

Conclusion The work of the Scottish Law Commission is held in the highest esteem by civil society in Scotland. While the task of reforming Scots law on homicide and associated defences, specifically provocation, is a daunting one, the need for reform is long overdue. Although the reform introduced by the 2009 Act in the rest of the UK is not without its challenges and, while the Scottish Law Commission is not in any way limited to guidance from any one jurisdiction, there are nevertheless valuable insights available for consideration by the Commission. The abolition of the partial defence of provocation in Scotland would serve to negate many of the difficulties discussed by Lady McDiarmid, particularly as they relate to the infidelity exception. In its absence, basic questions emerge: is it desirable to excuse killings by men and women committed following a loss of control and, if so, what would the new legal test involve? Are there any implications for sentencing practice? Moreover, any new legal enactment would have to fit within a reformed framework of the law of homicide and other defences, and be compatible with recent legislative reforms in the area of domestic violence, including the Domestic Abuse (Scotland) Act 2018. The inclusion of this area of law in the ­Scottish Law Commission’s tenth programme for reform is welcome and its proposals will be eagerly anticipated.



25 ibid

308–09.

Reflective Statement: Drury v HM Advocate CLAIRE McDIARMID

Law and Anger Criminal law, particularly in the area of homicide, often deals with the aftermath of strong emotion, but provocation is a mechanism through which emotion is directly engaged. Provocation appears to prioritise extreme anger – an anger so intense that it propels someone to kill – and this has always both fascinated and concerned me. It is not only in Scotland that this is the case. The New Zealand Law Reform Commission neatly summarised the position thus: [P]rovocation is not necessarily confined to an angry loss of self-control, as opposed to one prompted by fear or sympathy. However, anger is the context in which it is commonly understood to operate, and is most frequently used [footnote omitted]. We would thus argue that the defence puts a premium on anger – and not merely anger, but homicidally violent anger. This, to our minds, is or should be a central issue in considering whether reform is required: out of the range of possible responses to adversity, why is this the sole response that we choose to excuse?1

I have written about anger within provocation before;2 however, it was not until embarking on this feminist judgment that I realised that the sexual infidelity exception is predicated on it, even more than is assault-based provocation. The accused acts in a jealous rage. To the extent that it is so much accepted that its definition is sometimes used without reference to the source,3 the ‘classic’ definition of provocation in Scots law is Macdonald’s: ‘Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing’.4 1 New Zealand Law Reform Commission, The Partial Defence of Provocation (Wellington, New Zealand Law Reform Commission Report 98, 2007) para 99. 2 C McDiarmid, ‘Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Oxford, Edinburgh University Press, 2010). 3 For example, Parr v HM Advocate 1991 JC 39 (trial judge Lord Cameron of Lochbroom’s charge to the jury at 42). 4 JHA Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn (Edinburgh, W Green, 1948) 94.

Reflective Statement: Drury v HM Advocate  127 This overtly relates to provocation by violence, however, and the cases on sexual infidelity provocation do not apply this formulation. Indeed, it is a given that losing self-control in response to the discovery of unfaithfulness will not involve responding in fear.5 In fact, a survey of the pre-Drury sexual infidelity cases6 suggested that the issue of provocation has tended to turn merely on whether the accused had discovered the unfaithfulness and lost self-control in response to this. I have set out in the judgment some of the formulations of the loss of self-control used – for example ‘in the heat of sudden and overwhelming indignation’.7 Overall, my sense is that the courts had regarded infidelity as so inherently provocative that little beyond its alleged existence, and a corresponding loss of control, was required.8 This seems to be the explanation for the absence of any test for sexual infidelity provocation in the whole 270-year period from the case of James Christie in 1731 until Drury in 2001. This is an unsatisfactory state of affairs.

The Development of the Law I have also suggested in the judgment that HM Advocate v Hill,9 a case which was only ever considered by a single judge at first instance, but which nonetheless signalled the start of the overall liberalisation of the sexual infidelity exception, took a view of the notion of ‘sudden’ discovery which was overly favourable to the accused. I was, therefore, also interested to find Gerald Gordon’s view of this case, in his commentary on Drury in the Scottish Criminal Case Reports.10 He states that the exception was extended to being informed of the infidelity (rather than coming upon a spouse in the act) ‘because of a disinclination even to envisage hanging a soldier who returned from the wars to discover that his wife had been unfaithful and responded by killing her’.11 This offers an explanation; however, it also raises a question about how far prevailing social (and gendered) norms ought to influence the application of the law. The paramour, who was murdered by Hill, was also in 5 D Hume, Commentaries on the Laws of Scotland Respecting Crimes Vol I, 2nd edn (1819) 240. 6 HM Advocate v Gilmour 1938 JC 1; HM Advocate v Hill 1941 JC 59; HM Advocate v Delaney 1945 JC 138; HM Advocate v Callander 1958 SLT 24; McDermott v HM Advocate 1973 JC 8; McKay v HM Advocate 1991 JC 91; McCormack v HM Advocate 1993 JC 170; HM Advocate v McKean 1997 JC 32; and Rutherford v HM Advocate 1998 JC 34. 7 HM Advocate v Hill 62 (Lord Patrick). 8 This is not to say that the defence was always successful. In McKay v HM Advocate and McCormack v HM Advocate, for example, the court drew a proper distinction between loss of selfcontrol in response to the discovery of sexual infidelity and words which simply insulted the accused making him (inexcusably) angry. 9 See above, n 6. 10 Drury v HM Advocate 2001 SCCR 583. 11 ibid 618.

128  Claire McDiarmid the forces, serving in the royal navy. To suggest that Hill was not hanged because he was in the process of serving his country somehow suggests that his life was more important than that of the other man. The fact that Hill murdered his wife, and that the law does not seem to have had to consider that situation before, is glossed over completely. More generally, the broadening out of the law after Hill to encompass all kinds of relationships (eg, cohabitation; same-sex) is appropriate because it recognises the variety of ways in which individuals may commit to each other and the importance of this validation of equality. But until Drury, it seems to have been accomplished without the application of much in the way of legal principle – and McKean is still the only case which I have been able to identify in which a woman successfully used the plea. While there are few cases overall, this dearth of female accuseds seeking to plead that they killed their partner in a jealous rage bears out the statistical information about partner-on-partner homicide presented in the judgment. In the end, I am still left with two issues: 1. 2.

Ought the law to recognise as mitigatory at all such extreme and uncontrolled anger that it leads someone to kill? If so, what should it do specifically in relation to sexual infidelity? It is perhaps true that such a discovery could cause extreme anger, but so might many other possible scenarios (eg, finding someone in the act of assaulting or abusing your own child) to which the law currently attaches no mitigation.

These are policy issues. They substantiate the need for consideration by the ­Scottish Law Commission of the whole question of how, if starting from scratch, we would make provision in law for mitigating murder to culpable homicide. The Commission has the resources to carry out the necessary consultation and in-depth consideration of possible legal responses. As noted in Juliette Casey’s commentary, it is welcome that this matter now forms part of its tenth programme of law reform, 18 years after Drury.

Responding to Drury Drury itself is in many respects a model of the way in which the sexual infidelity exception creates a space for angry, jealous, possessive (usually) men to kill with extreme violence and then somehow blame the victim for bringing about in the first place the emotional state precipitating the attack. I have read the judgments in Drury many times since 2001, for a number of different purposes, and I still find the change which it brought about in the mens rea of murder (from intention to kill to wicked intention) both unnecessary and, frankly, a little baffling. My interest in the case, however, was heightened

Reflective Statement: Drury v HM Advocate  129 when I  came upon a Scottish Executive report on Stalking and Harassment in ­Scotland12 which stated: It is widely recognised in the literature that stalkers have a profound effect on their victims, and that stalking behaviour can culminate in serious violence, including murder and attempted murder. Recent high profile cases, such as that of Marilyn McKenna13 … have stressed the potential for stalking behaviour to escalate to such levels. McKenna was murdered by her stalker Stuart Drury, an ex-partner – after harassing her for almost 2 years following her ending their violent relationship. Drury was able to continue his campaign against McKenna, despite having five breach of the peace convictions for his stalking, and an interim interdict to protect his victim. Marilyn McKenna was murdered by Drury while he was serving a deferred sentence for one of these convictions.14

This caused me a level of cognitive dissonance. How could Drury v HM A ­ dvocate constitute the leading case on provocation where the provoking act is sexual infidelity if, in fact, far from being in a relationship in which he was entitled to expect such fidelity, Drury’s supposed relationship had been terminated and his ex-­partner had, as Kay Ullrich, MSP, noted in the Scottish Parliament cried out for help. She put her faith in the criminal justice system and was let down across the board: by civil law, over the interdict; by criminal law, which gave her no protection; and by the courts, which failed to grasp the seriousness of the threat to her life.15

In writing this feminist judgment, then, one of my purposes was to present this wholly different narrative of the nature of the relationship. In my judgment I refer to Drury by his surname and his victim as Ms McKenna, taking the view that using her title gives her more status. Ms McKenna’s family felt sufficiently strongly about the legal process to present a petition to the Scottish Parliament about the treatment of crime victims,16 and it is from the debate on this petition, and an earlier one on stalking,17 that details about her life emerged.18 It is notable that none of this information was given in the judgment in Drury from which it is wholly absent.

12 S Morris, S Anderson and L Murray, Stalking and Harassment in Scotland (Edinburgh, Scottish Executive, 2002). 13 The footnote omitted here is the citation for the case of Drury v HM Advocate. 14 Morris et al, above n 12, 17. The report on stalking unfortunately came out after the full bench judgment in Drury was released. I have circumvented this methodological problem in my judgment by referring instead to the debates in the Scottish Parliament which (just) preceded it (see below, nn 15 and 16). 15 Scottish Parliament, Official Report, Plenary 11 January 2001, vol 10, no 2, col 187, available at: www.parliament.scot/parliamentarybusiness/report.aspx?r=4277&mode=pdf. 16 See Scottish Parliament, Public Petitions Committee, 6 November 2001, Crime Victims (PE408), cols 1367–77, available at: www.parliament.scot/parliamentarybusiness/report.aspx?r=2998&mode=pdf. 17 See Scottish Parliament, Official Report, above n 15, cols 186–88. 18 There is also a (sensationalised) account of the relationship leading up to the murder in R McKay, Murder Capital: Life and Death on the Streets of Glasgow (Edinburgh, Black and White Publishing, 2006) part 4 ‘Dying on Deaf Ears’.

130  Claire McDiarmid Ms McKenna’s then 15-year-old son Brian was a witness at Drury’s retrial.19 She had three children in total, all of whom ended up living in different families following her death. The youngest, Ross, was aged five at the time of the murder. His sister, Laura, was nine.20 Drury stalked Ms McKenna at work, at home and in picking up her children from nursery.21 At the time of her death, she was trying to be rehoused ‘outwith the area in which [he] was operating’.22 He had previously assaulted and stalked two other former female partners.23 Overall, it adds insult to (life-terminating) injury that, in proceeding with his appeal, Scots law has found that Drury was entitled (I use that word advisedly) to expect that Ms McKenna would never engage in sexual activity with anyone other than him.

Conclusion It is almost exactly 20 years since Drury carried out the murder. To give some context to those times, in 1998 the Good Friday Agreement was signed, construction began on the Millennium Dome and Harry Potter and the Chamber of Secrets was published. Each of these events has led to further change and development, and yet the law on provocation by the discovery of sexual infidelity has not moved.24 Other areas of the criminal law have, however, tried to recognise the precarious and frightening position in which women in relationships with violent and/or controlling men find themselves,25 perhaps particularly when they try to leave. The sexual infidelity exception recognises killing in jealous anger as worthy of mitigation. The close consideration, which it is hoped the Scottish Law ­Commission will provide, will enable this to be reconsidered.

19 See Scottish Parliament, Public Petitions Committee, above n 16, col 1373. 20 ibid. 21 Scottish Parliament, Official Report, above n 15, col 186. 22 ibid col 188 (Paul Martin). 23 ibid col 187. 24 There have, however, been developments in English law as discussed by Juliette Casey in her commentary on this judgment. 25 Criminal Justice and Licensing (Scotland) Act 2010, s 39 creates an offence of stalking; the Domestic Abuse (Scotland) Act 2018, s 1, recognises ‘abusive behaviour towards a partner’.

part ii Family, Home and Belonging

132

7 R & F v UK Application 35738/05 2005 COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no 35748/05 By R And F against the United Kingdom The European Court of Human Rights (Fourth Section), sitting on 28 November 2006 as a Chamber composed of: Dr C GRAY, President Sir Nicolas BRATZA, Mr G BONELLO, Mr K TRAJA, Mr S PAVLOVSCHI, Mr L GARLICKI, Ms L MIJOVIC, judges and Mr TL Early, Section Registrar, Having regard to the above application lodged on 30 September 2005, Having regard to the observations submitted by the Respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: A. The Circumstances of the Case The applicants are a married couple who are domiciled in Scotland. F was born male and began treatment for gender dysphoria, funded by the UK’s National

134  Carolynn Gray Health Service, in 1998. In November 2003, she underwent gender reassignment. F wishes to obtain a new birth certificate which records her sex as female. The law in the UK is such that persons in F’s position can apply for a full Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA 2004). A GRC allows such individuals to obtain an amended birth certificate which recognises what is referred to in the Act as their ‘acquired’ gender. Currently F is unable to obtain a full GRC because she remains married to R, and the legislation requires that only those who are unmarried can obtain a full GRC; those who are married or in a civil partnership can obtain an interim GRC – which does not change their legal gender – until such time as they divorce or dissolve their civil partnership. The applicants are deeply opposed to divorcing as their relationship is strong and they seek to remain together. They are also resistant to being compelled to manage the financial and property implications associated with divorce. More specifically, in order to protect their property rights following divorce, the applicants have been advised that they would need to make an application to the court for financial provision or register a minute of agreement outlining how the property would be shared. Should they not do so, normal property law rules would apply post-divorce, and this would entail that there would be no presumption of joint ownership and each party would be considered to be the owner of the property which they personally bought or acquired. Such an arrangement would particularly disadvantage R. The applicants, following the acquisition of a full GRC by F, would be entitled to enter a civil partnership: a formal union for same-sex couples akin to marriage. The applicants are opposed to this, however, because they do not view civil partnership as a suitable alternative to marriage. In support of this view, they point to the different social acceptance of civil partnership and marriage, and the fact that civil partnerships do not offer the same legal protections as marriage. In addition, should they seek to register a civil partnership, the cost of doing so would be a further £93.50. B. Relevant Domestic Law and Practice This application raises a number of legal and jurisdictional issues which must be considered. In part, it concerns legislation which is of UK-wide application: the GRA 2004. However, it also concerns legislation specific to Scotland: the Marriage (Scotland) Act 1977, and the Divorce (Scotland) Act 1976. Gender Recognition Act 2004 Section 1 of the GRA 2004 provides that a person aged 18 or over, who is ‘living in the other gender’ may apply to the Gender Recognition Panel (GRP) for a GRC. Before a GRC can be issued the Act requires the submission of evidence relating to diagnosis of gender dysphoria (section 2(1)(a)), having lived in the acquired gender for at least two years (section 2(1)(b)) and confirmation of intention to live in the acquired gender until death (section 2(1)(c)). Additionally, there requires to

R and F v UK Application 35738/05 2005  135 be submitted reports by medical professionals (section 3(1)(a) and (b)) outlining details of the applicant’s diagnosis and, where the applicant has or is undergoing treatment for the purpose of modifying sexual characteristics, or where such treatment is prescribed or planned, then at least one of the reports must include details of such treatment. Applicants are also required to provide evidence to the GRP, in the form of statutory declaration, as to their marital status. Section 4 of the GRA 2004 provides that if the GRP grants an application then it must issue a GRC to the applicant. A full GRC will only be issued to applicants who are unmarried; for applicants who are married, the GRC will be an interim one. Only the full certificate can effect the desired change in legal gender. The purpose of the interim certificate is to provide a document upon which to base an action for divorce or dissolution of civil partnership. Section 4(4) provides for the amendment of the Divorce (Scotland) Act 1976 section 1 to make the acquisition of an interim GRC a specific ground of divorce in Scots law; and either party to the marriage can apply for divorce on this basis. Section 5 provides that if a court in Scotland has granted a decree of divorce on the basis that one of the parties holds an interim GRC, then the court must, at that time, issue a full GRC to that party and send a copy to the Secretary of State. GRA 2004 section 9(1) provides that: Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). Marriage (Scotland) Act 1977 Matrimonial law differs throughout the jurisdictions of the respondent state. In Scotland, matrimony is governed by the Marriage (Scotland) Act 1977, section 5(4)(e) of which provides that there is a legal impediment to marriage where both parties are of the same sex. There is no reported case law on this point deriving from any of the courts of Scotland. While it is by no means certain, it is possible that – since English matrimonial law is identical to Scots law with regard to the sex of the respective parties to the marriage – the Scottish courts might choose to follow the interpretation provided in the English authority of Corbett v Corbett [1971] Probate Reports 83. This was a case concerning nullity of marriage where one of the parties to the marriage was transsexual. The High Court established the rule in English matrimony law that one’s sex is fixed at birth, based, primarily, on chromosomes, gonads and genitals, and ignoring any operative intervention. The decision in Corbett, specifically its interpretation of the English Matrimonial Causes Act 1973, section 11(c) (ie that marriage be between a man and a woman), was challenged in the UK House of Lords in Bellinger v Bellinger [2003] UKHL 21 where it was ultimately upheld. However, the House of Lords in that case issued a declaration of incompatibility under section 4 of the Human Rights Act 1998

136  Carolynn Gray (HRA 1998), which declared section 11(c) of the 1973 Act, and the interpretation of that rule as per Corbett, an interference with a post-operative male-to-female transsexual’s right to marry a male person. Since the Scottish courts are not bound by this line of authority, and section 5(4)(e) of the Marriage (Scotland) Act 1977 has yet to be interpreted by national courts, this pre-existing declaration of incompatibility may provide an additional impetus to Scots law to develop an alternative interpretative approach to that laid down in Corbett. Divorce (Scotland) Act 1976 and Family Law (Scotland) Act 1985 The Divorce (Scotland) Act 1976 governs divorce in Scotland, section 1 of which provides that a court may grant a decree if the marriage has broken down irretrievably (section 1(1)(a)) or if an interim GRC has, after the date of the marriage, been issued to either party (section 1(1)(b)). The law concerning financial provision on divorce, and indeed also relating to civil partnerships, is contained in the Family Law (Scotland) Act 1985. This provides that each party must receive a fair share of the matrimonial property, where fair is determined by the court in all the facts and circumstances. This may or may not amount to a 50:50 split. The parties in the present case have argued that the 1985 Act would leave R disadvantaged, in terms of property rights, should the couple form a civil partnership, because the rights governing partnership property obtained prior to the registration of the civil partnership differ from those pertaining to property obtained prior to marriage. However, since lodging this application on 30 September 2005, the 1985 Act has been amended by the Civil Partnership Act 2004 and the Family Law (Scotland) Act 2006 such that the rules for married couples and those in a civil partnership are the same. Though clearly not the applicants’ desired outcome, this means that R would now have greater protection in relation to property entitlements within a civil partnership than previously. Divorce also has consequences for succession rights. For example, parties lose spousal entitlements, and cease to have spousal protection under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. There are also consequences in terms of taxation and the law of evidence, as well as damages claims in the law of delict under the Damages (Scotland) Act 1976. Civil Partnership Act 2004 The Civil Partnership Act 2004 (CPA 2004) came into force throughout the UK on 5 December 2005. It provides a mechanism whereby same-sex couples can formally register their union by means of a civil partnership. Civil partnership is akin to marriage but does not exactly mirror the rights and responsibilities provided by marriage. For example, there are differing requirements concerning the formation of civil partnerships and civil marriages in Scotland, in particular in relation to nullity. COMPLAINTS A number of complaints form the basis of this application. F complained under Article 8 of the European Convention on Human Rights (ECHR) that section 4

R and F v UK Application 35738/05 2005  137 of the GRA 2004, which essentially requires her to divorce prior to obtaining a GRC, amounts to interference with her right to private life, because she was unable to have her acquired gender legally recognised while remaining married. F also complained that there was an infringement of her right to family life, as the state was forcing the couple to terminate their marriage contrary to their wishes. Both applicants complained that the requirement to divorce violated their Article 12 ECHR rights to marry and found a family and that, under Article 13 ECHR, they had no effective remedy regarding the violations of their other ECHR rights. F complained that the divorce provisions in the GRA 2004 amounted to discrimination under Article 14. I. THE GOVERNMENT’S PRELIMINARY OBJECTION The UK government argued that this application was inadmissible on the basis that the applicants had not exhausted all domestic remedies as required by Article 35(1) ECHR. They argued that the applicants ought to have raised an action in the Scottish courts, seeking a declaration of incompatibility under section 4 of the HRA 1998. The applicants argued that a declaration of incompatibility was not an effective remedy under the terms of the Convention because no change to the law would be required to be made. Additionally, the applicants argued that the weight of a declaration of incompatibility issued by a domestic court was substantially less than a declaration by this court that there had been a violation of the Convention rights. In determining the admissibility of the application, this court is mindful of the rules that are clearly set out in Article 35 ECHR to which the court must adhere, namely that all domestic remedies must be exhausted before lodging an ­application. It is true that the applicants have not raised this issue before the domestic courts. However, this court also acknowledges, in line with the applicants’ claim, that a declaration of incompatibility has previously been held not to be an effective remedy within the meaning of Article 35(1) because the outcome is merely a recommendation to change the law; there is no guarantee that reform will follow (Hobbs v United Kingdom (no 63684/00 (dec) 18 June 2002); Walker v United Kingdom (no 37212/02 (dec) 16 March 2004); and Pearson v United Kingdom (no 8374/03 (dec) 27 April 2004)). Any remedy that would be available in the domestic courts would be reliant upon the relevant government minister amending the legislation in question. Such an approach, in this court’s opinion, does not amount to an effective remedy. Therefore, we agree that the applicants are not required to have exhausted all domestic remedies before raising this application; and the UK government’s preliminary objection is rejected. II. ARTICLE 8 OF THE CONVENTION The primary question is whether or not requiring a married person to divorce prior to being able to obtain legal recognition of their gender identity amounts to a violation of Article 8.

138  Carolynn Gray A. The Parties’ Submissions The UK government has accepted that the provision in section 4 of the GRA 2004 that requires a married person to divorce prior to obtaining a GRC engaged Article 8 in terms of private life but not in terms of family life, since the right to marry is covered by Article 12. Further, the government has argued that Goodwin v United Kingdom ([GC] no 28957/95 (dec) 11 July 2002) left the issue of impact on prior subsisting marriage, in this context, within the state’s margin of appreciation, and that the issue had been debated extensively during the enactment of the legislation. The government has also argued that marriage law, in Scotland and elsewhere, is intrinsically linked with social and religious values, which indicates the need for a wide margin of appreciation. The CPA 2004 had recently been enacted, allowing transsexuals in the position of the applicants to formalise their relationships; therefore, the fact that the GRA 2004 section 4 requires married applicants to divorce before a full GRC can be issued is a proportionate response that falls within the state’s margin of appreciation. The government has argued that the provisions in the GRA 2004 on this matter were broadly in line with the approach taken in the few Contracting States which allowed for legal recognition of transsexuals. In contrast, F has argued that there had been interference with both her and her spouse’s private and family life under Article 8. Indeed, requiring a married couple to divorce, and essentially separating a family, was a serious interference. F has also argued that the notion that social and moral values required special protection to be afforded to marriage, such that it could only be entered into by a man and a woman, was untenable, particularly given that the state had chosen to formalise same-sex unions via civil partnerships. Situations were relatively rare in which a spouse was transitioning/had transitioned and the parties wished to remain married. Therefore, allowing such couples to remain in their marriage could hardly be thought to lead to a flood of applications. Moreover, F has disagreed with the government’s interpretation of the Goodwin judgment, in particular on the importance of affording Contracting States a wide margin of appreciation, and highlighted the growing international trend towards legal recognition of ­transsexuals. F has also argued that the requirement to divorce carries a substantial financial cost to the applicants because the only way to protect their property rights would be to seek a decree of divorce with an order for financial provision or draw up a minute of agreement outlining the division of their matrimonial property. Furthermore, reforming their relationship in a civil partnership – which itself would incur a fee – would not offer the couple the same level of protection and social standing that they enjoyed under marriage. B. The Court’s Assessment Family Life The applicants argued that the protection of family life, under Article 8, was engaged because their family life was in existence as a result of being married and

R and F v UK Application 35738/05 2005  139 the requirement to divorce infringed the existing right. As previously held by this court, ‘family life’ is not reliant upon any formal legal relationship between the parties (eg, Johnston and Others v Ireland (no 9697/82 (dec) 18 December 1986); Kroon and Others v the Netherlands (no 18535/91 (dec) 27 October 1994)). Rather the question of whether or not it exists ‘is essentially a question of fact depending upon the existence of close personal ties’ (Marcx v Belgium (no 6833/74 (dec) 13 June 1979); K and T v Finland (no 25702/94 (dec) 12 July 2001)). Therefore, the concept of ‘family life’ as protected by Article 8 is much wider in scope than the right to marry, as protected by Article 12, and ‘family life’ is much more capable of offering broader recognition of the different ways in which individuals seek to form relationships and live their lives together than is Article 12. Consequently, we find the applicants’ assessment of the situation more convincing than that of the UK government, who maintained that the family life component of Article 8 was not engaged. Nonetheless, as this application essentially regards matrimonial and divorce law within one of the Contracting States, it falls to this court to reiterate that in such instances states do enjoy a wide margin of appreciation. In addition, it requires to be restated that domestic matrimony and divorce law fall within the scope of Article 12 ECHR. Thus, as per the rule of lex specialis, any ruling of this court in relation to matrimony or divorce law of the respondent state in terms of Article 8 rights falls to be overruled by any competing rulings in relation to the interpretation of rights within Article 12. For that reason, we will not further consider the alleged interference with the applicants’ family life under Article 8. Private Life The second aspect of Article 8 which requires to be considered is the alleged interference with the applicants’ private life. This has been interpreted to include a wide range of personal characteristics and has placed on respondent states wide-­ ranging positive obligations to enable citizens to enjoy the full scope of the right. A particularly important aspect of one’s private life is one’s sexual identity, both in terms of sexual orientation and gender identity. This court has ensured that citizens’ sexual identity rights have been given rigorous protection. States now enjoy a much narrower margin of appreciation than previously, on the basis that ‘when the relevant restrictions concern “a most intimate part of an individual’s private life”, there must exist “particularly serious reasons” before such interferences can satisfy the requirements of Article 8(2) of the Convention’ (Smith and Grady v United Kingdom (no 33985/96 (dec) 27 September 1999) paragraph 89 – citing Dudgeon v United Kingdom (A/45 (dec) 23 September 1981) paragraph 52)). The present application certainly concerns a most intimate part of an individual’s private life: the right to have one’s gender identity recognised and one’s relationship respected by law. Therefore, the respondent state has a particularly difficult burden to overcome in showing that the current state of domestic law – in requiring the applicants to divorce – is based on sufficiently serious reasons. Article 8 is engaged when considering the rights of recognition for post-operative transsexuals and the situation in the present application is analogous to previous

140  Carolynn Gray applications (Rees v United Kingdom (no 9532/81 (dec) 17 October 1986); Cossey v United Kingdom (no 10843/84 (dec) 27 September 1990); X, Y and Z v United Kingdom ([GC] no 21830 (dec) 22 April 1997); Sheffield and Horsham v United Kingdom (no 22985/93, 23390/94 (dec) 30 July 1998); Goodwin v United Kingdom; and I v United Kingdom (no 25680/94 (dec) 11 July 2002)). In prior cases on this issue, this court has been asked to consider the rights to legal recognition in their acquired gender of individuals who had undergone medical reassignment procedures. In each of the cases prior to Goodwin the court found no violation of the applicants’ rights under Article 8 as the state was under no positive obligation to ensure such legal recognition of post-operative transsexuals within domestic law. This was because, as the court in Cossey (­paragraph 37) stated, the term ‘respect’ in Article 8 ‘is not clear-cut’ and: In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. Legal recognition of transsexual individuals fell within Contracting States’ margin of appreciation, which, at the time, was wide; Goodwin, however, changed the leeway afforded to the state in such instances. In Goodwin, much was made of the state’s positive obligations under Article 8, but consideration was also given to changing social circumstances, growing acceptance of transsexuals, and broader questioning of what it means to be a man or woman within the law. Previous judgments had made it clear that, in relation to the rights of transsexuals, the respondent state, namely the UK, was to monitor the law and make changes where necessary. In Goodwin, the time had come for this court to require those changes: no longer was it appropriate to leave such important rights to the whim of the legislature. The Convention is a living instrument and we must be mindful that the purpose of the Convention is ‘first and foremost a system for the protection of human rights’ (Chapman v United Kingdom ([GC] no 27238/95 (dec) 18 January 2001) ­paragraph 70). This court noted in Goodwin, paragraph 74 that: It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement. Since Goodwin, Contracting States are required, under Article 8, to ensure that transsexual citizens are fully able to participate in civil society in their acquired gender. It is no longer possible for states to argue that the interests of wider society override the rights of transsexual citizens. The time has come for this court to once again consider how to ensure that the rights contained in the Convention are ­realised as practical and effective rather than theoretical and illusory.

R and F v UK Application 35738/05 2005  141 In Goodwin, this court did four important things which require to be followed in this case. First, it gave greater weight to the interference with the applicant’s rights than had been done previously; secondly, it moved away from the complex issue of aetiology of transsexuality; thirdly, it put more emphasis on the growing international trend towards the legal recognition of acquired gender; and fourthly, and perhaps most importantly, it placed the applicant at the forefront of the debate. In so doing, the court stopped balancing the infrequency of the interference with transsexuals’ rights against the perceived concerns of the moral majority, and instead asked whether a ‘concrete or substantial hardship or detriment to the public interest [had] been … demonstrated as likely to flow from any change to the status of transsexuals’ (Goodwin, paragraph 91). This now means that the state is required to prove that there is an overriding public interest in maintaining laws which are detrimental to transsexual applicants. It was possible for this court to reach the decision in Goodwin because, a mere couple of months prior, the decision in Pretty v United Kingdom (no 2346/02 (dec) 29 August 2002) was handed down. Pretty, a case concerned with assisted dying, developed the concept of personal autonomy as a key aspect of the right to private life. Importantly, in Goodwin, this court also moved away from the idea that one’s sex is fixed at birth and that one’s birth sex informed one’s legal rights. The right to develop one’s sense of self is such a fundamental aspect of the right to private life, as protected by Article 8, that the court fails to see how this right is not infringed by a domestic provision which requires a citizen to choose between having her acquired gender recognised for all legal purposes, or remaining legally married as one sex while living, and being accepted by society, as a member of the opposite sex. Although the margin of appreciation exists to provide states with a certain amount of discretion, that cannot operate in a manner which infringes a fundamental aspect of one’s identity such as sexual or gender identity (Smith and Grady, paragraph 89). Consequently, we find that this part of the application is admissible. III. ARTICLE 12 OF THE CONVENTION A. The Parties’ Submissions The applicants complained that the requirement to obtain a divorce infringed their Article 12 right to marry. The UK government submitted that this right was limited to marriage as traditionally conceived between male and female persons, as had been recently upheld by this court in B and L v United Kingdom (no 36536/02 (dec) 13 September 2005). The government argued that as the respective gender of the parties was relevant when determining who could enter a marriage, it was equally relevant when determining whether or not there was a right to remain married following gender confirmation surgery. Additionally, it was argued that there was no violation of Article 12 because the parties were not being forced

142  Carolynn Gray to divorce; they could remain married albeit with the second applicant, F, not being able to be granted a full GRC. In addition, the government noted that the right in Article 12 was not absolute but subject to ‘the national laws governing that right’, the only restriction applying to the national law being that it could not restrict or reduce the right such that its very essence was impaired (B and L v United Kingdom). The applicants countered that previous case law under Article 12 all concerned individuals seeking to enter into a marriage and was not, therefore, applicable to persons in their situation (ie those who were already in a marriage). B. The Court’s Assessment The right in Article 12 can be broken down into four constituent parts: (i) it is given to men and women of marriageable age; (ii) it is a right to marry; (iii) it is also a separate right to found a family; and (iv) it is subject to the national laws governing that right. The two important aspects of Article 12 for current purposes are the second and fourth of these. In determining whether or not the applicants’ Article 12 right is infringed, three issues require to be explored: (1) how has this court interpreted Article 12 in recent years? (2) What is the position taken in domestic law in relation to a transsexual person’s right to marry? (3) What would be the position had the Scottish courts been asked to examine the applicable legal provision? (1) This Court’s Interpretation of Article 12 The applicants, should they be allowed to remain in their marriage while the second applicant, F, is granted a full GRC, would essentially be in a same-sex marriage. Contracting States have a wide margin of appreciation in the area of matrimonial law. However, it is not permissible for Contracting States to restrict rights such that the very essence of Article 12 – being the right of opposite sex couples to marry (Rees, paragraph 49) – is undermined (F v Switzerland (no 11329/85 (dec) 18 December 1987, [32]); Rees paragraph 50). European-wide consensus has been of less importance to this court in the interpretation of Article 12 rights than it has been in respect of other Convention rights, precisely because of this respect for the wide margin of appreciation. As noted in F v Switzerland, paragraph 33: The fact that, at the end of a gradual evolution, a country finds itself in an isolated p ­ osition as regards one aspect of its legislation does not necessarily imply that that aspect offends the Convention, particularly in a field – matrimony – which is so closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about the family unit. At the present time, only three Contracting States have provided for the legal recognition of same-sex marriage. Thus, it cannot reasonably be said that we have reached the end of a gradual evolution with the UK standing alone in its adherence to a traditional form of marriage. Restrictions on the right to marry for

R and F v UK Application 35738/05 2005  143 particular groups of people have not been held to amount to a violation of the essence of the Article 12 right, for example in relation to the rights of immigrants, prisoners and same-sex couples. This court has considered the Article 12 rights of transsexuals several times and, although the cases all concerned applicants who wished to enter into a marriage with their partner, as opposed to being forced to dissolve a happy marriage, this strand of case law should not be ignored. In Rees, it was held that the nature of Article 12 is to protect marriage as between members of the opposite sex. Cossey may have offered the possibility of some expansion, as the majority of the Commission felt that there had been a violation of the applicants’ Article 12 rights. However, the court in Cossey (paragraph 40), held that there had been insufficient developments to enable departure from the Rees judgment and continued to adhere to the conventionally biological basis for determining sex, noting (paragraph 46): That attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of Contracting States to regulate by national law the exercise of the right to marry. Though determining that Article 12 protected traditional marriage and that transsexual applicants remained the legal sex registered on birth despite any medical interventions, the court’s decision in Cossey is important for its recognition that the scope of Article 12 was subject to national law – in other words, that there is no reason for maintaining marriage as being between a man and a woman, determined by sex at birth, other than that domestic law requires it, and that should states wish to take cognisance of developments in science in relation to the diagnosis and treatment of gender identity disorder and thus amend matrimonial laws to allow transsexual citizens to marry in their acquired gender, then that is the state’s prerogative. To date, no Contracting State has availed themselves of this option, but there remains the question of what it means – now – to be a man or woman for the purpose of marriage law. Certainly, post-2000, as evidenced by Goodwin, this court has taken a more progressive approach. In Goodwin, this court determined that post-operative transsexuals could not be prohibited from marrying someone of the opposite sex. The issue of the nature and purpose of marriage was explored in that case, and it was observed that the right to marry is not linked to the right to found a family; rather, they are two separate rights contained within one Article. Whereas in Cossey concern had been raised in relation to the nature of marriage as being the basis upon which to raise children, Goodwin (paragraph 98) firmly rejected this notion: Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.

144  Carolynn Gray This accords with the dissenting opinions expressed by Judge Martens in Cossey who was of the view that the court had ‘cogent reasons’ for departing from its Rees judgment. For Judge Martens, a true reconsideration of the issues arising under Article 8 and 12 in Cossey should have led the court to conclude that the Rees judgment was wrong; or at least that present-day conditions warranted a different decision (Cossey, paragraph 1.1). Specifically in relation to Article 12, Judge Martens noted the language used and argued that, in dismissing Rees’ A ­ rticle 12 claim, the majority of the court ‘interprets “men and women” in Article 12 as denoting “persons of the opposite biological sex”’ (Cossey, paragraph 4.3.1). As early as Cossey, therefore, this court expressed its willingness to develop this area of law and ensure progressive interpretation of Convention rights that keep pace with contemporary social and scientific understandings. Judge Martens’ observation on the legal nature of marriage is a warning to this court in the present case that ‘marriage is far more than a union which legitimates sexual intercourse and aims at procreating: it is a legal institution which creates a fixed legal relationship between both the parties and third parties (including the authorities)’ (Cossey, paragraph 4.5.2). The nature of marriage has changed throughout time, and courts and legislatures have been willing to interpret Article 12 in a manner consistent with societal expectations. While this court may question why there is such a need to adhere to the traditional format of marriage in the UK at this point in time, when a consequence of doing so would be to require a happily married couple to terminate that legal relationship, the width of the margin of appreciation and the fact that the right encompassed by Article 12 is to traditional marriage, entails that we cannot compel a change to widen the scope of marriage as the applicants would have us do. However, given the changing nature of marriage, and particularly given that the understanding of marriage expressed in Corbett is no longer one which a large proportion of the population would recognise, this court urges the respondent state to continue to review and reflect on the social and scientific currency of its matrimonial laws. (2) The Position Taken in Domestic Law in Relation to Transsexual Persons’ Right to Marry There has been little opportunity for the domestic courts of the UK to analyse the rights of transsexual people to marry. The first case was Corbett in which the court determined that ‘legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship’ (Corbett, page 105E, emphasis added). Generally, one’s sex is not a material factor in relation to the law, for example of tort or contract. In some instances, it is relevant but not determinative, for example in relation to life assurance, employment, or taxation. However, for the court in Corbett, ‘sex is clearly an essential determinant of the relationship called marriage because it is and always has been recognised as the union of man and woman. It is the

R and F v UK Application 35738/05 2005  145 institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element’ (Corbett page 105G–H). The court linked the right to marry with the ability to have ‘natural heterosexual intercourse’ and noted that ‘the characteristics which distinguish [marriage] from all other relationships can only be met by two persons of the opposite sex’ (Corbett, pages 105H–106A). Though the case before us is one arising from and engaging Scots matrimonial law, key points that might, on first glance, be thought to be transposed from Corbett’s English authority are: how to determine a post-operative transsexual’s sex for the purpose of marriage, and whether a postoperative transsexual is capable of consummating a marriage. Yet, this ‘first glance’ belies the limitations of Corbett as a relevant precedent in the current case, since while consummation is a requirement of marriage in England and Wales, it is not in Scotland. More broadly, this court is of the opinion that the use of Corbett as precedent is questionable. At the time that English case was before the domestic courts in 1971, there were competing opinions on transsexualism, particularly from the medical profession. The domestic judge opted to discount medical evidence that sex and gender are distinct categories, and that one’s gender identity is a naturally occurring psychological rather than biological state. Such evidence would have supported a finding that the respondent was female for the purpose of marriage law. The Corbett ruling was considered by the UK House of Lords as recently as 2003 in Bellinger where, in line with the decision of this court in Goodwin, a declaration of incompatibility was issued, which expressly provided that, as of April 2003, English marriage law – and presumably Scottish marriage law to the extent that it also required marriage to be between a man and woman – was contrary to the rights contained in Articles 8 and 12. At issue in this application, then, is whether, in the absence of any Scottish precedent expressly either confirming or departing from the approach in Corbett, and in light of the passing of time since that decision, which has prompted the House of Lords in Bellinger to take a different approach under English law, a Scottish court would, in 2006, take a more progressive approach to interpreting section 5(4)(e) of the 1977 Act, such that it may be technically at liberty to do if it has never in fact adopted the authority of Corbett. (3) What would be the Position had Scottish Courts been Asked to Consider this Application? Whereas English law – following Corbett in 1971 – developed biological criteria as the determinant of legal sex for a number of areas of law, including matrimony, no such rule has been developed by the Scottish courts. All the case law mentioned in this decision derives from the Corbett rule and it cannot be said categorically that section 5(4)(e) of the 1977 Act in Scotland would have been interpreted in the same way as section 11(c) of the Matrimonial Causes Act in England, to preclude post-operative transsexuals in the position of the applicants from being

146  Carolynn Gray denied the ability to marry. Nonetheless, following the enactment of the ­Scotland Act 1998 and the devolution of power to a Scottish Parliament, including in relation to matrimony law, the interpretation of the relevant Scottish legislative provision is surely best left to the Scottish courts, with any remedial legislative changes falling within the remit of the Scottish Parliament. The issue raised in this case is not just one of determining what makes one male or female for the purpose of marriage law in the jurisdictions of the UK; it is also a constitutional issue for the UK Parliament and devolved assemblies to consider. Had the applicants raised this issue before the domestic courts in Scotland, those courts could have followed the interpretation of section 5(4)(e) given by the English courts, but they could also just as easily have departed substantially from that jurisprudence, particularly given the significant and welcome social and scientific developments in relation to the understanding of gender identity formation and acceptance of gender-variant persons which has developed in the years since Corbett. The question ‘How would the Scottish courts have interpreted the requirement that persons to a marriage be male and female?’ cannot therefore be definitively answered without first asking the Scottish courts. However, numerous principles can be applied to provide some degree of guidance. The first pertains to the impact that the Goodwin judgment may have had. Goodwin held that there had been a violation of the applicant’s Article 8 and 12 rights. The HRA 1998 section 3 places an obligation on the Scottish courts to interpret section 5(4)(e) as far as possible in a manner compliant with the jurisprudence of this court. Thus, it is far from inconceivable that, in 2006, Scots law would seek a progressive interpretation of section 5(4)(e) to include persons in the same position as the applicants within the words ‘male’ and ‘female’. For those reasons, this court is of the opinion that the law in Scotland, as it applies to these applicants, should be examined. For these reasons, the court unanimously declares the application admissible. TL EARLY

Carolynn GRAY

Registrar

President

Commentary on R & F v the United Kingdom BECKY KAUFMANN

In the original decision in R & F v the United Kingdom, the court chose to reject the petition. In her feminist judgment, Judge Gray has chosen to grant it. In so doing, she has engaged in a fundamental shift in the application of the power of the court as it applies to a historically oppressed group. The law places a high value on a decision-maker’s ability to connect current decisions with historical precedent. It thus firmly sets itself up as a structure that is well suited to maintain the status quo. As a feminist sociologist, I am concerned with how established structures perpetuate ruling relations, and how these ruling relations entrench systemic inequality. Law clearly has a key role to play in this. Power over these established structures, and the frames of knowledge used to describe and justify them, has historically been held in the hands of a limited group of people – specifically, straight, cisgender, able-bodied, middle-class, educated white men of European Christian descent. The concentration of control in this manner establishes a male dominated elite, which is both motivated and able to manipulate these structures for the perpetuation of its own power. From the second half of the twentieth century, feminist theorists have ­challenged the exclusive claim to knowledge held by this patriarchal elite. In rewriting this case, Judge Gray puts into practice this shift in critical thinking. This case of R&F was filed in 2005 and rejected by the European Court of Human Rights (ECtHR) in 2006. At this time, the UK had implemented the Gender Recognition Act 2004 (GRA 2004) and the Civil Partnership Act 2004 (CPA 2004). The first of these Acts served to create a pathway to legal recognition of the lived gender of trans people in accordance with their rights under Article 8 of the European Convention on Human Rights (ECHR). The second created a marriage analogue for same-sex couples in line with Article 12 of the ECHR. R and F were a married couple who petitioned for a declaration of incompatibility regarding the requirement in the GRA 2004 that they should divorce before F could apply for full legal recognition of her lived gender. On its surface, this was a straightforward case of whether or not domestic laws in the UK sufficiently protected the petitioners’ Article 8 and 12 rights. Socially, lesbian, gay and bisexual people were gaining visibility and acceptance at this time. Trans people, on the other hand, remained largely invisible, and their

148  Becky Kaufmann acceptance by the public lagged significantly. This can be seen in the 2010 Scottish Social Attitudes Survey, which showed that 54 per cent of the Scottish population would be unhappy or very unhappy if a member of their family was in a relationship with a trans person.1 In the parlance of legislative change, when R & F came before the courts, the ink was barely dry on the GRA 2004 and the CPA 2004. Because of this, the UK government could hardly have been accused of failing to address the human rights of trans people through domestic legislation. What R and F were asking the court to do, though, was to recognise that – in spite of the advancement that these ­statutes offered to the broad populations of trans people and same-sex couples – a small subset of these groups was still disadvantaged in a way that was intolerable and in breach of their human rights. When it comes to the rights of trans people, the ECtHR has had a history of preferring maintenance of the status quo to forcing change on Member States. Goodwin and I v UK (2002), which set in motion the GRA 2004, was only the last in a series of cases brought by trans people in the UK asking the law to grant them legal recognition (Rees v UK [1986]; Cossey v UK [1990]; X,Y & Z v UK [1997]). While previous cases had made minor concessions to advancing the cause of trans people, they had failed to require such legal recognition on the premise that the UK, and Europe as a whole, was not yet ready for such change.2 Although R and F asserted that there was a trend across Europe to recognise same-sex marriages, the ECtHR stood by the position that it should not push Member States into social change. In so doing, it confirmed its status as the ­maintainer of established social structures instead of the voice for oppressed groups. Societies depend on order, and continuing norms and values for their survival. The law is an instrument for maintaining order. It is equally a tool for those in power to impose their norms and values on disadvantaged groups. For the ­privileged, any concession of equality to the disadvantaged poses a threat to the status quo and thus to their position of privilege. Because of this, power structures are set up and supported to restrict access to privilege for disadvantaged groups. Ultimately, what allows the feminist rethinking of this case to reach the opposite conclusion from the original decision is a critique of power. The feminist reinterpretation moved us into the space where established power structures can be overthrown and the law can serve as a tool to empower rather than oppress. The ECtHR took a problematic position when it expressed concern that, by allowing R and F to remain married, it would open the door to using the gender recognition process to bypass national prohibitions on same-sex marriage. In doing this, the Court gave credence to a strategy that has long been used by

1 ScotCen Social Research, ‘Scottish Social Attitudes Survey, 2010’, computer file (Colchester, UK Data Archive, May 2012), available at: dx.doi.org/10.5255/UKDA-SN-7018-1. 2 C Burns, Pressing Matters, 2nd edn (Christine Burns, 2013).

Commentary on R and F v the United Kingdom  149 opponents of rights for oppressed groups. This strategy involves creating a hypothetical person who would fraudulently use the proposed rights for nefarious purposes. This is akin to the current narrative being pushed in the UK in ­opposition to contemporary reforms of the GRA 2004, which implies that sex offenders will pose as trans people to gain illegitimate access to gender-specific services and, thereby, potential victims. A particularly insidious method by which those in power impose their will on disadvantaged groups is the creation of deviance and stigma.3 Trans people have been labelled as deviant for years. The clearest example of this is that, in spite of advice from the World Professional Association for Transgender Health that this diagnosis stigmatises and unfairly disadvantages trans women,4 the DSM V continues to include it.5 Another example is the historical diagnosis of transfeminine identities as a form of fetishistic cross-dressing.6 All people engage daily in some variation of choosing their clothes. What we wear is an extension of what we feel about ourselves and how we wish others to perceive us. People dress for success, dress to impress, dress to blend in, dress to stand out – and for many other reasons, and most of them are never accused of deviance. There are varying levels of policing applied to clothing, especially for women, but it tends to only be considered deviant when it crosses established norms of gendered clothing, and is done by those assigned male at birth. The truth is that gendered clothing norms are fluid and have historically evolved as the result of people transgressing them. In a sociological sense, this creation of deviance is facilitated by a process known as nominalisation.7 Nominalisation occurs when verbs, for example ‘organise’ and ‘institute’, are converted into nouns (ie ‘organisation’ and ‘institution’). This process of nominalisation is applied to individuals who deviate to create the overarching concept of deviation, or its pejorative counterpart deviance. It is this shift to the pejorative that is telling in the experience of trans people. In spite of wide recognition that the majority of people who cross-dress do not do so for sexual gratification,8 this behaviour remains stigmatised as sexually deviant in standard clinical diagnoses. This process erases the nuances of individual experience for the efficiency of conceptualising an institutional whole. The nuanced act of a trans woman choosing her clothing is reduced to a sexual fetish. 3 HS Becker, Outsiders: Studies in Sociology of Deviance (New York, Free Press, 1997). 4 L Gijs and RA Carroll, ‘Should Transvestic Fetishism be Classified in DSM 5? Recommendations from the WPATH Consensus Process for Revision of the Diagnosis of Transvestic Fetishism’ (2010) 12 International Journal of Transgenderism 189, available at: doi.org/10.1080/15532739.2010.550766. 5 See: www.psychiatry.org/psychiatrists/practice/dsm 6 AA Lawrence, ‘Erotic Target Location Errors: An Underappreciated Paraphilic Dimension’ (2009) 46(2/3) Journal of Sex Research 194. 7 DE Smith, Institutional Ethnography: A Sociology for People (Lanham, MD, Rowman Altamira, 2005). 8 K Winters, ‘Ten Reasons why the Transvestic Disorder Diagnosis in the DSM-5 Has Got to Go” (GID Reform Weblog by Kelley Winters, 16 October 2010), available at: gidreform.wordpress. com/2010/10/16/ten-reasons-why-the-transvestic-fetishism-diagnosis-in-the-dsm-5-has-got-to-go/.

150  Becky Kaufmann Those who hold the power in society and are able to control how things are defined will usually argue that nominalisation does not erase the individual, but merely provides an easier way to understand things. Through the lens of privilege, this would certainly appear to be true. But this process necessarily leaves out detail and destroys nuance. In her discussion of the role nominalisation plays for the institutional ethnographer, Dorothy Smith argues that the mechanisms described by Karl Marx in Das Capital9 that operate to concentrate power in the hands of the owners of capital also operate in concentrating other, non-economic forms of power.10 In addition to being a feminist sociologist, I am an equalities campaigner. I  work for a world where, as Judith Butler suggests, all lives are grievable and have value.11 Trans people lack agency and remain disadvantaged in society. In addition to a lack of social acceptance, they experience high levels of hate crime that are not subsiding. In 2012, 73 per cent of trans people in the UK reported having ­experienced hate crime,12 and in 2017 the number had actually risen to 80 per cent.13 Following on from Howard S Becker’s assertion that the creation of deviance is a tool for keeping disadvantaged people oppressed, we can see this treatment of trans people as a way of denying them agency and access to equality. The ECtHR recognised that R and F were a married couple who wished to remain married after F received gender recognition. The Court acknowledged that they represented an extremely small subset of the already small group of people who would seek gender recognition. In deciding the case, the Court had a choice as to whether to see this small number of people as being too small to disrupt societal order if their rights under Articles 8 and 12 were affirmed, or to see them as so insignificant as to not be worthy of consideration. The Court chose the latter. In granting a hearing for R and F, Judge Gray’s feminist judgment makes a statement that trans people have access to their human rights, no matter how small a minority they may be.

9 K Marx, Das Kapital, S Moore (trans) (Scotts Valley, CA, Createspace Independent Publishing Platform, 2011). 10 That is, not necessarily economically centred, see Smith, above n 7. 11 J Butler, ‘My Life, Your Life: Equality and the Philosophy of Non-Violence’ (University of Glasgow, Lecture Series, 1 October 2018). 12 J McNeil et al, ‘Trans Mental Health Study 2012’ (Edinburgh, Scottish Trans Alliance, 2012). 13 H Pearson, ‘Scottish LGBTI Hate Crime Report 2017’ (Edinburgh, Equality Network, 2017).

Reflective Statement: R & F v United Kingdom CAROLYNN GRAY

The judgment of the European Court of Human Rights (ECtHR) in R & F v United Kingdom shows a tension within the Court which, had the Court been more willing to be progressive, could have fundamentally quickened not only the acquisition of the rights of trans individuals but also of the wider LGBTQI+ community within the Contracting States. As a member of this community I cannot help but wish that the ECtHR had been braver in 2006. It is a small point to note, and one that might have been easily missed, but throughout the original judgment, and indeed also within my rewriting of it, F’s identity as female was consistently respected through the use of female pronouns. This respect given to F’s gender identification as female, acknowledging that she had undergone medical treatment (both in the form of initial diagnosis of gender dysphoria, through to taking steps to medically transition), despite the fact that the law continued to sex her as male shows how far members of the legal profession, as well as society in general, had come by 2006; it had become the norm within legal judgments to respect individuals’ gender identification and gender expression, despite rulings often going against that identification, and this apparent contradiction highlights a tension between societal acknowledgment of trans people’s rights and the wording of the law. On this point, another issue of terminology requires to be raised. Throughout the rewritten judgment the words ‘sex’ and ‘gender’ are used, many might argue interchangeably. This is a deliberate reflection of the way that judgments continue to use the terminology interchangeably. The reality is that the Gender Recognition Act 2004 (GRA 2004) was of no help in clarifying the terminology. The GRA 2004 talks (mostly) about gender rather than sex, whereas the majority of case law discusses sex rather than gender. From the wording of the judgments it is clear that when courts talk of gender they really are referring to sex, but it is in the wording of section 9 of the GRA 2004 that the confusion is most evident. Section 9 provides that: Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

152  Carolynn Gray This section confuses the terms sex and gender. ‘Gender’ should be thought of as the psychological identification as male or female, while ‘sex’ is used to describe one’s biological/physiological state of being male or female. The GRA 2004 requires no changes to be made to one’s body prior to obtaining a Gender Recognition Certificate (GRC). This is, of course, the correct approach. The granting of a certificate is an administrative process that recognises the applicant’s gender identification rather than sex. To be granted a certificate, an individual must have a diagnosis of gender dysphoria, and psychological and medical literature states that the appropriate ameliorative treatment for gender dysphoria is hormonal/surgical rather than psychological. However, these processes are seen as distinct from the legal recognition of gender because requiring one to change one’s body in order to be granted a GRC places an undue burden on individuals (some of whom are unable to undergo certain medical procedures), and would in turn require the state to enable much better access to medical procedures and healthcare – see L v Lithuania (2008) 46 EHRR 22. However, the consequence of not requiring physiological changes is that it is one’s psychological identification, ie, gender, rather than sex, that is being legally recognised. Thus, section 9 performs a strange sort of transformation which takes psychological gender and turns it into legal sex. In not correcting this confusion in my judgment, I make a conscious decision to mirror what – for all its limitations – would have been the common way of speaking about sex and gender at the time, as the court indeed did in Goodwin itself. In the time that has passed since R & F, a mere 13 years, a huge amount of progress has been made in relation to LGBTQI+ rights, but much still requires to be done. The UK has seen the introduction of same-sex marriage in almost all jurisdictions (it unfortunately still remains illegal in Northern Ireland); this development is in spite of the ECtHR continuing to interpret Article 12 as providing a right only to traditional marriage. So, in the time taken since the judgment in R & F, the legislatures of the UK have, largely, overtaken the ECtHR in terms of the development of LGBTQI+ rights and this development continues to progress with the proposed reform of the GRA 2004 both by Westminster and the Scottish government. The issues raised in the court’s determination of the application now, in retrospect, seem overly contrived: the need of the court to strictly maintain the Corbett ruling for the purpose of marriage, when the authority of that ruling as precedent in Scotland was in doubt, and for determining that sex is immutably fixed at birth based on biology is now, almost, rendered redundant by the introduction of the Marriage (Same Sex Couples) Act 2013 in England and Wales and the Marriage and Civil Partnership (Scotland) Act 2014 in Scotland. I say almost because one’s legal sex is still, unfortunately, considered relevant when determining whether one can enter a ‘traditional’ marriage (under the Matrimonial Causes Act 1973 or the Marriage (Scotland) Act 1977), a ‘same-sex’ marriage (under the 2013 and 2014 Acts), or a civil partnership. The law thus continues to treat the sex of the parties as important when determining which level of rights and protections can be provided to them.

Reflective Statement: R and F v United Kingdom  153 The proposed reforms of the GRA 2004 are exciting for many of us within this community and, indeed, should prove to be fundamental to the legal profession also: to reform the GRA 2004 in such a way that bases legal sex on one’s self-determination and self-identification, free from the input of the medical profession, and free from the consideration of a panel of strangers, is a huge step forward. More importantly, the proposals of the Scottish government to bring further reform to provide legal recognition of non-binary gender identity brings the law into line with contemporary medical approaches to gender identification and the diagnosis of gender dysphoria, which now provides for recognition of gender as no longer necessarily binary.1 Proposed reforms will also require the law to re-examine its adherence to a binary understanding of sex – immutable and fixed at birth – which in turn will require reconsideration of the various matrimonial laws and civil partnership law. Perhaps, indeed, we are now moving towards true equality in this area of the law. The positive position in which we as members of the LGBTQI+ community find ourselves today would not have been possible had it not been for campaigners and organisations who raised awareness of the impact that law had on us as a community and for individuals such as the couple in this application who, with personal risk to themselves, challenged legal provisions that excluded us from full participation in civil society as ourselves. R and F are thanked for undertaking this application, for taking risks to make the law more inclusive, and for securing changes from which we would all ultimately benefit. I found rewriting this judgment challenging. The requirement to follow the rules of what a judgment should look and sound like, while showing a different outcome was in fact possible, was difficult. The original decision was a wholly legally valid decision; it accorded with the rules of legal interpretation and application at the time. However, given that I was able to also apply those rules of legal interpretation, and consider only the existing case law and legal principles to change the outcome of the application, alternative narratives and perspectives were clearly already ‘in the wings’, waiting to be used. Those alternative narratives include perspectives, and legal rules, which, from a postmodern feminist perspective, are no less ‘true’ than those that were originally applied by the courts; they also include narratives such as those provided by some of the medical experts in Corbett which, had they been accepted by the court in 1971, could have forever altered how UK law sexed an individual for legal purposes. The rewrite was also challenging because of the desire to be progressive and to highlight that sex and gender are not fixed concepts but, rather, that both exist along spectra in which there is considerable room for movement and redefining of one’s identifications: identifications as both masculine and feminine, but also as male and female. Indeed, even now, the notion of a spectrum of sex and gender, which has become more acceptable and more common within public discourse, has been

1 American

Psychiatric Association, Diagnostic and Statistical Manual 5, para 302.85.

154  Carolynn Gray surpassed by the need to reimagine how we as human beings experience our sex and gender: that is, a spectrum of sex and/or gender continues, problematically, to remain linear and binary. In 2006, when this judgment was handed down, talk of non-binary identity was not possible; no real acknowledgment existed that many individuals feel that the binary spectrum is incapable of encapsulating their experiences of sex and gender. So, it was difficult to remind myself that, at that time, a court would have been unable to have this discussion. The work by theorists such as Michel Foucault (although not a feminist writer) and Judith Butler, who was heavily influenced by Foucault, informed the approach I took in rewriting this judgment. I wish it had been possible to have been as progressive as Butler’s writing demands, but to do so would have been to discard completely the rules of legal writing and process to which I was bound as a judge. The court in R & F made a safe judgment, and perhaps that was all the court felt able to do at the time. However, had it been more willing to build on the work that was started by the Goodwin judgment – work which would have furthered trans rights much more quickly than occurred – a more progressive, less ‘safe’ judgment would have been possible. The court, in R & F, had the opportunity in 2006 to consider what it means to be a man or woman within the law, particularly in relation to the law of marriage in the jurisdictions of the UK, which had been so tied to the judgment in Corbett. This, for me, was the most problematic aspect of the R & F judgment because it made no attempt to question the validity of Corbett, not only as precedent in Scotland, but more specifically in terms of the symbolic aspects of the Corbett judgment which, over the years, had proven to be so damaging to trans individuals. Corbett was used for decades to determine that one’s sex is solely determined by one’s biology at birth and that psychological aspects of one’s gender identification are irrelevant, as are any steps individuals take to alter their bodies in ways that make sense to the individuals themselves. Having rewritten this judgment I now believe that it is time for a court, hopefully a Scottish court, to be given the opportunity to reconsider Corbett and to once and for all move away from the essentialist, binary approach that the law has taken in determining what makes someone male or female before the law.

8 White v White 2001 SC 689 Court of Session, First Division, on Appeal from the Sheriff Court Temporary Judge Norrie The Facts That the facts in this case are mundane, reflecting as they do a narrative of family breakdown all too often encountered in the courts, does not diminish the pain and anxiety they cause to the actors in this dispute, least of all to the child at its heart. The parties are the parents of two children, ‘K’ and ‘V’, whose marriage ended in 1997 with the granting of a decree of divorce when the children were 12 and six years old. They had separated around two years previously, the children remaining with the pursuer, and initially the defender saw the children around twice a week. After nine months, however, the defender moved to Scarborough to be near their recently widowed mother, and contact with the children continued mostly by telephone; there were occasional visits by the children to Scarborough. This relatively obliging state of affairs ended when the defender commenced a new intimate relationship, which in the event did not last. The catalyst was a telephone call between the defender’s new friend and the pursuer, which ended in a quarrel during which a threat was issued to remove the children from the pursuer’s care. The pursuer responded – some may say understandably, some may say harshly – by cutting all lines of communication with the defender and stopping all contact between the defender and the children. Decree of divorce was granted five months later, and, while the sheriff ordered that the children reside with the pursuer, no order was either sought or made in respect of contact between the defender and the children. However, a year after the divorce, the defender sought a variation of the interlocutor to include an order for direct contact every alternate Sunday. K, the older child, who is now 15 years of age, expressed a desire not to have any contact with the defender, who accepted this; and the case has been argued thereafter in relation to V only, who is presently nine years old. The pursuer opposes any contact. The Lower Courts’ Approaches The sheriff found for the defender, while the sheriff principal found for the pursuer. The fact that both applied the welfare test to the issue, as required by section 11(7) of the Children (Scotland) Act 1995, but nonetheless came to diametrically

156  Kenneth Norrie ­ pposite conclusions, illustrates the inherently protean nature of that test. The test o can be applied only when the courts populate the notion of welfare with factors we believe work for or against the interests of children. Effectively, the approaches of the sheriff and of the sheriff principal encapsulate the positions of each party. I agree with your Lordship in the chair that both approaches are flawed. In applying section 11(7), the sheriff found the decisive factor that affected the child’s welfare in section 1(1)(c) of the 1995 Act. This imposes on a parent who does not live with their child (such as the defender) an obligation to maintain personal relations and direct contact with that child on a regular basis. In the sheriff ’s view, Parliament’s imposing of this obligation puts into statutory form a ‘widely held belief; that the welfare of children is best served if they keep contact, and are afforded the opportunity to keep contact, with both parents’. The sheriff concluded that this meant that ‘only the strongest competing disadvantages will be likely to prevail to establish that the welfare of the child would not be served by allowing contact with the parent’. Evidently, the pursuer was unable to establish any such strong competing disadvantages, since the sheriff concluded that there was no suggestion that the defender’s contact with V would be in any way harmful to the child. It followed that the welfare of the child would be served by maintaining contact with the defender. For reasons I will expand upon below, I do not accept that there is anything in the 1995 Act that imposes a requirement on those opposing contact to find strong competing disadvantages to continued contact. The sheriff principal overturned the sheriff for much the same reason, regarding the approach taken by the sheriff as amounting to the judicial creation of a presumption in favour of contact which had no foundation in the 1995 Act. Yet, in doing so, the sheriff principal was to my mind also reading more into the 1995 Act than is actually there. In applying the welfare test, the sheriff principal focused not on section 1 of the 1995 Act but rather on section 11(7)(a), which directs that the court ‘shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all’. He concluded from these words (encapsulating what is commonly called the ‘no-order principle’) that it was for the parent seeking the order to demonstrate to the court’s satisfaction that the making of a contact order would promote the child’s welfare. He considered that no change had been effected by the 1995 Act to the pre-existing law which, on high authority, had held that the onus was on the parent seeking contact to show that some positive advantage to the child would accrue from the making of the order. This had been the approach of Lord Dunpark in Porchetta v Porchetta 1986 SLT 105 in relation to the married father, and of Lord Hope in Sanderson v McManus 1997 SC (HL) 55 in relation to the unmarried father. In Sanderson, Lord Hope eschewed the description of the need to establish some benefit from contact as a presumption against contact, preferring instead to see it as a ‘point of reference’ guiding decision-making.

White v White 2001 SC 689  157 Applying that approach to the present case, the sheriff principal considered that the defender had failed to show to the court’s satisfaction any positive advantage to V in maintaining contact with the defender, and so no order could be made. I have already rejected the sheriff ’s suggestion that the 1995 Act contains a requirement that those opposing contact must find strong competing disadvantages to its continuation. Likewise, I do not accept the sheriff principal’s suggestion that there is a converse requirement to show positive advantage before a contact order can be made. Instead, I seek to interpret the 1995 Act in light of what it is seeking to do. The Aims of the 1995 Act This is the first opportunity that this court has had to explore the implications of the Children (Scotland) Act 1995, and in particular both the nature and effect of section 11 and its underlying philosophy. The flaw in the reasoning of both the sheriff and the sheriff principal in this case is that they failed, in different ways, to acknowledge just how radical are the changes to the existing law effected by the 1995 Act. The premise behind that Act, no less revolutionary for being understated, is one of equality in parenthood. Its provisions were designed to recognise, and perhaps also to advance, a fundamental shift in society’s attitudes to the parenting role. The law has now jettisoned pre-existing stereotypical gender roles in parenting, which all too often underpinned earlier court decisions on custody and access, whereby a woman’s primary role in life was seen as mother and caregiver, and a man was regarded as the breadwinner who could afford to, or was obliged to, leave the nurturing of his children to his wife. Parents under the 1995 Act are to be seen as parents, broadly irrespective of their gender, and this allows both fathers and mothers to benefit from a greater parity in child-rearing. It is true that formal equality during marriage had previously been achieved under the Law Reform (Parent and Child) (Scotland) Act 1986, but that equality evaporated on ­parental separation, for thereafter parenting was no longer seen as a shared task but instead became one in which clear gender stereotypes resurfaced. Mothers tended to retain custody and – as pointed out by Wilkinson and Norrie in The Law Relating to Parent and Child in Scotland, 1st edn (Edinburgh, W Green, 1993) pages 229–30 – access (typically the father’s role) tended to be seen by the courts as no more than a qualification of the mother’s right. The 1995 Act sweeps away these gendered assumptions. It encourages parents to see their role as that of parent, with all the caring, supporting and nurturing responsibilities this involves and free of preconceptions about the role of ‘mother’ or ‘father’. It does so not only by granting both parents full parental responsibilities and parental rights while the parties live together with their children but, unlike the previous law, it seeks to ensure that these responsibilities and rights are not affected by parental separation or divorce. The termination of the parent–parent relationship is no longer to have, in and of itself, any legal effect on the parent– child relationship. There is no legal expectation that, on parental separation,

158  Kenneth Norrie the children will remain with the mother (irrespective of the fact that this may continue to be the norm in practice); likewise, there is no longer any legal expectation that the father’s decision-making role will be curtailed. Instead, mutuality of parenting is to be maintained. This is not about making the mother give up the position of exclusivity that she, as custodian, had under the pre-1995 legislation, though that is clearly one of the effects. The 1995 Act is as much ‘pro-mother’ as it is ‘pro-father’, because not only does it free both from the gendered assignment of roles that might or might not be appropriate (or wanted) in any individual case, but it also frees the mother from being trapped in a situation of financial dependency on the father. A more equitable sharing of the burden of child-rearing will give mothers the space to become as financially independent as fathers usually are; it also gives an invaluable message to children about gender equality. How is Parental Equality Achieved? There is little doubt that, even today, the burdens of child-rearing in our s­ ociety, particularly but not exclusively after parental separation, disproportionately fall on women. It is a fact that cannot be ignored that most resident parents are mothers rather than fathers. Being the resident parent after parental separation necessarily and unavoidably carries greater parental burdens than those faced by the non-resident parent, whether in terms of the constant support of the child that is required or in terms of sacrifices in employment and social life that, while not legally required, are nearly always freely given. How does the principle of parental equality address that problem? On one view (which in this case would support the defender), parental equality would encourage, or even require, the sharing of the burdens of parenthood after separation more equitably than they have been in the past. It would require non-resident parents, who are typically men, to take their parental responsibilities seriously. On this approach, the court should aim to make a contact order that would require the non-resident parent to maintain such a degree of relationship with the child that his influence in the child’s life is not diminished by leaving the family home. But there is another way to see things. From the point of view of the resident parent, an approach based on parental equality might be said to exacerbate rather than reduce underlying inequality, by adding to the resident parent’s burdens – at least to the extent of having to continue to accommodate the non-resident parent in the joint family life of the child and the resident parent. An argument (that would, in this case, support the position of the pursuer) can be made that the way to tackle inequality in parenting is to ease the burdens of the parent who bears them most, including by allowing that parent the freedom to make crucial ­decisions – amongst other things in respect of contact – without interference. This could be said to better reflect the reality of the primary carer’s overall responsibilities, and make it more likely that they will be fulfilled successfully. Conceptualising this as a ‘primary carer’ preference rather than a ‘mother’ preference might help to neutralise any perceived gender dimension – as well as accommodate situations in which the father is primary carer.

White v White 2001 SC 689  159 How, then, should this court respond to such arguments? It is necessary, first and foremost, to recognise the true radicality of the 1995 Act. The shared parenting philosophy that it gives effect to recognises that parenting is no longer to be seen primarily as women’s work, and it frees men from assumptions that inhibit them from embracing caring and nurturing roles. This, of course, is an ideal that the law strives for even in the face of the continued reality that women bear the greater burden in childcare, both before and after parental separation. This reality is not unconnected to the uneven distribution of advantages and disadvantages in the workplace that parenthood attracts. Child law itself cannot tackle workplace imbalances, but the message of the 1995 Act surely is that parents should aspire to share the burden in family life, and that the courts should help them move away from the assumptions behind the words ‘matrimony’ (marriage for women is motherhood) and ‘patrimony’ (fatherhood is power and property). Of course, that can be achieved fully only by tackling inequalities in the opportunities both for fathers to take on a nurturing role and for mothers to have an economic life – but the Children (Scotland) Act 1995 Act can only deal with the former, and we should not minimise its effect just because, by its nature, it cannot tackle the whole problem of gender inequality in society. That the 1995 Act was designed to further non-discrimination can be seen from the Scottish Law Commission’s Report upon which it is based (Report on Family Law, SLC no 135, 1992). At paragraphs 2.43 and 2.44 of that report it is made plain that one of the aims of the proposed legislation (which became the 1995 Act) was to remove the double discrimination faced by unmarried fathers – that vis-a-vis both married fathers and unmarried mothers. Of course, the primary aim of the Scottish Law Commission here was to address the discrimination faced by male parents, but the assumption underpinning its approach must have been one of equality of treatment irrespective of gender, an assumption wholly absent from the existing law. All of this leads to the conclusion that the earlier case law can no longer be said to govern the approach that the courts should take to such disputes, and that a fresh approach guided by the goal of parental equality is mandated by the 1995 Act. Limitations to Parental Equality Though shared parenting is the governing philosophy of the 1995 Act, this is so only when the parents are or were married. The decision was made not to deal with unmarried fathers on an equal footing in respect of the upbringing of their children. Many may see this as based on an outmoded assumption of the differing parental roles played by couples who have not married each other, but it is not for this court to challenge that parliamentary choice. The European Court of Human Rights (ECtHR) has recently held (as the 1995 Act was going through Parliament) that any such differentiation is justified as a mechanism for identifying fathers who are ‘worthy’ of having parental rights: McMichael v United Kingdom (1995) 20 EHRR 205. That case leaves entirely ambiguous what a ‘worthy’ father is, though

160  Kenneth Norrie I am inclined to the view that the word does no more than refer to the child’s welfare. Domestic legal systems are permitted, in other words, to make assumptions (as starting points only) that the involvement of an unmarried father in a child’s life is unlikely to be in the child’s interests. Scots law does not make that assumption, however. The issue does not arise in this case, but, given the overall push towards equal parenting, it is worth noting that the Act’s differentiation in the acquisition of parental responsibilities and parental rights between married and unmarried fathers is something of an anomaly. While the courts must be guided by the objective of parental equality in applying the 1995 Act, they must not take the notion of parental equality to unrealistic lengths. The Act does not require that, after separation, the child should spend equal time with each parent, nor does it establish a presumption (or, if you like, a starting point) that a child’s welfare will be enhanced by doing so. Even if that were an ideal to be aimed for, it needs to be acknowledged that the messy realities of life seldom allow the ideal to be translated into practice. It is an unusual family in which children spend the same amount of time with each parent, even while the parents live together with their child. After parental separation it is unavoidable that the child will spend more time with the parent with whom he or she lives and less with the non-resident parent. Indeed, the child’s life is unlikely to be able to accommodate readily any requirement to spend the same amount of time with each parent: forcing the child into such a model is likely to interfere unnecessarily in the child’s own freedom of action and movement. This is obviously so when the separated parents live at a distance from each other, or when the child is older and has their own social circle to maintain; but it will often be so for younger children too, whose parents live in close proximity to each other. Equal time is, therefore, too crude a mechanism to ensure equal responsibility. It is not discrimination against the non-resident parent (or against men in a world – our world – in which most non-resident parents are men) that the child spends vastly more time with the resident parent. It is simply a reflection of the way families, both before and after parental separation, organise themselves. And insofar as the child’s welfare is affected by social norms, it reflects what will normally be in the interests of any individual child. Rather, the equal parenting message contained in the 1995 Act is one not of equality of time but of responsibility. The most profound change to what went before is that under the 1995 Act the non-resident parent retains their right to be part of the decision-making process in relation to how the child is to be brought up, and needs to be consulted on all important matters affecting the child. One should not see this, for reasons I explain below, as detracting from the resident parent’s ‘rights’, but rather as a mechanism for sharing the burdens of bringing up the child that otherwise would disproportionately fall on the resident parent. The 1995 Act’s departure from the exclusivity of custody also gives recognition to the undoubted fact that children benefit from contact with a wide range of family members and others within the family’s social circle. Contact, as a legal concept, is no longer a

White v White 2001 SC 689  161 qualification of the right of residence, in the way that access was a qualification of the right of custody. It is a responsibility that both parents (passively) have but which becomes active, as sections 1(1)(c) and 2(1)(c) make plain, whenever one or other parent does not live with the child. In these circumstances, the parents must together decide how contact is to be organised. If a private arrangement cannot be agreed between the parents (and, with older children, between the parents and the child), then it is for the court to regulate the arrangements by which the nonresident parent’s responsibility and right of contact is to be exercised. The court’s decision is governed by the welfare of the child, and the welfare of the child is governed by the reality of the child’s situation. A Rights-Based Analysis It is unfortunate, to say the least, that the 1995 Act (radical in its aspirations in other respects) continues to use the traditional language of parental ‘rights’, for the so-called ‘parental rights’ listed in section 2 are not in any understandable juridical sense ‘rights’ at all. They cannot be vindicated ‘as of right’, nor on the ground that what the claimant holds by virtue of section 2 is weightier than what his or her opponent holds. A parent with a parental ‘right’ under the Act does not automatically win a dispute with, say, a grandparent who holds no such ‘right’. A better word to describe what section 2 deals with – and what is open to this court to regulate under section 11 – would have been ‘power’, or perhaps ‘­capacity’. The law imposes on parents, under section 1, the responsibility to maintain personal relations and direct contact with their children, and it confers upon them, in section 2, the power or capacity to do so. Putting it this way is helpful, in my view, because it emphasises the lack of a hierarchy of interests. This is more than a merely terminological, or legally recondite, point. The language of rights suggests to citizens that the Act has given them something they can enforce, or at least, for which they can seek the court’s protection. That is what most people understand by the word ‘right’, and indeed that is how lawyers mostly use it. Recently published research from Australia on the operation of its Family Law Reform Act 1995, which had the same policy objectives as our own 1995 Act, carries the clear message that conferring equality on mothers and fathers via the language of rights has had the effect of increasing the number of contentious cases before the courts as fathers seek to vindicate ‘rights’ that they believed the law had conferred upon them (see H Rhoades, R Graycar and M Harrison, ‘The Family Law Reform Act 1995: The First Three Years’ (2001) 15 Australian Family Lawyer 1). In Scotland, the purpose of our 1995 Act is to focus the court’s attention on the child’s interests, rather than on a battle of rights between parents. Applying the Law to the Present Case The defender has been given by the 1995 Act full parental responsibilities and parental rights, and loses none of them when the relationship with the pursuer breaks down and the defender no longer resides, in the family, with the children.

162  Kenneth Norrie The defender remains subject to the same duties and is endowed with the same ‘rights’ as the pursuer. This is an inevitable consequence of parental equality. The order sought is to regulate the exercise of what the law imposes on parties: it is not an order seeking the conferral of any new power or responsibility on either. Your Lordship in the chair suggests that the Act’s omission of a list of factors that would enhance the child’s welfare (a ‘welfare checklist’ as it is known in England) indicates a parliamentary acceptance that judges will have a common conception of what welfare involves. I am not myself persuaded that any such ‘common conception’ can be helpful in cases like the one before us. As society changes, so do our understandings about what is good for children. Given that this court does not normally take evidence from sociologists, educational psychologists and the like on what is generally believed to be good for children, our reliance on common conceptions is in truth a reliance on our own judicial instincts, and acts as a protection of our judicial discretion. That discretion may well be exercised differently by judges differently affected by their own beliefs, upbringing and, not least, their own gender. And, even if we did commonly take evidence of what was good for children generally, it would be of limited value in deciding a case involving a real and individual child who may – or may not – fit the norm. Lord Bingham, writing extra-judicially (‘The Discretion of the Judge’ (1990) 5 Denning Law Journal 22, page 41), described custody (now residence) as ‘the last real stronghold of almost unreviewable discretion’. He suggests that judges use their own instincts to decide wherein a child’s welfare lies. That is surely accurate, however we try to disguise the fact by invocations of common understandings. This makes litigation over children unpredictable and encourages parties to seek judicial redress rather than compromise, in the hope that one party’s conception of welfare coincides with that of the judge. Yet compromise, being at the heart of every successful family, must be at the heart of family law. It is this court’s role to give some guidance, beyond the protean concept of ‘common conceptions’, as to how compromise can be accommodated in any individual case. I do not wish to become trapped in the web of distinctions between presumptions, assumptions, starting points and common conceptions, for the distinction between a ‘common conception’ that a child is best served by continued contact with both parents and a presumption to that effect is subtle indeed. I prefer instead to take the 1995 Act at its word. The key to understanding section 11 is that it allows the court to ‘regulate’ matters. In this case, the defender (the non-resident parent) has the responsibility to maintain direct contact and personal relations with the child and seeks an order under section 11 regulating how that responsibility is to be carried out. Since the parents cannot agree on how the non-resident parent’s responsibility of contact is to be fulfilled and have submitted the question to the court, the court must make an order under section 11, unless it believes that making such an order would be worse for the child than not making an order at all. If one party wishes the order to ‘regulate’ contact by prohibiting it – that is, by removing what the legislation grants – they are entitled to seek to persuade the court that this is in the child’s

White v White 2001 SC 689  163 interests. But I do not see this as imposing a burden, or an onus in the technical sense, on the parent wishing that termination, notwithstanding that its effect is the same: it is no more than an acceptance of the consequences of the Act’s underlying philosophy of parental equality. If, on the other hand, one party wishes an order to ‘regulate’ contact to allow that to take place, then the question becomes whether they too must seek to persuade the court that this is in the child’s interests. To me, the answer to this must be ‘no’, because Parliament itself has already answered that question. An order regulating how contact is to take place is an order regulating the exercise of a joint responsibility and right already determined by Parliament to be in the child’s interests. In either case, the court should make an order that reflects Parliament’s understanding of children’s welfare, unless persuaded that to do so would be against the interests of the individual child whose future is in question. The crux of the problem in the present case is that there is no robust evidence (as opposed to hints of concern) that one decision rather than the other would actually harm the child. It is important to be very careful here about what is meant by ‘harm’. The welfare test is too often interpreted to imply that any decision less than ‘best’ will hurt the child. This is not so. In a case like the present, where either allowing contact or denying contact between the non-resident parent and the child both have advantages and disadvantages (inevitably, of a different nature), either decision is acceptable in the sense that neither will harm the child: a disadvantage is not ‘harm’. But one is likely to be better, in an absolute sense, than the other. In a crude scale of ‘good’, ‘better’ and ‘best’, the court’s invariable preference for ‘best’ is not to be taken to imply that either ‘good’ or ‘better’ is actually bad. It has been assumed that making the welfare of the child the court’s paramount consideration requires judges always to decide on the best option, that we should reject a good option in favour of a better option: that we should reject a better option in favour of the best option. This preference for the best is not, in fact, a necessary implication from the words of section 11(7)(a) of the 1995 Act, nor of any of its predecessors going back to the Guardianship of Infants Act 1925, which simply requires the court to treat the child’s welfare as its paramount consideration. These words might equally be interpreted to mean that we must make no decision that goes against the child’s welfare, which we must place at the centre of our consideration. However, the assumption that the welfare test requires us to seek the best solution is so hard-wired into our judicial approach to child law that, in the absence of a full debate in a case where the issue directly arises, I cannot use this case to determine otherwise. In the event, there being no harm beyond disadvantage (which itself is outweighed by advantage) to the child, V, in this case in allowing contact with the non-resident parent, it becomes necessary to make an order regulating the contact between the two, because without any such order contact would simply not be allowed to happen, as the evidence in the case amply shows. Making the order (effectively in the terms determined by the sheriff at first instance) will keep the non-resident

164  Kenneth Norrie parent fully a part of the child’s life and so will enhance the aim of equality with the resident parent that underpins the approach in the 1995 Act, as well as enhancing what the Act sees as being in the best interests of the child. V will grow up with a better chance of perceiving parenthood in non-stereotyped terms, itself offering a clear advantage. The Human Rights Dimension The whole approach of equal parenting encapsulated in the Children (Scotland) Act 1995 resonates with the European Convention on Human Rights (ECHR). A parent, such as the defender in this case, will certainly have the sort of family life with the child for which Article 8 of the ECHR demands respect. The ECtHR has made plain on numerous occasions that ‘family life’ can exist in the absence of marriage (Berrehab v Netherlands (1988) 11 EHRR 322; Keegan v Ireland (1994) 18 EHRR 342), and even in the absence of cohabitation (Kroon v the Netherlands (1994) 19 EHRR 263; Boughanemi v France (1996) 22 EHRR 228). It is necessary to look to the reality of the relationship between the individuals in respect of whom there are said to be family ties. In the present case, the facts that the defender lived with the children and the pursuer during the children’s early life and maintained contact in the early months after separation, and is the biological parent of the children, make it undeniable that there is family life between the defender and the children which requires respect and protection under Article 8. That the defender has not had contact for some two years does not affect that conclusion. The important question is: what does Article 8 add to the argument in favour of making an order regulating contact? Clearly, it does not necessarily follow from a finding of the existence of family life that the court must make an order for the maintenance of family life, for Article 8 rights are not absolute and may be qualified by, amongst other things, the welfare of the child. But the approach I have indicated above is entirely consistent with the thinking behind Article 8 and is, therefore, to be taken as confirmation of this approach. Even more resonant with the 1995 Act’s aim at parental equality is Article 14, which requires that respect be shown without discrimination based on a variety of factors, including gender, to the rights in Article 8. The obvious way to show such respect is for the court to make an order that allows and indeed encourages both parents, on a basis of equality in opportunity to be involved, to continue to fulfil the parenting obligations imposed on them by domestic law until such time as the court comes to the view – on its own assessment of the evidence – that fulfilling those obligations will be harmful for the child. It might be argued that that would be an interference in the right to respect for private and family life of the resident parent. The fact that the ECHR unavoidably focuses on ‘rights’ is not ­necessarily inconsistent with domestic law, which focuses on the child’s welfare. It always requires to be asked what weight is to be given to the rights of the parents in determining wherein the child’s welfare lies. To put it another way, does the Human Rights Act 1998 affect how the courts are to apply the welfare test in applications for an order under section 11 of the 1995 Act?

White v White 2001 SC 689  165 The 1998 Act was not in force when the sheriff and the sheriff principal gave their judgments, but it is in force now and governs us. It seems to me, however, that the 1998 Act does not require any different approach to that underpinning the 1995 Act. Even on a rights analysis, the competing rights at issue require to be balanced with each other, for the ECHR seldom works in terms of absolute winners and losers. And the ECtHR has never claimed that a domestic focus on the child’s welfare is, by itself, inconsistent with the rights protected by the Convention. It follows that the making of a contact order for the reasons I have set out above would not be inconsistent with the ECHR, as implemented by the Human Rights Act 1998. Conclusion It is clear that Parliament has sought to further the cause of parental equality with the Children (Scotland) Act 1995, and it does so in a way that is entirely consistent with the ECHR. It is clear also that the 1995 Act encourages non-resident parents to embrace their responsibilities to remain part of their children’s lives. The non-resident parent in the present case seeks to do so, and the order that is sought becomes necessary, and therefore satisfies the minimum intervention test, because the facts show that contact is unlikely to be permitted by the resident parent otherwise. Though the sheriff in the present case went too far in requiring ‘strong competing disadvantages’ to be shown before contact could be terminated, his order allowing contact to the defender requires to be restored, on the simple basis that the 1995 Act tells us that contact with both parents is normally to be regarded as good for the child’s welfare. There is nothing in the facts of this case to suggest otherwise.

Commentary on White v White ROSIE HARDING

Introduction Contact and residence disputes are, unfortunately, extremely common. The ­particular dispute in White v White is fairly unremarkable: a non-resident father has lost contact with his children as a result of the breakdown of amicable relations following parental separation and is seeking to resume contact. There is no question of abuse, nor is there discussion of any ‘implacable hostility’ on the part of either parent. In many respects, it is the ‘unremarkability’ of this case which makes it so well suited to the feminist judgments project. Nowhere are the politics of gender, and how these are recognised, represented and regulated more apparent than within the context of the heterosexual nuclear family. Even well into the twenty-first century women still provide far more childcare than men: nearly twice as much for pre-school children, and three times as much for children of primary school age.1 How this unequal division of labour in childcare then translates into custody and access arrangements following relationship breakdown is a matter of great interest to feminist family lawyers. In his judgment, Temporary Judge Norrie has argued for a gender-neutral egalitarian approach to parenting under the Children (Scotland) Act 1995. His approach, which perhaps would find more favour today than it may have when the case was decided (given the differential treatment at that time of married and unmarried fathers) invites us to reflect on the normative principles underpinning the ideology of the heterosexual family, and particularly the contemporary place of gendered roles within relationships. By removing all reference to the gender of the parties in his judgment, Norrie forces us to reflect on how our implicit bias around gender and parenting shapes our views about residence and contact. The timing of White v White2 finds parallels in the rise of the fathers’ rights movement in the UK, and the founding of the Fathers 4 Justice campaign group.3 It also corresponds with the beginnings of the move away from formal equality approaches to more substantive versions of equality in international jurisprudence and feminist 1 Office for National Statistics, Changes in the Value and Division of Unpaid Care Work in the UK: 2000 to 2015 (Newport, Office for National Statistics, 2016). 2 White v White 2001 SC 689. 3 R Collier and S Sheldon, Fathers’ Rights Activism and Law Reform in Comparative Perspective (Oxford, Bloomsbury, 2006).

Commentary on White v White  167 thought.4 Finally, White v White also temporally aligns with the development of children’s rights discourse following the entry into force of the UN Convention on the Rights of the Child in 1992. In this commentary, I explore these important dimensions of the backdrop to the case first through the lens of gender roles in the family, and second by considering the paramountcy principle and the rights of the child.

Gender Roles and the Ideology of the Heterosexual Family Mothers and fathers, historically, were ascribed very different roles within the heterosexual married family. Mothers were considered home-makers and childcarers; fathers were responsible for the economic welfare of their family and tended to engage in paid employment. These days, it is more routine in the UK for both parents to be in paid employment, but women still do greater amounts of childcare, even if both parents work full-time. Women are also still more likely to work part-time in order to balance career with childcare responsibilities, and the persistence of the gender pay gap in paid employment continues to reflect the differential positions of women and men in the workforce.5 The continued economic disadvantage that women experience in the paid workforce is important, because it sits in tension with the aims of the fathers’ rights movement. This movement won significant legal changes in a number of jurisdictions in the early part of the twenty-first century, focusing on increasing fathers’ rights to contact with their children post-divorce.6 Yet the formal equality discourse and agenda at the heart of the fathers’ rights movement is somewhat paradoxical, given the disjuncture between the rhetoric of formal equality and the continuing gendered realities of parenting, with the greater portion of the disadvantage associated with parenting falling on women.7 The assumption in Temporary Judge Norrie’s judgment is that increasing the role that fathers have in their children’s lives, post-separation, will allow women to be more economically self-sufficient or independent, thus furthering the cause of gender equality. The fallacy of formal equality (as founded on the Aristotelian formula that like should be treated alike) has been resoundingly evidenced in feminist work which demonstrates that, even where formal equality before the law

4 S Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712. 5 Close the Gap, ‘Gender Pay Gap Statistics’ (Working Paper 16, Glasgow, Close the Gap, 2016), available at: www.closethegap.org.uk/content/resources/CtG-Working-Paper-16-Statistics.pdf. 6 Collier and Sheldon, Father’s Rights, above n 3. 7 R Collier and S Sheldon, ‘Father’s Rights, Fatherhood and Law Reform: International Perspectives’ in R Collier and S Sheldon, Fathers’ Rights Activism and Law Reform in Comparative Perspective (Oxford, Bloomsbury, 2006).

168  Rosie Harding is achieved, disadvantage continues to fall disproportionately on those who have always been disadvantaged.8 Instead, we need to find ways to approach equality in a multidimensional way, which is attentive to the differential starting points that individual members of disadvantaged groups find themselves in.9 Fredman suggests a four-dimensional model of substantive equality that takes account of disadvantage, addresses stigma and stereotyping, enhances participation and voice, and accommodates difference through structural change.10 Equal parenting, a laudable aim that lies at the heart of Judge Norrie’s gender-neutral judgment, must engage with all four of these dimensions of inequality within family life if it is to fulfil its potential as an emancipatory concept. The disadvantage that accrues from parenting, which contributes to the persistent gender pay gap of 15 per cent between men and women in Scotland, needs to be challenged.11 The stereotypes relating to nurture and care which lead more women to take on more of the primary responsibility to care need to be broken down, as does the stigma that falls on those men who do choose to be the primary carer for their children. The voices of all the parties (mothers, fathers and children) need to be fully and properly heard and engaged with, and there must also be the kinds of structural changes that would facilitate shared care and regular contact to happen in a way that is not threatening to any of the parties. ­Without attentiveness to these multifaceted components of substantive equality, ‘equal parenting’ runs the risk of perpetuating the disadvantage that women face. Simply removing gender, as Norrie has done here, unfortunately does little to address the intersecting causes of gendered role differentiation and expectations in parenting. It is important also to remember that contact disputes often come about because at least one of the parties feels threatened, or at risk of having their familial relationships undermined. In White, contact between the father and his children ceased after a quarrel between the children’s mother and a short-term girlfriend of the father, where that third party threatened the mother with the girls being removed from her care.12 Disputes of this nature are often founded on inequalities of power, and experiences of vulnerability and fear, which also need to be addressed before substantive equality in post-separation parenting can be achieved.

The Paramountcy Principle and the Rights of the Child One of the most remarkable aspects of the Inner House decision, more pronounced in Judge Norrie’s judgment, is the relative absence of V, the child at the heart of the 8 G Brodsky and S Day, ‘Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty’ (2002) 14 Canadian Journal of Women and the Law 185. 9 Fredman, above n 4. 10 ibid. 11 ‘Gender Pay Gap Statistics’, above n 5. 12 White v White, para 6.

Commentary on White v White  169 dispute. At the time the judgment was handed down, V was nine years and seven months old. Her parents separated when she was just over four years old, and she last saw her father in person when she was around five-and-a-half. Her sister, K, was some six years older than V, and had intimated that she did not wish to have contact with her father, a wish that was respected in these proceedings. V was described as ‘influenced by her sister’s reluctance and refusals’13 in regard to contact with her father. In Lord Roger’s judgment we are told that when V did have contact with her father (between the ages of four and five) ‘on occasions the minuter had to lift her and carry her to his car’.14 We are also told that V, ‘who was old and mature enough at the time of the proof to express a view, said on several occasions that she did not want to see the minuter or to have contact with him’.15 We are further told that V has asthma, and that ‘it is probable that attacks were caused by discussion of the proceedings relating to contact and by the prospect of contact being resumed’.16 Finally, the Lord President observed that ‘if the minuter were to resume contact with V, this would cause her some upset and distress, which would be likely to disappear as she became familiar once more with her father’.17 The ‘right to maintain personal relations and direct contact with both parents on a regular basis’ is found in Article 9(3) of the UN Convention on the Rights of the Child (CRC). This is not, however, an unqualified right and it is subject to the best interests of that child. Under the CRC, the best interests of the child are to be a primary consideration in all actions concerning children. Under the Children (Scotland) Act 1995 (the 1995 Act), the welfare of the child is considered paramount.18 This Inner House appeal, was not, however, concerned with ascertaining V’s best interests, the facts of these having been ascertained at first instance. Instead, the focus of the appeal was on a point of law relating to the status of high authority, predating the 1995 Act, about the onus on the parent who sought access to demonstrate that it was in the child’s best interests that it take place.19 In coming to his decision in White, the Lord President relied on the existence of a set of shared views and on ‘common values and assumptions as to the upbringing and welfare of children’,20 which include the right of both parents and children to maintain personal relations and direct contact. The challenge here, however, comes in balancing the Convention right (which in my view is properly understood as a right held by the child, not a right of the parents, notwithstanding the language of the 1995 Act) with the child’s best interests. In this case, the best interests of V, who has experienced asthma exacerbations

13 ibid

para 4.

15 ibid

para 7.

14 ibid. 16 ibid. 17 ibid.

18 Children

(Scotland) Act 1995, s 16(1). v McManus 1997 SC (HL) 55. 20 White v White, para 15. 19 Sanderson

170  Rosie Harding as a consequence of discussions about the resumption of contact with her father, and has expressed her view that she does not wish to resume such contact, must be understood as more complex than those of the generic child at the heart of common values or assumptions about the relationship between children and their parents. Asthma can be very mild, but it can also be very serious. According to statistics from Asthma UK,21 a child is admitted to hospital every 20 minutes because of asthma, and the UK has one of the highest prevalence of and death rates from asthma in Europe. I find it astonishing that V’s stress-induced asthma attacks, and her clearly expressed views, were not given more serious attention in the Inner House, or in Temporary Judge Norrie’s judgment, given their significance for her health, and therefore for her best interests. Erasing V’s voice and experiences in this way seems to me to work contrary to feminist principles of participation and voice and to move us further away from, rather than closer to, substantive equality.

Concluding Remarks Contact disputes between parents are endlessly difficult. An egalitarian, genderneutral approach to parenting, such as that Temporary Judge Norrie advocates through his judgment, is both possible and desirable. It is not yet, however, often a reality in the context of heterosexual couples. Social norms around gender roles, unequal pay and career prospects, the unequal division of household labour and the complex interpersonal power dynamics that shape residence and contact disputes, all combine to frustrate good intentions about equality in family law. Before we can reach a point where substantive equality considerations can guide the outcome in parenting disputes, we must address the fundamentally unequal and gendered nature of both the family and the workforce. It is also important to remember that, although this contact dispute concerned a heterosexual married couple, parenting and family is done in many different ways, by people with a wide variety of different biological, legal and emotional connections. My own feminist approach to family and to family law, while somewhat aligned with feminist critiques of parental ‘rights’, and of formal equality, is much more concerned with the wider ways that family law regulation shapes people’s lives in and through a wide range of kinship relations.22 If we focus on formal equality, parental rights and the importance of biological mothers and fathers in family law, we run the risk of retrenching heteronormative forms of relationship and kinship. In contrast, a substantive equality approach provides space

21 See: www.asthma.org.uk/about/media/facts-and-statistics. 22 R Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (London, Routledge, 2011); R Harding, ‘(Re)inscribing the Heteronormative Family: Same-sex Relationships and Parenting “After Equality”’ in R Leckey (ed), After Legal Equality: Family, Sex, Kinship (London, Routledge, 2014).

Commentary on White v White  171 for addressing disadvantage, hearing marginalised voices, challenging stigma and dismantling stereotypes. Rather than jumping straight to a legal framework that is gender-blind, as Temporary Judge Norrie’s judgment seeks to do, feminist analysis can help us to expose ongoing gendered power dynamics in family relationships, and the continuing disadvantage experienced by women who parent. We need, in conclusion, to be much more open in our approach to family, and attentive to the challenging interplay of gender, parental rights and responsibilities, and children’s rights that infuse family law.

Reflective Statement: White v White KENNETH NORRIE

The judgment I have offered in White v White is, I hope, a plausible – at least not impossible – interpretation of the Children (Scotland) Act 1995. In constructing my version of a judgment in the case, I take as my guide section 3 of the Human Rights Act 1998, which requires courts to interpret statutes ‘so far as it is ­possible to do so’ consistently with the European Convention on Human Rights. As under the Human Rights Act, the court must ‘strive to find a possible interpretation compatible with Convention rights’ (R v A [2002] 1 AC 45 (Lord Steyn, paragraph 44) emphasis added), so too I strive to find a possible interpretation of the 1995 Act that is consistent with, and based upon, feminist principles. Equally, however, I must strive not to exceed the bounds of possible interpretation by going ‘against the grain of the legislation’ and giving the Act a meaning that it simply will not bear. Adopting this approach allows me to exaggerate the ‘parental equality’ aspect of the 1995 Act, which in reality can hardly be said to have been the most important aim of the legislators. The Act does, of course, seek to ensure that both parents retain their relationship with their child after separation, and this was a major change to the previous law where custody was very much a ‘winner takes all’ concept, with the non-custodian (normally the male parent) dropping out of the child’s life. I am, however, conscious that when I focus on equality I am making a choice between different feminist perspectives. My major aim is to move away from gender stereotypes. So I reject the approach that seeks to ‘compensate’ women for bearing a disproportionate burden in bringing up children by giving them more control over that upbringing, because in my view that approach would exacerbate rather than ameliorate gender stereotypes. The stereotype also involves the assumption that all women (or all mothers) would wish to have full control. My preferred version of feminism is one that offers an escape to both women and men from the gendered roles that society and the law seek to impose on them in relation to the upbringing of their children. As a gay man, gender-neutrality has as much resonance for me as sexuality-neutrality. In any case, both my self-imposed constraints on statutory interpretation by using the Human Rights Act analogy and the requirements of the present project to offer a possible interpretation of the law that is not inconsistent with its

Reflective Statement: White v White  173 fundamental features demand a rejection of the argument that primarily carers should, in ‘compensation’ for their greater burdens, have greater control over who has contact with their children. The grain of the 1995 Act is to move away from the ‘winner takes all approach’ and towards one of shared parenting. That simply does not allow a conclusion that primary carers should, as they were before the pre-1995 Act, be primary decision-makers. The Inner House could not have so decided in White v White. But the 1995 Act, as originally passed and as applying when White v White was decided in 2001, was fundamentally flawed in that it allowed for this equality of relationship only in respect of married parents. Unmarried couples were subject to different rules, and the Act absolved unmarried fathers of their parental responsibilities and parental rights (other than financial), while at the same time requiring the (equally) unmarried mother to bear the whole burden of bringing up the child. Actually, I have always seen this flaw in the 1995 Act (righted by the Family Law (Scotland) Act 2006) as evidence of the legislators’ failure to escape from the notion of parental ‘rights’, notwithstanding the language of responsibilities: a father who didn’t marry the mother, didn’t ‘do the right thing’, didn’t ‘make a respectable woman of her’, did not deserve any ‘rights’ in respect of his child. That this was based on gender stereotypes is obvious from the fact that no mother was ever required to prove her worthiness of parental ‘rights’: it was her natural role in life, whether she deserved it or not. This is the main reason that I spend some time challenging the understanding of the word ‘rights’ in the context of the parent–child relationship. Throughout the judgments actually delivered in White v White – and, I accept, even more so in my own version of a judgment in the case – the children themselves are virtually invisible. Indeed, my obscuring of the genders of all parties tends to dehumanise the whole argument. But this is a feminist judgments project, not a children’s judgments project. Were it the latter the judgment offered here would be written in a very different way, and the children would be centre-stage. However, to assume either that women’s interests and children’s interests are conterminous, or that a woman’s perspective would be presented with less disinterest than a man’s, perpetuates the very stereotypes that I am seeking to escape from. Further, my expulsion of the children from the case reflects my suspicion in relation to most private law disputes over children: that while they are argued as disputes as to what is in the interests of the individual child, they are in reality disputes over adult interests. Resident parents often want to remain in control of their child’s upbringing without interference; non-resident parents often want to vindicate their own position as parent with continuing influence. Each presents the dispute (the law requires them to present it) as a clash over what is best for their children, and the courts (and the rest of us) pretend that that is what the case is about. But all too often the dispute in the minds of both (and, not least, of the child) is ‘mum v dad’ and not ‘mum’s ideas about my welfare v dad’s ideas about my welfare’. This is not, I accept, a necessarily or exclusively feminist point, but it is nevertheless one worth making here.

174

9 Coyle v Coyle 2004 Fam LR 2 Outer House, Court of Session 25 April 2003 Opinion of Lady Mair In the cause Theresa Samantha Reid or Coyle  Pursuer v Daniel Patrick Coyle  Defender Facts The material facts are as follows: The parties to this action were married in Scotland on 8 February 1975 and they separated on 5 February 1995. At the time of the hearing there were three children of the marriage aged 25, 24 and 19 years. The wife pursuer (aged 54) sought decree of divorce on the grounds that the marriage had broken down irretrievably, as evidenced by a period of non-­cohabitation in excess of five years. The pursuer also sought financial provision on divorce: a capital sum and property transfer orders in respect of the former matrimonial home in Glasgow and in respect of a holiday home in Turnberry. When she met the defender, the pursuer had a good career, with excellent prospects, with British Caledonian Airways. At the request of the defender, the pursuer gave up her career with British Caledonian Airways in order to get married. Shortly after the marriage, because her husband did not want her to work, the defender stopped paid work outside the home altogether. Throughout the marriage the pursuer worked long hours looking after the family home and caring for her husband and children. Although the children are now grown up, they still live

176  Jane Mair at home with their mother where she continues to care for them and to work actively in the creation and maintenance of a successful, well-functioning family home and strong family relations. The defender joined his family business, D Coyle & Co Ltd (the company), a wholesale fruit and vegetable supplier, when he left school. It was simply assumed by both parties that he would continue to work in this business when the couple married. Over the years, he became a director of the company and acquired shares by way of gifts from his parents and a bonus issue. At the date of separation, he had a 53.7 per cent interest in the company and, by the time of proof, the interest had increased to 74.75 per cent. He was still running and actively working in the company at the time of proof. He is now aged 52 years. Throughout the marriage, both the pursuer and the defender worked long and unsocial hours in their separate but complementary and equally demanding roles in the family and the company. Following separation, the defender (52) continues to run his company and to benefit financially from its success. The pursuer (54) is still running and actively working in the family home, caring for the property and for their three adult children. Divorce The pursuer seeks divorce on the ground that the marriage has broken down irretrievably. Evidence was given by both parties and by affidavit from third parties that the couple had not lived together as husband and wife for more than five years. I am satisfied that the marriage has broken down irretrievably in line with section 1 of the Divorce (Scotland) Act 1976 and I shall therefore grant decree of divorce. The remainder of this judgment will deal with the pursuer’s claim for financial provision on divorce. Statutory Provisions Section 8(2) of the Family Law (Scotland) Act 1985 (the 1985 Act) directs that where an application for an order for financial provision has been made: ‘the court shall make such order, if any, as is – (a) justified by the principles set out in section 9 of this Act; and (b) reasonable having regard to the resources of the parties’. The starting point in any claim for financial provision on divorce is section 9(1)(a) which provides that: (a) the net value of the matrimonial property should be shared fairly between the parties to the marriage; Section 10(1) sets out a presumption that fair sharing is to be taken to be equal sharing unless there are special circumstances, of which a non-exhaustive list is set out in section 10(6).

Coyle v Coyle 2004 Fam LR 2  177 In this case the pursuer sought further provision under section 9(1)(b) which provides: (b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family. Further definition is provided in section 9(2) as follows: ‘[E]conomic advantage’ means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and ‘economic disadvantage’ shall be construed accordingly; ‘contributions’ means contributions made whether before or during the marriage and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family. Section 11(2) makes further provision in respect of the principle set out in section 9(1)(b), as follows: For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which – (a) the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party; and (b) any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or otherwise. The Claim for Financial Provision The pursuer seeks financial provision on divorce from the defender. There are three principal elements to be considered in this case: the first relates to the fair sharing of the matrimonial property in terms of section 9(1)(a). The second relates to whether the defender has sustained an economic advantage derived from contributions by the pursuer. The third claim is that the pursuer has sustained an economic disadvantage in the interests of the defender or the family. The second and third claims both rely on the principle set out in section 9(1)(b). In considering the second and third claims, it is appropriate to consider, in accordance with section 11(2), whether and to what extent any economic advantages and disadvantages sustained by one party have been balanced by the economic advantages and disadvantages sustained by the other. It must also be considered to what extent any resulting imbalance will be corrected by a sharing of the matrimonial property or otherwise. Having addressed these particular claims, and considered what orders might be justified in terms of the section 9 principles, I must further consider the resources of the parties in order to ensure that the proposed orders are reasonable (section 8(2)).

178  Jane Mair 1. The First Issue: Fair Sharing of the Matrimonial Property From the outset, the parties have been in agreement as to the items which constituted matrimonial property. They were also in agreement as to the value of most of the assets as at the ‘relevant’ date, which in this case was the date at which the couple ceased to cohabit. When the action commenced, and indeed when the parties first appeared before me, they were not in agreement as to the value of a Ferrari motor car, owned by the defender, nor as to the precise details of the size and due date of a debt apparently owed to the defender by his sister. There was, further, some dispute between them as to the question of whether a potential charge to capital gains tax on the defender should be taken into account when calculating the net value of the matrimonial property. The defender was unhelpfully vague in his evidence on these matters and there was considerable disparity between a range of accounts and other documentary evidence produced both by the defender and by his financial advisers. I was not impressed by the evasive manner he adopted in answering my questions and those put to him in cross-examination by counsel for the pursuer. His manner and the evidence presented were in stark contrast to the pursuer, whose paperwork was exemplary and who struck me as very clear, consistent and open in her evidence. It became clear that these matters might unhelpfully consume a considerable amount of court time, with the consequent impact on costs and possible depletion of the fund available for sharing, and therefore I suggested to both parties that the hearing be adjourned to permit further discussion and reflection on the issues. I am pleased to say that they returned to court with a joint minute setting out an agreed list of matrimonial property assets and an agreed net value, at the date of separation, of £1,130,000. This was a case where neither party sought to depart from the default position of section 10(1) that equal sharing of matrimonial property will be taken to be fair sharing, in the absence of special circumstances. Neither sought to establish any special circumstances and, therefore, I am not called upon to adjudicate on this matter other than to confirm that I will award the pursuer half the value of the matrimonial property. In this case, according to the agreed valuation of the fund of matrimonial property, that will amount to £565,000. I shall address below precisely how that sum will be made up and what orders I propose to make. Before moving on from this first claim, I wish to comment briefly on the definition, in section 10(4), of matrimonial property. The concept of matrimonial property and its clear statutory definition is surely one of the great strengths of the Scottish system for financial provision on divorce. The bounded nature of the matrimonial fund – which begins to accumulate at the point of marriage and continues to grow until the effective end of the relationship – reflects a partnership model of the married couple, which fits well with the expectations of many couples.

Coyle v Coyle 2004 Fam LR 2  179 The exceptions in section 10(4), for property gifted or inherited from third parties, are also generally well received and common in many other jurisdictions. One specific situation, however, where this strict definition of matrimonial property has the potential to cause unfairness is the situation we have here, of one spouse who works to build up a family business during the course of the marriage, but where the business itself does not form part of the matrimonial property. In the particular circumstances of this case, where there is a significant fund of matrimonial property and the defender has extensive non-matrimonial resources, there are other ways to obtain a fair settlement but, in other cases, where there is relatively little matrimonial property but a very significant increase during marriage in the value of a non-matrimonial family business, it may be that section 10(4) could cause some unfairness. It is interesting to note that, when the 1985 Act was being drafted, special provision was made in section 10(5) to include the portion of a pension referable to the period of the marriage as matrimonial property even though the pension fund as a whole predated the marriage. It may be that a similar approach to the increase in value of a family business, referable to the period of the marriage, would help to avoid potential unfairness, albeit it would undoubtedly increase the complexity of what is currently a relatively simple approach. This may be a matter for future consideration by the legislature, but it is not one that needs to further detain me in the present case. In addition to fair sharing of the matrimonial property in terms of section 9(1)(a), the pursuer seeks two further awards of financial provision under section 9(1)(b): the first on the basis that the defender has derived an economic advantage as a result of the pursuer’s contribution, and the second that the pursuer has suffered an economic disadvantage in the interests of her husband and her family. Although there is some overlap between the facts that are relevant to each, they are distinct claims and I propose to deal with them separately. 2. The Second Issue: The Defender’s Economic Advantage Section 9(1)(b) states that fair account should be taken of any economic advantage, derived by either party from contributions by the other. The pursuer sought to establish that, during their long marriage, her husband had derived such economic advantage from her contributions. As is made explicit in section 9(2), contributions may include those made by looking after the family home or caring for the family. Evidence was led on behalf of the pursuer by Mr Graham, accountant, as to the value of the defender’s interest in his family business as at the date of the marriage and as at the date of separation. This was intended to show that there had been an increase in the value of his interest in the company over the period of the marriage. Detailed evidence, in the form of a written memorandum followed by oral testimony, was presented by Mr Graham. He appeared at all times well prepared, entirely consistent and professional. He presented evidence to the effect that the

180  Jane Mair defender’s interest in the company had risen from 27.8 per cent in June 1975 to 53.7 per cent in June 1995. The value of this interest had risen from £44,000 in 1975 to £619,000 in 1995. That amounted to an overall gain in value of £399,000 once appropriate calculations were made for share acquisitions that had occurred during the period of the marriage and which were quite independent of any contribution of the pursuer. Mr Gilliland, chartered accountant, was led in evidence on behalf of the defender. He had used slightly different methods and there was some difference in the resulting valuation. Mr Gilliland used a higher figure for future maintainable profits and a higher price/earnings ratio for 1975. He assessed the value of the defender’s interest in the company in 1975 as being £53,850 and the value in 1995 as being £493,000. His evidence, in contrast to that of Mr Graham, was difficult to follow. He was not adequately prepared for his role as an expert witness, although that was at least partly the fault of the defender who had not instructed him to prepare a written report. At times in the witness box, he had to make up calculations on the spot, which in general made him appear less professional and reliable than Mr Graham. For the purpose of proceeding to consider the pursuer’s argument to the effect that the defender has derived an economic advantage from her contribution, I was urged by counsel for both parties to reach a conclusion as to the appropriate values of the company at the beginning and at the end of this marriage. As I will explain in a moment, I am not convinced that section 9(1)(b) necessarily requires precise arithmetical quantification but, in any case, if I needed to decide between the two valuations, I would prefer that presented by Mr Graham on behalf of the pursuer. The approach taken by Mr Graham was professional, thorough and consistent. Mr Gilliland agreed that Mr Graham’s approach to valuation was fair and focused. I will therefore proceed on the basis that the value of the defender’s share of the family business increased during the time of the marriage by a figure in the region of £399,000. Turning now to the contribution of the pursuer. The contribution of the pursuer was of a particular type, specifically provided for by section 9(2), ‘made by looking after the family home or caring for the family’. Evidence of this contribution came principally from the pursuer, her friend Mrs Massie and, to an extent, the defender. I do not think it is necessary to rehearse here the full detail of this evidence. I would summarise it as follows. At the time when she met the defender, the pursuer was well established in her career with British Caledonian Airways. She had reached a point in her career where she was already moving into highly lucrative marketing work with the company, and there was strong potential for yet further promotion. As the relationship between the pursuer and the defender became more serious, he made it very clear to her that he did not want her to continue with her career. In fact, he made it a condition of marriage that she would give up paid ­employment and focus all her attention on him and on their marital partnership. That was, as the pursuer said, ‘the deal’.

Coyle v Coyle 2004 Fam LR 2  181 Counsel for the pursuer submitted that I should include a sum of £200,000 in the order for financial provision, to represent the increase in value of the defender’s share in the company, this being derived from the contribution of the pursuer. That sum of £200,000 represented roughly one half of the increase in value of the defender’s interest in his family’s business, accrued during the period of the marriage. He submitted that the pursuer had given up a promising career to marry the defender and had looked after the home and the children. Counsel for the defender submitted that, while the value of the defender’s interest in the company had increased during the marriage, it was not established that the defender had derived any economic advantage from a contribution of the pursuer. While the defender wisely did not seek to challenge the fact that the pursuer had given up her career, at his insistence, in order to care for the family and the family home, he did challenge the presentation of this as ‘a benefit’ to him. The defender had not gained more shares in the business, and nor had the business become more profitable because he was married to the pursuer. Indeed, if the defender had not married, according to his counsel’s submission, his wealth would have been greater as he would not have incurred the expense of supporting the pursuer and the children. Counsel for the defender further urged me to consider what the position would have been had the pursuer not been available to look after the house and care for the children. Other help would have had to be employed. On the evidence from the pursuer that, had she continued with her career, she would by now have been earning a significant salary, counsel for the defender argued that the family as a whole would have been better off. The pursuer would have brought significant income into the household, from which the cost of paid help could have been met. For different reasons, I consider each of these arguments to be flawed and somewhat ill-conceived. The defender presents no evidence to support the claim that he would have been better off without his wife and children. He may indeed have saved the purely financial costs incurred in maintaining them, but he fails to take account of the significant benefits in terms of health – emotional and physical – and earning capacity which he has gained from marriage and family life. The second argument proceeds on the basis of an entirely unsupported assumption about the price which would have had to be paid for the many services which the defender provided over the full period of the marriage. I would suggest to the defender that, even if a nanny could have been found who was willing to care for three children, not simply five days a week between the hours of 9am and 5pm, but often seven days from first waking to last bedtime, the costs of his or her services would have been significant. Taking account of employment law regulations on health and safety and working time, the reality is that at least two full time nannies would have been required to provide the childcare which was provided by the pursuer. Add to that a full-time housekeeper, cleaner, personal shopper, cook, gardener, personal assistant, chauffeur, homework tutor, companion, occasional counsellor and therapist – all services that were provided by the pursuer – and the costs would

182  Jane Mair very soon have outstripped the salary which the pursuer gave up and exceeded the ability to pay, even of a wealthy family such as this. Neither pursuer nor defender sought to offer any evidence as to the estimated costs of the services which the pursuer has provided. That is certainly something which they might have done. It is increasingly common for many families – not merely the wealthy – to employ cleaners, housekeepers, gardeners, dog-walkers and a whole range of domestic services – and it would not have been difficult to produce evidence, over a period of years, of the ‘going rate’ for such services. It would not have been a perfect calculation, but it would have given some rough indication of financial value. The contrast is particularly striking between the extensive paperwork and spreadsheets the defender was keen to produce in support of his valuation of other assets, such as his Ferrari, and his lack of evidence for statements relating to the value of his wife’s services. In the absence of detailed evidence from the parties, it is not for me to speculate on the precise financial costs and benefits, but I have no doubt that the pursuer’s contribution, calculated in monetary terms, could far exceed the £200,000 she now claims, even taking into account that she would of course have had some benefit personally from living in a comfortable and well-managed domestic environment. There appears to be a general reluctance in financial provision cases for the parties to produce evidence relating to the economic cost and value of domestic services. While I understand the sensitivities around introducing ideas of market value into the traditionally altruistic domain of the family, it seems to me that there is a significant risk that such important contributions will be seriously undervalued if we do not engage directly with their value. If such figures had been made available, I could then have compared the value of the pursuer’s contribution against the share of the increase in business which she seeks. That kind of balancing exercise is one with which the courts are very familiar in other, non-familial, contexts, and it poses little difficulty. Indeed, counsel for the defender suggested that a useful example of the operation of the principle could be seen in De Winton v De Winton (1998) Fam LR 110 where the wife pursuer had contributed substantial sums of non-matrimonial money to a family partnership from which the defender derived economic advantage and had also worked, without payment, in his business. Some claims under section 9(1)(b) will be of that type – where there are specific, easily verifiable, sums of money involved – but certainly not all. In some situations, including the current one, the valuation of contributions in monetary terms is more complicated, and the balancing act in De Winton provides little practical assistance. Instead, what the courts are asked by section 9(1)(b) to do involves a very different type of exercise where we need to move beyond strict reliance on the sort of verified accounts and audited figures with which we have traditionally been comfortable to consider broader notions of cost, value and benefit. Both parties focused on defining the economic advantage which the defender had derived simply in terms of the balance sheets and market value of his share

Coyle v Coyle 2004 Fam LR 2  183 in the family business. That is certainly part of the economic advantage he has acquired over the period of the marriage, albeit that not all of that advantage – the defender might seek to argue not any of it – derives from the domestic contributions of the pursuer. It is, however, only part. The defender has also derived what is, in our market economy, the very significant and highly prized advantage of an unbroken and smooth upward trajectory in terms of his employment skills. At the end of a 20-year-long marriage, he has had all the emotional and physical benefits of a strong and supportive family life and has the transferable skills, business acumen and professional networks acquired through decades of devotion to paid work. At the end of the marriage, the defender has the double benefits of family life and professional success, and he has derived that combined benefit to a substantial extent because of the contribution of the pursuer. It was she who gave him the freedom to develop his business and his own, highly marketable and easily transferable business skills, by releasing him from the need to look after, in the most fundamental practical and unrelenting terms, his ­children. And she also provided him with the family life and domestic comfort to support that business development. In our liberal, market economy, that is a very significant advantage and the defender has derived it from the contributions of the pursuer. The nature of this kind of economic advantage, which the defender has enjoyed, and its relationship with the particular kind of contribution the pursuer has made, is far beyond the realms of accountancy. Both the advantage (defender) and the contribution (pursuer) are firmly rooted in relationships. While figures undoubtedly would help to emphasise the significance of both the contribution and the advantage, if section 9(1)(b) is to work as was intended, it is essential that we see beyond a purely arithmetical exercise. The defender has sought to deny the existence of any advantage at all – in fact he rather unkindly and disingenuously has sought to argue that he has suffered a disadvantage in that, had he not married and had children, or had his wife continued to develop her career, he would not have had to support them. The economic advantage the defender has derived from the pursuer’s contribution, however, is quite clear. It is the advantage of being able to do two things at the same time: to enhance his human capital – his employability and earning capacity – and to enjoy all the benefits that marriage and family relationships can bring. While the 1985 Act is quite rightly gender neutral, it is important that, in its application, courts remain alert to individual examples and systematic evidence of the potentially gendered nature of the double benefits and burdens of work and family. While conceptually, this application of section 9(1)(b) is not about clearly identifiable sums, in order to make an award of financial provision, I do nonetheless need to identify some monetary value. The pursuer has suggested a half share of the increase in value of the business over the period of the marriage, that is £200,000. If, as I suggested above, the concept of matrimonial property were to be amended to include an increase in value of any non-matrimonial property

184  Jane Mair during the period of marriage, then a half share would be an appropriate starting point. In the absence of such provision, however, I think that 50 per cent is too high. I am instructed by section 9(1)(b) to take ‘fair account’ of the economic advantage, which is fundamentally an exercise of discretion. While the 1985 Act sets out very clear and detailed guidance, there is also considerable discretion within its framework. Precisely how to calculate the economic advantage of the defender under section 9(1)(b) and the extent to which it is derived from the contribution of the pursuer is one of those aspects of the 1985 Act which gives the judge considerable discretion. I intend to exercise that discretion by making an award of around 25 per cent of the increased value of the business, a sum of £100,000. I am conscious that, in making this award, I have little guidance from previous decisions. Some may think I am being too generous. It seems clear to me, however, that this is precisely the kind of economic advantage from non-financial contributions that the Scottish Law Commission had in mind when they designed this aspect of section 9(1)(b). It is for the courts to make use of it in each individual case as seems appropriate. It is to be hoped that, through such use over time, we will become more familiar with how and when to apply it. 3. The Third Issue: The Pursuer’s Economic Disadvantage The third aspect of the pursuer’s claim for financial provision is that she has suffered an economic disadvantage. In comparison to the second issue, an economic advantage derived from a contribution, I found this third issue relatively simple, largely due to the detailed and very helpfully presented evidence. Mrs Massie, an ex-colleague of the pursuer at British Caledonian Airways, who subsequently developed her career with British Airways, was presented as a comparator for the pursuer. She gave evidence regarding her own earnings and, although not an exact comparator, this provided very helpful evidence of how the pursuer’s earnings might have developed had she not given up her career at the insistence of the defender. Mrs Massie also explained that she will receive a pension from British Airways. She could retire at either 55 years or 60 years and receive a pension which will be almost equivalent to the value of her basic salary. If she had attained a promoted post, her pension would have been in the region of £28,000–£30,000. The earnings and pension figures put forward by Mrs Massie were not challenged in cross-examination. It is clear from the evidence that if the pursuer had followed the career path upon which she had embarked prior to marrying the defender, she would have had significant earnings – at least £34,500 per annum gross – and would be looking forward to a comfortable pension income of at least £28,000–£30,000 gross per annum. If, as seemed likely, she had moved into the field of public relations, these earnings and pension figures would have been higher. By agreeing not to pursue her career, at the insistence of the defender, she sustained a very significant economic disadvantage. With hindsight, the pursuer may regret that decision. Viewed through

Coyle v Coyle 2004 Fam LR 2  185 a lens of individual self-interest and commercial logic, it may seem misguided, even foolish. It is, however, precisely because spouses make choices and decisions within the context of familial relationships, relationships which are highly personal and not necessarily guided by the principles which govern our commercial relations, that family law makes special provision for their protection. It is not the business of this court to judge the sense of the pursuer’s agreement. Nor is it the role of the court to subject that agreement to the normal rules of contract. It is clear from the evidence of both parties, and their witnesses, that in fact the defender asked – perhaps insisted – that the pursuer give up work if she wanted to be married to him and, for her own reasons, she agreed. These are the kinds of agreements spouses may choose to make, in pursuit of their own personal family goals, and it is one of the principal functions of family law to provide protection where subsequently there is disadvantage. It was suggested by counsel for the pursuer that I could quantify the pursuer’s economic disadvantage by means of a calculation which simply sought to compensate her as if she were pursuing a claim for future loss of earnings and pension in an action for damages for personal injuries. He submitted that I should use a multiplicand of £30,000 net per annum and a multiplier of six for the years that she would have continued in employment, after the divorce, and a multiplicand of £20,000 for her pensionable years and a multiplier of 15, under reference to the Ogden Tables. By doing so, he submitted, we would arrive at a figure of £480,000. Counsel for the defender resisted this approach. She submitted, with reference to Dougan v Dougan (1998) SLT (Sh Ct) 27, that section 9(1)(b) did not provide for compensation. She submitted that, in any event, there were imponderables in this case, such as the possibility of the pursuer finding some work or even remarrying and being supported by another man. She also submitted that there was a problem in that the court was being asked to speculate on the future, as it would have been if the pursuer had not married the defender, which was difficult to determine. I noted that counsel for the defender had no similar concerns about speculation and imponderables when pursuing the argument against the previous claim that, had the pursuer not given up her career, the family as a whole would have been better off. It was put to me by counsel for the defender that Parliament did not, in the 1985 Act, provide that whenever a couple divorce after a marriage in which one has been the breadwinner and one has been the homemaker, the latter must receive extra and compensatory financial provision on divorce. I might add that I do not share the sensitivities of some others towards the word ‘compensation’ in this respect. Parliament may not have provided that extra and ‘compensatory’ provision must be provided in every such case, but in the words of section 9(1)(b) it very clearly provided that such compensation may be provided. I am in no doubt that the situation with which I am now faced is clearly one which was envisaged by the drafters of the 1985 Act.

186  Jane Mair The primary submission made by the defender’s counsel was that, since the pursuer would receive an award in the form of a half share of the net value of the matrimonial property amounting to around half a million pounds, there would be no imbalance in respect of her economic disadvantage remaining. It would not, she submitted, be fair to add an additional payment since, if the pursuer had not married the defender, she would not be about to receive that share of matrimonial property, nor would she have had the comfortable lifestyle that she has enjoyed. This seems to me to misunderstand the nature and purpose of the section 9 principles. Section 9(1)(a) is the starting point, and what it does is establish in Scots family law a form of matrimonial property regime. While it is not quite the strict community of acquests regime of other European civil jurisdictions, it nonetheless models itself on that approach, albeit with some inbuilt flexibility or discretion. The starting point is that spouses are entitled to an equal share of whatever matrimonial property there is, at the end of a marriage. Leaving aside special circumstances – none of which were put forward in this case – the starting point of fair sharing is the entitlement of each spouse. A fair share of the matrimonial property is not something which has to be earned, or which either spouse ought to feel lucky to have received. It is the sharing of whatever has been accumulated as a couple throughout the marriage. The fact that the pursuer has already received an equal share of the matrimonial property should not in itself affect the question of whether she is entitled to further awards under the other principles. Section 11(2)(b) provides that, in deciding whether to make any award under section 9(1)(b), I should consider whether ‘any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or otherwise’. If the pursuer had received a significantly greater proportion of the matrimonial property than the defender, then that might amount to an appropriate balancing. Just because she has already received half of a relatively large fund of matrimonial property, should not blind us to the fact that she has suffered a very significant economic disadvantage in terms of her earning capacity. During the marriage, arguably, she did not experience the full impact of that disadvantage because she was being financially supported by her husband, but on divorce the economic disadvantage she suffered during marriage will begin to take effect. The disadvantage itself occurred during the marriage – in fact before she entered into the marriage – with the giving up of her career. That is what section 9(1)(b) requires. It is, however, not a one-off instance of disadvantage but an ongoing disadvantage in terms of likely permanent loss of earning capacity. It is, therefore, closely analogous to personal injury and for that reason it seems to me that the Ogden Tables are an entirely appropriate tool, with which the courts are well familiar. I therefore intend to make a further award of £480,000 in terms of section 9(1)(b).

Coyle v Coyle 2004 Fam LR 2  187 In anticipation of the defender’s reaction to this decision, it is important to stress that the pursuer is not being doubly compensated under section 9(1)(b). Section 9(1)(b) is comprised of two quite separate limbs, and it so happens that, in this case, both are relevant. The first award recognises the contribution which the pursuer made and which resulted in an economic advantage to the defender by enabling him simultaneously to grow his business and his employment capacity while still enjoying all the benefits of a supportive family. The second award compensates the pursuer for ongoing loss due to the economic disadvantage – termination of career – which she suffered on marriage. Resources Having identified what orders are justified in terms of section 9, I am obliged to consider the resources of the parties. The pursuer’s resources can be shortly stated. They consist of her interest in a Scottish Amicable pension policy, with an agreed value at the date of separation, and now, of £21,000. The defender’s resources, on the other hand, are extensive and complex. In addition to the remainder of the matrimonial property, all of which is owned in his name, the defender owns a number of other properties, his share of a very valuable family business, considerable capital invested in a number of bank accounts and annual remuneration from the business which, while somewhat variable, is consistently above £100,000 and is likely to continue for the foreseeable future. Throughout this case, I have been left with the impression that the defender was determined to refrain from allowing his wife to get a clear picture of the extent of his resources, an attitude which led me to conclude that he was not entirely honest in his financial dealings with her or with the court. I will not set out the full details of the circumstances here, but suffice to say that I am in no doubt that the defender has, in addition to the matrimonial property, an extensive collection of additional resources; far in excess of what could be reasonably required to meet the orders for financial provision which I intend to make. Orders for Financial Provision Having considered the three elements of the pursuer’s claim for financial p ­ rovision, I have reached the following conclusions as to the value of each claim. In terms of section 9(1)(a), I will order equal sharing of the matrimonial property. That amounts to a sum of £565,000. Assuming that the pursuer retains her pension policy valued at £21,000, that leaves a balancing payment of £544,000 to be paid by the defender to the pursuer. Under section 9(1)(b), and as explained above, I am satisfied that two separate awards are justified. First in respect of the economic advantage derived by the defender from the pursuer’s contribution, I propose to make an order for payment of £100,000. In respect of the economic disadvantage suffered by the pursuer, I propose to make a further award of £480,000. In total, the pursuer will be awarded financial provision of £1,124,000.

188  Jane Mair The pursuer submitted that a property transfer order should be made of the former matrimonial home, as it was the family home and likely to be used as such by her and the children for the foreseeable future. This was, in my opinion, a reasonable position for her to adopt. It is a house which is matrimonial property, which she has run for the benefit of the family and she proposes to continue doing so. If she were forced to move, she would, on the evidence to which I have already referred, have to buy somewhere large enough to carry on providing a family home. It is an asset of not insignificant financial value, but to the pursuer it also has a relationship value beyond that. I am satisfied, accordingly, that the pronouncing of a property transfer order in respect of the house is justified by the principle enshrined in section 9(1)(a) of the 1985 Act and reasonable having regard to the parties’ resources, and I will pronounce such an order accordingly. The agreed value of the former matrimonial home, at the relevant date, was £270,000. The defender referred in evidence to the fact that the house had increased substantially in value since separation and, indeed, over the course of the marriage it had ‘increased in value beyond his wildest dreams’. The defender commented in his evidence that he had been offered £650,000 for the house in 2002. He gave no details of the circumstances and conditions of the offer, the identity of the offeror, or whether it was a formal or informal one. Given the absence of detail and documentation, and given that it was later shown that the defender was apt to misrepresent the truth of the nature and extent of his resources, I was not inclined to place any weight on this evidence. Counsel for the defender suggested that I should take into account this alleged increase in value of the home and reduce the balancing payment required to make up the half share of matrimonial property accordingly. The argument was that, although formally the pursuer was receiving a house worth £270,000, in reality she was receiving a much more valuable asset which she could realise and reinvest the proceeds as she wished. This was an argument which, it seemed to me, completely failed to acknowledge the value of the home to the pursuer. While the defender saw the property as just another asset on his balance sheet, to the pursuer and indeed to the couple’s three children with whom she lived, it was their home. The three children, who were aged 24, 23 and 18 years at the beginning of the proof, all still live at home and have, apparently, no plans to move away. The pursuer expressed a strong wish to retain the house as a base for the children and a hub for their ongoing family life. Indeed, she indicated that, if she were forced to move, she would still look for a property that would be large enough for the ­children to have their home. In granting a property transfer order, I am granting the pursuer ownership of and security in her family home. The pursuer also sought a property transfer order in respect of a holiday house at Turnberry, valued at £110,000. I propose to grant that order in further partial satisfaction of her section 9(1)(a) claim. It was clear from the evidence of the defender, and of his various financial advisers, that the holiday house at Turnberry was one of

Coyle v Coyle 2004 Fam LR 2  189 many assets acquired, transferred and sold by the defender as part of his developing business empire. This house too, although not the principal family home, had been central to shared family life and was clearly an important part of the pursuer’s life. It was both filled with family memories and a place where she, unusually, had been able to develop her own interests in golf and to enjoy some time away from her domestic, caring responsibilities. By granting a property transfer order to the pursuer in respect of the holiday home, she will have the choice as to whether to retain the home for personal use or, in due course, to sell it and realise the capital. I shall grant a capital sum order for £164,000, representing the balance of her equal share of the matrimonial property. In respect of the pursuer’s first section 9(1)(b) claim, I have found her entitled to an order to the value of £100,000 and in respect of the second, to an order of £480,000. I propose to make a capital sum payment order in respect of this full amount of £580,000. This order can be paid out of matrimonial or nonmatrimonial property. Having reviewed the resources of the defender as best I can, in light of the general lack of transparency, I am satisfied that he could comfortably satisfy this order by means of a single payment but, in order to spread the impact over a period of time and to reduce the risk of any detrimental effect on the defender’s new cohabitant or on his business, I propose that this capital sum payment may be made in four instalments of £145,000 spread evenly over the next 48 months.

Commentary on Coyle v Coyle GILLIAN BLACK

Introduction Revisiting Coyle v Coyle 2004 Fam LR 2 from a feminist perspective offers the opportunity to consider how the interests of both spouses are treated on divorce. Are financial and non-financial contributions to the partnership both given appropriate and adequate recognition in law? And, critically, how is this legal framework applied in practice, against the background of the undoubtedly gendered division of earning and caring in families in Scotland?

The Significance of Financial Provision on Divorce: Theory and Law Financial provision on divorce is one of the most practically important areas of family law, with the potential to influence how families function during the subsistence of the marriage, as well as after it breaks down. In addition to shaping life choices of individuals during the marriage (such as whether to work full-time, part-time, or not at all; whether to have children, and, if so, how many), state regulation of the division of a couple’s wealth on divorce also provides an insight into that society’s beliefs and priorities. Rules on financial provision speak not only to fundamental principles of fairness, but also give an insight into the prevailing political and social views on marriage, divorce, fault, expectations of care and support within the relationship, and expectations regarding care of dependent children. For example, where the rules on financial provision seek to punish the ‘guilty’ party by way of an uneven division of matrimonial assets, in favour of the ‘innocent’ spouse, divorce is likely to be viewed by society in terms of fault and blame. In a society where both parties are treated as entirely autonomous, and care and support is not recognised or valued, both parties may be entitled simply to take out of the marriage the financial assets they put in, with the state not making any provision to recognise the community of partnership over the course of the relationship. Financial provision is often shaped too by the wider state approach to welfare. Jurisdictions with an active and extensive welfare state may place less responsibility on spousal support following divorce, as the state can provide the

Commentary on Coyle v Coyle  191 necessary financial assistance; whereas those states with a less comprehensive welfare state might place the burden on the wealthier (ex-)spouse to continue to support the other financially post-divorce. Prior to the Family Law (Scotland) Act 1985 (the 1985 Act), Scots law had minimal statutory provision on financial awards following divorce. The Divorce (Scotland) Act 1976 enabled either spouse to apply to court for periodical allowance or a capital sum. In making any such award, the court was directed to have regard ‘to the respective means of the parties to the marriage and to all the circumstances of the case, including any settlement or other arrangements made for financial provision for any child of the marriage’ (section 5(2)). This clearly conferred broad discretion, having regard to the respective means of the parties and the circumstances of the case. But the 1985 Act, the result of principled and comprehensive law reform by the Scottish Law Commission, changed this. It ushered in a new regime, setting out fair (and equal) sharing as a starting point, and special circumstances which may be relevant in departing from that principle of equal sharing. Thirty years later, the 1985 Act still provides the bedrock for financial provision on divorce and has been described by solicitors as ‘a gem’.1 The underlying principle which informs any award under the 1985 Act is the ‘clean break’ principle.2 In contrast to other jurisdictions, where periodical allowances or maintenance is the norm, Scots law favours financial settlement to be by way of a lump sum or redistribution of assets, thereby allowing both parties to move on with no ongoing financial dependence on, or liability to, the other (albeit of course that relationships may well continue in respect of parental responsibilities). Any periodical allowance is capped at three years (section 9(1)(d)), except in rare cases of ‘serious financial hardship’, where there is no upper limit on duration (section 9(1)(e)), or where the payment relates to the economic burden of caring for children under 16 years old (section (9)(1)(c)).

Financial Provision from a Feminist Perspective What does the Scottish legislation on financial provision tell us about the state’s approach to families? The gender-neutral approach of the 1985 Act seeks to 1 J Mair, E Mordaunt and F Wasoff, Built to Last: The Family Law (Scotland) Act 1985 – 30 Years of Financial Provision on Divorce (Glasgow, University of Glasgow School of Law/Nuffield Foundation, 2016) 172, solicitor [05], available at: www.nuffieldfoundation.org/sites/default/files/files/Research%20 report(1).pdf. 2 It should be noted that this is not the only principle. For example, a 2017 decision of the Sheriff Appeal Court highlighted the competing principles at work, and that the concept of a clean break only forms part of the ethos of the 1985 Act. That ethos embraces competing principles: ‘Another important principle is that parties are free to contract as they please, subject to the ability to apply under section 16(1)(b) for reduction on the basis of fairness and reasonableness. Another principle is that parties are encouraged to settle their differences by agreement, thereby avoiding the stress and expense of litigation. These factors have been recognised in Gillon v Gillon (No 3) 1995 SLT 678 wherein the Inner House accepted that the Court should not be unduly ready to overturn Agreements validly entered into’. Bradley v Bradley [2017] SAC (Civ) 29, para 18.

192  Gillian Black treat the parties as equals, and to recognise and reflect the joint enterprise of the marriage, both in its economic and its caring senses. It is remarkably egalitarian and offers considerable scope to the courts to tailor awards to reflect the individual circumstances of the couple, both as regards the financial and non-financial contributions of the spouses. Further, Scots law not only provides for division of matrimonial property, but it also recognises the need in some circumstances to draw on other resources to achieve a fair outcome. Whether the 1985 Act achieves its potential in practice is, however, another matter. It is not apparent that the courts always use (or are asked to use) the full range of section 9 options, and this may leave one party in a weaker financial position than they should be. As Lady Mair shows in her reworked judgment, applying a feminist-informed approach may make a significant difference to the outcome in any given case. Before turning to her judgment, there are two points worth flagging, which could be addressed by approaching financial division from a feminist perspective. The first is the relationship between the legal principles to be applied and the social reality of women’s lives. Despite the equality and neutrality of the statute, it remains the case that society itself is still highly gendered in terms of economic and caring responsibilities. This leads to some difficulty in applying an economic calculation to divide up a shared life. A marriage is more than money. While income and expenditure can easily be calculated, the whole panoply of nonfinancial contributions to a relationship are not easily subject to detailed financial (re)allocation. Who cooked dinner/did the shopping/put the children to bed/dealt with the recycling/cut the grass/organised the ‘life’ administration? Was there an even division? Valuing these essential contributions is notoriously difficult – and, given the unequal and gendered division of labour, any reluctance to quantify or calculate the value of care and services typically leaves women short-changed in the eventual financial settlement. It is clear that the 1985 Act certainly has scope for these elements to be factored in: it is incumbent upon us as Scots family lawyers to ensure they are. The second concern builds on this gendered division of earning and caring within relationships. Even where the current assets of the parties are divided fairly on divorce, the fact remains that there is likely to be one party who emerges from the marriage with undamaged (or even enhanced) earning capacity, while the other is in a considerably weaker position regarding future earning potential. Typically, spouses who have taken career breaks, or given up work altogether, may be faced with an uphill struggle to re-establish their earning potential. In contrast, spouses who have not made career or earning sacrifices during the marriage will continue in their careers, with their future earning capacity undiminished by the marriage. Thus, a financial settlement which looks only to the past relationship will fail to take account of the parties’ future earning disparity, which is a result of their relationship. In a society where caring and non-economic contributions are still borne disproportionately by women, any imbalance here will also fall disproportionately on women.

Commentary on Coyle v Coyle  193 This is well illustrated by Coyle v Coyle. The case demonstrates the difficulties in seeking to achieve a fair division of matrimonial assets where the ‘clean break’ principle has become engrained in the judicial consciousness, and where the division looks primarily to the historic events of the marriage, rather than the prospective challenges facing one or both parties. Handed down in 2003, it is certainly not an early example of the principles of the 1985 Act at work, and Lady Smith had plenty of previous cases to draw on – although, admittedly, few which grappled with the economic advantage/disadvantage principle in section 9(1)(b) at the heart of the case.3 Yet, despite Coyle being heard over 15 years after the 1985 Act came into force, it is also situated just as the tide was starting to turn in England and Wales. White v White4 was a critical step forward, in recognising women’s economic vulnerability, but it was not until 2006, in Miller v Miller; McFarlane v McFarlane, that future economic disparity was given clear acknowledgment by the House of Lords. As Lord Nicholls said: [C]ompensation … is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband’s enhanced income. This is often the case. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer.5

And it is this future disparity that is in large part the problem. Where neither partner has sacrificed current career development for the marriage or family (eg, where there are no children, or where the spouses have both continued to work full-time and rely on external childcare), or where the spouses have both taken an equal hit in compromising work for childcare, this disparity is less likely to arise. But where the economic sacrifice during the marriage is made by only one spouse (or by one spouse to a significantly greater degree than the other), a legal system which fails to redress this ‘future disparity’ in earning capacity is arguably failing to protect the interests of a large section of society. In the original Coyle judgment, Lady Smith appeared to recognise this, observing that: [T]he defender [husband] has not been disadvantaged and has, as a result of his working life, an interest in a company and pension scheme which are clearly of ­substantial

3 One consequence of the Family Law (Scotland) Act 2006, which introduced a right for cohabitants to claim on the breakdown of the cohabitation based on economic advantage/disadvantage, is the increasing familiarity with, and application of, s 9(1)(b) principles in divorce actions. See R Gilmour, ‘Section 28 and Section 9(1)(b) – How Do They Relate?’ (2013) Scots Law Times (News) 265. 4 White v White [2001] 1 AC 596. 5 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, para 13 (Lord Nicholls), emphasis added. Lord Hope echoed this at para 116. See also Lady Hale’s approach in SRJ v DWJ [1998] EWCA Civ 1634.

194  Gillian Black value, with the option of carrying on in business for a number of years into the future … and the pursuer [wife] has no qualifications, no job, no pension and, on the evidence, no realistic prospect of earning her living, although matters would have been rather different had she been able to pursue her airline career (para 72).

But, despite this explicit awareness, and despite the range of tools available in the 1985 Act, the financial award made was simply an equal division of the matrimonial property, with the wife receiving £565,000 of an estate of £1,157,913–£1,182,913. The wife’s share was to be met by a property transfer order in respect of the matrimonial home, plus a balancing payment. This division addressed the historic position, but did nothing to redress the explicitly recognised future imbalance, whereby Mrs Coyle had no meaningful earning potential, while her ex-husband’s was undiminished.

Proposing Solutions: Lady Mair’s Judgment in Coyle v Coyle The somewhat curious issue with financial provision is that, arguably, the law itself does not require to be reformed. It is the application rather than the framing of the 1985 Act principles that may fail to achieve equality between the parties. Lady Mair’s judgment illustrates the considerable impact of assessing the facts from a more balanced standpoint, as part of the process of this more rounded and equitable application. In particular, her judgment addresses the two concerns raised above. First, by giving parity to Mrs Coyle’s work in the home with Mr Coyle’s work in the wholesale fruit and vegetable business, Lady Mair approaches the section 9(1)(b) economic advantage/disadvantage claim with a different understanding of the parties’ respective advantages and disadvantages. This results in a significant award to Mrs Coyle of a quarter of the value of the increase of the family business during the period of the marriage. Even where the value of the business is not caught within the statutory definition of ‘matrimonial property’, perhaps because it was acquired prior to the marriage for example, Lady Mair has shown the latent power of a section 9(1)(b) claim in (re)distributing economic advantage. In awarding 25 per cent of the increased value of the husband’s business, Lady Mair recognises the economic advantage accrued by the husband while the wife was managing all aspects of their joint domestic enterprise. Secondly, the damage done to Mrs Coyle’s career, and future earnings, is recognised here, through a specific award calculated on her lost earnings. Importantly, Lady Mair has treated the economic advantage to the husband quite separately from the economic disadvantage to the wife, and has allowed two separate section 9(1)(b) claims to reflect these distinct issues. In recognising the career earnings foregone by Mrs Coyle during the marriage, Lady Mair has made a further award of £480,000 and explicitly stated that this is to reflect not only the past ­disadvantage,

Commentary on Coyle v Coyle  195 but the likely future loss of earning capacity. Critically, this recognises loss of earnings as being, in many cases, not simply a one-off disadvantage in the past event, but an ongoing loss, driving down future earnings too. Whereas Mr Coyle’s future earning capacity is unaffected by the marriage, Mrs Coyle’s had undoubtedly been diminished. Lady Mair’s award here recognises this future diminution and includes it within the award for loss of past earnings. Lady Mair’s approach to both aspects of the section 9(1)(b) claim demonstrates just what is possible under the 1985 Act. No statutory reform is required: the 1985 Act can achieve a fair financial settlement which gives due respect to both economic and non-economic activity during the marriage.

Concluding Thoughts The key question here is whether a gender-neutral statute can accommodate appropriately the disparities that arise from a gendered and discriminatory ­society. Gender neutrality may be positive, but gender blindness is not: any provision for the redistribution of property between spouses must recognise the (skewed) social and economic conditions in which the marriage operates. The risk is that a failure to recognise the complexity of the mutual partnership and place due value on the non-economic activities, as well as the economic ones, works against the interest of the party who is economically weaker – typically still, and certainly in the period of the Coyle marriage, the wife. In such cases, much turns on the proactive steps of judges to apply the law in a way which redresses any imbalances caused by society. Lady Mair’s judgment here is a clear demonstration of what the current statutory framework is capable of when applied through a feminist lens.

Reflective Statement: Coyle v Coyle JANE MAIR

Choosing my case for the Scottish Feminist Judgments Project (SFJP) was an easy decision. Almost without hesitation, I volunteered Coyle v Coyle and throughout the project I gave it little further thought. I have read it often. Just as I read and reread Little Women, always with a sense of optimism that this time Jo will get the ‘right man’, I reread Coyle, always hoping that maybe this time Mrs Coyle will get the ‘right award’. Like Jo, the outcome for Mrs Coyle is by no means terrible but, to this feminist reader, it is never quite right.1 Part of my attraction to Coyle is undoubtedly the narrative; it is a good story with strong characters and a compelling plot, but arguably with the wrong ending. Wrong, not necessarily in the total value of the financial award Mrs Coyle received – it was in Scottish terms a relatively ‘big money’ case with a substantial award to the wife – but in the way that 20 years of family care and domestic service was seemingly brushed aside, with no valuation or accounting, and occupying mere moments of the court’s time in stark contrast to the lengthy paragraphs devoted to valuation of the husband’s Ferrari. I chose Coyle v Coyle because I wanted to tell a different story; one where the long hours of the wife’s domestic work were made as visible and as valued in the text as the early mornings and late night paid labour of her husband. I had another reason for choosing Coyle v Coyle. It is a classic case of a male breadwinner and female homemaker marriage and, as such, it sits in the much-contested ground between the contrasting territorial approaches to financial provision on divorce of Scots and English family law.2 This is an aspect of family law which is central to my own academic research. The Scottish principled approach to financial provision has been famously criticised in England3 for being harsh on wives, whereas Scots family lawyers hail its clarity and certainty. While I position myself closer to the latter view, nonetheless Coyle bothers me. 1 For some of the many reactions to this loved or hated book, see JM Alberghene and B Lyon Clark (eds), Little Women and the Feminist Imagination: Criticism, Controversy, Personal Essays (London, Routledge, 2013). 2 An issue I have recently explored in J Mair, ‘The Family Law (Scotland) Act 1985: A Principled System in Context’ (2018) Australian Family Law Journal 204. 3 Perhaps most famously by Lord Hope, himself a Scottish judge, but in the House of Lords in the English case of Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

Reflective Statement: Coyle v Coyle  197 Section 9(1)(b) of the Family Law (Scotland) Act 1985 seems perfectly designed to take account of the situation of relationship disadvantage, such as that experienced by Mrs Coyle, and yet, in practice, it is a section which often disappoints.4 If there is an unfairness towards wives in Scots law, is it inherent in the statutory provisions, or does it result from the way in which those provisions have been applied?5 Writing my feminist judgment in Coyle v Coyle was an opportunity to explore that question for myself. I joined the SFJP, quite confident of what I wanted to do but much less clear as to how I would do it. Throughout a series of seminars and workshops, we explored in our conversations – verbal and physical – what feminist judging might mean; what a feminist judgment might look like; ‘what might reasonably be expected of a feminist judge’?6 We theorised through our words, and we tested through our bodies, how we might be feminist judges and, from the comfort of our academic workshops and the discomfort of our theatre workshop,7 I wondered how I might use any of these ideas or sensations when I finally sat down to write my feminist judgment. In our SFJP theatre workshop, one of the ‘games’ we played was to find a way of inserting our own body into a shape already created by another person. For those of us unused to such silent, physical engagement, it was an awkward moment, and it came back to me when I tried to find a way into the judgment in Coyle. The process of disturbing my own, already written, words is always difficult, but how much more challenging to disturb the authoritative words of a judgment and the real story of a couple’s lives. Should I have asked Lady Smith’s permission? Should I have warned Mr and Mrs Coyle that I was planning to rewrite their fortunes? I found the physical and intellectual process of entering and rewriting this judgment much more difficult than I had anticipated. For various reasons, I decided to rewrite the first instance decision of Lady Smith rather than construct an imaginary appeal. Relatively few financial provision decisions in Scotland are appealed, and so first instance judgments are important. I did not want to overturn the real judge’s decision – it was in many ways a perfectly reasonable application of the law to the facts. Instead, I wanted to explore ways in which a different, feminist story could have been told at the same stage. That approach, however, posed a practical problem in that a significant part of the original judgment is taken up with a dispute as to facts – facts about the

4 Albeit there may be signs of change in the way that section 9(1)(b) is used, following in part from decisions concerning economic disadvantage experienced in the context of cohabitation; eg, the recent judgment of Lord Ericht in M v S [2017] CSOH 151. 5 A question explored in J Mair, E Mordaunt and F Wasoff, Built to Last: The Family Law ­(Scotland) Act 1985 – 30 Years of Financial Provision on Divorce (Glasgow, University of Glasgow School of Law/ Nuffield Foundation, 2016) 173, available at: www.nuffieldfoundation.org/sites/default/files/files/ Research%20report(1).pdf. 6 R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7, 8. 7 A discomfort which the wonderful facilitators from Active Inquiry minimised so well.

198  Jane Mair value of a car, the details of a debt and the relevance or otherwise of a hypothetical capital gains tax liability. Significant questions are raised in the original judgment as to the credibility of the husband, and it is stated that he ‘originally misled the court regarding his resources’.8 Lady Smith comments obiter of the husband’s failure ‘to disclose and … vouch, relevant assets’ that ‘[m]atrimonial litigation is not a game’.9 I wanted to find a way of limiting the time spent on this game of trying to hide assets and minimise their values in order to focus instead on what were, to me, the more important assets and the feminist questions of how we value – or fail to value – domestic labour and personal caring, and how we acknowledge and compensate for relational disadvantage. It was here that I resorted to fiction. ­Relying on my judicial authority, I sent the parties off to sort out their differences and come to an agreement. I am glad to say that they did reach agreement, and then I proceeded on the basis of that agreement. Apart from this one fictional element of my rewritten judgment, the facts, evidence and judicial views as to credibility and reliability of the witnesses come from the original judgment, albeit they are now paraphrased in my own words. Early in the SFJP theatre workshop, we stood in a circle, facing outwards towards the wall and, on a count of three, were instructed to turn to the centre and strike a pose ‘as a feminist’. I turned and did nothing in particular – an inherent sense of embarrassment? Or security in my own lived feminism? In preparing to write my judgment, I considered various approaches. I toyed with the idea of recasting the case as an appeal to the Inner House, with three judgments each exploring a different feminist perspective on the facts. The facts of this case would lend themselves well to that approach, allowing exploration of a range of different feminist responses to homemaking and caring. The image of the successful independent woman who gives up her career at her future husband’s insistence is a challenging one. Should she be compensated? Should she be vilified or possibly re-educated? Is she an autonomous agent? Is she a victim? Might we modern-day feminists console ourselves that it would be different now? In the end, I decided to make no comment on the choices which this particular woman had made in the context of her personal relationship. The 1985 Act might have been designed with a particular mode of self-sufficiency to the fore, but it is very clear that it was also intended to have the flexibility to accommodate a range of relationship models.10 I focused on my role as a feminist judge applying the law to the facts that were presented. The 1985 Act sets out clear principles and detailed guidance, but within that statutory framework there is space for discretion, and I chose to show how I could exercise my own feminist judgement within that space. Perhaps what struck me most about our theatre workshop was an unfamiliar feeling of exposure. While it never fully receded, as the day progressed there was 8 Para 73. 9 Para 14. 10 See, eg, Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (Law Com No 67, Edinburgh, Scottish Law Commission, 1981) para 3.44.

Reflective Statement: Coyle v Coyle  199 undoubtedly a growing sense of support and shared purpose. In writing my judgment, I reflected frequently on the exposure of the real judge: exposure to her peers, to the legal profession, to the parties, to the possibility of appeal, to the would-be feminist judges. I was protected from such exposure and grateful for that luxury. It is easy to be a brave feminist judge within the safe space of role-play, and I offer my feminist judgment in Coyle not in criticism but in solidarity; very conscious that care and caring, how it is given, received, valued and compensated remains a shared and complex challenge for us all.11

11 A complexity recently explored by LJB Hayes in a very different context in Stories of Care: A Labour of Law (London, Palgrave, 2017).

200

10 Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71 Lumsden v Scottish Special Housing Association No 67 Extra Division 20 February 1984 Sheriff Principal of South Strathclyde, Dumfries and Galloway 25 May 1984 The cause called for a hearing before the Extra Division of the Court of Session, comprising Lord Robson, Lord Gemmell and Lord Chalmers. At advising, on 25 May 1984, the opinion of the court was delivered by Lord Robson. Opinion of the Court The essential facts of the case are not in dispute. In this summary cause action for recovery of possession of heritable property, the pursuers are the owners of the dwelling-house at 24 Cairnduff Place, Stewarton, of which the defender is the tenant. The Scottish Special Housing Association raised a summary cause action against Norman Lumsden for recovery of possession of a dwelling-house let by them to him. The defender lodged defences. After proof, the sheriff granted decree. The defender appealed. On 20 February 1984, the sheriff principal refused the appeal. The defender has now appealed to the Court of Session. The missives of let governing the tenancy are dated 28 July and 19 August 1982. The tenancy is a secure tenancy in terms of section 10 of the Tenants’ Rights, Etc (Scotland) Act 1980 (the 1980 Act). The sheriff has held, and it is not disputed, that the defender was in prison – for an offence the details of which are not known in the current proceedings – from 22 November 1982 until 29 March 1983. He has further established circumstances which indicate that, while the defender was in prison, his wife, who resides at the said house, was guilty of conduct which caused a serious nuisance and annoyance to the neighbours. Mrs Lumsden has alcohol

202  Peter Robson and drug-related problems. It is not disputed by the defender that, while he was in prison, his wife caused such nuisance and annoyance; and the sheriff has found that this disturbance to the neighbours stopped after the defender came out of prison and returned to his home. The Tenancy Contract and Tenancy Regime under the Tenants’ Rights, Etc (Scotland) Act 1980 The tenancy agreement that pertained to the property at 24 Cairnduff Place lays out the obligations of the tenant in clear terms. Condition 12 of the missives of let states: The tenant shall not himself nor shall he permit any person to either (a) cause any nuisance in the dwelling-house or in any common parts areas or facilities or (b) cause any nuisance by the presence in the dwelling-house or any common parts areas or facilities of any animal, bird, or pet. This raises the question of ‘permission’ in the circumstances of this case. It is not clear to us how Mr Lumsden, incarcerated as he was during the period when the nuisance took place at his house, could be said to have ‘permitted’ the actions complained of. Specifically, we do not find helpful Sheriff Principal Caplan’s suggestion that if Mr Lumsden wished to be in a position to exercise supervision he must keep himself out of prison. We must assess the situation as it is, not as it might be in a perfect world. Clearly, the landlords, the Scottish Special Housing Association, took the same view and looked at this situation pragmatically. This may also explain why, in this cause, they did not seek to rely on breach of the specific terms of this tenancy agreement, but instead invoked the legislative framework within which this tenancy operated, namely the Tenants’ Rights, Etc (Scotland) Act 1980. Prior to the introduction of this Act, tenants with tenancies not covered by the Rent (Scotland) Act 1971 – that is, tenants of public sector landlords – were limited in their rights of security of tenure to the terms of their tenancy. Thus, in these simple contractual tenancies, there was no right to stay beyond the term of the tenancy once a valid and timeous notice to quit had been served. In addition to repossessing the dwelling-house because of some failure to meet the rental obligations or other terms of the tenancy, local authority and other public sector landlords could regain possession on notice at the natural termination date or ish of the tenancy. Tenancies were typically monthly, so tenants had, in effect, no useful security of tenure beyond their initial contractual term. The Tenants’ Rights, Etc (Scotland) Act 1980 was designed to provide a remedy, by introducing security of tenure to local authority tenants. Nonetheless, there remain a number of situations in which a local authority landlord may repossess a property. Security of tenure depends on the tenant paying the rent, as well as behaving and treating the property in an appropriate manner. Indeed, schedule 2 of the 1980 Act sets out the circumstances in, and processes by,

Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71  203 which a landlord may seek repossession. It stipulates that a landlord may seek the approval of a sheriff to evict, for example, for breach of the terms of the tenancy, absence from the property for a period of six months, or obtaining the tenancy by misrepresentation. As far as antisocial behaviour is concerned, paragraph 7 of schedule 2, part I sets out the following ground on which the court may order recovery of possession: 7. The tenant of the dwelling-house (or any one of joint tenants) or any person residing or lodging with him or any subtenant of his has been guilty of conduct in or in the vicinity of the dwelling-house which is a nuisance or annoyance. It should also be noted that, whenever a possession order is sought in terms of schedule 2, the sheriff must be satisfied that it is reasonable in all the circumstances to grant this. We will return to that particular matter in due course. This appeal highlights issues in relation to which we have a number of concerns. These are issues that have broader implications for residential tenancies in Scots law. Although we are loath to criticise the drafters of the 1980 Act, we can see two issues with the statute as it stands. First, it seems to us that a number of assumptions were made in drafting the statute, which the special circumstances of this case highlight. One such set of assumptions centres on the notion of dependence within marital relationships. Secondly, there are problems of statutory interpretation; despite its intentions, the plain wording of the statute fails to provide clear protection to the landlords, and more regretfully to the neighbours, as we make clear below. As laid out above, paragraph 7 deals with four possible categories of person whose antisocial behaviour we must examine. First, there is the tenant. It is clear that the Scottish Special Housing Association has the right to take proceedings against the tenant – Mr Lumsden – under schedule 2, but there is no suggestion that the behaviour of Mr Lumsden amounted to nuisance or annoyance at the premises in this case. Indeed, as the sheriff noted, the nuisance and annoyance stopped after the defender came out of prison and returned to his home. Secondly, there is the joint tenant, but there is no suggestion here that Mrs Lumsden was a joint tenant of the Scottish Special Housing Association. Thirdly, the behaviour of ‘any person residing or lodging with him [the tenant] or any subtenant’ is to be considered when looking at conduct which is a nuisance or annoyance, but there are no subtenants involved in the current scenario. The category of lodger – that is, someone paying in cash or in kind in exchange for the right to occupy a room in a property – is not relevant either. ‘Residing With’ The final category of persons whose behaviour may lead to eviction is anyone ‘residing with’ the tenant, and the meaning of this term is crucial in the context of the Lumsdens’ case. Here, however, there seems to be a direct conflict between

204  Peter Robson the plain wording of paragraph 7 and what might be regarded as the mischief that the legislation seeks to address. Although the tenant was clearly not living with his wife during his period of imprisonment, when her antisocial behaviour took place, the sheriff principal took the view that he was, nonetheless, ‘residing with’ her for the purposes of paragraph 7. His conclusion was based on a conception of tenants having responsibility not only for their own actions but also for actions of members of the ‘household’. He approached the issue from the point of view of control, and then conjoined this with the notion of residence, and the question of when a person can be considered to be resident in a property. While we can appreciate the attractions of this approach, we are not satisfied that this is the correct way to interpret the statute. Amongst other things, in its assumption that women are mere appendages under the control of their husbands, it reflects outmoded ways of looking at social relationships within families. For the sheriff principal, the question of what is meant in the Act by ‘residing’ elided into a discussion about control and how it can be exercised effectively. He pointed out that some tenants might be working away from home and doing jobs which involved them being absent for long periods of time. For those living away from home for work, control was difficult: In the case of an oil platform worker or a commercial traveller there must be long periods when he could not be expected to exercise immediate control over his family. (SSHA v Lumsden 1984 SLT (Sh Ct) 71, page 73). The example was given of a tenant who is ill in hospital, which was also deemed to raise similar difficulties. Nonetheless, in such circumstances, the sheriff insisted that, in relation to those family members who continued to reside at the property during such absences, ‘it is difficult to believe that they are not to be regarded as “residing with” him for the purposes of this statute’ (SSHA v Lumsden, page 73). The question turned, in his view, on the notion of the household, and the status of the wife was presumed to be one of dependence. Her occupation of the house was, thus, conceived as a secondary form of right. Indeed, as Sheriff Principal Caplan put it – ‘there is no suggestion that she lived in the relevant house other than as a member of the defender’s household and as a wife intent upon cohabiting with her husband whenever he had the necessary liberty’ (SSHA v Lumsden, page 73). In the case of the Lumsdens, the defender’s wife cohabited with him both before and after his imprisonment. It was regarded as significant by Sheriff Principal Caplan that the appellant’s solicitor had difficulty specifying at what point in time the defender’s wife would otherwise be deemed to have ceased to ‘reside with’ her husband. He noted alternative scenarios which made this a matter of difficult judgment: One can readily envisage a situation where a man is remanded for seven days or sentenced to 12 months’ imprisonment and then released seven days later on bail p ­ ending appeal. At what point would a couple in such a situation

Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71  205 cease to ‘reside together’ for the purposes of tenant’s statutory rights? (SSHA v Lumsden, page 73). In Sheriff Principal Caplan’s view, this would occur only when the quality of the wife’s right to occupy changed, and in a case such as this, that would mean that her continuing occupancy would require to be not as a wife with the aim of cohabiting with her spouse but as a result of some other right or title. As a result, he reached the conclusion that: In my view the said Act intends to have regard to the circumstances giving rise to the occupancy of the persons residing in the tenant’s house. If the tenant’s wife is living in the house because she is a member of the tenant’s household, then, in my view, she is ‘residing with’ him for the purposes of para 7 albeit that there may be material periods when the tenant is not physically present in the house (SSHA v Lumsden, page 73). While we are cognisant of the strength of these arguments, we have a number of concerns. The Approach of the Courts Under the Rent Acts to ‘Residing With’ Our first concern takes us to the heart of the right of tenants in the rental sector to remain beyond the term of their lease contract, a right that has been in existence since the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. We are attracted to the argument put before us by counsel for the respondents that we should adopt the approach taken by the Court of Appeal in Haskins v Lewis [1931] 2 KB 1. There, Scrutton LJ observed that the fundamental problem in the early years of the 1915 statute was the bewilderment caused by conferment on tenants of a right to remain by the Rent Acts: The reason for that bewilderment comes, I think from this, that when the Acts were drafted – and I think this applies practically to all the Acts that have so far been passed – those who drafted them and those who passed them had not made up their minds what was the nature of the privilege they were conferring on the tenant (Haskins v Lewis, page 9). As he went on to point out: The Acts have been passed without those framing them having any clear idea whether they were conferring property on the tenant or whether they were conferring a privilege of personal occupation, and the Courts have very slowly – and I do not think they have finished yet – been trying to frame a consistent theory of what must happen (Haskins v Lewis, page 9). This search for the fundamental principle underpinning the legislation also seems to us to have been encapsulated in the comments of Lord Romer in the same case, that ‘the principal object of the Rent Restriction Acts was to protect a person residing in a dwelling-house from being turned out of his home’ (Haskins v Lewis, page 18).

206  Peter Robson With this in mind, we do not feel we should shrink from saying that the legislature, in passing the Tenants’ Rights, Etc (Scotland) Act 1980, was not imagining that someone would be evicted for the actions of others, which he or she had no power to control. In order to take the view that the tenant was in a position to control the actions of his wife, Sheriff Principal Caplan is forced to rely on the notion of the household and the position of Mr Lumsden as its head. This risks ­embodying a status which is not in accordance with modern understandings of family relationships. It is plain, in our view, that linking the question of ‘residing with’ to an outdated notion of households within which the husband has control over, and corresponding responsibility in relation to, his wife – as Sheriff Principal Caplan seeks to do – is not a sound basis upon which to proceed. Mr Lumsden cannot be seen to have been ‘residing with’ Mrs Lumsden at the time of the complained of incidents and, if no other ground could be made out, the possession order should have been refused. Counsel for the Scottish Special Housing Authority have, however, urged us to consider whether ‘residing with’ could be approached in a different way, either by using the same landlord and tenant cases relating to the operation of the Rent Acts that the sheriff principal turned to, or by reliance on case law arising under the Housing (Homeless Persons) Act 1977. We now turn to consider these possibilities. The meaning and parameters of ­‘residing with’ have been discussed more often in the context of whether or not the quality of that residence is real and permanent. Individual fact situations militate against principles that are very broad in application. It is, nonetheless, instructive to examine what issues have emerged in litigation on the question of what ‘residing with’ has been taken to mean. The assistance which can be found in earlier decided cases on ‘residence’ seems, to us, to be somewhat limited as a result of the rather different sets of circumstances and can, in our view, be distinguished. Decisions such as that of the Court of Appeal decision in the 1952 case of Edmunds v Jones [1957] 1 WLR 1118 (Note), to which we were directed by counsel, demonstrate that tenancy succession cases need to be viewed with a degree of caution. Here, a tenant occupied a house with her daughter. The daughter lived in two rooms and shared the kitchen with her mother. The daughter’s claim to succeed to the tenancy was unsuccessful as the Court of Appeal considered that she had a tenancy of a separate part of the house, and had no right to go to any other part of the premises beyond her two rooms and the shared kitchen. The decision, then, is of limited assistance in this case. This can be contrasted with a case that Sheriff Principal Caplan has referred to – Collier v Stoneman [1957] 1 WLR 1108 – which concerned whether or not the extent and quality of a granddaughter’s presence in a house was to be regarded as residence with her family for the purposes of succession to a tenancy under the Rent Acts. Mrs Collier lived in a single room within a two-room flat tenanted by her grandmother, Mrs Langshaw, from Mr Stoneman. When Mrs Langshaw died,

Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71  207 her granddaughter sought to succeed the tenancy on the ground that the room she had occupied with her family meant that she had been residing with the tenant. The Court of Appeal overturned the county court’s granting of a possession order to the landlord, determining that Mrs Collier and her husband were residing with Mrs Collier’s grandmother. The outcome in these cases centred very much on the kind of occupancy which a member of a person’s family would be likely to have had. Despite all the evidence that the Colliers and Mrs Langshaw lived separate lives and shared little in their daily living arrangements, the Court of Appeal suggested there was a vital distinction between the cases of Edmunds and Collier. Though the notion of ‘the household’ was not discussed at length in either case, consideration of whether someone could be said to be a member of the household of another was apparently key, and in Collier it was suggested that ‘a member of a tenant’s family living in the tenant’s house otherwise than as sub-tenant answers this general description’ (Collier v Stoneman, page 1115). This distinction between the Edmunds and Collier cases is thus very fine, and lies in the specifics of the two residences, reflecting the view from the Master of the Rolls, Sir Raymond Evershed, that ‘the words “residing with” must be given their ordinary popular significance’ (Edmunds v Jones, page 1119). Given that Sheriff Principal Caplan indicated in the present case – incorrectly – that the comments of Sir Raymond Evershed were made in the case of Neale v Del Soto ([1945] 1 All ER 144) – a case in which Sir Raymond did not sit – we feel compelled to reflect on whether he was fully aware of the very narrow distinction between the situations in Collier and Edmunds. The case of Neale v Del Soto, in fact, centred not on the question of the nature or quality of residence but rather on whether or not two rooms in a seven-roomed house were let as a ‘separate dwelling’ for the purposes of the Rent Acts. As such, contrary to the sheriff principal’s suggestion, this was not a case that was concerned with the issue, and interpretation, of the crucial phrase ‘residing with’. The significant feature of the Master of the Rolls’ remarks in Edmunds is the qualifier as to the fact and degree of residence, which we suggest offers us a more satisfactory solution to the current situation. It is a matter of fact and degree whether or not in any particular instance the occupancy is as ‘a residence’. Hence, we are not convinced that the approach of the sheriff principal in the present case was appropriate. Paragraph 7 of schedule 2 of the 1980 Act requires the recalcitrant person to be ‘residing with’ the tenant. During the period when the nuisance activities took place, Mrs Lumsden was not ‘living with’ Mr Lumsden, and it seems to us that there is no difference between ‘residing with’ and ‘living with’ someone. As a close reading of the material shows, these cases illustrate a whole range of quite special facts from which it is difficult to draw clear principles. Where there have been disputed claims about residence, these have centred around the q ­ uality

208  Peter Robson of the residence, principally in relation to the protection of the Rent Acts and, more recently, Homeless Persons legislation. One case, however, parallels the problems of the Lumsdens quite closely, and we note with interest how the courts dealt with this as an instance of ‘non-occupation’. Brown v Brash [1948] 2 KB 247 involved a ‘non-occupying’ tenant in a repossession dispute. Mr Brown was the tenant of a property from 1941. He remained as a statutory tenant after receiving a notice to quit in September 1945, which expired on Christmas Day 1945. In the period between the service of the notice and its coming into effect, Mr Brown received a two-year prison sentence for stealing tea – six tons of it. His long-term partner and their two children lived in the property for a few months, leaving in March 1946. The landlord successfully claimed possession on the ground that the property had been abandoned and entered into possession in January 1947. On his release from prison later that month, Mr Brown sought a possession order to let him back in the premises, and succeeded in the county court. The landlords appealed. The Court of Appeal looked to the goals of the Rent Acts in seeking to protect tenants against eviction by their landlords, as expressed in the leading case of Skinner v Geary [1931] 2 KB 546. In that case, the Court of Appeal had explained: [T]he fundamental principle of the Act … is to protect a resident in the dwelling-house, not to protect a person who is not a resident in a dwellinghouse but is making money sub-letting it (Skinner v Geary, page 559). In Brown, that principle was recognised, while noting that short periods of nonoccupation did not affect a tenant’s right to remain, provided there was both an intention to return and some outward expression of this intention. Here, as Asquith LJ expressed it, there was a ‘situation not foreseen or provided for by the Rent Restriction Acts’ (Brown v Brash, page 253). On the one hand, it was suggested that by leaving his partner and furniture, Mr Brown manifested an intention to return and an outward expression of that intention. The landlords contended, however, that the facts demonstrated no such intention. The Court of Appeal was of the view that if one accepted the principle of intention to return then this could sterilise housing accommodation rather than economise it, the latter of which was the intention of the legislation. A jail term of 10 or 15 years would certainly have this unfortunate effect. Thus, while noting that short breaks did not affect the principle of protecting the ‘occupying’ as opposed to ‘non-occupying’ tenant, the Court of Appeal accepted the matter required a pragmatic response. The question, in other words, was ‘one of fact and of degree’ (Brown v Brash, page 254), as we have indicated above. How then does a person who is imprisoned assert possession? This could be done through a caretaker or furniture. When these are absent, as occurred with Mr Brown from March 1946 when his partner quit the premises, the protection disappears. Mr Brown was unable to assert possession by visible acts and thereby forfeited his rights. Likewise, Mr Lumsden put himself in a position

Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71  209 whereby he was unable to control the activities at his house in Stewarton. These positions of lack of control seem to us to be parallel. The consequences may ultimately be somewhat different, but this depends on the specific mix of fact and degree. The context, then, is important in the present case. In looking at whether or not Mrs Lumsden’s behaviour is caught by paragraph 7 of schedule 2 of the 1980 Act, we must acknowledge that there was no doubt that her actions were antisocial. But, on our reading of the fundamental goals of the legislation, these actions did not implicate Mr Lumsden, and this approach is supported by the rationale of the court in Brown. On this reading, we therefore uphold Mr Lumsden’s appeal. While we can appreciate that this might produce an unfortunate result for the landlords, it seems to us that a long-term remedy lies in their hands. Paragraph 7 of the 1980 Act talks of joint tenancies. It might be wiser for landlords to consider whether offering joint tenancies would not be a more satisfactory way of dealing with such potential problems. The appropriateness of such an approach would, of course, depend on whether or not the spouse or partner was likely to be able to meet the obligations as to rent. Nonetheless, where the issue of responsibility for nuisance or annoyance is concerned, this offers an effective response to any suggestion that, were such a scenario to occur in the future, the landlord would otherwise be permanently barred from taking action. Protection Against Homelessness It behoves us at this point, for clarification in the future, to consider issues which are not strictly germane to the summary cause action sought here by the Scottish Special Housing Association. As noted already, Mr Lumsden’s tenancy agreement requires that he not ‘permit any person to cause any nuisance’ in the dwellinghouse or in the ‘common parts, areas or facilities’. The meaning we have to take from this clause is that the tenant’s permission involves him in an activity. That is, the tenant is allowing a form of nuisance which he, and potentially the nontenant transgressor, knows are not approved of by the landlord. This would, of course, include encouraging antisocial behaviour. A tenant might, for instance, permit his or her children to throw stones or shout out insults and verbal abuse at passers-by without rebuke. There is a measure of active connivance here, but in the absence of that, one would surely require something to indicate that the actions were p­ ermitted. It seems to us that it stretches language to suggest that, by the mere fact of the actions taking place, the tenant is permitting them. Assessments may well turn on the facts of a particular case, and it is true that evidence may not be easily available to indicate that antisocial action is permitted by the tenant. This, however, merely points to a weakness in the wording of the clause, which landlords might want to address. Indeed, while we cannot know, it may be that this is the reason why the present action of repossession by the Housing Association relied on the wording of paragraph 7, schedule 2 of the 1980 Act rather than a breach of the terms of the tenancy.

210  Peter Robson Although the issue was not initially raised by counsel for the defender, it seems to us that the court is bound, when looking at the interpretation of schedule 2, to also consider the full test which requires to be addressed. The sheriff must be satisfied that, irrespective of whether or not any of the grounds are met, it is ‘reasonable in all the circumstances to grant the eviction order’. This does not seem to have been canvassed before the sheriff or sheriff principal. Had we not already moved to uphold the appeal on the question of the interpretation of the words ‘residing with’, we would have been inclined to remit this matter to the Sheriff Court for detailed argument on the reasonableness of turning Mr Lumsden out of his home as result of actions over which he had no effective control. There is a duty upon any decision-maker interpreting a statute to expressly consider all the elements of the test found in the statute and not focus solely on one aspect. It has also been suggested to us by counsel for the Scottish Special Housing Association that a rather different light is shed on these matters by consideration of a similar kind of issue – namely that of inter-spousal conduct in relation to the legislation relating to homelessness. Here, courts in England have, in the recent past, apparently adopted the notion of ‘deemed acquiescence’ which, it is suggested, could be relevant in this instance. In R v North Devon District Council ex p Lewis ([1981] WLR 328), a Mrs Julie Lewis had formed an association with a Mr Hopkins in February 1979. In August 1979, Mr Hopkins took employment as a farm labourer with tied accommodation to enable him to perform his duties. He occupied this accommodation with Mrs Lewis and one of her children. He was, however, not happy with his job and gave in his notice in November 1979. As a result, the family were rendered homeless and sought assistance from the local authority. Mr Hopkins was, in terms of the legislation, ‘intentionally ­homeless’ since he had ‘given up accommodation which it would have been reasonable for him to continue to occupy’ in terms of section 17 of the Housing (Homeless Persons) Act 1977. The position of Mrs Lewis was at first glance rather different. She had not done anything to render herself deliberately homeless. However, a successful application by her under the 1977 Act would have meant that any accommodation made available would also be available for ‘any other person who might reasonably be expected to reside with (her)’ (section 16). This would have had the effect that Mr Hopkins could have avoided the consequences of his own deliberate actions, since the couple were still together as a unit for the purposes of the homelessness legislation. The local authority took the view in this case that they did not owe a duty to provide permanent accommodation to Mrs Lewis since she ‘acquiesced’ in her partner’s decision to terminate his employment, knowing that their accommodation was tied to that employment (R v North Devon District Council, page 333). In evaluating this argument, Mr Justice Woolf pointed out that there were ‘no express words which provide that where a man and woman are living together, if one of the couple becomes homeless intentionally the other should be treated as being homeless intentionally’ (R v North Devon District Council, page 333).

Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71  211 The  automatic taint of intentionality could not, in his opinion, be sustained. Though he acknowledged that the effect of this would be that Mr Hopkins would benefit from Mrs Lewis’ entitlement to be housed, although he personally was ­‘undeserving’ (page 333), he maintained that a ‘family unit’ approach was appropriate. To be rehoused, the Act required an applicant to be in ‘priority need’, in terms of section 2 of the Housing (Homeless Persons) Act 1977; consideration of the family as a whole was, therefore, relevant. But this did not preclude the possibility of a wife being ‘party to the decision’ in a way that demonstrated intentionality in relation to the family’s housing predicament. Indeed, Mr Justice Woolf contrasted a situation where a husband squandered the rent on alcohol with the wife’s acquiescence, where it would be proper to regard them both as intentionally homeless, with a situation where she had done all she could to prevent him using the money in this way. A year later, Mr Justice Woolf was given the opportunity to see this bifurcation between ‘acquiescence’ and ‘non-acquiescence’ in an action with a rather closer fact scenario to that which is presently before us. In R v Swansea City Council ex p John (1983) 9 HLR 55, this notion of the actions of one party having an impact on the rights of another in relation to the Housing (Homeless Persons) Act 1977 was again raised. Ms John had cohabited with Mr Owen, who was an alcoholic, for some 18 years. She was the tenant of the property. When drunk, Mr Owen caused nuisance and annoyance to the neighbours. In due course, the local authority made out a case for possession of their dwelling in the county court. Although it was argued that there was nothing Ms John could do to prevent the order for possession being made other than evicting the man with whom she had lived as man and wife for many years, his Lordship was not swayed. He was content with the council’s decision that Ms John could be said to have acquiesced in the antisocial conduct of her partner by not taking action to terminate his right to stay in the accommodation. She had the ultimate sanction as tenant and could have evicted her partner but had chosen not to. In the present case, there has been no suggestion that the Scottish Special Housing Association made such an offer to Mr Lumsden. This concept of a family unit with a (usually male) head has been core to these decisions under the Housing (Homeless Persons) Act 1977. While occupancy arrangements in the various cases were different, their treatment was uniform. But the case before us concerns statutory rights under very different legislation. Moreover, we do not feel that the doctrine of ‘spousal acquiescence’ provides an approach befitting an era of formal equality between the sexes. On its face, it may construct a doctrine that is no more than a common-sense approach, but, in fact and in practice, it enshrines a deeply discriminatory approach to legal rights. The Report of the Scottish Housing Advisory Committee in 1980 indicated that the practice of granting tenancies to the husband in the family was almost universal. The relegation of the wife, in most instances, to a mere appendage of her husband, is not something we would wish to encourage, nor vice versa. We are, of course,

212  Peter Robson cognisant of the fact that in reaching our decision today, we are protecting the rights of a husband rather than those of a wife. But, in our experience, and as the homelessness cases indicate, this is somewhat unusual. Decision We are fortified in our decision to uphold the appeal of Mr Lumsden by the fact that we are sure that what might be perceived as unfortunate consequences of this finding for landlords can be effectively addressed by them in their tenancy arrangements in the future. We would also hope that consideration be given by the legislature to providing a direct opportunity for those at present denied a voice in possession cases to have the opportunity to be heard.

Commentary on Scottish Special Housing Association v Lumsden ALEXANDER LATHAM-GAMBI

The Facts of the Case and Judgment of the Sheriff Principal Norman Lumsden was the sole tenant of a Scottish Special Housing Association property at 24 Cairnduff Place, Stewarton, where he lived with his wife. As a public sector tenant, Mr Lumsden could only be evicted if his landlord could show that one or more of 14 grounds were met and that it was reasonable to make an order for possession.1 Ground 7 allowed the court to grant possession where: The tenant of the dwelling-house (or any one of joint tenants) or any person residing or lodging with him or any sub-tenant of his has been guilty of conduct in or in the vicinity of the dwelling-house which is a nuisance or annoyance and it is not reasonable in all the circumstances that the landlord should be required to make other accommodation available to him.2

From 22 November 1982 to 29 March 1983, Mr Lumsden was in prison. During this time, allegations of nuisance were made against Mrs Lumsden. The landlord sought possession under ground 7, and on 26 October 1983 a sheriff granted a warrant of ejection. Mr Lumsden appealed, arguing that his wife was not at the material time ‘residing or lodging with him’. On 20 February 1984 the sheriff principal refused the appeal. Lord Robson delivers the opinion of an Extra Division of the Inner House on an imaginary further appeal to the Court of Session. We know remarkably little about what happened at 24 Cairnduff Place around the end of 1982 and the start of 1983. We do not know what offence Mr Lumsden was imprisoned for. We do not know whether Mr and Mrs Lumsden had any dependants or anyone else living with them. We are told that ‘Mrs Lumsden has alcohol and drug-related problems’, and the suggestion seems to be that the nuisance



1 See

2 ibid

Tenants’ Rights, Etc (Scotland) Act 1980, ss 10, 12 and 15 and sch 2, pt I. sch 2, pt I, para 7.

214  Alexander Latham-Gambi she caused was attributable to these problems. But we are otherwise told nothing about the nature of this nuisance. We are not told for how long Mrs Lumsden had suffered from addiction, what measures, if any, had been made available to help her deal with this, or what the likely effect of eviction would be on her condition. We know that the incidents of nuisance began when her husband was incarcerated and ceased on his release. We are not told by what means the husband’s presence induced a change in her behaviour. We are not told who decided that Mr Lumsden should be the sole tenant of the property, or the reasons for that decision. We are not told the reasons why the sheriff reached the view that it was reasonable to make an order for possession. We are not even told Mrs Lumsden’s first name. The judgment of the sheriff principal is short – just over three pages long – with the reasoning on the main issue confined to a single paragraph of less than a page. His ratio is encapsulated in this sentence: If the tenant’s wife is living in the house because she is a member of the tenant’s household, then, in my view, she is ‘residing with’ him for the purposes of para 7 albeit that there may be material periods when the tenant is not physically present in the house.3

Although the term ‘household’ is not found in the statute, the concept is key to the sheriff principal’s approach. He reasons that, in deciding whether someone is ‘residing with’ the tenant, we should focus not on her physical immediacy to him (or lack thereof), but on the ‘quality’ of her occupation.4 In Mrs Lumsden’s case, her status as a member of the tenant’s household entails that she should be described as ‘residing with’ him. The judgment is carefully reasoned, although its rigour is somewhat undermined by its penultimate sentence, a rhetorical flourish which suggests an alternative – apparently entirely extra-legal – ­motivation for the decision: ‘If the defender’s wife is unable to behave in a reasonable manner without his supervision then it is up to the defender to keep himself out of prison’.5

The Extra Division’s Critique of the ‘Household’ Lord Robson, in deciding this fictitious appeal to the Extra Division, takes issue with the household concept employed by the sheriff principal, arguing that it assumes that wives are ‘mere appendages’ of their husbands.6 The judgment illustrates the point with reference to a series of English homelessness cases. Repeatedly, we see a wife or girlfriend, having been evicted from a property on account of her

3 Scottish 4 ibid. 5 ibid 6 See

Special Housing Association v Lumsden 1984 SLT (Sh Ct) 71, 73.

74. Lord Robson’s judgment, this vol, p 204.

Commentary on Scottish Special Housing Association v Lumsden  215 partner’s rent arrears, being found intentionally homeless on the basis that she has ‘acquiesced’ in her partner’s financial mismanagement. It is difficult to think of another context in which a third party to a contract would be held responsible for failing to act to ensure the contract’s fulfilment. In highlighting these cases, the judgment prompts us to consider whether the idea of the household is allowing deep-rooted patriarchal assumptions to operate unnoticed in the background of our legal reasoning. If these decisions appear commonsensical, is that because we are used to viewing girlfriends and wives as having a less than wholly autonomous legal identity? The judgment drives home its critique by noting that the reasoning of the sheriff principal would enable the Housing Association to continue its practice, when housing married couples, of granting tenancies solely to husbands. It is not hard to infer a conceptual connection between this practice and the household concept: both seem to be descendants of the old idea that husband and wife are legally one. In England this idea took the extreme form of the doctrine of coverture, whereby, according to Blackstone, ‘the very being or legal existence of the woman is suspended during the marriage’.7 This doctrine did not apply in Scotland, and it is sometimes said that the Scots law of marriage was based not on the subsumption of the wife to the husband but on a communio bonorum or ­partnership.8 However, if it were a partnership, it was, as Crawford has put it, ‘so one-sided in its benefits … as to be leonine’.9 Erskine tells us that ‘[t]he husband acquires by the marriage a power over both the person and estate of the wife’,10 and Stair that ‘the Husband is Lord, Head and Ruler over the Wife’.11 Without suggesting that either the sheriff principal or the Housing Association would have endorsed such statements, their decisions do appear to be based on assumptions about the nature of marriage that have deep, and deeply unattractive, historical roots.

In Defence of a Modified Household Concept But for all that, I would like to depart somewhat from Lord Robson’s approach, and suggest that we should pause before casting the household into the dustbin of 7 W Morrison (ed), Blackstone’s Commentaries on the Laws of England (London, Cavendish, 1999) 1.15.3. 8 For example, William Burge, Commentaries on Colonial and Foreign Laws: Generally and in their Conflict with one another, and with the Law of England (London, Saunders & Benning, 1838) 423; Nicholson v Inglis (1678) M 5834; Cockburn v Burn (1679) M 5793. 9 E Crawford, ‘The Property of Married Persons according to the Law of Scotland’ (PhD thesis, University of Glasgow 1983) 1. 10 John Erskine, An Institute of the Law of Scotland (Edinburgh, Bell & Bradfute, 1805) 1.6.19. 11 James Dalrymple Stair, Institutions of the Law of Scotland: Deduced from its Originals and Collated with the Civil Canon and Feudal Laws and with the Customs of Neighboring Nations (Edinburgh, Andrew Anderson, 1693) 1.4.9.

216  Alexander Latham-Gambi legal history. After all, the critique of the atomistic view of persons as ­essentially separate and disembodied from social contexts is a key line in feminist legal theory.12 More concretely, the notion that marriage is a form of partnership has provided the intellectual basis for affording the wife a share in her husband’s wealth upon divorce, and a similar rationale has been suggested to justify the sharing of property when the relationship between unmarried cohabitees breaks down.13 Acceptance of ‘the household’ as a unit of social ontology need not involve falling back on the pre-existing template of the patriarchal (married, heterosexual)14 household, nor does it necessarily require some updated ethical image of the ideal egalitarian family.15 We should, I submit, seek a concept of household that is capacious enough to incorporate parties’ own understandings of their relationships, one which neither denies their autonomous agency nor overlooks the fact that persons are not atomistic monads and that their actions are always shaped both by irreducibly shared values and understandings and by power relations that may augment or diminish their capacity for individual choice. Retaining the household concept need not mean rejecting Mr Lumsden’s imaginary appeal. We might accept that Mrs Lumsden was ‘residing with’ her husband as a household member and yet allow the appeal on another ground. As the Extra Division point out, the judgment of the sheriff principal is silent on the question of whether it is reasonable to make an order for possession against Mr Lumsden. Reading between the lines, we can see a connection between the rationale for the finding that the person creating the nuisance ‘resides with’ the tenant and the proper approach to the question of reasonableness. If we take the view that Mrs Lumsden was residing with her husband – notwithstanding his incarceration – because it is the role of the husband, as head of the household, to maintain order in the property, then we will conclude that it is reasonable to make a possession order since Mr Lumsden has failed to keep up his duties as a husband. Indeed, this is the interpretation suggested by the sheriff principal in his

12 See, eg, R West, ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1; and N Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney, Allen & Unwin, 1990). This line is often described as an attack on the ‘liberal’ conception of the self, but as Linda McClain has pointed out, liberalism and atomism are not synonyms (see LC McClain, ‘“Atomistic Man” Revisited: Liberalism, Connection and Feminist Jurisprudence’ (1992) 65 Southern California Law Review 1171). 13 See KJ Gray, Reallocation of Property on Divorce (Abingdon, Professional Books, 1977) ch 2; S Gardner, ‘Rethinking Family Property’ (1993) 109 Law Quarterly Review 263; A Bottomley, ‘Women and Trust(s): Portraying the Family in the Gallery Of Law’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives (Oxford, Oxford University Press, 1998). 14 Of course, if one were to look at these issues from a present-day perspective, one would see that changes in society over the last 35 years – in particular the sharp decline in the number of marriages and the growing acceptance of same-sex couples – have necessitated changes to the legal conception of the household. 15 Bottomley, above n 13, 223, highlights the danger of supposing that real-world sexual injustice can be remedied by simply imposing an idealised model of an egalitarian romantic partnership, ‘as if by asserting the moral value of mutuality we will create it’.

Commentary on Scottish Special Housing Association v Lumsden  217 telling penultimate sentence. On the other hand, if we decide that Mrs Lumsden was residing with her husband because theirs was an enduring, loving relationship that persisted despite his imprisonment, it is less clear that we can simply hold him responsible for her misdeeds. The question of reasonableness would then necessitate detailed examination of the relationship between the husband and the wife, the nature of her antisocial behaviour, the reasons why it began when it did, and why it stopped when her husband returned to the property. To answer the question in these terms, of course, we would need to know much more about what happened at 24 ­Cairnduff Place around the end of 1982 and the start of 1983. In conclusion, then, the fictitious judgment of the Extra Division offered by Lord Robson reminds us – crucially – of the need to question common-sense ideas which may conceal lingering patriarchal assumptions in the law. To this, however, I would also add a caution against replacing patriarchal assumptions with individualistic ones, and instead suggest that we aim to base our conceptualisation of family relationships on the understandings of those who are party to them. This would, admittedly, make cases such as this one more difficult to resolve, but a decision on a matter as serious as whether a couple should lose their home should not be made on the basis of stereotypes, old or new.

Reflective Statement: Scottish Special Housing Association v Lumsden PETER ROBSON

This case is one which I have always found fascinating. From a personal point of view, I have spent all my adult life living in various tenement flats only a few feet away from my neighbours. I know how utterly ruinous to a happy home life inconsiderate or thoughtless neighbours can be. Sometimes something needs to be done. From a professional point of view, I was struck by the last sentence of Sheriff Principal Caplan in this case that if the defender’s wife was unable to behave in a reasonable manner without his supervision then it is up to the defender to keep himself out of prison. A sensitive and thoughtful judge in other cases, this struck me as an inappropriate and strange remark. It illustrated the notion with which some of us grappled in the 1970s and 1980s – of judging being an innately political matter rather than a formal doctrinal practice, as we had been taught in law schools. It seemed to suggest that behind all the detailed analysis of case law lay a deeper social message. Along with others, I had suggested a couple of years earlier that this was, in fact, what the much-revered Lord Denning had done.1 At the time, Lord Denning was regarded by colleagues and scholars as a maverick for expressing his beliefs so clearly. Now, the idea that judging involves social and political choices is commonplace. Indeed, the House of Lords has made this explicit in – amongst other cases – Fitzpatrick v Sterling Housing Association, which involved a tenancy succession between same-sex partners.2 I have used the Fitzpatrick case in my teaching of housing law to illustrate the ways changing practices reflect shifting views of the world. In the world of social housing, there has never been the inherent conflict which exists between landlord and tenants within the private rental sector in Britain. Landlords are seeking to provide a social service, like the much-admired National Health Service. Here, another human necessity is being provided not for profit but ‘at cost’. This ­challenge to capitalism has been resisted by those with an interest in maintaining

1 P Robson and P Watchman (eds), Justice, Lord Denning and the Constitution (Farnborough, Gower, 1981). 2 Fitzpatrick v Sterling Housing Association [2001] 1 AC 27.

Reflective Statement: Scottish Special Housing Association v Lumsden  219 a profit-centred economy ever since community housing provision commenced. Its most egregious strategy was to require this community asset to be sold off and for housing to become a commodity rather than a right. Paradoxically, this retrenchment against community housing took place within the same legislation that extended security of tenure rights to council house tenants – the Tenants’ Rights, Etc (­Scotland) Act 1980 and its English equivalent, the Housing Act 1980. In ­ Scotland, that policy has since been reversed in the Housing (Scotland) Act 2014, and the sale of community housing ended in August 2016. Notwithstanding this difference of goals between private and social rental providers, there are nonetheless many priorities in common. Both are interested in receiving the rent, and in the tenant keeping the property in decent order. There is also an interest in the behaviour of the tenant being of a high standard. Although not all private landlords may feel this is something which concerns them, certainly in the past, when landlords had holdings of a number of properties in buildings, it was in their interests to have properties which were attractive to those seeking to rent. In simple terms, noisy and inconsiderate neighbours were unlikely to be good for business. Now that much of private rented housing in Scotland is owned by small-scale landlords with, at most, a handful of properties, this might be seen as less of an issue. With a tradition of building estates rather than owning small scattered holdings, social landlords have always had an interest in maintaining a good level of neighbourliness in their properties. Up until 1980, they had the option to move or evict any tenants about whom they received complaints. They had absolute discretion in what policies to adopt in relation to unacceptable behaviour and how to operate these policies. Tenants in council or housing association property had no security of tenure. Nonetheless, in reality, councils did not operate quixotically, but rather sought to manage their properties sensitively. In the Tenants’ Rights, Etc (Scotland) Act 1980, tenants were afforded the same sort of rights of security of tenure as their counterparts in the private sector. If a landlord wished to evict a tenant whose behaviour was unneighbourly, they had two options. They could effect an administrative move to a more suitable location. This might be done where a family with young children was living near older residents who might reasonably expect a quieter environment, for example. Alternatively, the social landlord could seek to have the tenants evicted. In both instances, this could only be done through an order from the Sheriff Court and the sheriff had to be satisfied that the eviction was ‘reasonable in all the circumstances’. Over the years, that framework has been modified and fleshed out, with the provisions used to deal with tenants who were persistently and significantly noisy, or to combat drug-dealing.3 The current law, under the Housing (Scotland) Act  2001, provides guidance as to the factors to be taken into account when



3 South

Lanarkshire Council v Nugent 2008 Hous LR 92.

220  Peter Robson determining whether activities are ‘antisocial’ – namely, the nature, frequency and duration of antisocial conduct, the role of other third parties, the effect of the conduct, and any action the landlord has taken to secure the cessation of the conduct. Scottish Special Housing v Lumsden 1984 SLT (Sh Ct) 71 arose very early in the life of the 1980 framework, and in a period before the further guidance had been provided under the 2001 Act. There were thus few precedents as to what should count as ‘nuisance or annoyance’. That said, the Lumsden case could be seen as fairly straightforward. Here, there was a family causing nuisance or annoyance in the neighbourhood. This seems to have stemmed from the drink and drug problems of Mrs Lumsden. It is not difficult to imagine that the Lumsdens might have been people whom you would not choose as your neighbours. The thing which makes this case different, though, from the run-of-the-mill antisocial eviction was that the tenant, Mr Lumsden, was absent from the property during the time when the antisocial activities took place. The disruptive behaviour ceased when he returned to the property. It is possible to argue, as the Scottish Special Housing Association did, that he was responsible for these actions. He was head of the family unit. But this brings to mind Dickens’ reaction to learning that a husband bears legal responsibility for his wife’s actions: Mr Bumble in Oliver Twist responded with the celebrated line, ‘If the law supposes that – the law is a ass’. Although he ended up in the Poorhouse himself, Mr Bumble was not at that time, however, incarcerated. The solution which has been adopted by many organisations since the 1980 recommendations of the Scottish Housing Advisory Committee Report has been to offer joint tenancies. In such instances, the courts require that the conduct of both parties be addressed (Glasgow District Council v Brown 1988 SCLR 679). Now, even where there is an occupant who does not have the status of tenant, such as an adult son or daughter living in the property, the Housing (Scotland) Act 2001 also requires that they have the opportunity to have their interests considered before there can be an eviction (Glasgow Housing Association v Gourlay 2006 Hous LR 52; Glasgow Housing Association v McNamara 2008 Hous LR 38). But this was not the arrangement that governed the tenancy held by the Lumsdens in the present case. As chair of a social landlord organisation with several thousand properties I have – for the past 25 years – overseen the management of these properties. Our practice is to devote time and energy to addressing complaints of antisocial behaviour rather than allowing our innocent tenants to suffer. Again, the ultimate sanction is eviction. Since April 1978, families rendered homeless by eviction, like the Lumsdens, have been entitled to apply to the local authority for housing. This requires satisfaction of three of four requirements – being homeless, in priority need (through there being dependent children), and local connection (through residence). The outstanding question would be whether the family had brought their homelessness upon themselves through actions resulting in the loss of accommodation.

Reflective Statement: Scottish Special Housing Association v Lumsden  221 The Lumsden case thus also links into the early case law under the Housing (Homeless Persons) Act 1977. The practical problem here was how to treat families where the actions of one member resulted in the loss of the accommodation. Where another family member played no part in the actions or inactions that provoked the eviction, there was the possibility that the ‘guilty party’ would benefit from any allocation to the ‘innocent party’. The neat solution was the concept of ‘acquiescence’. Just like the notion of household discussed and confirmed in Lumsden, this was posited on a view of the family which seems to enshrine spousal dependence. Since, at this time, tenancies were principally given to males, this inevitably cast the woman as a dependant. The current Code of Guidance, from 2005, in Scotland suggests that a local authority should grant short Scottish secure tenancy (SST) with housing support to intentionally homeless households with behaviour issues. Where this short SST remains in place for a year, the household will be entitled to a full SST. If the short SST fails, as where the tenant persists in antisocial behaviour, the local authority will continue to have a duty to provide non-tenancy accommodation and support, but not to provide a tenancy. The focus is thus on managing, rather than punishing, behaviour; but the recalcitrant have to live somewhere, and the dilemma of what to do with people who persist in being ‘difficult’ remains at the heart of many of the debates in housing law. The Lumsden decision not only did nothing to address the long-term position of landlords with difficult tenants, but, in the approach it took, it only served to highlight the traditional secondary position of women in the home. As such, it was an opportunity missed.

222

Artists’ Statements ‘Look Back, Look Forward’: Rachel Donaldson Illustrator Rachel Donaldson’s work has looked at the Scottish Feminist Judgments Project (FJP) as a whole and aimed to capture the complexity of the cases, and their subsequent rulings, in a clean, simplistic way. She has been inspired to visually depict the ‘balance’ that can be created by applying greater parity in these historic cases. In her bold, exuberant style, the artist also plays with the idea of ‘looking back’ as a way of informing future perspectives, asking how rewriting judgments from the past can help us think differently about making and applying laws now and in years to come. ‘Gestalt 3’: Jill Kennedy-McNeill Jill Kennedy-McNeill’s response to the Scottish FJP is a gestalt composition that comprises three parts, each reflecting one of the project’s overarching themes. ‘Crime, Victimisation and Violence’ (1/3) Adopting the idea of ‘perspective’ as a unifying theme, Kennedy-McNeill explores the notion that anything can appear differently depending on how you look at it. Taking this concept and interpreting it literally, she uses the technique of anamorphosis as a visual metaphor. This work shows the artist blindfolded as a reference to Lady Justice. The decision to use an ‘ordinary-looking’ woman, rather than the kind of idealised depiction that might feature as a statue, has been made as a tribute to the impact these historic judgments have had on ordinary people’s lives. ‘For The Relics’ (2/3) Reflection is often thought to be brought about by seclusion. ‘For The Relics’ invites viewers to step inside this immersive installation and take a seat. Loosely modelled on a confessional, it is designed as a space for contemplation. The green and black coiled chord takes its inspiration from abstracted stone carvings found on monuments and crypts in the Old Calton Burial Ground. The transparency of the chiffon layers suggests separation. The work was inspired by Salvesen v Riddell [2013], a case that resulted in the farmer at the heart of the dispute dying by suicide before a decision was reached, and encourages us to think about the legacy legal decision-making can have on those who are left behind – the relics. ‘Cailleach’ (3/3) ‘Cailleach’ is a meditation on how we visually depict transformative power. Inspired by ceremonial masks, and especially the grotesque one worn by

renegade preacher and Covenanter Alexander Peden, the concealed face builds on the messages of ‘Crime Victimisation and Violence’. Both are investigations into perspective, and the positioning of personal narrative in wider social (and legal) discourse. Women were considered powerful in pagan society and the Cailleach – the divine hag – is a reminder that we construct our social values, in a large part, through mythology with the stories we tell ourselves and each other. What we prize and celebrate, oppress and subjugate is a collective choice and we are all complicit, to varying degrees. ‘A Fair Field and No Favour’: Jo Spiller Jo Spiller’s work is concerned with ‘the gaze’, portraiture and the different senses of perspective that can be achieved when viewing subjects through a photographic lens. Inspired by the case of Jex Blake v Senatus of Edinburgh University of 1873, Spiller’s ongoing project is concerned with capturing a series of images of the city’s prominent female figures. Spiller aims to subvert the traditional, gendered, language of historical portraiture and use her alternative compositions to represent the generations of women who are missing from these civic and educational spaces. ‘To Sophia Jex-Blake’: Sofia Nakou and Becky O’Brien The city of Edinburgh has a number of figurative statues of historic importance. The majority of them are of men, three are of animals, and two are of women. After extensively researching existing campaigns set up to attempt to rectify this, theatre director Sofia Nakou and collaborative partner, performance artist and choreographer Becky O’Brien found themselves in agreement that the city is most definitely missing a tribute to one if its most prominent activists. Sophia Jex-Blake, who fought for the rights of women to be able to obtain to medical degrees and whom many people over the years have unsuccessfully tried to commemorate in stone, is the subject of the duo’s performance piece. Their work aims to address this gap in representation and create a piece that explores and narrates the vision and actions of this important historical figure. ‘Absentia’: Alison Burns Burns’s composition is written as a ‘mirrored’ piece, exploring issues of balance and equality, of absence and obscured identity, juxtaposed with a sung meditation. The text is taken from Jay Whittaker’s poem ‘Not Here’, which has been translated into Latin. ‘A Woman’s Anatomy’: Jess Orr Jess Orr’s fascination with the story of Sophia Jex-Blake and the Edinburgh Seven began after hearing about a campaign for a statue of them to be erected several years ago. When writing this story, Orr was keen to convey not only Sophia’s bravery and brazen character, but also the everyday concerns of trying to study medicine whilst caring for family and putting food on the table that continued alongside the

turmoil of the court case. She also found the language used in the case to describe the women exceedingly dehumanising and looked to draw connections between this and the medical language of the time. ‘Provocation’, ‘The Institutional Writers’, ‘Not Here’, ‘Fragment’: Jay Whittaker Jay Whittaker has focused on the case of Drury v HM Advocate, a 2001 appeal centred on the suggestion that sexual infidelity might reduce murder to culpable homicide. Whittaker has created a found poem ‘Provocation’ from the 36 pages of the original judgment, here juxtaposed with ‘The Institutional Writers’, a response to the ancient legal authorities, particularly Hume – who seems more present in the original judgment than the victim herself – and two meditations on the victim’s absence.

4

‘Look Back, Look Forward’: Rachel Donaldson

 

‘Look Back, Look Forward’: Rachel Donaldson

‘Gestalt 3 (1/3) – Crime, Victimisation and Violence’: Jill Kennedy-McNeill. Photographer Julia Bauer

‘Gestalt 3 (2/3) – For The Relics’: Jill Kennedy-McNeill. Photographer Julia Bauer

‘Gestalt 3 (3/3) – Cailleach’: Jill Kennedy-McNeill. Photographer Julia Bauer

Sharon Cowan photographed for ‘A Fair Field and No Favour’: Jo Spiller

Chloë Kennedy photographed for ‘A Fair Field and No Favour’: Jo Spiller

Vanessa Munro photographed for ‘A Fair Field and No Favour’: Jo Spiller

‘To Sophia Jex-Blake’: Sofia Nakou and Becky O’Brien. Photographer Julia Bauer

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A Woman’s Anatomy by Jess Orr A dank stain creeps like a root from ceiling to floor in the corner of my vision. The smell of burnt toast wafts up the stairs into my nostrils. Turning under the covers, the pile of medical text books strewn beside me clatters to the floor. I rub sleep out of my eyes and stretch to recover the remains of my late night study session. On the table next to my bed are piles of letters, written but unsealed. Appeals to everyone we can think of – professors, lawyers, politicians – to support our cause. Helen says it’s of no use. On Monday, a note from Charles Ford about a cancelled class turned out to be a hoax. By Thursday, an old family friend had written to the Scotsman decrying us as “beyond our station”. I had a dream last night about something I’d almost forgotten. First there’s me, standing in shame at my desk in the classroom, the austere-looking teacher at the front, surrounded by gilded frames of other austere-looking men. Next, him coming close to me, so close I can see his nose hair and smell his whisky breath. What did you say? he says, I think I want to be a doctor, I reply, wondering if there’s something wrong with his ears, and trying to edge away without looking too obvious. Then him, laughing. You’d make a pretty nurse perhaps, but you’ll have to improve your bedside manner. Sniggers from my classmates, and me red face and sweaty hands, staring at the floor. Later in the playground, I remember boys pulling down their trousers when the headmaster wasn’t watching and asking if I would come and “examine” them. I chased them through brown puddles until the bottom rim of my dress had enough splatters to warrant a scolding. The following week, I snuck into the library and spent hours copying pencilled drawings of hand ligaments and diseased kidneys into my sketchbook. Fully awake, I dress, gather my fallen books, and stomp downstairs into the kitchen. No more bread. No eggs. It’ll be watery porridge until we find a bakery who’ll serve us. Does anyone have notes from yesterday’s anatomy lecture? someone asks, I missed it because mum was sick and the doctor could only come at four. There’s cheering outside the window as a goal is scored on the football field below; the pan fizzes as water boils over the top and splashes onto the floor. I can’t concentrate with all this noise and distraction, says someone else, swallowing her last swig of tea. I’m off to the library to study. Sophia, are you coming? I’m on my feet. Count me in, I say, and off we go. A fracture is a damaging of the bones, usually caused by extreme external violence or some kind of muscular dysfunction. Types include simple, oblique and longitudinal, depending on the frequency of the disturbance and the amount of bone found

to be protruding from the skin. When a fracture occurs, there is an eruption of blood vessels, and the muscles surrounding the bone often become violently excited. Treatment should involve applying a splint across the length of the damage, held in place firmly with bandages. Dear Professor Stoppard, I am writing on behalf of myself and fellow students in the school of medicine, who have become disconcerted by the recent appearance of women in our lecture halls. The first of these occurrences, as you can imagine, came as a shock to those of us who have been progressing steadily with our studies for some time. Freddie Wilkins was so put out that he immediately stalked out the room and holed himself up in the common room for the rest of the day. Speaking for myself, I wouldn’t have minded so much if the women had merely sat at the rear of the hall and listened. Indeed, I am not opposed to the idea that it is of great benefit for women to increase their knowledge of health and hygiene, tasked as they are with maintaining the wellbeing of their families. Putting aside personal grievances however, I wonder if we are really serving these women by exposing them to such explicit detail, especially when it is so unlikely that they will ever use this knowledge. Last week, I noticed several of them had assumed seats just to the lecturer’s front left, and when it came time for questions, raised their hands and made the most inappropriate comments, which served only to confirm their ignorance regarding the complex anatomical structures under discussion. Needless to say, this time wasting will do no good for those of us who are in serious pursuit of a medical career. I would therefore be much appreciative if you would meet with myself and my colleagues to discuss how this unfortunate situation can be resolved. Yours sincerely, Robert D. Gordon The uterus lies behind the bladder, and from its top edges can be found two broad ligaments, both of which lead to the female sex-gland, the ovary. This flattened, whitish body is fastened to the uterus by the connective ligament, the uppermost border of which is the fallopian tube. Before the first pregnancy, the uterus is approximately 80mm in length, growing to 90mm following this occurrence, and developing a rounded and puckered lip. The cavity found within is proportionately small in the virgin, and lined by a pale mucous membrane. It is a rare day in Edinburgh. We march through cobbled streets that gleam like polished medals, from our place on Buccleuch Street to the Surgeon’s Hall. We’re not off to simply watch a parade of university officials make a show of themselves, nor towards the market to pick up eggs, bread or milk. Donning white starched shirts, tucked neatly into black skirts, our heeled shoes clip as we move closely together, wary of the verbal, and sometimes physical abuse that has awaited our

doorstep in recent weeks. The street is empty – surprising for such a day – and the air silent save for birdsong. I feel the stoic heat of the crowd before I can see it, before I can hear it even. Edith and Matilda’s grip on either side of me tightens as we approach, our linking of arms turning into a barricade against attack. One, maybe two hundred people await us, pushing and shoving each other to get closer to the entrance of a building through which men have passed unnoticed for decades. I look up at the perfect sky, previously filled with unblemished promise. I catch a glimpse of a young girl in the crowd. Around her waist is tied a white apron layered above a dark green smock dress, smudged here and there with patches of dirt. There’s a perplexed look on her face as she jostles to keep her place in the crowd. For a brief moment our eyes meet, and she looks so intently, and with such brutal directness at me, that a feeling of mutual understanding is generated between us. A half-desiccated tomato thuds against my forehead. The girl’s eyes narrow into a smirk, her raised arm high in the air as if in a wave. I fight to catch up with the others, but shrieks come from my left, and within seconds the crowd has parted to make way for three large sheep barging their way through. If women are allowed to become doctors, a rough voice shouts, then why not sheep too. The poor creatures thrash their heads from side to side, squeezing through the mob as meat through a grinder, and for a few precious moments we dissolve into the masses in collective witness of this spectacle. There are shouts from a row of boys sitting along a high wall next to the street, who cup their hands to their mouths to disguise their thrill at the commotion beneath. The moment passes, the sheep are rounded up, and we are once again the centre of attention. An abscess, or ulcer, is a chasm caused by the formation of suppurative papillae, which gradually reach the surface of the skin. Whilst there are some healthy secreting surfaces on the body, these surfaces are not healthy and are in fact diseased. The pus that results from this ailment must be absorbed and the edges of the wound supported with a large piece of oiled silk. The most difficult part of treatment is the careful preservation of the new skin as it forms over the sore, which must be re-dressed. Standing in the courtroom to find out whether we can attempt this rite of passage again, I remember the riot with distaste. The inconvenience and disturbance this may cause, the judge above me is saying, is destructive to the delicacy and purity of the female sex. Grave nods from the row of blackened figures that line the room. His words hang around me like a veil, close enough to be visible but not quite touching. As he speaks, I can feel the remnants of tomato on my brow, and the stare of fifty pairs of eyes boring into the back of my neck. If anything can cause more disturbance to my so-called delicacy than a mob of farm animals, I’d like to know about it. Helen couldn’t make it today. There’s more to life than a silly court case, she had said the week before, and besides, there’s no chance we’ll win. Too many are still against us Sophia, she warned, pity on her face. It’s a shame, but at least this

way you can enjoy the holidays without worrying about revision. Edith was easier to convince, though even she insisted on arriving through the back door. Now she sits stolidly to my right, head bowed as the judge declares our fate. Accurate as Helen’s prediction might be, I can’t help but feel tickled by the sense of alarm I have encountered today, from the door-boy who almost jumps out of his skin when he sees us, to the elderly ladies in the viewing gallery whose black-rimmed hats are pulled down as far as possible without obscuring their vision. Diverted glances, pursed lips – if one thing is for sure, we have caused a stir. And whatever the outcome of today’s charade, we aren’t going away anytime soon. As evening falls, the cover of darkness becomes our disguise. I collect together some supporters and drift away from the judgement of the town through cobbled streets until we reach Holyrood Park, its craggy ridge a black mass looming straight ahead. I start to run, guided by the reflection of the moon on tree and rock, kicking off my shoes and allowing my hat to blow up and away. For a time, I hear only my pounding chest drowning out the words of the day and the wind blowing white noise into my ears. I pause, and breathe in the silence. Just when it seems I am completely alone, I glance back and glimpse a row of heads bobbing towards me through the darkness, the rustle of feet moving through the grass. Gathering decibels with each step, I realise they are accelerating in my direction, even threatening to overtake me. The skyline of spires and city chambers can be seen above their heads, a familiar jagged line that crowns the sky like a signature. I release a laugh into the air and run on, faster and faster towards the steep cliff.

Provocation

The institutional writers

Ordinary wickedness of heart   slapped her

Leather bindings cloak ancient texts, fading robes no longer fashionable, donned nonetheless to warm old bones.

reasonable frenzy a mere man lost control claw hammer killer precisely   struck her brute retaliation overwhelming   blunt force

If we cast them aside what will we do bury them, burn them? They no longer suit us can’t just be thrown away.

facial bones tooth sockets act faithful   seven blows act depraved a disproportionate fidelity

Not here

Fragment

Not in this wall of words, considered deliberations of five judges, muffling argument, convoluted phrases.

i.m. MM

Not in the pathologist’s report. The facial injuries the worst she’d ever seen. Multiple comminuted fractures Google it.   Shudder.    Look her up find her smiling out of snaps like any one of us, not sensing we are mortal.

Someone, somewhere wakes with something to tell her aches with her absence.

Jay Whittaker

11 Rafique v Amin 1997 SLT 1385 Rafique and Another (Pursuers and Respondents) v Amin and Others (Defenders and Appellants) House of Lords 13 June 1997 Judgment Lady McCarthy (Delivering the Opinion of the Court) My Lords and Ladies, At issue in this case is the law of common ownership in Scotland as it relates to alteration of commonly owned subjects. The case concerns heritable property at 19/21 Rose Street, Aberdeen. The property is composed of a single building over three floors, which had been owned as a single unit until the point of transfer to the parties to this case. In 1990, the then owner separated the property into two distinct subjects, disponing one to the appellants and the other to the respondents. Although the two ‘new’ properties were distinct, they were not independent of one another. Rather, the disposition specified that certain elements of the building were to be held in common ownership of the two parties. These elements included the solum, the foundations, outside walls, gable roof and chimney heads, along with various sets of pipes and gutters, and some garden ground to the side and rear of the building. The effect of this stipulation in the disposition was that even though, for example, the interior of the shop/restaurant premises at 19 Rose Street was in the sole ownership of the respondents, the exterior walls of the premises were in common ownership of both parties. The dispute before us arose from a programme of renovations planned by the appellants to their property. The planned work went far beyond routine repair and maintenance of the kind required to keep a property in habitable condition, involving substantial alteration to the structural fabric of the building. Briefly

224  Frankie McCarthy put, the appellants sought to create a new entrance and staircase leading directly from the street at 21 Rose Street to the first floor of the building. The bulk of the planned work, which was to be carried out within the curtilage of 21 Rose Street, concerned the appellants’ solely owned property. However, construction of the staircase required steel columns to be seated on the solum of the building and steel beams to be inserted into the exterior walls. In addition, it was proposed that a granite column on the exterior of 21 Rose Street should be removed. The appellants sought the permission of the respondents to carry out these alterations to the commonly owned property. The respondents refused. That disagreement gave rise to the present action. Legal Issue The legal issue to be determined concerns management of commonly owned property. The respondents assert that no alterations, beyond regular repairs and maintenance, to commonly owned property may be carried out without unanimous consent of every common owner. In other words, a common owner has an absolute veto in respect of alterations. The appellants argue that the absolute veto exists only in situations where common owners may respond to deadlock by exercising the remedy of division and sale. In situations where the remedy is unavailable because, from a practical perspective, division or sale of the common property is not possible, the veto is not absolute. Instead, the availability of the veto is governed by equitable considerations. The respondents’ position was preferred at first instance in Aberdeen Sheriff Court and that decision was upheld in the Inner House of the Court of Session. The point is now before us. Decision It may be useful to clarify at this early point in the judgment that we have decided to refuse the appeal. We have felt obliged to do so by the clear line of authority presented to us in respect of the matter at issue. However, we have taken the opportunity to express our concerns about the fitness of the rule for purpose, and would enjoin Parliament to consider as a matter of some urgency whether reform in this area might be appropriate. The Law of Common Ownership The basic rules of the law of common ownership have recently been summarised in the revised reprint of the Stair Memorial Encyclopaedia, volume 18, paragraphs 22–33. In a common ownership situation, the sole right of ownership which exists in a piece of property is shared between two or more persons, known as common owners or co-owners. Each common owner holds a pro indiviso share of ownership of the property in question, entitling her to make use of the whole property, enjoy its fruits and dispose of her share through sale, succession or otherwise, just as would be possible were she the sole owner. Her use is, however, constrained by

Rafique v Amin 1997 SLT 1385  225 three rules designed to ensure that each of the co-owners may enjoy the property. First, all the co-owners are entitled to use every inch of the property in question. Secondly, only ‘ordinary’ use may be made of the property, with the question of what uses are ‘ordinary’ determined in relation to the facts and circumstances of each case. Finally, no co-owner may receive ‘excessive benefit’ from the property at the expense of her fellow owners. Such benefit would normally be obtained by one co-owner taking exclusive possession of an area of the property, although no doubt other examples can be imagined. Co-owners may contract amongst themselves for exclusive rights to an area of the property, or to restrict use to certain areas or times, but such agreements create personal obligations only and cannot bind successors. In addition to these rules on use, specific rules regulate alterations to the subjects. No co-owner is entitled to make alterations to the common property, beyond essential repairs and maintenance (albeit that the extent of these can be hard to define), without consent of all other owners. The rule, in other words, requires unanimity before works can proceed. Human nature dictates that unanimity may sometimes be difficult to achieve, and the more co-owners there are in respect of a piece of property, the more challenging it is likely to be. The law provides remedies in recognition of this difficulty. It is possible for the court to appoint a judicial factor to manage the co-owners’ affairs, although in practice this is very rare (see Allan (1898) 6 SLT 106, OH, affd (1898) 6 SLT 152). In volume 18 of the Stair Memorial Encyclopaedia, paragraph 30, Professor Reid suggests that in principle the remedy of judicial regulation, in which the court lays down a set of rules to govern management of the property, is available. Professor Reid notes, however, that in the one reported case in which this remedy was sought (Menzies v Wentworth (1901) 3 F 941), Lord Stormonth Darling concurred with views expressed by Lord Deas in Menzies v Macdonald (1854) 16 D 827 as to the remedy’s impracticability: the court is not an appropriate body to manage use of a property on an ongoing basis, not least on account of the time and cost that would be involved every time a change to the rules were required, or a situation arose which the rules had not anticipated. Instead, the main solution to intractable disagreement lies in the remedy of division and sale. It is integral to our law of common property that no owner should be compelled to remain in common ownership with another. Note the words of Lord President Dunedin in Grant v George Heriot’s Trust (1906) 8 F 647, page 658: ‘I have no hesitation in saying that to give a thing in common property and at the same time to say that you are not to pursue a division is an impossibility in the law of Scotland’. Accordingly, the remedy of division or sale is available. This is the right of any co-owner to have the commonly owned property divided into separate pieces, each in the sole ownership of one formerly common owner or, if such division of the thing is not practically possible, to have the property sold and the proceeds divided between each of the owners. In principle, division is the primary remedy and sale

226  Frankie McCarthy available only where division cannot occur. In practice, division is often impractical, whether from a physical perspective (a suburban house with one bathroom, one kitchen, one turn-off from the road and so on cannot easily be turned into two separate houses with the same essential facilities) or a financial perspective (the two houses which result may be worth a combined total significantly less than the value of the intact house, particularly once the cost of the renovations is taken into account). Accordingly, sale is the remedy more usually employed. The availability of division and sale is not conditioned on a standard of reasonableness or any other equitable consideration: any common owner may seek it and, if sought, the court has no option but to grant it (Upper Crathes Fishings Ltd v Bailey’s Executors 1991 SLT 747). It provides the escape route from co-ownership that the law deems necessary. Notwithstanding the importance of this remedy, however, there are some situations in which it is not available. First, common owners may validly contract out of their capacity to use the remedy. As with agreements as to use, such contracts cannot last in perpetuity and cannot bind singular successors. Secondly, common owners may personally bar themselves from insisting on division and sale by words or actions leading a fellow common owner to believe an agreement to exclude division and sale is in place, to that owner’s prejudice (Upper Crathes Fishings Ltd v Bailey’s Executors). Thirdly, special statutory rules are in place to regulate the availability of division and sale where the common owners are husband and wife (Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 3). Finally, and of most relevance for this case, division and sale is excluded where the use of the remedy is impractical because the common property in question is, in Professor Bell’s terms, ‘a thing of common and indispensable use’ (Bell’s Principles (10th edn), paragraph 1082) such as a staircase in a tenement. This exception envisages a scenario in which a pro indiviso share in ownership of a piece of common property is held as a pertinent of related, solely owned subjects. In a tenement, each flat is owned individually, with a pro indiviso share in the common stair or elevator as a pertinent of that flat. In the case before us, the parties’ pro indiviso shares in the solum, foundations, external walls and so on would seem best understood as pertinents of the two distinct properties created from the original building at 19/21 Rose Street. Accordingly, there can be no doubt that the remedy of division and sale was not available to the parties here. Alterations to Common Property: The Absolute Nature of the Veto Having set out the detail of the relevant law, we turn now to the precise argument before us. As noted above, alterations (beyond essential repairs) to common property require unanimous consent of all co-owners. In other words, each co-owner has the ability to veto works going ahead. The argument made for the appellant is that in a situation such as this, where the remedy of division and sale is not available to the co-owners, exercise of the veto is subject to equitable considerations.

Rafique v Amin 1997 SLT 1385  227 This argument was based on selected passages from relevant authorities to which we will return below. Looking first to the institutional writers, notwithstanding some reference to common property in the older texts (Stair, Institutions of the Law of Scotland, I,7,15; I,16,1; Bankton, An Institute of the Law of Scotland, I, 8, 36 and 40), a detailed institutional treatment of the law cannot be found until Professor Bell’s Principles of the Law of Scotland, the first edition of which was published in 1829. In Grant v George Heriot’s Trust (1906) 8 F 647, page 658, Lord Dunedin expressed the view that the law of common property up to Bell’s time was not accurately understood, but that Professor Bell had made it very clear. In more recent times, Professor Reid has described Bell’s views on matters concerning common property as ‘of particular authority’ (Stair Memorial Encyclopaedia, volume 18, paragraph 33). Paragraph 1075 of the tenth and last edition of Bell’s Principles (originally published in 1899), dealing with management of common property, begins with the maxim in re communi melior est conditio prohibentis, translated by Professor Geoffrey MacCormack in a recent study to mean ‘for the case of property held in common, the person who prohibits is in the better legal position’ (‘The actio communi dividundo in Roman and Scots Law’ in Lewis and Ibbetson, The Roman Law Tradition, page 164). This was the rule in Roman law, for which see Justinian’s Digest at D.10.3.28. Paragraph 1075 of Bell’s Principles continues with examples of this maxim in practice, and includes the following passage: [A common owner] may also prevent any operations on the common subject by which its condition is to be altered; as in a common stair or passage, he whose property lies next adjoining, is not, without the consent of the rest, entitled to break the wall, and strike out a door. In this respect, the different effects of common property and common interest are to be marked, and it is necessary to discriminate carefully whether the right be of the one class or of the other. The exception to this rule is, that necessary operations in rebuilding, repairing etc are not to be stopped by the opposition of any of the [common] owners. It will be noted that no reference is made in this passage to equitable considerations or the reasonable grant or withholding of consent. The rule on alterations set out by Bell towards the end of paragraph 1075 again mirrors the rule that existed in Roman law (D.8.2.27; D.8.5.11) and, indeed, the Roman authorities are cited in support of it. However, the connection between Roman and Scots law here may not be as straightforward as that citation suggests. In the study conducted by Professor MacCormack, he notes at page 179: One has to wait until 1852 [in Brock v Hamilton (1857 19 D 701)] for an authoritative judicial statement which locates Roman law, and specifically the actio communi dividundo, as the source of Scots rules. Was this a piece of ‘historical engineering’ (even if accomplished in good faith), or was it a belated recognition of the true course of evolution taken by Scots law in its treatment

228  Frankie McCarthy of common ownership? … Perhaps, however, it is a mistake even to postulate a true course of evolution waiting to be discovered … With respect to the postBrock development of the law of common ownership, it is difficult to avoid the conclusion that specific recourse to the rules of Roman law depends very much on the individual predilections of counsel or judges. The reports of cases referenced in Bell’s Principles alongside the Roman authorities for the rule on alterations are, typically for the time period, very brief, and do not generally include the detail of counsel’s submissions or the justifications for the court’s findings. Accordingly, it is not possible to discern the extent to which the rules that developed relied on their Roman forebears, and to what extent they were a peculiarly Scottish creation. Nevertheless, the rule on alterations which emerges from the cases is unambiguous: the veto is absolute. The earliest relevant authority cited by Bell, Anderson v Dalrymple (1799) Mor 12831, finds that a door cannot be inserted into a commonly owned wall without consent of all co-proprietors. Based on expert evidence, the court declared itself satisfied that the alterations proposed would not hurt the common owners objecting to them. The report goes on to record at page 12832: But this notwithstanding, the general opinion was, that, as the petitioners had not merely a servitude oneris ferendi on the wall from which the door was to be opened, but a right of common property in the passage, no alteration whatever could be made on it without their consent. In Alexander v Couper (1840) 3 D 249, the issue was whether a tenant could prevent his landlord from inserting a door at the end of a common stair to provide access from the street, through the tenement passage, to buildings owned by the landlord at the rear of the tenement. The court noted that had the dispute arisen between ‘joint owners’ (meaning common owners in modern understanding) rather than landlord and tenant, the co-proprietors could not only have interdicted the landlord from creating a door, they could also have insisted in the wall being restored to the state it had been in prior to any work already undertaken towards creating the doorway. The relevant issue in Gellatly v Arrol (1863) 1 M 592 was whether the defender could insert a door into the wall separating a tenement flat in one building from the adjoining flat in the next building along, since both flats were in his ownership. There was some disagreement amongst the judges as to whether the right of the other tenement flat owners in respect of the wall concerned was a right of common property or a right of common interest. The significance of this distinction was noted by Lord Cowan at 601: Where the right is that of common interest merely, and where no one case of danger has been made out, the Court have authorised alterations to be made; whereas, if the right be one of common property, no one can touch the subjects

Rafique v Amin 1997 SLT 1385  229 of the common property, so as to innovate its character, without the consent of all the other proprietors. In the event, the court was satisfied that the proposed operation would interfere with the chimneys of lower flat-owners and increase the risk of fire, meaning that the work could be interdicted regardless of the interest held by the other flatowners. Nevertheless, the absolute nature of the veto for common owners was not called into question. In Dow and Gordon v Harvey (1869) 8 M 118, the Inner House affirmed the decision of the sheriff-substitute, who had expressed the view that the idea of common property upon which one of the common owners can operate without or against the consent of the other is a contradiction in terms. In his view, to permit such a proceeding without judicial authority would seem to be contrary to all principle. In Taylor v Dunlop (1872) 11 M 25, it was held that the proprietor of the upper floor of a house and underground cellars had no right to carry a flue from the cellar to the roof through a staircase in which he had not an exclusive right of property. In his submission before us, counsel for the appellants sought to place reliance on a dictum of the Lord President (Hope) in the case of Upper Crathes Fishings Ltd v Bailey’s Executors. This case did not concern the rule on alterations, but focused rather on whether the remedy of division and sale was itself subject to equitable considerations. The court determined that equitable considerations might play a role in determining whether the appropriate order was for division or for sale, but had no impact on the availability of the remedy in the first place. In making this finding, Lord Hope opined (at page 40): The right to demand division of the property at any time against the will of the other proprietor is a counterpart of the right of veto – itself of an absolute character as Rankine points out at p 587 – which all co-owners enjoy in the control or management of the property. Counsel for the appellants sought to rely on the first part of the dictum quoted, to the effect that the right of veto is a counterpart of the right of division, arguing that one therefore cannot exist without the other. In the case before us, since no right of division was available, counsel for the appellants argued that the right of veto therefore could not be absolute. When this argument was presented in the Inner House, the Lord Justice Clerk (Ross), delivering the opinion of the court, placed his focus instead on the second half of the dictum quoted, to the effect that the right of veto is, in itself, absolute. Had Lord Hope’s words been considered in isolation, either interpretation would, in our view, be equally plausible. However, the dictum must be considered in the context of the full weight of the institutional and judicial authorities lying behind it. The relevant paragraphs of Bell’s Principles and the numerous case authorities described above offer little room for doubt that

230  Frankie McCarthy the right of veto in respect of alterations is absolute. We are compelled to find that the appellants’ argument is incorrect. In the Inner House, the Lord Justice Clerk noted at page 1388: If counsel for the defenders’ proposition were to be upheld, the result would be that the long-established rules in relation to the rights of co-owners of common property would be very seriously altered. The right to veto has long been recognised, and there is no justification for holding that its exercise is subject to equitable considerations. We agree with these observations and therefore consider that there is no alternative but to refuse the appeal. Alterations to Common Property: The Case in Favour of Reasonable Exercise of the Veto As explained above, we do not consider there to be any real doubt about the legal rule which applies in this case. However, reviewing the authorities in which the rule is established has led us to question the fitness for purpose of that rule, bearing in mind the relevant policy considerations. To put the point briefly, a rule such as this, which promotes conflict and recalcitrance, seems to us an ill fit in an area of law, such as common property, where the law should promote cooperation and responsible behaviour, in pursuit of the broader objective of promoting good use of land. These policy considerations underpin the broad scheme of our law of common ownership. It is not clear why they have not held sway in relation to this particular rule, but it is suggested the time may have come for Parliament to rethink the position. The roots of our concern can be located in the references throughout the authorities to the policy motivation for the remedy of division and sale. Unlike the majority of the law on common property, institutional recognition of this remedy can be found even in the works of the earlier writers, and when the remedy is discussed, so too is its basis in public policy. In the Ius Feudale, Craig notes that no person can be compelled to remain in the position of co-owner along with others and that agreements between co-owners not to divide were treated as void on the ground of public policy (2.8.35). Bankton (I, 8, 36) notes the availability of the actio communi dividundo ‘to remedy the great inconveniency of possessing in common, whereby the subject is for the most part neglected; for, as the law expresses it, natural vitium est negligi quod communiter possidetur’. (Our translation of the maxim is that ‘it is natural to neglect that which is possessed in common’.) The precise nature of the relevant public policy considerations is teased out by Lord Rutherford in Brock v Hamilton (1857) 19 D 701, in which he noted at 702–03: There can be no question, it is thought, after the authority of Lord Stair, referring to the Roman Law, that an action for division of heritable property, held pro indiviso, though by singular titles, was imported into the common law of

Rafique v Amin 1997 SLT 1385  231 Scotland in the form of a brief of division in very ancient times (Bell’s Comm, I, p 64) … That law, and our common law following it, proceeded upon the principles that no one should be bound to remain indefinitely in communione with another or others as proprietors of common property: that for reasons of public policy, and especially to ensure the advantageous management of such property, any joint proprietor should have it in his power, against the will of the others, to put an end to the communion. Similarly, in Grant v Heriot’s Trust (1906) 8 F 647 at 658, Lord President Dunedin, with whom Lord M’Laren, Lord Kinnear and Lord Pearson concurred, noted that the remedy of division and sale was made available because common ownership is, ‘from the motive of public policy, an absolutely cumbrous state of matters to keep up for perpetuity’. The leading authority on the law of common ownership in the current century is that of the Inner House of the Court of Session in Magistrates of Banff v Ruthin Castle Ltd 1944 SC 36. The decision is notable for resolving a long history of terminological confusion between common and joint property, the latter arising principally in the case of trusts, with no joint owner holding an individual share of ownership. The court in Magistrates of Banff noted the availability of the remedy of division and sale as a defining feature of common (as opposed to joint) property. Reviewing the older authorities, Lord Wark offers a summary of Lord President Dunedin’s position in Grant v Heriot’s Trust (with ‘joint’ here meaning what we would now understand as ‘common’), page 63: The reasons for the law of Scotland holding that the state of joint property may be brought to an end at the instance of any of the joint proprietors pursuing a division or a division and sale are stated to be reasons of public policy. The Lord Justice Clerk (Cooper) at page 68 describes the distinctive feature of common property as the absolute right of every co-owner to terminate the community at will, and states that this characteristic has been uniformly explained by reference to considerations of public policy by Roman and Scots Law, citing some of the references referred to above. Although the policy justification for the remedy of division and sale is not spelled out in lengthy terms in any of the authorities, it seems clear nevertheless that the concern is to prevent heritable property falling into neglect and disuse as a result of irresolvable disagreement between the common owners. Avoiding this outcome obviously addresses the specific interests of the owners themselves, who want their property to serve them whether as a home, a place of business, a source of income or in some other way. However, this approach also serves the broader and more systematic interests of society as a whole in ensuring that property, particularly land, is used efficiently. Land is essential for many of our basic human needs (food, water, shelter) and is also a cornerstone of the economy. Yet, as Mark Twain’s famous aphorism notes, ‘they aren’t making any more of it’. There is a finite amount

232  Frankie McCarthy of land available within Scotland’s borders. A piece of land removed from the pool for one owner means one less piece available for anyone else. Accordingly, it is in the general interest to ensure that discrete pieces of this finite resource are not robbed of their utility. This desire to avoid sterilisation of land underpins many of our foundational rules of property law. The numerus clausus principle, which prevents areas of land being fragmented into too many individually held rights and interests, works towards this goal. The abolition of long-term controls over the circulation of land through devices such as entails serves the same purpose. Law plays its part in ensuring effective and efficient land use. In the common property context, the law seeks to avoid sterilisation of land in two ways. First, it promotes cooperation between co-owners over use and management of land, not least through the rule prohibiting any one common owner taking excessive benefit at the expense of the others. Secondly, it provides for dissolution of common ownership and reversion to sole ownership without the need for agreement where the relationship has failed. The remedy of division and sale works in support of both these approaches. Its most obvious effect is to bring the common ownership to an end. However, the way in which it does so operates as a disincentive to its use. In division and sale, all common owners are impacted by their inability to agree. If the relationship fails, the property as a whole will be sold and all parties will lose their share of ownership. Responsibility for the relationship, and consequences for its failure, is equally shared. Through this ‘carrot and stick’ effect, division and sale encourages a cooperative approach to use and management of property. It seems to us that the absolute nature of the common owner’s veto in a situation where division and sale is unavailable runs counter to these policy concerns. In these circumstances, dissolution of the relationship cannot provide a solution to the risk of sterilisation. Accordingly, the law should focus on the promotion of cooperative behaviour. As it stands, the law effectively does the opposite. A recalcitrant or neglectful owner is at liberty to persist in this behaviour. She carries no responsibility for making the relationship effective and suffers no penalty if it breaks down. An owner who is proactive in relation to management of the property – an approach, we note in passing, which is likely to better secure the efficient and effective use of land – may be frustrated entirely by an owner who does not care. The responsible owner has no mechanism by which to compel her counterpart to take on an equal share of responsibility. She may, of course, exit the relationship by selling her share. But this solution for one individual does nothing to encourage cooperation in relation to the property in future. What is more, taking such action is likely to result in significant upheaval for the seller. It is difficult to understand why the owner who has attempted to make the relationship work should be the one to suffer the fallout from its failure.

Rafique v Amin 1997 SLT 1385  233 Our law of common property should promote reasonable behaviour and cooperation between or amongst co-owners in order to promote efficient use of land. Allowing a co-owner the absolute right of veto regardless of her reasons (or lack of them) seems likely to produce a contrary result. In our view, this leaves the rule on alterations unfit for purpose. The role of the judiciary is not to create new law. However, it may be observed that bringing the rule on alterations into line with the broader policy motivations in this area would require little more than the creation of a standard of reasonableness in relation to the exercise of the co-owner’s veto as regards indivisible subjects. This standard is commonly applied to other property rules regulating neighbourly behaviour, from the requirement that servitudes be exercised civiliter (Erskine, An Institute of the Law of Scotland, II.ix.4) to the equitable considerations taken into account in enforcement of common interest obligations (Bell, Principles of the Law of Scotland (10th edn), paragraph 1086). Indeed, even within the scheme of common property, owners are required to make only ‘ordinary’ use of the property concerned. The change to the law would not be dramatic. We should make clear that, even if the law were changed as we suggest, it would not necessarily alter the outcome of this particular case. The disadvantage to the respondents in terms of damage likely to be caused by the proposed alterations to the substance, value or enjoyment of their co-owned property may have been such that their refusal to consent was entirely reasonable. The evidence upon which such an assessment could be based is not before us. However, a change in the law to allow such issues to be taken into account would bring it into line with the policy considerations underpinning the law of common property generally. In conclusion, we will refuse the appeal for the reasons given above. However, we would enjoin Parliament to have regard to the comments made about the law as it stands, and consider reform.

Commentary on Rafique v Amin BONNIE HOLLIGAN

Context Rafique v Amin is one of the few reported cases to address the use and management of property that is owned in common. While not an obviously gendered dispute, it nevertheless involves a number of issues fundamental to feminist theory, in particular, notions of identity and autonomy and the role of property rules in mediating between individual and collective interests. In Scots law, property owned by multiple individuals is often held as common property. This is similar to the English concept of the equitable tenancy in common, in that each owner is treated as having a distinct and separable share in an undivided whole. Debate in Rafique occurs within the context of an antipathy towards the very idea of common property that is embedded within Scots legal doctrine. For example, Bell comments that ‘[u]ndivided right and possession of land is the best arrangement both for the public and for the individual, there being in that situation no opposition or interruption to the free use and enjoyment of property’.1 Such hostility is due, at least in part, to the fear that shared interests will encroach upon individual liberty, reducing the scope for property rights to provide a bounded and autonomous space. To protect individual owners, the remedy of division and sale is usually available to allow the parties to extricate themselves from an unwanted co-ownership relation.2 It is clear from the original decision in Rafique that the primary concern of property law is seen as being with individual rights, rather than the provision of mechanisms for collective decision-making. While every owner is allowed to make ‘ordinary use’ of the whole of the co-owned property, the original judgment confirmed that alterations that are not necessary repairs require the consent of all co-owners. This approach favours the preservation of boundaries in the form of an absolute right to refuse alterations, implying that, where no agreement can be reached, the status quo should be maintained. The defenders’ submission that the veto was subject to equitable considerations was rejected, despite the nature of the common property in question (which included, for example, the exterior walls) 1 George Joseph Bell, Principles of the Law of Scotland, 4th edn (Edinburgh Legal Education Trust, [1839] reprinted 2010) para 1071. 2 KGC Reid, ‘Property: Part 1 – General Law’ in The Laws of Scotland: Stair Memorial Encyclopaedia vol 18 (London, LexisNexis, 1993) para 32.

Commentary on Rafique v Amin  235 meaning that division and sale was not available. This effectively forced the parties to continue to share ownership of the common parts, although, as Lord Justice Clerk Ross, delivering the judgment of the court, pointed out, a dissatisfied party could sell his or her part of the building along with the attached share of the common areas.3

Rewriting Rafique The feminist judgment differs from the original decision not in reaching a different result, but by bringing to the fore the policy underlying property law doctrine. Whereas the outcome in Rafique was justified by reference to ‘long established rules’,4 Lady McCarthy’s judgment accepts the weight of authority but, in a critical coda, focuses attention on the interest of society as a whole in ensuring that property is used effectively. She suggests that reform to prevent the veto being used unreasonably would be desirable. By barring the selfish and capricious use of the veto, this approach would foster cooperation. Particularly where there is no right to division and sale, it could also encourage the efficient use of land by preventing situations where one owner unreasonably vetoes a productive change. In focusing on collaboration, the judgment draws on feminist critiques of the liberal notion of property and its role in constructing an autonomous, bounded self. For example, Jennifer Nedelsky connects the bounded self to an ultimately fruitless search for security that necessarily involves control of and domination over others.5 Given that we exist in inescapable relation with other individuals and collectives, there is a need for new ‘symbols, myths and metaphors’, ‘a focus not on limits but on forms of interaction and responsibility for their consequences’.6 While embedded firmly within existing rights-based paradigms, Lady McCarthy’s proposals would reorient attention towards the parties’ behaviour and the extent to which it is reasonable, rather than the mechanical application of an absolute rule. The flexibility provided by such an equitable approach would allow for more nuance and contextual consideration, which would be particularly beneficial where there are significant disparities between the parties’ levels of emotional or financial investment in the property. The feminist judgment is also distinctive in its explicit recognition that doctrinal development is, to some extent, contingent, and the historical pedigree of the relevant Scots law rules not entirely straightforward. Such acknowledgment of the fragmented and partial nature of property law doctrine is unusual in a system that tends to aspire towards unitary (and universal) principle. The judgment does, however, posit an alternative unifying norm: land is a common resource that should

3 Rafique

v Amin 1997 SLT 1385, 1388. 1388. 5 J Nedelsky, ‘Law, Boundaries and the Bounded Self ’ (1990) 30 Representations 162, 180. 6 ibid 181. 4 ibid

236  Bonnie Holligan be used wisely. In adopting this, more expansive, perspective, it illustrates the ability of feminist judging to place disputes within new contexts that are often broader than those suggested by existing paradigms.7 In relation to common property, the judgment provides scope for future socio-legal and contextual exploration of the role of the material conditions of tenement life in shaping legal development. How does the community created by the architectural features of the tenement building in Rafique compare with other, perhaps matrimonial or family-based, communities? Indeed, is there any need for a unified approach to common property at all, or could a more context-specific view have been taken? The application of generalised principles in this area appears relatively recent;8 perhaps this integration will prove limited and temporary.

Communities and the Limits of ‘Common’ Questions of common property necessarily gesture at the much larger problem of how any form of collective decision should be made. The (re)framing of property as relationship rather than right does not entirely avoid the need for analysis of power relations and fair distribution of resources. Further, to what extent do oppression and conflict, rather than consensus, form the basis for communal life? Looked at in one way, the existence of a veto protects minority interests and, by giving weight to those who wish to refuse alteration, may rebalance negotiations towards outcomes that are fair and mutually beneficial. Looked at in another way, such a veto might promote the capricious and selfish assertion of rights by individuals at the expense of other, individual and collective, interests. Lady McCarthy’s proposals leave open a debate regarding the circumstances in which it would be reasonable or equitable for one owner to make alterations against the wishes of another. Her feminist judgment suggests that the wider public interest in putting property to productive use should inform judicial, and perhaps legislative, decision-making, but how will this public interest be assessed? And where there are multiple private interests, at what point does it become unreasonable for a minority interest to exercise its veto? If there are two owners, would it be unfair for one to refuse an alteration that he or she simply dislikes? Is this any different from a case in which two out of three, or nine out of 10, owners wish to make alterations? The feminist judgment does not engage with the alternative possibility, mentioned by Bell, of a majority rule.9 Even

7 R Hunter, ‘An Account of Feminist Judging’ in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010) 37. 8 Reid, above n 2, para 18. 9 Bell, above n 1, para 1077. Bell’s position on this point is somewhat opaque; it is clear that the owners could, with the agreement of all, opt to follow a majority, but does this imply that a majority decision regarding alteration could be imposed on an unwilling minority who did not agree with majority rule? Reid highlights the possible contradictions in Bell’s account and suggests that majority decision-making may apply only to decisions regarding use: Reid, above n 2, para 23.

Commentary on Rafique v Amin  237 if a majority rule were to be adopted, should extra weight be given to the views of those with larger shares? As with much feminist theory, these questions cannot be isolated from broader debates in political and social theory about democracy, rights and the role of reason and expertise. Apparently innocuous disputes over shared walls are shown here to be political to their core. Reflecting on boundaries and community further prompts consideration of what principles of common property might be able to learn from eco-centric and wild law critiques of property norms. Very broadly, such approaches draw attention not only to how humans can live together, but to the extent to which humans are connected to a variety of human and non-human beings and systems. For example, Peter Burdon builds an alternative, relational, concept of property around a (perhaps overly) holistic notion of an ‘Earth Community’ that includes apparently inanimate constituents.10 Property becomes ‘a relationship between and among members of the Earth community, through tangible or intangible items’.11 Although beyond the scope of the materials available to the feminist judge in Rafique, beginning from this perspective might well lead to questions regarding not just our obligations towards other owners but to the land itself,12 and which decision would best nurture future human and ecological communities. It may seem that discussion here does more to raise questions than provide robust and doctrinally acceptable answers. This is not necessarily a flaw; indeed, it demonstrates the potential of feminist scholarship to enrich understanding through engagement with a multiplicity of perspectives and paradigms. Like Donna Haraway’s metaphor of the cyborg, perhaps feminist judging ‘means both building and destroying machines, identities, categories, relationships, space stories’.13

10 See PD Burdon, Earth Jurisprudence: Private Property and the Environment (London, Routledge, 2014) ch 3. 11 ibid 13. 12 See here N Graham, ‘Owning the Earth’ in P Burdon (ed), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Adelaide, Wakefield Press, 2011) 259. 13 DJ Haraway, Manifestly Haraway: The Cyborg Manifesto, The Companion Species Manifesto, Companions in Conversation (With Cary Wolfe) (Minneapolis, MI, University of Minnesota Press, 2016) 68.

Reflective Statement: Rafique v Amin FRANKIE McCARTHY

Property law as a subject area does not lend itself as easily to a feminist re-imagining as some others. Unlike, for example, family law or criminal law, property law rarely contends with the different ways in which individuals are compelled to interact with the world on account of their gender. Historical restrictions on the capacity of women to own certain types of property have long since been removed.1 So-called ‘sexual property law’2 – the group of rules regulating property within intimate ­relationships3 – offers some opportunity for gender-based analysis,4 but the Scottish case law in this area left me, I felt, with little new to say. Instead, I wanted to explore the challenge feminist scholarship has presented to the norms accepted as underpinning the institution of property in Western legal thought in recent decades.5 The dominant liberal-economic model of property is based on the idea of human beings as self-interested, acquisitive individuals.6 Since we need material possessions to survive, acquisitiveness is an inherent aspect of human nature. Property law provides secure rights in our acquisition to reduce conflict and encourage activity that enhances the value of our securely held possessions.7 Carol Rose challenges this understanding of individuals as self-interested and individualistic, and critiques its presentation within legal thought as an objective or scientific truth. She turns to feminist theory to provide an explanation of property law rules as the result of cooperation and negotiation,8 and which incorporate 1 The last major restrictions on women’s proprietary capacity were removed by the Married Women’s Property (Scotland) Act 1920. Rights in succession became gender neutral following the Succession (Scotland) Act 1964. 2 G Gretton and A Steven, Property, Trusts and Succession, 4th edn (Oxford, Bloomsbury Professional, 2017) ch 11. 3 For example, property-based responses to intimate partner abuse in the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and the protections for spouses providing security for the business debts of their spouse set out in Smith v Bank of Scotland (1997) SC (HL) 111. 4 R Auchmuty, ‘Judgment: Royal Bank of Scotland Plc v Etridge (No 2)’ in R Hunter, C McGlynn, and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 5 CM Rose, ‘Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory’ (1990) 2 Yale Journal of Law & the Humanities 37. See also R West, ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1. 6 This critique draws on classic accounts of property by Hobbes, Locke and Blackstone. 7 Rose, above n 5, 40–43. 8 ibid 53–54.

Reflective Statement: Rafique v Amin  239 the fundamental interdependence of human beings as an underpinning norm in contrast to classic liberal theory’s individualism: Feminist theorists have made the point in another way: at least since Carol Gilligan, and really for some time before, we have realized that Mom or the Good Citizen – the caring, cooperative person generally – is just as much ‘there’ as the indifferent noncooperator … So why is cooperation the preference ordering that seems to need the story? There is, of course, the point that is made so tellingly by critical theory, and even more so by feminist theory: the dominant story-teller can make his position seem to be the natural one (citations omitted).9

In writing the fictional appeal judgment in Rafique v Amin, I was guided by two main principles extracted from Rose’s feminist account of the law. First, I was keen to look ‘beneath the bonnet’ of the rule on alterations to common property to see the norms contained within it. All property rules incorporate values, although those values (in Scotland at least) are infrequently articulated. Although the rule was clearly stated in the authorities, I sought to challenge the idea that it was therefore somehow neutral or objective by exploring the policy motivations for it. The repeated references in the authorities to the policy justification for the connected remedy of division and sale provided a useful point of comparison for the silence on this subject in relation to the rule on alterations. Secondly, I sought to challenge the norms themselves. The absolute nature of the co-owner’s veto arguably incorporates precisely the individualistic understanding of ownership which Rose critiques in the classic liberal property model. This approach seems particularly ill-suited within the common property context, in which owners might be expected to accept that ownership cannot connote the ‘sole and despotic dominion’10 it is said to entail elsewhere. A feminist critique would suggest that property law rules recognise the ability of human beings to cooperate and promote that behaviour where possible. A change to the rule on alterations seems an obvious place to incorporate that norm of cooperation. For me, the challenge and the joy of writing the judgment – and participating in the project as whole – lay in exploring the connections between feminisms and (other) counter-capitalist perspectives on property. Foregrounding cooperation between neighbours as a property norm may not be the most dramatic feminist rereading of the law. However, finding a way to make the case for it within the strictures of an appeal judgment provided me with a real and timely reminder that the master’s tools can (and must) be repurposed to build a different house.11

9 ibid 54. 10 William Blackstone, Commentaries on the Laws of England (1765–1769) vol 2, 1. 11 A Lorde, ‘The Master’s Tools will never Dismantle the Master’s House’ in A Lorde, Sister Outsider: Essays and Speeches (Berkeley, CA, The Crossing Press, 1984).

240

part iii Relational Duties, Equality and Discrimination

242

12 Jex-Blake v Senatus Academicus of the University of Edinburgh (1873) 11 M 784 The appeal is based on the following circumstances: On 20 March 1869 Miss Jex-Blake approached the Dean of the Medical Faculty of the University of Edinburgh requesting that she be allowed to attend the lectures of the medical school, on the understanding that the statutes of the university did not prohibit the admission of women. This request was approved by the Senatus Academicus of the university but refused by the University Court on the ground that it was inexpedient to make temporary arrangements to admit one lady. On 21 June Miss Jex-Blake then requested that the Senatus Academicus recommend to the University Court to ‘sanction the matriculation of women as medical students, and their admission to the usual examinations, on the understanding that separate classes be formed for their instruction by the medical professors of the University, or by recognised extra-academical lecturers’ in order that she, and four other ladies, could realise their desire to undertake medical study in the university. The application of Miss Jex-Blake was passed to the Medical Faculty, who on 2 July produced a report that recommended that women be admitted to study medicine in the university under certain conditions. This report was passed to the Senatus and agreed upon by that body. The resolution of the Senatus was reported to the University Court on 5 July and passed to a committee of the court for its consideration. On 23 July the committee reported that the court should proceed, to give effect to the resolution of the Senatus, under section XII.2 of the Universities Act 1858, ‘as an improvement in the internal arrangement of the University’. Acting under this provision, the court directed the resolution to be put before the General Council of the University for their consideration. At their meeting, on 29 October, the Council approved the resolution and on 10 November 1869 resolved as follows: 1. Women shall be admitted to the study of medicine in the University. 2. The instruction of women for the profession of medicine shall be conducted in separate classes, confined entirely to women. 3. The professors of the Faculty of Medicine shall, for this purpose, be permitted to have separate classes for women. 4. Women not intending to study medicine professionally may be admitted to such of these classes, or to such part of the courses of instruction given in such classes, as the University Court may from time to time think fit

244  Chloë Kennedy and approve. 5. The fee for the full course of instruction in such classes shall be four guineas; but in the event of the number of students proposing to attend any such class being too small to provide a reasonable remuneration at that rate, it shall be in the power of the professor to make arrangements for a higher fee subject to the usual sanction of the University Court. 6. All women attending classes shall be subject to all the regulations now or at any future time in force in the University as to the matriculation of students, their attendance on classes, examination, or otherwise. 7. The above regulations shall take effect as from the commencement of session 1869–70. The regulations were ratified by the chancellor on 12 November 1869 and were thereafter published in the official Calendar of the University. In October 1869, some of the pursuers were admitted to the preliminary examination on Arts prescribed for medical students. They passed and received certificates and after the issuing of the above-quoted regulations matriculated and paid the usual fees. Their matriculation tickets declared them ‘Cives Academiæ Edinensis’ (citizens of the University of Edinburgh). The other pursuers matriculated in successive sessions. All the pursuers attended classes, either in the university or extra-mural school sanctioned by the university regulations. In October 1871, it was ascertained that certain professors, whose classes it was necessary to attend to complete the curriculum of study, were not prepared to conduct separate classes for the ladies. Prior to this, on 26 June 1871, Miss Jex-Blake had approached the Senatus, suggesting that in the event that any of the professors were unable or unwilling to deliver a separate course of lectures, the lady students should be entitled to receive instruction for examination either from special lecturers to be appointed by the university or from any of the recognised extra-mural lecturers without being limited, as they were by the existing curriculum, to four extra-mural classes. The Executive Committee for Securing a Complete Medical Education to Women – a sizeable group of respected persons, dedicated to procuring for women the privileges of a full medical education – offered to guarantee payment of any sum required to meet the additional expenses of these arrangements. The Senatus declined, by a majority, to take measures that would allow the women to complete their education. On 21 November 1871 Miss Jex-Blake applied to the University Court, requesting that they (1) extend, in the case of female students, the privilege granted by ordinance of the Universities Commissioners to lecturers, not being professors in a university, of qualifying by graduation by their lectures – a privilege currently restricted to four of the prescribed subjects of study (ie, permit more extra-mural qualifying teaching than is currently allowed), or (2) authorise the appointment of special lecturers to give qualifying courses of instruction in the university in place of the professors who decline to do so, or (3) ordain that the professors referred to shall give the necessary course of instruction to the women. On 8 January 1872 the University Court responded that (2) was not in the power of the University Court or other university authorities, singly or jointly, to adopt;

Jex-Blake v Senatus Academicus (1873) 11 M 784  245 that (3) was beyond the power of the court, which may only compel a professor to deliver courses of instruction which, by the use and wont of the university, it has been the duty of holders of his chair to deliver; and that (1) implied an alteration that could be made by the University Court, but only with the written consent of the chancellor and the approval of Her Majesty in Council. While there remained some doubt over the power of the University of Edinburgh to grant degrees to women, the University Court was unwilling to consider the expediency of this alteration. The court nevertheless offered to make arrangements for the women to obtain ‘certificates of proficiency’ in medicine, explaining that graduation is not essential for the completion of a medical or any other education. In these circumstances, Miss Jex-Blake and nine other ladies raised this action concluding that it ought to be found by the Lords of Council and Session: (1) that the pursuers are entitled to attend the classes of any of the professors of the University of Edinburgh, and to receive instruction from the professors in said university, upon making due payment of all fees exigible from students at the university for said instruction; (2) that the pursuers are entitled to receive such instruction in the university as is required to qualify for graduation in medicine; (3) that, on compliance with the regulations of the university as to attendance on classes and otherwise, preliminary to examination for degrees, the pursuers are entitled to proceed to the examination for degrees in the manner prescribed by the regulations of the university; (4) that the Senatus are bound to provide such instruction as aforesaid to the pursuers and thereafter to admit them to examination as candidates for the medical degrees and, on their being found qualified, to recommend them to the chancellor for having such degrees conferred on them; (5) that the chancellor is bound, upon such recommendation being made, to confer such a degree on any of the pursuers: and that the Senatus ought to be decerned and ordained to make regulations whereby the pursuers shall receive instruction in the University of Edinburgh as is required to qualify for graduation in medicine, and, in particular, to direct and appoint the various professors whose duty it is to give instruction in medicine to permit the attendance of the pursuers upon their classes along with male students; or otherwise to direct and order those professors to teach the pursuers, and any other women who may constitute themselves into a class separate and apart from male students, the pursuers always making payment of the proper fees for matriculation and to the professors for such instruction; and (6) that the Senatus ought to be decerned and ordained to admit the pursuers to examination as candidates for the medical degrees, and, on their being found qualified, to recommend them to the chancellor for having such degrees conferred upon them; and the chancellor ought to be decerned and ordained upon receiving such recommendation to confer degrees upon the pursuers. The chancellor has stated that he has always been, and still is, willing and ready, as Chancellor of the ­University of Edinburgh, to confer degrees upon the pursuers, or any women duly

246  Chloë Kennedy r­ecommended by the Senatus Academicus, upon its being ascertained, by decree of a competent Court, that they are entitled to demand admission as students, and to become graduates of the University. He pleaded: (1) The conclusions of the action, in so far as directed against him, were unnecessary; and (2) in any view, the action as against him ought to be sisted, in order to await the issue of the questions arising between the pursuers and the other defenders in the cause. Professors Bennett, Masson, Calderwood, Lorimer, Charteris and Hodgson lodged a minute in which they stated their desire that no opposition should be offered to the conclusions of the action, and disclaimed any responsibility for the defence lodged in the name of the Senatus. On 27 July 1872 the Lord Ordinary (Gifford) found that the resolutions and regulations passed and enacted by the University Court form part of the regulations now in force in the University of Edinburgh and that they must receive effect as such; that according to the existing constitution and regulations of the university, the pursuers are entitled to be admitted to the study of medicine in the said university and are entitled to all the rights and privileges of lawful students in the said university subject only to the conditions specified in the said regulations; that the pursuers, on completing the prescribed studies, and on compliance with all existing regulations of the university preliminary to degrees, are entitled to proceed to examination for degrees in the manner prescribed by regulations of the university; that the Senatus of the said university are bound, on the pursuers completing the prescribed studies, and complying with the said regulations, to admit the pursuers to examination as candidates for medical degrees and, on the pursuers being found qualified, to recommend them to the chancellor for having such degrees conferred upon them; that the chancellor is bound, upon such recommendation being made, to confer medical degrees upon any or all of the pursuers: and in terms of the above findings decerned and ordained under the declaratory conclusions of the summons. The Lord Ordinary further decerned and ordained the Senatus, on the pursuers completing the prescribed studies and complying with the existing regulations of the university preliminary degrees, to admit the pursuers to examination as candidates for medical degrees; and, on the pursuers being found qualified, decerned and ordained the Senatus to recommend the pursuers to the chancellor for having such degrees conferred upon them, and decerned and ordained the chancellor, on receiving such recommendation, to confer upon the pursuers the medical degrees for which they are recommended. Quoad ultra dismissed the remaining conclusions of the action excepting the conclusion for expenses. The Senatus reclaimed. After hearing counsel the Second Division ordered written cases to be laid before the whole court. Opinion of Lord Kennedy At advising In my opinion, the action under review has been pleaded in appropriately broad terms. It concerns nothing less significant than the legal right of women, without

Jex-Blake v Senatus Academicus (1873) 11 M 784  247 any express sanction, to become students of the University of Edinburgh and to obtain such honours and degrees as the university offers under the same conditions as male students. There is no sensible way to confine the issues raised by the case to any less fundamental or controverted a matter than this. The most important consideration, therefore, is whether there is any provision within the constitution of the university that precludes women from taking advantage of such privileges. Counsel for the defenders have claimed that the university only acquired the power to grant degrees of late and that any degrees that were conferred prior to the middle of this century were illegal, becoming legal only through use and wont. I find this argument wholly unconvincing. Indeed, I consider it to be preposterous. They further maintain that, from its inception, the university has been designed solely for the education of men. On the strength of this assertion, and the established custom of admitting only male students to the university, counsel for the defenders have argued that the constitution of the university prohibits the conferring of degrees upon women. In my opinion, these arguments cannot withstand scrutiny. Counsel for the pursuers have shown that the documents on which the university was established, which extend to the university the privileges enjoyed by the other Scotch universities and the universities of Paris and Bologna, contain nothing that excludes women. No such exclusion can be inferred from the use of masculine nouns and adjectives in any founding documents either. The use of masculine Latin terms in the documents on which the university’s constitution is based cannot be presumed to exclude women. Indeed, a number of the Latin terms used to refer to students have no feminine equivalent and might therefore without any grammatical impropriety apply to women. I am also of the opinion, in concurrence with Lord Moncreiff, that the spirit of these founding texts shows the presumption that the use of masculine terms operates to exclude women to be unwarranted. The papal bull founding the University of Glasgow, pleaded by the defenders as indicating that the education of males was alone contemplated, demonstrates that, although masculine phraseology is used, the objective of the bull, viz the education of any member of the community who desires to profit from the acquisition of knowledge, is not restricted to any particular group. Indeed, the law and usage of the University of Bologna, the prototype for the universities of Glasgow and Edinburgh, is that any matriculated scholar became a member of the university corporation and acquired a legal right to offer himself or herself for the honour of a degree, which could be denied on no ground other than failure to satisfy the examining body. There were no restrictions on admission to study or conferral of degrees of any other kind. From as early as the thirteenth century, women have therefore been admitted to take degrees at the University of Bologna and several women have held professorial chairs, including in law and in medicine, at that institution. All of this leads me to conclude that there is nothing in the constitution of the University of Edinburgh to prohibit the conferral of degrees upon women, provided

248  Chloë Kennedy that they demonstrate the required proficiency and comply with other regulations governing the education of students. Indeed, the evidence leads me to conclude that the university not only has the power to confer degrees upon women, but that women have the right, as has any other group, to be admitted to university studies and awarded university degrees upon completion of the prescribed course of lectures and satisfactory performance in the required examinations. What then of the established custom of admitting and awarding degrees only to male students? Much weight has been attached to the fact that no women have been admitted to graduate from a Scottish university throughout the course of history. My esteemed brethren believe that, either of itself or in conjunction with an interpretation of the written constitution of the university that favours the defenders, the force of this practice is such as to undermine any claim by the pursuers to an abstract legal right to university education and honours, including graduation. As such, the opinion of the consulted Judges most favourable to the pursuers is that the university holds a discretionary power to admit women, which it is at liberty to exercise whenever and however it wishes. This would leave the pursuers, and all women who wish to attain university degrees, in a precarious position. This is not, in my view, their position according to law. Custom is an important source of our law but, in this instance, admits of several interpretations. One interpretation, favoured by my fellow Judges, is that the long history of admitting only men to graduate at Scottish universities counts against the pursuers, eradicating any right to equal university education and graduation they might once have had. By this view, even if women initially held a right to equal university education and graduation, by neglecting to avail themselves of this right they have rendered their admission and subsequent graduation unconstitutional or, at best, contingent upon university regulations that may be altered or withdrawn at any time. In forming this view, however, the reason for the non-use of this potential right, though recognised as significant, has been incompletely explored. Both the pursuers and defenders have speculated as to the cause of women’s absence from university learning and the dearth of female graduates. The pursuers point towards the turbulent political history of this country and the long-standing prejudice – only now beginning to erode – against women becoming independent and earning a livelihood, or even becoming educated, as the explanation. The defenders do not accept this, suggesting that women in this country have consistently enjoyed sufficient esteem as to be capable of valuing and vindicating all rights in their possession. In my opinion, there is more merit to the pursuer’s account. One need only look to the laws governing marriage to appreciate the historic and ongoing subordination of women in this country, against which opinions are only now beginning to change. More importantly, there is a false equivocation within the defenders’ arguments that obscures a major obstacle that has, to date, surely contributed towards

Jex-Blake v Senatus Academicus (1873) 11 M 784  249 the disinclination of women to seek university degrees. That equivocation is as between high esteem and equality of opportunity. It is entirely possible for deference and admiration to be bestowed in abundance but within a very restricted ambit. In the case of women in this country, the tendency has been to regard women as eminent in what has been perceived to be their peculiar domain – that of the private life of the home – but ill-suited to venturing outside of this realm. In truth, this is the point supported by the example supplied by the defenders, which is intended to demonstrate the high position of Scottish women throughout the ages. The portrayal of Scottish women they rely upon, supplied in 1498 by a Spanish ambassador, describes women who are ‘very bold’, being ‘absolute mistresses of their houses, and even their husbands; in all things concerning the administration of their property, income as well as expenditure’. These women may have enjoyed great latitude, but no indication is given that this extended beyond the domestic sphere. The description provides no support for the equality of opportunity that would be necessary for women to venture into the world of university education and honours and, quite possibly thereafter, into paid, public work. That these attitudes remain at large within some portions of the community is clear from the opinions expressed in the rather extensive public debate that the disputation between Miss Jex-Blake and the university authorities has already generated. Indeed, they are evidenced within the opinions of some of my fellow Judges. Lord Deas suggests that women in earlier times refrained, in his view wisely, from seeking the kind of education that would have deprived them of the exemption, which he supposes they have happily enjoyed, from the labour of the learned professions. Furthermore, he considers that any objections to the prospect of women medical practitioners are borne of concern over the detrimental effect this would have on the delicacy and respect by which the female character is so advantageously surrounded. Lord Neaves, too, opines that much time must, or ought to, be spent by women on acquiring the skills needed to despatch household and family duties and ensure domestic happiness – purportedly necessary distractions that must always diminish a woman’s ability to engage in alternative pursuits. In his view, the proper interpretation of Scottish women of the past is that they were aware that their ‘proper place’ was at home, learning to rule their husbands and bring up their children – sentiments which he continues to endorse in the current age. Now, it may be that nothing more than beneficence underlies this attitude respecting the rightful place of women in society. Yet noble sentiments do nothing to alleviate its oppressive tendencies or to dilute its explanatory force in accounting for the reticence of women to avail themselves of their right to participate in university education. Even if women have historically chosen the life of domesticity (a point that has certainly not been proved), the weight of expectation that has rested, and continues to rest, upon women and the veneer of propriety that has arbitrarily arisen around specific, limited, roles cannot be discounted in considering whether this choice has been unduly constrained.

250  Chloë Kennedy A further complexity arising from the reliance on custom, touched upon by my fellow Judges but inadequately considered, concerns the significance of the paucity of female graduates. In bringing their action, the pursuers have quite rightly focused upon the question of whether women are entitled to graduate from the University of Edinburgh. A degree is now widely considered to be the end to which lecture attendance is the means. More importantly, attaining a medical degree is the only means by which the pursuers can achieve their ambition of qualifying to practise medicine – an ambition that has been clearly known by the university authorities from the outset of their interactions with the women. By the provisions of the Medical Act 1858, no one may be registered as a medical practitioner without possessing a medical degree from one of the universities of the United Kingdom or a licence from one of the established medical bodies mentioned in the Act, none of which currently administer licences to female applicants. A foreign or colonial degree only entitles its holder to medical registration if he or she has been in practice in Great Britain prior to October 1858. The suggestions that the right to graduate might be dismissed as a collateral concern, or that the pursuers might be satisfied with ‘certificates of proficiency’ are therefore to be dismissed as false and insulting, respectively. The willingness of the defenders to permit women this lesser, and for the women’s purposes worthless, accolade also affirms that the main source of consternation arising from this case is the potential admission of women into the professional sphere. It is worth noting at this point, however, that there is no credence to the suggestion that recognising the right of women to graduate and therefore potentially enter the professional sphere necessarily entails permitting women to exercise all civil privileges or fulfil all public offices. It has no repercussions for the franchise and holds no consequences for the admission of women into any other corporate body. For these reasons, and as Lord Ardmillan has opined, the authorities pertaining to the weight of custom in determining the extent of parliamentary franchise, relied upon by the defenders, are not in point. Despite the centrality of the right of graduation to this case, it is crucial to attend to its hitherto relative insignificance when assessing the effect of custom. Until the middle of this century, only a small minority of university students, including medical students, would graduate. Prior to this time, access to lectures, not graduation, was the relevant object. In this context, the argument based on the absence of female graduates is deprived of some of its force and the presence of women within lectures, by contrast, becomes more significant. Even confining one’s focus to the United Kingdom, there is ample evidence of women attending public lectures, including those given at some of our most ancient and prestigious universities. Indeed, at Anderson’s ‘university’, Glasgow, the number of women enrolled has been known to outnumber men. These examples go to show that there is no uninterrupted custom of refusing women access to lectures which, until recently, was the chief aim of both sexes upon entering our universities. As counsel for the pursuers have demonstrated, once the experience of our n ­ eighbouring

Jex-Blake v Senatus Academicus (1873) 11 M 784  251 European countries is considered, it is clear that there is no uninterrupted custom of refusing women graduation either. Indeed, taking account of developments across the world – in Zurich, the United States, Paris, and elsewhere – it is evident that women are achieving degrees, including medical degrees, in increasing numbers. It would be most unfortunate if Scotland were to fall on the wrong side of this burgeoning trend. There is no reason in law why Scotland should be required to fall behind in this way. There is no relevant, uninterrupted custom to support the contention that women lack the right to be admitted to graduate from the University of Edinburgh on the same terms as men. Additionally, there are firm grounds on which to give benignior interpretatio to the university founding documents and to accommodate the social tendencies of our age. Even in this country, which has unfortunately not followed those more enlightened nations where women have been able to exercise their right to university education and graduation with little resistance, a body of public and professional opinion supports the pursuers, and other women, in their ambitions to become medical practitioners. In October 1871, a petition expressing support for the pursuers and all women currently engaged in the struggle for professional education was presented to the General Council of the University of Edinburgh. This petition attracted 9,000–10,000 signatories, all of whom eagerly await the advent of female medical practitioners. Amply qualified teachers have offered to provide the pursuers the instruction they need to achieve their goal in the place of those professors who are disinclined to do so, and six members of the Senatus have distanced themselves from the arguments put forward by the defenders in the name of that body. Furthermore, accepting, as I do, that the right of women to be admitted to graduate from the university existed at the time of the university’s foundation, I am of the opinion that custom cannot support the contention that this right has been lost by non-use. Counsel for the defenders have argued that when rights impose public duties on others it is possible for the holders of these rights to abstain from exercising them in a way that may soon prevent such exercise being possible. As such, they argue that, even if women did have the right to graduate, they have allowed universities to develop, and to be constituted and disciplined, upon the footing that the right was never to be exercised. It would therefore be too much to suppose that they should be entitled to now insist on being admitted to full university privileges, irrespective of the inconvenience and disturbance which this may cause. I have already explained why I do not believe women to have ‘allowed’ the current state of affairs to develop. Nevertheless, it is important to consider whether current administrative arrangements render the admission of the pursuers, and any other women, to the university so onerous and disruptive that their right to be a­ dmitted is lost. My learned friend, Lord Moncreiff, with whose interpretation of the university’s founding documents I agree, is persuaded that the women’s general legal right has been lost in this way. In his view, it has been possible to accommodate the

252  Chloë Kennedy women’s admission, but only through the discretion of the university authorities, who drew up the regulations that were approved in November 1869. To reach this conclusion there must be some reason to suppose that the admission of women to the university on the same terms as men would be so disruptive and prejudicial to the interests of students or the university as to justify the exclusion of those who, by law, would otherwise have a right to be admitted. In considering whether such reason exists, the test employed ought to be stringent: indeed, according to the defenders, the exercise of the right should be shown to be impossible. I have not seen any evidence to persuade me that there is any such reason. Some of my fellow Judges have ventured opinions on the obstacles to women’s admission from which I feel compelled to dissent explicitly. First, on the suitability of women for medical study, Lord Neaves aligns himself with the belief that women are not equipped with the same power of intense labour as men. He thus suggests that their inclusion in any general course of study would result in its necessarily being toned and tempered down. I am afraid that this view simply cannot be sustained. The pursuers’ progress to date undermines any doubts as to women’s suitability for the rigours of academic learning. Not only have the women succeeded in ­passing every examination they have attempted, they have done so with considerable merit. Miss Pechey obtained marks in chemistry that were sufficiently high as to entitle her to receive the Hope Scholarship. Despite this award being denied to Miss Pechey by the university authorities, her performance suggests that women are capable of keeping pace with, and indeed outstripping, their male classmates. This suggestion is supported by the performance of her fellow female students, several of whom have also appeared on class prize lists. Perhaps, however, the pursuers are amongst the ‘remarkable and exceptional women’ whose use as benchmarks my colleague Lord Neaves warns us against. Yet, if this is so, then all we may conclude is that we lack knowledge of the ordinary woman’s performance under the same circumstances. We are therefore wholly unable to judge the average woman’s stamina and academic ability. In these circumstances, the only just course of action is to allow such women the opportunity to demonstrate their capabilities. Certainly, Miss Pechey’s performance shows that, as compared to extraordinary men, such as those who emerged as her nearest competitors for the Hope Scholarship, extraordinary women are capable of excelling. I see no reason to believe the same is unlikely to be true of an ordinary woman as compared to an ordinary man. Further concerns over admitting the pursuers, and other women, to the university have centred on the composition of classes. It has been suggested that mixed classes, in which male and female students learn together, are improper and immoral and that separate classes are too costly and time-consuming to be viable. Each of these propositions is fundamentally flawed, however. The subject of mixed sex classes continues to divide opinion, but many of the fears opponents to this mode of teaching hold are either exaggerated or inconsistent.

Jex-Blake v Senatus Academicus (1873) 11 M 784  253 Unfortunately, some of my esteemed brethren uphold these misplaced apprehensions, and I am bound to state my opposition to them expressly. Lord Deas is of the view that the small proportion of female students as compared to male is a reasonable objection to mixed classes. His reasoning proceeds on the basis that either sex feels uneasy when shut up with an overwhelming majority of the other. I shall return to the point about the proportion of female to male students, but first it is necessary to deal with the anticipated discomfort which, we must assume, is associated with the perceived impropriety of the two sexes intermixing. In an environment of medical learning, where anatomical and surgical matters are at hand, this purported impropriety is considered to be especially pronounced. The required dissections and clinical exposition are deemed entirely unsuitable for an audience of mixed sex. These convictions have agitated Lord Ardmillan sufficiently that he considers himself duty-bound to declare his opinion that to allow mixed classes of medical study would be so destructive to the delicacy and purity of the female sex, and so unbecoming and shocking to the welfare of the university, and the character of the medical school, that they must be prohibited. He is concerned, too, that mixed classes would have a damaging effect on the ‘courtesy, reverence, and tenderness of manhood’. However well intended, it is easy to see the difficulties that plague this line of thinking. Perhaps most obvious is the hypocrisy of decrying mixed medical classes as improper and immoral while casting no such aspersions on the treatment by male doctors of women, or the tending of male patients by female nurses. In truth, if one were to accept these criticisms of mixed classes, it would be necessary to overhaul the entire medical profession and the training of a large number of fully qualified female medical practitioners would be a matter of urgency. Furthermore, if there is indeed good reason to believe that the introduction of female students to a hitherto exclusively male classroom would cause consternation within the student body, this merely suggests that there is a want of professionalism on the part of either teachers or their students. Esteemed professors of medicine have publicly confirmed that joint instruction should raise no problems of indelicacy if appropriate (ie, scientific) knowledge alone is imparted and if male students conduct themselves with due decency. If it transpires that our male students cannot endure classes with women without succumbing to prurient thoughts, then the likelihood is that they are ill-suited for medical practice. It might be considered too large an imposition on the university to demand that it meet its obligation to treat male and female students on equal terms. Given the unpopularity of mixed teaching among some male students, there is a risk that the number of applications to study at the university might fall if prospective students knew they would be taught alongside women. Nevertheless, despite indications that the prospect of mixed teaching has aroused discontent within the student body there are, equally, signs of acceptance. It was reported in May 1870 that when the pursuers applied to Dr Nicholson for instructions in natural history, Dr  Nicholson’s suggestion that the ladies join his usual class was met with­

254  Chloë Kennedy unanimous acquiescence on the part of the male students. At the notorious riot that occurred at the Royal College of Surgeons in November of the same year, the ladies were accompanied to safety by a group of fellow male students. It is also reported that, following the fracas, a petition signed by 22 medical students was sent to the managers of the Royal Infirmary of Edinburgh on behalf of their female fellow-students, stating that there had been no attempt by the women to outrage the men’s feelings of decency and morality. To this they added their express willingness to attend the wards with the ladies, in considering the most serious and delicate cases, priding themselves on their ability to study these cases from scientific and philanthropic points of view. This attitude, and not the jealous and petulant spirit exhibited by those who so vociferously resist the women’s inclusion, must be encouraged by the university if it is to fulfil its duty to promote the advancement of morality as well as knowledge. If it transpires that separate instruction is considered desirable, however, then there should be no prohibition on professors delivering classes in this manner to ladies who wish to partake in them. Only the passage of time will reveal the number of women who will undertake medical studies. Should there prove insufficient interest in segregated classes, it should of course be open to these professors to discontinue offering them. It is likely that, if the delivery of mixed classes is handled with sensitivity and decorum by professors and students alike, there will be no demand for any additional teaching. Indeed, there may come a time when the number of female and male students will become equal. This is improbable at present, but it is a possibility which any medical man unafflicted by jealousy, who welcomes the benefits that healthy competition would bring to his profession, ought to embrace. I have dwelt for considerable time on the question of women’s right, in the abstract, to attend and graduate from the University of Edinburgh. This is because, in my opinion, it is the central question raised by this action. I am in agreement with Lord Neaves on this point: it is impossible to take a middle course in the matter of abstract right or to draw a distinction at all between male and female students except by declaring that while males have a right to university education females have none. I have explained why the conclusion I have reached is that no distinction can be drawn in this regard. Women have a right on the same terms as men to matriculate, attend university classes and, when found deserving, to be awarded degrees. This means that the university has a corresponding duty, not merely a power, to facilitate the university education and graduation of women. Having reached this conclusion, I must now consider the status of the regulations that were passed in November 1869, ostensibly for the purpose of permitting women to undertake medical study at the University of Edinburgh under certain conditions. The inevitable consequence of my findings is that insofar as the ­regulations contradict the right of women to enjoy university education and honours on the same terms as men they must be unlawful. The stipulation that the pursuers, and

Jex-Blake v Senatus Academicus (1873) 11 M 784  255 any other women, must be taught in separate classes cannot therefore stand. The regulations are competent insofar as they make clear that professors are permitted to teach women in separate classes, but so far as they compel such instruction they are ultra vires. The Lord Ordinary held that it was not open to him to reduce and set aside part of the laws of the University Court or Council without calling and hearing these bodies. He concluded that since these bodies are not parties to this action, any declarator of nullity of part of the university regulations of 1869 would need to be brought in a different way. I do not share this view. As counsel for the defenders has correctly stated, this action is not laid upon the regulations but on the right of women to be educated at, and graduate from, the University of Edinburgh irrespective of the regulations. Furthermore, the validity of the regulations is comprehensively tested by the declaratory conclusions of this action: they stand or fall by the success or failure of those conclusions. How these declaratory conclusions are given effect is properly a matter for the university authorities. Now that the right of women to be taught on the same terms as men and the legality of their graduations has been established, however, two of the three options proposed by Miss Jex-Blake in November 1871 are revealed to be within the power of the relevant authorities. If necessary, the University Court might compel the professors to instruct the pursuers, and any other women, in the subjects required for graduation in medicine. Since there is no requirement that these classes should be delivered to women separately, this would not involve compelling the professors to deliver courses of instruction beyond those which it has historically been the duty of holders of their chairs to deliver. Similarly, any doubt over the legality of female graduation that discouraged the University Court from seeking the consent of the chancellor and Her Majesty in Council to amend the university ordinance to allow qualification by a larger proportion of extramural lectures has now been eradicated. The defenders have noted that the Senatus does not, on its own, have the power to give effect to the declaratory conclusions. The University Court, chancellor, and Her Majesty in Council alone have the authority to compel the professors to meet their professional duties or to alter the university ordinances. For this reason, it has been argued that this court is unable to uphold the declaratory conclusions of this action. On this point, I am in concurrence with the consulted Judges who consider this argument to be unsound. Once the declarations craved have been upheld, it will be clear that the university authorities have a legal duty to ensure that the rights therein are given effect. To conclude, I am of the opinion that the interlocutor under review is correct insofar as it declares that the pursuers are entitled to be admitted to the study of medicine in the University of Edinburgh and are entitled to all the rights and ­privileges of lawful students in the said university, according to its existing constitution and regulations. In my opinion, it is also correct in declaring that the

256  Chloë Kennedy pursuers are entitled, on completing the prescribed studies and on compliance with all existing regulations of the university preliminary to degrees, to proceed to examination for degrees. It is correct, too, in declaring the Senatus bound, on the pursuers completing the prescribed studies, and complying with the said regulations, to admit the pursuers to examination as candidates for medical degrees and, on the pursuers being found qualified, to recommend them to the chancellor for having such degrees conferred upon them. The chancellor is accordingly also bound, upon such recommendation being made, to confer medical degrees upon any or all of the pursuers. The interlocutor is also correct to the extent that it decerns and ordains the Senatus and chancellor to this effect. In my opinion, the interlocutor is erroneous insofar as it declares these rights to be subject to the conditions set down in the regulations. Indeed, I think it is incorrect in declaring these rights to be conditional on the regulations at all. It is my conclusion that the interlocutor under review ought to be recalled and that an interlocutor that reflects the above findings be issued. The defenders should be assoilzied from the other conclusions of the summons.

Commentary on Jex-Blake v Senatus of Edinburgh University STEPHEN BOGLE

Introduction A famous case of injustice, Sophia Jex-Blake’s legal battle in the Court of Session is often cited but not always examined from a legal perspective. Its inclusion in this collection offers a rare opportunity to analyse the case and understand the legal options open to female medical students in the 1870s. This commentary offers some explanation of the legal context of Jex-Blake’s case, analyses the approach taken by the feminist judge, Lord Kennedy, and briefly explains what happened after the original decision in 1873.

The Original Judgments Jex-Blake’s case was initiated in the Outer House of the Court of Session,1 the firsttier court in Scotland for civil matters, where a single judge will hear the case. She raised a declaratory action, to clarify the rights and duties of parties, coupled with a petitionary request – the means by which such duties, where found to exist, are made practically binding by the court. Jex-Blake’s petitionary request was that, inter alia, the Lord Ordinary ordain the university to make regulations to appoint professors to instruct the female students and to permit them entry into any classes of male students.2 The difficulty was that the only parties to the summons were the Senate and the chancellor, leaving the University Court and University Council out of the case.3 In effect, this meant that, even though the Lord Ordinary found in favour of Jex-Blake in respect of the declaratory action, he could not make an order against the University Court – the body with the power to give effect to

1 Jex-Blake and Others v the Senatus Academicus of the University of Edinburgh (1873) SC 784. 2 NRS, CS46/1873/7/99. Also recorded in Sophia Jex-Blake, Medical Women: A Thesis and a History (Edinburgh, Oliphant, Anderson, & Ferrier, 1886) app 20. 3 The Lord Ordinary, however, repealed the university’s defence which was made on this ground: Jex-Blake, above n 1, 792.

258  Stephen Bogle the petitionary requests. This did not concern the Lord Ordinary, in the Outer House, who felt that the relevant university authorities would uphold the declaratory conclusions of their own accord. This soon became a hypothetical point as the university appealed against the decision, therefore receiving an interim reprieve on any expectation of enforcement. The appeal was heard in the Inner House of the Court of Session by the full house, excluding Lord Inglis (Lord President), who at the time was the chancellor of the University of Edinburgh and a defender in the action. The exclusion of Lord Inglis meant the total complement of judges was 12, and Jex-Blake lost the appeal, seven judges to five. In the feminist rewriting of the judgment, Lord Kennedy replaces Lord Benholme – one of the majority judges – with the effect that the court is instead evenly divided, with six opinions in favour of each party. The practice in 1873 was that ‘where the whole judges are equally divided in opinion, the youngest judge withdraws his vote in order to allow judgment to be pronounced, and an appeal taken to the House of Lords’.4 In 1873, the youngest judge in the Court of Session was Lord Shand, who found in favour of the reclaimers. Thus, the effect of the feminist rewriting is that the university loses its majority and the female students are successful in their claim. In nineteenth-century Scotland, it would not have been possible for a woman to become a judge, it is therefore of note that the feminist judge in this case has adopted the guise and title of a male judge, Lord Kennedy.5

Constructed Facts and ‘Real’ Evidence The first question for the Inner House was whether the constitution of the university permitted it to grant degrees to female students. In the original decision, the majority (Lord Ormidale, Lord Mure, Lord Shand, Lord MacKenzie, Lord Benholme and Lord Neaves) held that the university had no such power, whereas the Lord Justice Clerk (Moncreiff) along with Lord Deas, Lord Ardmillan, Lord Jerviswoode and Lord Gifford dissented, finding no reason to suggest it did not. The majority was greatly influenced by Lord Ormidale’s6 proposition that ‘writings,

4 AEJG MacKay, The Practice of the Court of Session, 2 vols (Edinburgh, T&T Clark, 1877) I, 57. See also Lang v Bruce (1832) 10 S 777, 792 (in 1825, Lord Craigie was removed from the Second Division to the First Division, The Edinburgh Magazine, January–June 1825, vol xvi (Edinburgh, Archibald Constable, 1825) 245). 5 It was not until 1909 that the first female students graduated with an LLB from the University of Edinburgh (Eveline MacLaren and Josephine Gordon Stuart), and not until 1923 that a female advocate (Margaret Kidd) was admitted to the Scots Bar. It took another 73 years from then, however, until the first female senator of the College of Justice, Lady Cosgrove, was appointed as a Lord Ordinary of the Court of Session. 6 See Jex-Blake, above n 1, 821 (Lord Mure); 827 (Lord Cowan); 830 (Lord Benholme). Also see Lord MacKenzie and Lord Shand, who follow Ormidale but do not expressly mention him in their (joint) judgment, 825.

Commentary on Jex-Blake v Senatus of Edinburgh University  259 even Acts of Parliament, more especially those of ancient date … may be cleared up and interpreted – not controlled or altered – by the usages of possession which has followed upon them’.7 Using authorities from both the early nineteenth century8 and as recent as 1867 and 1869,9 Lord Ormidale maintained that this approach should guide the court when interpreting the founding charters of the college as well as the subsequent Acts of Parliament that acknowledged and endorsed what was now the university.10 Jex-Blake would have been hard pressed to dispute this proposition – that usage determines meaning – within the conventional modes of legal argument: no matter the politics which lies behind it, black-letter argumentation would not provide the space for such an evaluation. It is something which Lord Kennedy, in the hope of gaining progress through juridical means, does not challenge either.11 The argument, therefore, turned on the application of the usage-proposition to the facts and evidence, and it is in this process that Lord Kennedy’s judgment can be distinguished from the others. The university argued that the facts established a practice and usage of excluding women from university graduation, which the original court accepted. It is important to note that this was practically significant: it was not just medical education but official recognition by means of graduation which Jex-Blake and others needed. It was possible to demonstrate, on the basis of the facts available, that women had attended medical classes and undertaken medical training within the university, but it was not possible to demonstrate that any had graduated from Edinburgh. Graduation, however, would allow Jex-Blake and others the opportunity to register under the Medical Act 1858, which gave them the right to practise in the UK as a doctor. It was the contention therefore of Jex-Blake that there was nevertheless evidence of a wider practice across Europe of female graduation and that in past centuries women not only studied medicine but graduated from universities. However, Lord Ormidale dismissed the historical evidence of other continental universities’ practice, claiming it was of limited use when considering the practice in ‘this country alone’12 and sought to undermine its robustness, stating that it was not ‘satisfactorily explained and established as to be relied on as evidence at all in the judicial determinations of any litigated

7 ibid 813. 8 Magistrates of Dunbar v The Heritors of Dubar 6 ER 1462; Macdonald v the Governors of Heriot’s Hospital (1830) 4 W 98. 9 Inspector of Kinglassie v the Kirk-Session of Kinglassie (1867) 5 M 869 (Ormidale wrongly cites this case as decided on 14 June 1869 rather than 1867); Flockhart v the Kirk-Session of Aberdour (1869) 8 M 176. 10 Jex-Blake, above n 1, 813–14. 11 For discussion of more radical approaches, see R West, ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1; KT Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829; and DL Rhode, ‘Feminist Critical Theories’ (1990) 42 Stanford Law Review 617. 12 Jex-Blake, above n 1, 815.

260  Stephen Bogle cause’.13 Lord Mure agreed with Lord Ormidale on these points14 and Lord Neaves went further, advancing, without justification, the idea that ‘the real evidence … [about usage] … must impress itself on every one’.15 He continued to maintain that historical evidence was against the pursuers saying that: I need not dwell on the legal importance of that fact, which is so well demonstrated and enforced in some of the opinions we have received; and I do not think that any satisfactory or even plausible answer has been made of it.16

In contrast, Lord Kennedy not only examines and then accepts the evidence presented by the pursuers about female attendance and graduation from universities but, importantly, is sensitive to reasons why women in Scotland may not have accessed university education or graduated in the past. It is also demonstrated by Lord Kennedy that, historically, graduation was not always sought or necessary for students – male or female – which highlights the anachronistic arguments used by the university and accepted by several of the original judges. That is, the university and the original judges sought to assess past practice and custom, where graduation was less common, according to present-day practices, where a greater number of students did graduate and with graduation being, in the nineteenth century, a requirement to practise as a registered doctor in the UK. There is an acute awareness, however, in Lord Kennedy’s judgment that the facts used to provide the minor premise of the university’s argument about graduation had been constructed or skewed in their presentation and creation in favour of the university. In taking this approach, Lord Kennedy disarms the otherwise powerful exploitation of the status quo. Lord Kennedy does not challenge the law itself – the usage-proposition – but constructs the facts in a manner which neutralises the heavy preference for convention which the rule establishes. In other words, although he does not subvert the rule itself, which may otherwise be understood as a means by which patriarchal power is secured through the maintenance of conventions and customs, he reads the facts with an understanding that the situation is a result of patriarchal dominance. There is no explicit suggestion in Lord Kennedy’s judgment that ‘facts’ or approaches to what is considered ‘evidence’ are the result of patriarchal structures or modes of thought,17 but, in providing the space for facts to be contextualised, it enables a favourable judgment for the female students.

13 ibid. 14 ibid 820. 15 ibid 831 (emphasis added). 16 ibid. 17 For a more direct challenge to traditional judicial approaches to evidence and facts from a feminist perspective, see: D Nicolson, ‘Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse’ (1994) 57 Modern Law Review 726 and D Nicolson, ‘Gender, Epistemology and Ethics: Feminist Perspectives on Evidence Theory’ in M Childs and L Ellison (eds), Feminist Perspectives on Evidence (London, Routledge, 2000).

Commentary on Jex-Blake v Senatus of Edinburgh University  261

Narrow Interpretation, Restricted Meaning The second question addressed by the court related to the effect of the 1869 regulations, which initially allowed female students entry to the university as medical students. The question was: did the regulations merely allow entry to separate classes, or did they provide a right to graduate? Furthermore, if the constitution did not permit entry to female students, was it necessary to reduce the regulations by a court order or were they null and void by virtue of being ultra vires? Most of the judges in the original case read the regulations narrowly,18 suggesting that they gave no more than permission to attend separate classes if provided; whereas some read them widely and generously with the view that they provided the right to graduate.19 In general, however, those who decided against Jex-Blake held that, since they were of the view that the constitution prohibited women from graduating, the regulations were null and void. In Lord Kennedy’s judgment, however, he is generous in his reading of the regulations. Since Lord Kennedy is of the view that women were always able to graduate from universities and were never intended to be excluded, Lord Kennedy is able to interpret the regulations as an instrument of internal governance, doing nothing more than facilitating the passage to graduation of female medical students. It would therefore be possible to say on the basis of Lord Kennedy’s reasoning that the regulations are, at best, redundant and, at worst, ultra vires insofar as they curtail the equal right of women to study and graduate on the same terms as men by mandating women-only classes. Whatever the case, Lord Kennedy does not have the burden of trying to make coherent the passing of 1869 regulations by an institution that, according to the arguments made by counsel for the university, is designed for (indeed, exclusively limited to) male students. In terms of legal reasoning, Lord Kennedy is on somewhat easier ground in comparison to the position taken by many of his colleagues in the Inner House: his construction of the university’s powers fits coherently with the use of those powers to pass the regulations and demonstrates the implementation of what is allowed rather than the vice versa position many of the senators sought to justify. There is an irony in the latter position: the senators who found in favour of the university often stressed that they did not think the court should interfere with university governance or order mixed classes or the hiring of professors, but were happy to upturn the 1869 regulations passed by the University Court, Senate and Council, and acted upon by students.

18 For narrow readings, see Jex-Blake, above n 1, 804 (Lord Deas); 815–86 (Lord Ormidale); 829 (Lord Cowan); 836 (Lord Neaves). 19 ibid, 839–40 (The Lord Justice Clerk); 823 (Lord Gifford). Lord Moncreiff and Lord Gifford read the regulations as clearly providing the right to graduate. Lord Ormidale was ambiguous on this point but was of the opinion that the regulations gave ‘permission’ and it was not possible to ordain the university to allow the students to graduate, 812.

262  Stephen Bogle

Non-Interventionist, Passive Judiciary The third question concerned the powers available to force the university, through practical instructions – in the form of petitionary conclusions – to admit female students to medical study. Lord Kennedy does not address this issue, choosing to follow Lord Gifford’s approach by giving a declaratory judgment which makes the law very clear and leaves the details to be worked out by the university. On this basis, if the university failed to implement the obvious practical outcomes of the declarator it would be possible for Jex-Blake and others to return to the court to request that it make more direct instructions. In taking this approach, it appears that Lord Kennedy would have no problem with either using the power of the court to compel the university to take action, or with the notion that the decision of the court may result in professors being hired or requested to teach mixed classes. This contrasts with most of the bench in the original decision who were very uncomfortable with this level of instruction coming from the court, with the exception of Lord Gifford and the Lord Justice Clerk.20 Neither Lord Deas nor Lord Jerviswood gave an indication of how explicit and direct they would be with the university if it failed to follow the broad outline of the declarator. In many ways, it is unsurprising that the Lord Justice Clerk, Lord Gifford and Lord Kennedy would be prepared to make specific directions to the University Court: they would be compelling individuals, institutions and persons in particular office to take specific action to ensure female medical students can graduate because, for them, it was the university’s legal duty.

Separating the Legal from the Political Those in the majority in the original judgment either sought to completely disentangle the legal questions from the politics of the decision or to ensure that their political comments were understood to be obiter or a mere gloss upon the legal decision.21 Some said more, using their judgments to make obiter comments about the merits of the case. Lord Neaves was the most effusive in this respect, offering his opinions on the merits of women in medicine, universities and public life; and what is notable is that his judgment lacks any real legal argument. He is also the most explicit – as much as a Victorian gentleman could be – about why there was such strong opposition to mixed classes.22 Lord Kennedy addresses these arguments by way of retort rather than by way of advocating the political cause, but in doing so is able to dismantle and undermine the errant and prejudiced views in the original judgment. Lord Kennedy’s judgment gives voice to the pursuers who 20 For the opinion of the majority of the court, see, eg, Jex-Blake, above n 1, 811–12 (Lord Ardmillan); 828 (Lord Cowan). 21 ibid 812 (Lord Ardmillan); 830 (Lord Benholme); 828 (Lord Cowan); 838 (Lord Justice Clerk). 22 ibid 834.

Commentary on Jex-Blake v Senatus of Edinburgh University  263 would have otherwise been unable to address these points: it reveals the weakness of the views held by many of the Lords of Session and records it in the form of a judgment; and gives expression in an official document to the arguments often made by proponents of female medical education.

Parliament and the 1876 Act Lord Kennedy has swung the decision in favour of the female medical students, but it is unlikely to have resulted in immediate success. Of note is that some years after losing the original case, Jex-Blake commented that it was not clear how far, practically speaking, victory in the Inner House would take things, given that many of the Medical Faculty’s professors, either due to either timidity or prejudice, refused to teach female students.23 Indeed, even with the outcome which Lord Kennedy has secured, the university with its resources, resolve and connections would most likely have appealed to the House of Lords. Indeed, campaigners were anxious about several practical problems regardless of whether they won in the Court of Session. The first problem for campaigners was that, despite any potential judicial success, there was the continuing problem of finding a willing hospital in Edinburgh to provide both the experience and instruction necessary for female medical students to enter practice – something which had proved as difficult to secure as access to university teaching.24 The second problem was the lack of judicial and political interest in compelling professors to teach female medical students. This was something which could not be addressed easily by campaigners who were themselves divided on this question, with some advocating, like Garnett Anderson, that female students should seek their education abroad where there was less reluctance on the part of male professors to teach female students. For Anderson and others, the best course of action was to achieve recognition of foreign medical degrees in the UK, whereas for Jex-Blake that was to admit defeat. Writing in The Times soon after Jex-Blake lost her case in the Court of Session, Anderson said ‘that women can in no way better serve the cause we desire to promote, than by going to Paris to study medicine, and returning here as soon as may be to practice it’.25 She argued ‘nothing succeeds like success’ and the only feasible means of success was for women to receive foreign medical degrees and convince Parliament to recognise their validity.26 Jex-Blake, however, responded to Anderson with her own letter to The Times saying that women who desired medical education should ‘fight it out on this line’; that is, access to medical degrees in the UK. She argued that British women should not be ‘driven out of our own country for education, nor to be induced to cease to make every effort in our power to obtain

23 Jex-Blake,

above n 2, 149. Stansfeld, ‘Medical Women’ (1877) 1(5) (July) Nineteenth Century Review 889. 25 5 August 1873. 26 ibid. 24 J

264  Stephen Bogle from the Legislature that measure of justice which we imperatively need’.27 It was another three years, however, before Parliament finally considered how best to resolve these problems. Between 1873 and 1876, there were numerous false starts for campaigners who sought legislative intervention; it was not until May 1876 that a Bill was introduced to Parliament by Russell Gurney MP, known as the Enabling Act, ‘with the object of enabling every one of the nineteen Examining Boards (including the Scotch Universities) to admit women as well as men to their examinations, if they choose’.28 This was in contrast to the approach taken by William Cowper-Temple in his Bill, which sought to allow the recognition of foreign medical degrees in the UK (whether held by men or women). Upon the introduction of this latter Bill, the government said it supported the Gurney Bill and so the Cowper-Temple Bill was withdrawn, albeit with some reservation from him about whether UK universities would use these powers to grant female students entry.29 Finally, on 11 August 1876 the Medical Act 1876 received royal assent.30 Containing only two provisions, and being incorporated into the Medical Act 1858, it made clear that: ‘The power of every body entitled under the Medical Act to grant qualifications for registration shall extend to the granting of any qualification for registration granted by such body to all persons without distinction of sex’.31 However, there was a section in the Act which made clear that ‘nothing herein contained shall render compulsory the exercise of such powers’.32 The Act was therefore merely permissive, and it would be left to the institutions to decide whether to make use of these powers. Soon after the passing of the 1876 Act, the Irish College recognised the London School of Medicine for Women – the first medical school in Britain designed for women, founded by Jex-Blake and others – and admitted female students to examination for a medical degree. It was also at this time that the Royal Free Hospital in London allowed female medical students access to its wards, providing a means by which other students could follow in Jex-Blake’s footsteps.33 In 1877, Jex-Blake, Eliza Dunbar, Frances Hoggan, Louisa Atkins and Edith Pechey sat their examinations at the Irish College for Physicians and received entry to the medical register the same year. It was not, however, until 1896 that the University of Edinburgh admitted female students34 who could graduate in medicine with equality and on a par with their male peers, but still in separate classes.35 27 23 August 1873. 28 A Witz, Professions and Patriarchy (London, Routledge, 2013) 96 ff. 29 Cowper-Temple thought Gurney’s Bill did not solve the problem of unwilling professors and the institutional barriers that legislation alone could not, at that point, address (HC Deb 5 July 1876, vol 230, cols 1003–04). 30 ibid. 31 s 1. 32 ibid. 33 Jex-Blake, above n 2, 205 ff. 34 E Thomson, ‘Women in Medicine in Late Nineteenth and Early-Twentieth-Century Edinburgh – A Case Study’ (Edinburgh, unpublished PhD thesis, 1998) 45–48. 35 WN Boog Watson, ‘The First Eight Ladies’ (1967–68) 23 University of Edinburgh Journal 227.

Commentary on Jex-Blake v Senatus of Edinburgh University  265

Concluding Remarks There is no doubt that the Inner House decision was unjust – and Lord Kennedy has remedied that injustice. Whether it was wrong, however, legally speaking, is difficult to say. The law, in this instance, was unclear, uncertain and insufficiently examined – such circumstances created the opportunity for justice, as Lord Kennedy has demonstrated, but also prejudice, discrimination and arbitrariness, as Lord Neaves’ judgment shows. Of course, Parliament did respond and eventually female medical students gained access to the profession, but it should be stressed that legal change and official recognition is only one part of the wider story of social change, cooperation, determination and individual bravery. However, what the Inner House decision reminds us is that moving from a circumstance of injustice to justice cannot solely depend on the recognition from the other that you are their equal, or acknowledgment from them that you deserve that of which you have been deprived. It first requires boldness, a righteous demand and solidarity amongst those suffering; only then will recognition and acknowledgment constitute justice.

Reflective Statement: Jex-Blake v Senatus of Edinburgh University CHLOË KENNEDY

To modern eyes, the need to rewrite this judgment from a feminist perspective is obvious. The decision declared official regulations of the University of Edinburgh, which impliedly granted women the right to receive medical degrees, ultra vires on the ground that the institution lacked the power to confer degrees on women. Prior to their passing, the regulations had been endorsed by three highly esteemed legal authorities, two of whom were Lord Justice Clerk and Lord Justice General at the time the case was heard. Furthermore, by this time the women had progressed with their studies unhindered for several months. It was only when a handful of professors, and those over whom they held influence, began to close ranks against Jex-Blake and her fellow female students that the regulations, and the powers on which they were assumed to rest, were called into question. As Jex-Blake remarked in the aftermath of the judgment, ‘[i]t is certainly a tolerably striking instance of the “glorious uncertainty of the law” that the two highest Judges in the land should concur in an action which is subsequently declared by a majority of their brethren to be illegal’.1 To contemporaries of the so-called Septem Contra Edinam,2 however, neither the prejudice to women nor the legal inequity of the ruling was unequivocal.3 It is clear that the law in this area was not beyond contention, and those who agreed with the substance of the ruling on point of principle often believed themselves to be acting in the best interests of the women (and indeed all women). Through being denied the opportunity to graduate from university, women were considered to have been spared the hardship and strain of both arduous study and paid employment. They were also thought thereby to have retained the reverence and respectability they were fortunate to enjoy. Views of this kind were commonplace in nineteenth-century Britain, when notions of separate spheres and distinct but complementary roles for men and women were portrayed as natural and even providentially ordered.4 1 Sophia Jex-Blake, ‘Lady Medical Students’ The Times (4 September 1873). 2 Seven Against Edinburgh. With three more women students joining the Edinburgh Seven in autumn 1871, they eventually became 10 in total. 3 The judgment certainly attracted criticism at the time (‘The Lady Medical Students’ The Dundee Courier & Argus (2 July 1873)). 4 See, eg, E Gordon and G Nair, Women, Family and Society in Victorian Britain (New Haven, CT, Yale University Press, 2003).

Reflective Statement: Jex-Blake v Senatus of Edinburgh University  267 Scotland had its own particular strain of this style of thinking, according to which gender relations provided an index of civilisation, and women contributed to the civilising process by encouraging masculine refinement via their domestic influence and friendships with genteel men.5 Gendered notions of human nature and ability further encouraged the idea that women’s energies ought to be devoted solely to these enterprises, and any others that might fall within the scope of their ‘proper’ duties.6 In my judgment, I wanted to draw attention to how these perspectives on gender underpinned and shaped the opinions of some of the majority judges7 and simultaneously to highlight their weaknesses and inconsistencies. That is why I positioned myself as one of the advising judges (replacing Lord Benholme), who would have the benefit of reading the other opinions. I also wanted to ensure that my judgment avoided each of these prevailing ideas, even though some were compatible with the women’s case,8 because they operated to hinder women’s emancipation. Such arguments were also easily manipulated so as to confine women to nursing, and to devalue the vocation in the process.9 Instead, I drew on more egalitarian conceptions of gender relations, such as those made famous in John Stuart Mill’s 1869 The Subjection of Women, in which he makes the case for full and perfect equality, including a woman’s right to join any profession she chooses.10 Mill’s public championing of these ideas illustrates that being male was not in itself an obstacle to being devoted to equal, and not merely purportedly comparable, rights for women. Indeed, the evidence of democratic thinking in Scotland shows that in the mid-nineteenth century a number of male Liberal radicals supported women’s rights.11 The judgment I have produced, which was necessarily written from the perspective of a man (on account of the legal profession being closed to women), is sympathetic to these political commitments. These views were not shared by all, however, and even those who did share them might have balked at the prospect of potentially coercing professors to

5 L Abrams, Gender in Scottish History since 1700 (Edinburgh, Edinburgh University Press, 2006) ch 3. 6 In the later nineteenth century, women would come to be defined largely in relation to their reproductive capacities, with (male) doctors arguing that women should not imitate men professionally or scholastically in order to conserve energy for these procreative purposes (R Watts, Women in Science: A Social and Cultural History (London, Routledge, 2007) 130). 7 Especially Lord Neaves, whose suffocating veneration of women is evident in his poem ‘O Why Should a Woman Not Get a Degree?’ (Charles Neaves, Songs and Verses Social and Scientific, by an Old Contributor to MAGA (Blackwood, 1869)). 8 Indeed, Jex-Blake relied upon essentialist arguments about women’s distinctive and natural healing capacities to bolster the women’s cause (eg, ‘Jex-Blake on the Medical Education of Women’ Glasgow Herald (28 April 1872)). 9 Abrams, above n 5, ch 6. 10 Jex-Blake referred to this view of Mill’s in advocating the women’s cause, clarifying that she wanted to demonstrate women’s particular suitability to medicine rather than to argue for their right to belong to any profession (‘Miss Jex-Blake’s Lecture’ The Cheltenham Chronicle and Parish Register and General Advisor for Gloucester (30 April 1872)). 11 Abrams, above n 5, ch 3.

268  Chloë Kennedy teach against their consciences. In addition to this, Jex-Blake, the public face of the women’s struggle, was a divisive character. Her tenacity and candour made her unpopular, even with those sympathetic to her cause,12 and on one occasion resulted in an action for libel being brought against her. Mr Craig, class assistant to Professor Christison (one of the most prominent professors who opposed and eventually defeated the women’s efforts), sued in response to Jex-Blake’s claim that he had instigated the Surgeon’s Hall riot while intoxicated. It is perhaps significant that Mr Shand, who would eventually become Lord Shand and deliver an opinion that favoured the Senatus over Jex-Blake and her colleagues, appeared for the pursuer in this libel action.13 While these factors might have diminished the women’s likelihood of success, however slightly, in the minds of other judges in nineteenth-century Scotland, they inspired me to push the boundaries of my own judgment further in their favour by recognising their right to graduate, irrespective of the contents of the regulations. I was content to sacrifice freedom of conscience in the face of what appears to have been both the legally and morally correct outcome. Through taking this stand, I have attempted to emulate some of the vigour and courage that made Jex-Blake an indomitable pioneer.14

12 See a letter from George Hoggan, supporter of the cause but critic of Jex-Blake, to Professor Turner, University of Edinburgh Special Collections EUA IN1/ACU/A2/11/12. See also The Daily Chronicle (1 July 1874), which describes a letter from Jex-Blake to The Times insinuating that she had been treated unfairly by her examiners at the University of Edinburgh as a ‘shrewish epistle’ and likely to hinder women seeking their ‘educational advantages’. In her biography of Jex-Blake, Margaret Todd admitted that ‘no-one with a disposition like S J-B’s can go through life without losing friends’ (M Todd, The Life of Sophia Jex-Blake (London, Macmillan & Co, 1918) 538). 13 ‘The Jex-Blake Trial’ Fife Herald, Kinross, Strathearn and Clackmannan Advertiser (1 June 1871); Todd, above n 12, 312. 14 For a striking example, see Jex-Blake publicly testifying to the poor treatment she suffered at the hands of Professor Christison and others in ‘The Female Medical Students’ The Southern Reporter (12 January 1871).

13 Rainey v Greater Glasgow Health Board [1987] AC 224, HL [HOUSE OF LORDS] RAINEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT AND GREATER GLASGOW HEALTH BOARD . . . . . . RESPONDENTS 1986 Oct 6, 7; Nov 27 Lady Busby My Lords, this appeal from an interlocutor of the First Division of the Inner House of the Court of Session, which affirmed the decisions of an Industrial Tribunal and of the Employment Appeal Tribunal, is concerned with the proper construction of certain provisions of the Equal Pay Act 1970. The facts of the case, which merit full consideration, are as follows. The appellant, Ms Elizabeth Rainey, has been employed by the Belvidere Hospital in Glasgow as a prosthetist since 1 October 1980. Before 1980, all prosthetic services in ­Scotland were offered by private contractors whose staff provided their services to hospitals including the Belvidere. Ms Rainey’s comparator, Mr Alan Crumlin, was one of those employed by a private contractor. In 1979, the Secretary of State for ­Scotland decided to establish a prosthetic service within the Scottish National Health Service (NHS) and, for the first time, to directly employ teams of prosthetists. In England, prosthetic services were to remain in the private sector. In order to establish the Scottish service, it was necessary to recruit a number of suitably qualified individuals from the private sector. Although it had been decided by the ­Scottish Home and Health Department (SHHD) that, in general, the remuneration of employees in the new service should be on the Whitley Council scale at the rate paid to medical physics technicians, it was thought that the rate might not be ­sufficient to attract enough qualified prosthetists from the private sector.

270  Nicole Busby The private sector prosthetists were offered an option either to come into the NHS on Great Britain-wide Whitley Council rates of pay and conditions of service or to remain on the rates of pay and the conditions of service which they presently received, subject to future changes as negotiated by their trade union, the Association of Scientific, Technical and Managerial Staffs (ASTMS), and the SHHD on behalf of the employing Health Board. This was set out in a letter dated 11 January 1980 from the Greater Glasgow Health Board to Mr Crumlin and approximately 20 other prosthetists, all of whom were men. All those who received the offer chose the second option. Mr Crumlin commenced employment with the NHS at Belvidere Hospital in July 1980 on a salary of £6,680 per annum, the same as he had received from his former employer. At the time of the hearing before the Industrial Tribunal, on 23 March 1983, it had increased to £10,085 per annum. When Ms Rainey entered the service on 1 October 1980 as a prosthetist working at Belvidere Hospital, she had not previously been employed by a private contractor. She was offered, and accepted, the Whitley Council rate of pay and conditions of service on the point on the scale corresponding to a medical physics technician. Her qualifications and experience were broadly similar to those of Mr Crumlin. Her starting salary was £4,773, and at the time of the hearing before the Industrial Tribunal it had increased to £7,295. A male prosthetist, Mr Davey, was engaged at the same time and on the same conditions. He has since left his employment. Since 1980, no prosthetists have transferred from private employment to NHS employment and, in future, transfers on special conditions such as those applicable to Mr Crumlin will not be permitted. No arrangements have been made for phasing out the disparity between the prosthetists who transferred from the private sector in 1980, such as Mr Crumlin, and those who entered NHS employment directly, such as the appellant. Those previously employed in the private sector continue to benefit from collective bargaining arrangements by virtue of their trade union membership, while those directly appointed to the NHS are subject to incremental progression on the Whitley Council scale. In 1983, the appellant applied to an Industrial Tribunal under the Equal Pay Act 1970 for a declaration against the Greater Glasgow Health Board that she was entitled to the same pay as Mr Crumlin. She complained that the different rates of pay breached sections 1(1) and (2)(a) of the 1970 Act which provide (as substituted by section 8(1) of and schedule 1 to the Sex Discrimination Act 1975): (1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. (2) … (a) where the woman is employed on like work with a man in the same employment – (i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   271 term of a ­similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term. Although the Health Board did not dispute that the appellant was employed on like work with Mr Crumlin and that the term of her contract as regards remuneration was less favourable than the corresponding term of Mr Crumlin’s contract, it contended that the variation in pay between the appellant and Mr Crumlin was due to a material difference within section 1(3) of the 1970 Act (as amended) and undertook the burden of satisfying its provision that: (3) An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material difference (other than the ­difference of sex) between her case and his. The Industrial Tribunal dismissed the appellant’s application, stating: Having considered the evidence the tribunal is satisfied that what has caused the difference in the salary scale of the applicant and Mr Crumlin is not market forces but is the fact that Mr Crumlin is paid on a scale negotiated and agreed between his trade union and the SHHD whereas the applicant is paid according to a different scale. The scale upon which the applicant is paid is an ad hoc scale and not one which has been negotiated between her trade union and the SHHD. There was clear evidence that any male employees recruited at the same time as or after the recruitment of the applicant would be paid the same rate as the applicant was and subject to the same scale. We had no doubt on the evidence that had any of the prosthetists employed by the private contractors been female they would have been paid the same higher rate of pay as the male prosthetists transferred from the private contractors. The tribunal were therefore forced to the conclusion that the difference had nothing to do with the fact that the applicant was female. We were satisfied that the reason for the difference was because of the different method of entry and had nothing to do with sex. The appellant appealed to the Employment Appeal Tribunal which, by a majority, dismissed the appeal. A further appeal to the Court of Session was also dismissed by the First Division of the Inner House (Lord President Lord Emslie and Lord Cameron, Lord Grieve dissenting). The central question in this appeal is whether the circumstances that have led to this situation are capable, in law, of comprising ‘a material difference (other than the difference of sex)’ between the appellant’s case and Mr. Crumlin’s within the meaning of section 1(3) of the Equal Pay Act 1970.

272  Nicole Busby I have had the advantage of reading, in draft form, the opinion of my noble and learned friend Lord Keith of Kinkel with which your Lordships, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Goff of Chieveley concur. I am in the unfortunate position of being unable to agree with your Lordships on the answer to the central question. I would uphold the appeal on the ground that the respondents have failed to discharge the onus placed upon them in seeking to advance an acceptable justification for paying different rates of pay to the appellant, a woman, and Mr Crumlin, her male comparator, in accordance with section 1(3) of the Equal Pay Act 1970. In finding thus I draw, in part, on the reasoning advanced by Lord Grieve in his dissenting judgment in the Court of Session. It is without dispute, having been ascertained by the Tribunal at first instance, that the Secretary of State for Scotland had decided as a matter of policy that the appropriate reference point for remuneration for prosthetists directly employed by the NHS was that applicable to medical physics technicians on the Whitley Council scale. However, it is also without dispute that, having accepted that the available pool of applicants consisted of those employed by private contractors, it became apparent that the appropriate pay rate on the Whitley Council scale would be an inadequate enticement to those such as Mr Crumlin to move across from private employment to direct employment by the NHS. Accordingly, the Health Board took the decision to offer employment to the private sector prosthetists at their current rate of pay and subject to the ASTMS negotiating machinery. The result of this was that the exclusively male group of prosthetists, which included Mr Crumlin, who transferred from the private sector to the NHS were subject to a higher rate of pay and better prospects for a pay increase than the appellant, who is a woman. Accordingly, Mr Crumlin and the appellant, who are equally qualified and equally experienced, now work alongside each other at the Belvidere Hospital performing identical work, albeit subject to different pay and conditions. The case for the appellant is that nothing other than differences attributable to the personal skills, qualifications, experience or other personal attributes of the appellant and the comparable man are capable of amounting to a genuine ‘material difference’ such as that required by section 1(3) of the 1970 Act. The appellant’s counsel argue further that the effect of the pay policy amounts to indirect discrimination in accordance with section 1(1)(b) of the Sex Discrimination Act 1975 on the ground that it has a considerable disparate impact on women compared with men, which is to the detriment of the appellant. Section 1(1)(b) provides that a person discriminates against a woman where, (b) he applies to her a requirement or condition which he applies or would apply equally to a man but — (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   273 (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it.

In support of her argument, the appellant relies upon the decision of the Court of Appeal in Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429. In that case, a woman sales clerk was employed at a lower wage than a male sales clerk who had been engaged at a later date. For the purpose of satisfying section 1(3), the employers relied on the fact that the male sales clerk was the only suitable applicant and that he had refused to accept the job unless he was paid the same as he had been in his previous employment. In reversing the decision of the Employment Appeal Tribunal, the Court of Appeal found that these circumstances did not discharge the onus on the employers, as the method of entry by which the male clerk was employed was not capable of constituting a material difference within the meaning of section 1(3). In his dicta (at page 1433), Lord Denning MR stated: The issue depends on whether there is a material difference (other than sex) between her case and his. Take heed to the words ‘between her case and his’. They show that the tribunal is to have regard to her and to him – to the personal equation of the woman as compared to that of the man – ­irrespective of any extrinsic forces which led to the variation in pay … An employer cannot avoid his obligations under the Act by saying: ‘I paid him more because he asked for more’, or ‘I paid her less because she was willing to come for less’. If any such excuse were permitted, the Act would be a dead letter. Those are the very reasons why there was unequal pay before the statute. They are the very circumstances in which the statute was intended to operate. Nor can the employer avoid his obligations by giving the reasons why he submitted to the extrinsic forces. As for instance by saying: ‘He asked for that sum because it was what he was getting in his previous job’, or, ‘He was the only applicant for the job, so I had no option’. In such cases the employer may beat his breast, and say: ‘I did not pay him more because he was a man. I paid it because he was the only suitable person who applied for the job. Man or woman made no difference to me’. Those are reasons personal to the employer. If any such reasons were permitted as an excuse, the door would be wide open. Every employer who wished to avoid the statute would walk straight through it. In a similar vein, Lawton LJ stated (at page 1437): What does section 1(3) in its context in both the Equal Pay Act 1970 and the Sex Discrimination Act 1975 mean? The context is important. The overall object of both Acts is to ensure that women are treated no less favourably than men. If a woman is treated less favourably than a man there is a presumption of discrimination which can only be rebutted in the sphere of employment if the employer brings himself within section 1(3). He cannot do so merely by proving that he did not intend to discriminate. There are more ways of d ­ iscriminating

274  Nicole Busby against women than by deliberately setting out to do so: see section 1(1)(e) of the Sex Discrimination Act 1975. If lack of intention had provided a lawful excuse for variation, section 1(3) would surely have been worded differently. The variation must have been genuinely due to (that is, caused by) a material difference (that is, one which was relevant and real) between – and now come the important words – her case and his. What is her case? And what is his? In my judgement, her case embraces what appertains to her in her job, such as the qualifications she brought to it, the length of time she has been in it, the skill she has acquired, the responsibilities she has undertaken and where and under what conditions she has to do it. It is my view that these expositions get to what lies at the heart of the legislation. In passing the 1970 statute and its sister Act, the Sex Discrimination Act, which both came into force in 1975, Parliament has acknowledged that there exists pay disparity between women and men and that such disparity should be brought to an end. The reasons for this disparity are manifold although in essence they relate to differences in social expectations regarding the respective roles of the sexes and to the different relationships with paid employment and unpaid domestic work that women have experienced, and continue to experience, in comparison to men. Such differences can be the cause of unlawful pay discrimination which, as the law provides, may be intentional or not. In enacting legislation intended to enshrine in law the principle of equal pay for men and women performing the same or broadly similar work, Parliament’s expectation was that employers would take stock of the reasons for the differences in pay rates – be they historical or cultural – and overcome them through the introduction of new workplace policies aimed at prohibiting such discrimination. Litigation would be used to provide a remedy in circumstances where it is found to exist. In order to avoid unintentional discrimination, it is necessary to consider the effect of any act or omission of the employer and its effect on the pay rates of the men and women in his employ. Section 1(3) offers the employer a defence in cases where, prima facie, a case of pay inequality is made out under sections 1(1) and (2) and the difference in pay can be shown to have arisen due to a material difference other than the sex of the workers concerned. It is on the interpretation of this provision that this appeal rests. As I have previously stated, my inclination is to accord with the interpretation offered by the Court of Appeal in Clay Cross (Quarry Services) Ltd v Fletcher. I will return to the relevance of Clay Cross but, staying with the issue of unintentional discrimination, I now turn to the relevant provisions of the Sex Discrimination Act 1975 which, as I have stated, require to be considered alongside those of the Equal Pay Act 1970 in determining the appropriate meaning to be applied in the current case. Section 1(1)(b) of the 1975 Act requires a finding that, when applied to the members of both sexes, an apparently neutral requirement or condition has the effect of causing a detriment to the complainant. It is not necessary to

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   275 show that it is the intention of the party applying the requirement or condition to discriminate, but merely that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it and that the complainant is among those women unable to do so. The neutral status of the requirement or condition and lack of intention to discriminate are recognised by the provision of a defence under section 1(1)(b)(ii) of the Act in the form of a justification which can be advanced by the party that seeks to rely upon it. In their submission, the respondents argue that in assessing the difference between the man’s case and the woman’s, a tribunal may be entitled to have regard to factors such as method of entry or intake which, in the present case, can be said to have been the cause of the difference in pay rate between Mr Crumlin and the appellant. They assert that the highly particular circumstances which occurred when the NHS prosthetic service was set up in 1980, in what had until then been a private sector field of employment, resulted in the necessity of securing the services of the private practitioners for the new service, with protection for their rates of pay. In resting their case on this assertion, the respondents claim that no relevant requirement or condition of the kind contended for on behalf of the appellant was applied by them to her, so that section 1(1)(b) of the Sex Discrimination Act 1975 is inapplicable, and they are not required to make out the justification required therein. I have to take issue with this assertion which, if read alongside the established interpretation of section 1(3) of the Equal Pay Act 1970 Act, results in a non ­sequitur. If, as the respondents claim, the method of entry or intake to the NHS is a relevant factor in this case and, as such, is capable of amounting to the ‘material difference’ required by section 1(3) of the 1970 Act, then surely that factor must be subjected to the highest degree of scrutiny that is possible under current legislation. The two Acts, despite the five-year gap in their passage, were introduced into law at the same time, with enforcement of the 1970 Act being delayed until 1975. This was in recognition of the fact that together they would provide a cohesive statutory code for addressing complex and deeply enshrined inequalities. For this reason, the two Acts should be invoked alongside each other whenever necessary and, in particular, when they are able to provide ease of operation and clarification of meaning. In enabling only the private sector prosthetists to enter its employment on terms which were preferable to those which the Secretary of State for Scotland had deemed were applicable, the respondent established a requirement that in order to benefit from the higher rate of pay a new recruit had to come directly from the private sector. This requirement excluded the appellant and was to her detriment as she was unable to benefit from the higher rate of pay. All of the 20 or so applicable recruits were men, whereas the appellant is a woman. This interpretation of the circumstances on which the higher rate of pay was made available accords,

276  Nicole Busby in my opinion, with the provision of section 1(1)(b) of the Sex Discrimination Act. Of course, indirect discrimination is only prohibited by the 1975 Act if it cannot be justified in accordance with section 1(1)(b)(ii). This provision, alongside section 1(3) of the Equal Pay Act, is intended to enable justifiable differences in pay and treatment which are unconnected with sex to escape being caught by the Act – in other words, it provides an exception to the general prohibition of sex discrimination which will only apply in certain circumstances. What are those circumstances? The concept of indirect discrimination or disparate impact has its origins in the US Supreme Court case of Griggs v Duke Power Co 401 US 424 (1971), which was concerned with the practice of applying certain criteria, namely the acquisition of a high school education or the passing of a general intelligence test, as conditions for employment. In Griggs these conditions were not explored in respect of their impacts on women and men per se, but rather on black and white applicants against a backdrop of prior lawful racial segregation. The Supreme Court held the criteria to be prohibited if they were not significantly related to job performance and ­operated to ‘freeze’ the status quo of prior discriminatory employment practices. The practical effect of the criteria was to disqualify black applicants at a substantially higher rate than white applicants because, under the conditions predating the passing of the Civil Rights Act, black people had received inferior educations in segregated schools. Furthermore, the jobs to which the criteria were attached had formerly been filled only by white employees as part of a long-standing practice of giving preference to white applicants. Although Griggs was brought as a class action with the petitioners’ claim demonstrable by the use of statistical data, the Supreme Court’s decision did not rest on the presentation of that data but rather on the nature and effect of the criteria. In deciding whether such a policy could be justified despite its impact, the Court held that the ‘touchstone is business necessity’ (Griggs, page 431), meaning the necessity of the application of the criteria as they relate to job performance. In the circumstances, the criteria were not found to be necessary as they were not significantly related to job performance. While acknowledging that a balance must be struck between the attainment of equality and the pursuit of satisfying genuine business needs, the Supreme Court gave preference to the elimination of historical disadvantage suffered by black people in line with the overriding objectives of the legislation. While the current appeal is not concerned with such clear-cut criteria as those struck down by the Supreme Court in Griggs, the implicit requirement that only those entering the NHS prosthetics service from private sector employment could benefit from the higher rate of pay is directly comparable with the explicit requirement of a high school education or passing of an intelligence test in a number of ways. In developing the concept of disparate impact, the US Supreme Court was concerned with the effect of a requirement or condition which, although neutral on its face, served in practice to exclude the disadvantaged group whom the ­legislation under review was intended to assist.

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   277 Despite common misconceptions to the contrary, law is neither static nor formulaic and must be interpreted in line with its overall impact on society and in accordance with social and economic progress. On occasion it falls upon the courts to undertake this most serious and sensitive of tasks and, in doing so, it is important to undertake as full a consideration of all potential implications as is possible. In Griggs, the Supreme Court, having cognisance of all relevant circumstances, adopted a purposive approach in finding that the elimination of historical disadvantage caused by generations of prejudice and discrimination against black people was paramount and, thus, trumped any temporary inconvenience to business that might be caused by the incidental hiring of an unsuitable individual. The present case, although born out of different circumstances, gives rise to an equally compelling denouement, namely the ending of the historical disadvantage suffered by women in the workplace and, specifically, by female prosthetists within the NHS. If the respondents’ defence under section 1(3) of the Equal Pay Act is allowed to stand, and the justification required by section 1(1)(b) of the Sex Discrimination Act is not made out, this would create the very effect avoided by the Supreme Court in Griggs, ie, the status quo would be preserved with no account taken of historical discriminatory employment practices. The European Court of Justice (ECJ), in its judgment in Bilka-Kaufhaus GmbH v Weber von Hartz (Case 170/84) [1987] ICR 110, has set down guidance relating to the operation of exceptions to the principle of equal pay for men and women, by which, through our membership of the European Economic Community, UK law is bound. That case was concerned with the application of Article 119 of the Treaty of Rome, which provides that men and women should receive equal pay for equal work. The claim in Bilka-Kaufhaus was related to a German department store’s occupational pension scheme under which part-time employees were eligible for pensions only if they had worked full-time for at least 15 years over a total period of 20 years. That provision negatively affected disproportionately more women than men. A female part-time employee claimed that the provision contravened Article 119. The employers argued that it was based on an objectively justified economic strategy of encouraging full-time work which resulted in lower ancillary costs and the better use of staff during opening hours. The ECJ made clear that a lack of intention to discriminate was not sufficient to discharge the employer’s obligation of providing equal pay for equal work under Article 119. However, it did concede that there may be circumstances in which an exception to the general prohibition of discrimination could be justified (page 26): If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119 (page 26).

278  Nicole Busby The Bilka judgment is of direct relevance to the current case, as it acknowledges that the needs of the employer in carrying on a business or, as in the current case, offering a service can amount to an exception to the equality principle in certain circumstances. The criteria provided by the Court in Bilka can be applied to the current case: (1) did the measures chosen by the Health Board correspond to a real need on the part of the undertaking? (2) Were they appropriate with a view to achieving the objectives pursued? (3) Were they necessary to that end? In answer to the first question, it is my opinion that the measure chosen (ie, the payment of the higher rate to those prosthetists recruited from the private sector) did indeed correspond to a real need on the part of the Board. That is, assuming that there was no alternative but to transfer the prosthetics service to the NHS, and here it is worth bearing in mind that the service in England remained in the private sector. In respect of the second and third questions asked by the ECJ regarding whether the measure was appropriate and necessary, although it could be argued that failure to pay the higher rate would have resulted in an inability to recruit, there was a clear alternative course of action available to the respondents. Unlike the policy in Bilka, which was part of an ongoing strategy on the part of the employer aimed at influencing the working patterns of its staff, the measure in the current case was construed very much as a ‘one-off ’ course of action. The ECJ’s test for establishing a justification for discrimination laid down in Bilka-Kaufhaus is essentially one of proportionality which requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. It follows that, in applying an exception to the general prohibition of discrimination, the more serious the disparate adverse impact, the more cogent must be the justification for it so that any alternative action that would have enabled the general prohibition to be upheld should have been fully considered and, wherever possible, taken. In the present case the overriding objective of recruiting the private sector prosthetists into the NHS could have been achieved if the pay rate deemed appropriate under the Whitely Council scale had been levelled up to the rate paid by the private sector. I will return to this point, as it relates directly to the reasons why the private sector prosthetists were paid at a rate higher than that deemed appropriate under the Whitely Council scale. I will now turn to the specific cause of the pay disparity between those employed as prosthetists in the private and public sectors. This is important because if an exception to the general prohibition of inequality of pay between men and women for the same work is to be allowed it is imperative for reasons of legal certainty that the cause of that pay disparity is clearly established. Furthermore, if the reason for the disparity was one of market forces, that would bring the current case clearly in line with the earlier Court of Appeal decision in Clay Cross v Fletcher, which the Industrial Tribunal in the present case would have been bound to follow. The Industrial Tribunal accepted the respondent’s argument that the difference in salary scale was not attributable to market forces but was due to the fact that Mr Crumlin’s salary was negotiated on his behalf by his trade union and the

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   279 a­ ppellant’s salary was subject to the Whitley Council scale, which it described as ‘ad hoc’. However, in my view, this merely describes the processes by which the difference in pay occurred but does not justify it. This point was extremely well articulated by Lord Grieve in the present case in his dissenting judgment in the Court of Session, in which he argued that the reason for the disparity was indeed market forces. His Lordship states (at page 532): I am of opinion that neither of the tribunals paid sufficient attention to what was said by the learned judges in the Court of Appeal in the Fletcher case, and for that reason consider they misdirected themselves. The dicta in that case to which I have referred have never, so far as I am aware, been criticised as unsound. Applying them to the facts of this case, I cannot bring myself to see how the circumstances of this case can be distinguished from those in the Fletcher case so as to prevent the same approach in principle being taken in this case as was taken in the case of Fletcher. It is apparent that it would have been pointless for the Secretary of State to have offered the prosthetists in private practice less than they had been earning. They had to be offered what to them was the market rate – market forces required it. The respondents’ argument, which was accepted by the Industrial Tribunal – that they had no choice but to employ the male prosthetists from the private sector on the pay rate they had been paid in their previous employment – was undoubtedly true. In fact, Mr Crumlin’s and his colleagues’ acceptance of the offer put to them confirms that to be the case. The fact that the men would not come to the NHS for less pay could have served as an indication that the rate deemed appropriate under the Whitely Council scale was, in fact, less than the going rate, particularly given that the prosthetic service had never been offered directly by the NHS previously and so the only comparable rate was that paid by the private sector. That rate was negotiated through a process of collective bargaining involving the employers and the prosthetists’ trade union, the ASTMS. Such a process does not occur in a vacuum but is influenced not only by the bargaining power of the parties, which in turn will depend on the skill levels and qualifications of the workers concerned, but also by the general economic environment in which it takes place. These factors can be cumulatively referred to as market forces. It is my view, in concurrence with that of Lord Grieve, that the higher level of pay available to the private sector prosthetists arose because of market forces or what might more helpfully be referred to as ‘the going rate for the job’. This is not to say that such a rate is arrived at through scientific or wholly rational means. Economics, like law, consists of man-made constructs and markets are susceptible to distortions which will require legal interventions in order to ensure equal distribution. Discrimination within the labour market undoubtedly accounts for the different rates paid for occupations and sectors in which work is predominantly performed by men and those in which work is predominantly performed by women so that, if we are to achieve equality in pay between the sexes, we must

280  Nicole Busby look underneath the ‘going rate for the job’. The legislation under consideration in this case was intended to address the occurrence of differences in pay and other terms and conditions between men and women wherever possible, so it would, in my opinion, be remiss to overlook or choose to ignore the very cause of such difference or to allow it to serve as an exception to the general rule. To do so would amount to unwarranted exculpation and could only serve to perpetuate the very disadvantage that the legislation was intended to address. Furthermore, the fact that all the prosthetists recruited from the private sector were men whereas all those directly employed in the public sector (bar one who has since left the service) were women might perhaps reveal something not previously considered regarding the recruitment practices in both sectors. We cannot know for sure the reasons for this apparent sectoral segregation of women and men within the same profession, and it is not appropriate for this court or any other to speculate. However, what we do know is that the legislation now under consideration was intended to address the resulting disparities in pay and other conditions between men and women performing like work when they are employed by the same employer. If market forces are accepted as the reason for the pay differential, there were other options available regarding the pay rate offered to the appellant when she joined the service three months after Mr Crumlin. In such circumstances might it have been appropriate to have offered the appellant the higher rate? All NHS prosthetists, whatever their previous employment, could have been moved to a more appropriate point on the Whitley Council scale and the scale applied to future pay increases. Applying the criteria established in Bilka, was it in fact appropriate and necessary to pay the appellant less than the market rate for the job? Failure to equalise the pay rates of the appellant and Mr Crumlin on their appointment has led to a situation whereby the inequality in their rates of pay can never, without intervention, be remedied so that the gap between his pay and hers is compounded year on year, leading to an accrued difference of tens of thousands of pounds over the course of their careers. According to the figures presented to the Tribunal, both had received pay increases of slightly above 0.5 per cent in the three years between their recruitment and the appellant’s claim to the Industrial Tribunal. However, if the current arrangements are left in place, the appellant’s pay rate will never reach that of Mr Crumlin and, if the potential for a new deal to be negotiated between Mr Crumlin’s trade union and the Health Board is taken into account, the appellant’s salary is at risk of falling even further below that of her male colleague. As well as the individual claim under consideration, there are broader social objectives of which we must take account. In seeking to apply the law in accordance with its spirit as well as with its letter it would, in my opinion, be incongruous to set in its way unnecessary barriers under the guise of justifications, whether under section 1(3) of the 1970 Act or section 1(1)(b) of the 1975 Act. Such action,

Rainey v Greater Glasgow Health Board [1987] AC 224, HL   281 while providing temporary relief to current day employers who will otherwise admittedly have to bear the costs of equalising pay for women and men, would simply store up problems for the future. As well as punishing individuals such as the appellant by denying them recourse to law, the will of Parliament would be circumvented and gendered pay inequality would continue so long as it could be rationalised on the basis of the continuing circumstances that had given rise to it in the first place under the guise of ‘neutral’ market forces or business interests. In addition, if the interests of future generations are taken into account, such a course would be wholly irresponsible as it would potentially lead to costly and complex future litigation for the purposes of retrospectively righting past wrongs. At key moments in history, a line has to be drawn. Griggs represented such a moment, as the passing of the Civil Rights Act was deemed necessary to end the history of lawful racial segregation in the US. The current case and others like it represent a parallel moment in UK history, as Parliament has deemed it necessary to end the legitimation of different pay rates and other terms and conditions of employment for men and women. In my opinion, in order to discharge the onus placed upon them, the respondents were required to explain the reason why the appellant was paid less than Mr Crumlin for performing like work. The reason advanced amounts to one of market forces which, although capable of demonstrating the circumstances leading to the differences in pay at the point at which the appellant and Mr Crumlin were appointed, does not prevent it from being caught by the principle of equality provided by the Equal Pay Act 1970 and the Sex Discrimination Act 1975. In the absence of an acceptable justification under section 1(3) of the 1970 Act as to why the appellant was paid at a lower rate than Mr Crumlin, I am of the opinion that the respondents have not discharged the onus placed upon them and that the majority of the Inner House were not entitled, on the facts before them, to conclude that they had. In my opinion, the situation in the current case corresponds to that in which it was Parliament’s intention that men and women doing like work should be paid the same rate for doing it. Accordingly, I would allow the appeal.

Commentary on Rainey v Greater Glasgow Health Board DIAMOND ASHIAGBOR

Context of the Decision: Employer Defences to Unequal Pay A key question to ask in evaluating the effectiveness of any equality legislation and its judicial interpretation is the extent to which it can confront the differing factors responsible for inequalities such as the gender pay gap. So, we need to have a sense of what are the causes of differentials such as the gender pay gap, in order to determine what role law can play in narrowing this gap. There is a complex interplay of factors causing the persistent pay inequity between women and men, but five stand out in the academic and policy literature:1 the undervaluing of women’s work; differences in human capital; gender segregation in the labour market; differing work patterns due to the unequal impact of family responsibilities; and direct or indirect pay discrimination. What the original judgment in Rainey highlights so keenly is the relatively narrow judicial understanding of the structural determinants of labour market inequality and the modest role which it was envisaged law could play in remedying such inequality. The law in the UK on equal pay between men and women operates by implying into every contract of employment an ‘equality clause’, the effect of which is broadly that the terms of a woman’s contract are brought into line with those of a comparable man.2 However, even where there is a finding that the two jobs are 1 See S Fredman, ‘Reforming Equal Pay Laws’ (2008) 37 Industrial Law Journal 193; K Rittich, ­‘Feminization and Contingency: Regulating the Stakes of Work for Women’ in J Conaghan, RM Fischl and K Klare (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford, Oxford University Press, 2002); J Fudge, ‘Women Workers: Is Equality Enough?’ (2013) 2 feminists@law 1; Equal Pay Taskforce, Just Pay: Report of the Equal Pay Task Force (London, Equal Opportunities Commission, 2001). 2 Equal Pay Act 1970, s 2; now the Equality Act 2010, s 66. Gender equality in work was governed by the Sex Discrimination Act 1975 (SDA) and the EqPA, which were mutually exclusive: the EqPA applied to contractual benefits such as pay and the SDA applied to non-contractual benefits such as access to promotion or training; however, the courts consistently said that the two Acts must be construed and applied in order to form one code.

Commentary on Rainey v Greater Glasgow Health Board  283 equal (namely, like work, work rated as equivalent, or work of equal value), the employer can argue that there is an objective justification for the pay differential – that the variation is genuinely due to a material factor which is not the difference of sex, and that material factor accounts for the difference between the woman’s case and the man’s.3 The early case law confined the employer’s ‘defence’ to inequality (in the language of the statute) to what were called ‘personal factors’. For example, in Clay Cross v Fletcher (1978),4 the Court of Appeal held that the kinds of factors which could justify a pay difference for equal work were limited to a personal comparison between that man and that woman. A man could legitimately receive higher pay for his longer service, or better skills or higher productivity; but the employer could not use extraneous factors such as the state of the job market to justify paying a man more. The appellant in Rainey sought to rely on the reasoning in Clay Cross, in particular, the judgment of Lord Denning MR.

The Significance of Rainey: Widening the Range of ‘Objective’ Justifications for Discrimination However, in Rainey, the House of Lords widened the scope of the employer’s defence. They held that the material factor defence could not be confined to the ‘personal equation’.5 Lord Keith considered (paragraph 13) that the statements of Lord Denning and Lawton LJ in Clay Cross ‘are unduly restrictive of the proper interpretation of section 1(3)’, which, in his view, was ‘a difference which is connected with economic factors affecting the efficient carrying out of the employer’s business or other activity’. In Rainey, it was held that the recruitment problem in the Scottish NHS (the need to pay higher rates to attract prosthetists from the

3 EqPA, s 1(3). The Equality Act 2010 repealed and replaced both the EqPA and the SDA but continues to address sex discrimination in pay and other contractual benefits in much the same way as did the EqPA: now s 19(2)(d) and s 69 Equality Act 2010 ‘defence of material factor’. The 2010 Act uses the language of ‘proportionate means of achieving a legitimate aim’. The chronology of the amendments to the original EqPA is important, reflecting as it does changing legislative understandings of what it meant to say women were engaged on work ‘equal’ to that of men; and the extent to which an employer could ‘defend’ or justify a pay differential between men and women. The 1970 Act come into force in 1975, and even before coming into force, was amended by the SDA in order to introduce a new s 1(3) into the EqPA: ‘An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material difference (other than the difference of sex) between her case and his’ (emphasis added). Section 1(3) of the EqPA was further amended by the Equal Pay (Amendment) Regulations 1983, SI 1983/1794, to add ‘work of equal value’ to the existing categories of work (‘like work’; ‘work rated as equivalent’) which could be compared, and to change the language of justification from material difference to that of material factor. 4 Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429. 5 Rainey v Greater Glasgow Health Board 1987 AC 224, HL, paragraph 13 (Lord Keith).

284  Diamond Ashiagbor private sector) was a material factor which justified paying the claimant less than her male comparator. The House of Lords incorporated the test of objective justification of ­indirect discrimination under Article 119 EEC, established by the European Court of Justice (ECJ) in Bilka-Kaufhaus,6 into the test of justification for unequal pay within section 1(3).7 In Bilka-Kaufhaus itself, the ECJ accepted that differential treatment of part-time workers, who were predominantly women, was justified following the adoption of a ‘proportionality’ test. It was justified to exclude parttimers from the pension scheme by reference to the needs of the business if it was the aim of the employer to reduce the numbers of part-timers employed because of high overhead and training costs. The decisions in Bilka and Rainey are examples of the domestic and EU courts seeking to reconcile the principle of equality with the desire for efficiency (the employer’s freedom to promote its version of administrative or economic efficiency). The proportionality test means that employment practices must not unduly interfere with the principle of equality, but employers can override equality if they can point to economic or other arguments in support of an employment practice. The UK courts have identified and allowed a wide range of potential justifications to amount to a material factor defence to an equal pay claim in section 1(3): personal, such as a man’s longer service;8 organisational, such as administrative efficiency;9 and labour market factors, such as skills shortages and recruitment difficulties.10

Labour Markets and ‘Market Forces’ This broadening of the scope of the employer defence in essence removes from judicial scrutiny the very factors which segment the labour market and lead to pay inequality. In particular, there is a refusal to take into account the wider labour market context. In contrast, Lady Busby’s feminist judgment focuses on the broader causes of the pay gap and, indeed, on the structure of the labour market itself. In Rainey, following the decision of the Scottish NHS to set up its own prosthetists service, it was considered necessary to ‘buy in’ private practitioners from 6 Bilka-Kaufhaus GmbH v Weber von Hartz [1986] ECR 1607, [1986] IRLR 317. 7 Art 119 of the European Economic Community (EEC) Treaty (the Treaty of Rome) 1957; later renumbered as Art 141 of the European Community (EC) Treaty, is now Art 157 of the Treaty on the Functioning of the European Union. 8 For example, Clay Cross, above n 4. 9 For instance, Rainey, above n 5; and Bilka-Kaufhaus, above n 6. 10 For instance, Rainey, ibid; and Enderby (Case C 127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535). See Lord Keith, at para 17 of Rainey: ‘I consider that read as a whole the ruling of the European Court would not exclude objectively justified grounds which are other than economic, such as administrative efficiency in a concern not engaged in commerce or business’.

Commentary on Rainey v Greater Glasgow Health Board  285 outside the NHS, and to offer higher pay than equivalent NHS technicians in order to attract prosthetists from the private sector. The articulation/restatement of the facts by Lady Busby places emphasis on the fact that it was an ‘exclusively male group of prosthetists … who transferred from the private sector to the NHS’ and ‘were subject to a higher rate of pay’. She adopts a purposive approach to the legislative intent behind the Equal Pay Act and Sex Discrimination Act 1975 (SDA), arguing that ‘Parliament’s expectation was that employers would take stock of the reasons for the differences in pay rates – be they historical or cultural – and overcome them through the introduction of new workplace policies aimed at prohibiting such discrimination’.11 Successive tribunals and courts hearing Rainey declined to interrogate whether the background to the gender difference in ­occupational location may itself be discriminatory or caused by discrimination. For instance, at several points in his judgment, Lord Keith noted: Mr Crumlin and all the other prosthetists who received the offer (about 20 in number who all happened to be men) opted for the second alternative.12 … As it happened, all the prosthetists privately employed were male.13 … In the present case the difference between the case of the appellant and that of Mr Crumlin is that the former is a person who entered the National Health Service at Belvidere Hospital directly while the latter is a person who entered it from employment with a private contractor. The fact that one is a woman and the other a man is an accident.14

Similarly, the industrial tribunal had concluded that the pay difference was not due to the fact the applicant was female, but because of the different method of entry into the job.15 At the time of the decision, courts and tribunals were rightly conscious that uncritically permitting employers to rely on ‘market forces’ to justify pay differentials risked nullifying the effectiveness of the equal pay legislation; it risked perpetuating pay differentials because men asked for higher wages. This explains the anxiety of the industrial tribunal to state that the pay difference was attributable to the fact the comparators were paid according to a different scale, rather than to market forces.16 However, one could say that in 1986 judicial understanding of what comprised ‘market forces’ was very narrow, such as to exclude the ‘force’ or bargaining power of predominantly male occupational groups and bargaining units. Judicial understanding had not yet reached the point, as later to be articulated by the ECJ in Enderby,17 where a preponderance of women in one pay scale (or even in one



11 Lady

Busby’s judgment, p 274. above n 5, paragraph 2 (emphasis added). 13 ibid paragraph 10 (emphasis added). 14 ibid paragraph 19 (emphasis added). 15 Quoted at ibid paragraph 8 of Lord Keith’s judgment. 16 ibid. 17 Enderby, above n 10. 12 Rainey,

286  Diamond Ashiagbor bargaining unit) and a differential in pay, to the detriment of the women, should alert one to the likelihood that the resulting pay gap was an instance of unequal pay contrary to the equality legislation and policy. Lady Busby’s judgment rightly looks behind the mere ‘coincidence’ or ‘accident’ of the gender difference in the two pay groups. Departing from the judgment of the House of Lords and the lower courts, Lady Busby’s feminist judgment marks out two areas of difference. First, she adopts a purposive approach to the equal pay legislation, permitting a narrower range of objective justifications for inequality. In her reflective statement, she takes this purposive approach further, in placing reliance on the intention of the legislator: Lady Busby refers to Hansard, to evidence the approach of the relevant minister, Barbara Castle. Second, this approach leads Lady Busby to adopt a restrictive analysis towards any attempted justification of the gender pay differential. This feminist judgment is importing something akin to a ‘strict scrutiny’ test of the sort one finds in the US Supreme Court in cases involving the ‘suspect characteristic’ of race.18 Such a ‘strict’ approach, it could be argued, is necessary to tackle the entrenched inequality of the gendered labour market.

Rethinking Labour Market Segregation Finally, Lady Busby’s feminist judgment reinstates the primacy of the approach of the Court of Appeal in Clay Cross towards the material factor defence. She points to an artificial distinction drawn and relied on by the other judgments in Rainey, which found that differential pay was not due to (illegitimate) market forces but to (potentially legitimate) differential negotiating processes. As Lady Busby notes: Such a process does not occur in a vacuum but is influenced not only by the bargaining power of the parties, which in turn will depend on the skill levels and qualifications of the workers concerned, but also by the general economic environment in which it takes place. These factors can be cumulatively referred to as market forces.

What this approach allows the equal pay legislation to do is to potentially capture and remedy de facto segregation, where prior (pre-labour market) disadvantage has served to exclude women from higher-paying jobs or sectors. The development of a test of objective justification for unequal pay between men and women in cases of indirect discrimination can be seen as evidence of the willingness of the courts (the ECJ in Bilka-Kaufhaus, the House of Lords in Rainey) to give precedence to the ‘market’ over social rights. However, what Lady Busby’s feminist judgment illustrates is that all too often this proportionality assessment is



18 Lady

Busby’s judgment, p 276.

Commentary on Rainey v Greater Glasgow Health Board  287 weighted to enable arguments about the economic needs of undertakings to take priority over the equality principle. Lady Busby’s judgment does two important things one looks for in a feminist approach: it recognises the need to adopt a more purposive reading of equality norms – in order to remedy (as the House of Lords failed to do in Rainey) direct or indirect discrimination in pay; and it interrogates the role of law in structuring or challenging the societal determinants of labour market segmentation which leads to pay inequality.

Reflective Statement: Rainey v Greater Glasgow Health Board NICOLE BUSBY

The choice of Rainey as the subject of my feminist judgment was inspired by the outrage that I felt on my first reading of the House of Lords judgment when, as a student of labour law in the late 1980s, I first became familiar with the UK’s equal pay legislation. That a statute which was intended as a response to the widespread pay inequality endured by generations of women could be interpreted at such an early stage so as to restrict its potential and justify the continuance of that very inequality shocked me, and it still does. Many years later, having experienced and observed discrimination on gender and other grounds, my outrage may have been replaced by a more knowing cynicism, but the anger is still there. While re-imagining Rainey, I reflected on how much Scottish society has changed since the 1980s. We are fortunate to have a vibrant and active feminist movement which inspires and leads law and policy changes which impact positively on women’s lives.1 Equal pay litigation has moved on with some notable successes for those employed, like Elizabeth Rainey, in the public sector.2 Nonetheless, gendered pay gaps endure – the 2016 Annual Survey of Hours and Earnings recorded a 15 per cent gap between men’s and women’s average hourly rates, rising to 32 per cent when women’s part-time average hourly rate is compared with men’s full-time hourly rate. Furthermore, 2018 saw an unprecedented 48-hour strike involving more than 8,000 council workers employed in home care and school-cleaning and catering services across Glasgow,3 the same city from which the Rainey case emerged. Despite the Court of Session’s ruling that a 2007 job evaluation scheme was not a thorough and analytical scheme in compliance with section 1(5) of the Equal Pay Act 1970,4 these women were kept waiting until

1 See: www.closethegap.org.uk. 2 For example, the broadening of the scope for comparisons in equal value claims in cases such as City of Edinburgh Council v Wilkinson and Others [2011] CSIH 70; and North and Others v Dumfries and Galloway Council (Scotland) [2013] UKSC 45. 3 ‘Schools and Home Care Disrupted by Glasgow Equal Pay Strike’ (BBC News, 23 October 2018), available at: www.bbc.co.uk/news/uk-scotland-glasgow-west-45941552. 4 Glasgow City Council v Unison Claimants [2017] IRLR 739; HBJ Claimants v Glasgow City Council [2017] IRLR 993.

Reflective Statement: Rainey v Greater Glasgow Health Board  289 January 2019 for their equal pay claims to be settled.5 The issues aired in Rainey may be legally distinct from those in the Glasgow City Council litigation – the former was concerned with the use of market forces as a justification for different pay rates and the latter with the use of job evaluation. However, both cases demonstrate that, despite the existence of comprehensive legislation going back over 30 years, work performed by women continues to be underpaid whether it is the same as or of equal value to that performed by men. In drafting my judgment I consulted statements made in the House of Commons by Barbara Castle who, as the Secretary of State for Employment and Productivity, was responsible for overseeing the introduction of the Equal Pay Act 1970. At the Bill’s second reading Mrs Castle referred to what would become section 1(3) – the very provision under review in Rainey: The intention of the Bill is not to prohibit differences in pay between a woman and comparable male workers which arise because of genuine differences other than sex between her case and theirs. If an employer wishes to make additional payment to people employed on like work, in respect of matters such as length of service, merit, level of output and so on, the Bill will do nothing to hinder him, provided that the payments are available to any person who qualifies regardless of sex. But such payments must be related to actual differences in performance of service.6

Barbara Castle’s clear explanation exemplifies her sense of purpose: if differences in pay are to be justified, make absolutely sure that they arise from distinctions in the performance of the work and not on the grounds of sex. Despite such clear direction the subversion of the intention and purpose of the Act started almost before the ink was dry, as respondents and their advisers found ways of circumventing the new law which, sanctioned by courts and tribunals, severely weakened its effect and reaffirmed the status quo. The House of Lords judgment in Rainey and the recent fight for equal pay by Glasgow’s women are thus joined by a single thread. Writing my feminist judgment was cathartic as I was able to offer a retelling of the case that had angered me for all those years. Although it cannot change the path the law has taken over the intervening four decades, my judgment can hopefully illuminate the link between where we are now and where we could be. In revisiting the original claim and its treatment at each stage of its journey to the House of Lords, I was delighted to find support for my own interpretation in the form of Lord Grieve’s dissenting Court of Session judgment. The discovery that there already was a feminist judgment in Rainey, in which his Lordship referred directly to Parliament’s intention,7 aided my own articulation of the case

5 See Eve Livingston, ‘Thousands of Low-paid Women are Striking. Where’s the Solidarity?’ The Guardian (28 September 2018) www.theguardian.com/commentisfree/2018/sep/28/thousandswomen-striking-solidarity-glasgow-pay. 6 Hansard HC Deb 9 February 1970, vol 795, cols 913–1038, 920. 7 Rainey v Greater Glasgow Health Board 1985 SLT 518, 531.

290  Nicole Busby and helped to quell my anger. This recalled Maya Angelou’s words on the power of anger and the importance of its expression: You should be angry. You must not be bitter. Bitterness is like cancer. It eats upon the host. It doesn’t do anything to the object of its displeasure. So use that anger. You write it. You paint it. You dance it. You march it. You vote it. You do everything about it. You talk it. Never stop talking it.8

Barbara Castle was right to note that the Equal Pay Act 1970 represented an ‘historic advance in the struggle against discrimination in our society’,9 but it did not end that struggle. As long as such discrimination persists, we must never stop talking it.

8 ‘Processing Anger: A Conversation with Dr Maya Angelou and Dave Chappelle’ (Medialectic, nd), available at: medialectic.wordpress.com/2016/12/15/processing-anger-a-conversation-with-dr-mayaangelou-dave-chappelle. 9 Hansard, above n 6, 914.

14 Commonwealth Oil & Gas Co Ltd v Baxter and Another [2009] CSIH 75 Commonwealth Oil & Gas Co Ltd v Baxter and another [2009] CSIH 75 2 October 2009 Court of Session, Inner House (First Division) Lord President (Hamilton), Lord Nimmo Smith and Lady Belcher Lady Belcher The Issues [1] This case is an appeal to the Inner House on a ruling by the Lord Ordinary, Lord Reed, in the Outer House. In that case, there were two questions to be considered. The first was whether Mr Baxter, who was a director and board member of the pursuer, Commonwealth Oil & Gas Co Ltd (COGCL), was in breach of his director’s fiduciary duty when he diverted a valuable commercial opportunity to the second defender (Eurasia), a company of which Mr Baxter was also a director. The claim against Mr Baxter was that he should be held liable to account for any profits derived from the wrongly diverted commercial opportunity or, alternatively, he should be liable for the damage incurred by the pursuer, COGCL, arising out of his breach of duty. The second issue to be settled was a claim against Eurasia, where COGCL maintained that Eurasia had knowingly or dishonestly participated in Mr Baxter’s breach of fiduciary duty, making Mr Baxter and Eurasia jointly and severally liable for the associated loss. [2] The usual claim for the wrongful, undisclosed taking of a business opportunity by a director is an accounting for the profits made by that director. The business opportunity in this case took the form of a time-limited Memorandum of Understanding (MoU) between the State Oil Company of the Azerbaijan Republic (SOCAR) and Eurasia. The MoU expired without any profits being derived from it by Mr Baxter or by Eurasia. An accounting for profits would therefore lead to no award, even were the court to find in favour of the pursuer. In the circumstances,

292  Alice Belcher an accounting for profits claim was abandoned in favour of the alternative claim in damages. [3] COGCL’s argument was that if Mr Baxter had brought the opportunity to enter into the MoU to its attention, by informing Mr McBain as the executive director controlling COGCL’s decisions, Mr McBain would have acted to ensure that COGCL pursued the commercial opportunity. Further, COGCL would have entered into the MoU with SOCAR, either on COGCL’s own account or through the medium of a corporate vehicle incorporated for that purpose. Had COGCL entered into the MoU in this way, it was argued, there was a substantial chance that they would have successfully negotiated and secured a further agreement for the exploration and development of the Eurasia block. The measure of damages claimed was thus the profits COGCL could have made had Mr Baxter acted in accordance with his director’s fiduciary duty. [4] While on the first issue, the Lord Ordinary concluded in the Outer House that Mr Baxter had indeed acted in breach of his fiduciary duty to COGCL, on the second issue, he ruled that Eurasia did not knowingly or dishonestly participate in that breach of duty and was not therefore under any liability to compensate COGCL. The case before us now is an appeal by Mr Baxter against that finding of a breach of duty (the first issue) and a cross-appeal by COGCL against the Lord Ordinary’s finding of no knowing or dishonest participation by Eurasia (the second issue). My Finding on the Second Issue [5] On the second issue, that is, the finding that Eurasia did not knowingly or dishonestly participate in that breach of duty, and was not therefore under any liability to compensate COGCL, I agree that – for the reasons given by Lord Nimmo Smith and the Lord President – the cross-appeal must be refused. I have nothing further to add on that matter. This opinion will thus relate only to the first issue, that is, whether or not Mr Baxter acted in breach of his fiduciary duty. The Facts [6] The Lord Ordinary set out a detailed and helpful account of the complex facts of this case in the Outer House ([2007] CSOH 198). The facts involve four companies – ABG, COGCL, CGL and COG – that grew from the earlier entrepreneurial activities of Mr Baxter’s initial company, ABL, and also a company in the Vitol group that provided an injection of funding into Mr Baxter’s group. [7] Mr Baxter’s story can in some ways be seen as a familiar one for the life-cycle of an entrepreneurial company. I characterise that story as follows. [8] A small company based on the skills and expertise of its founding individuals obtains a contract that requires large-scale funding in order to be implemented.

COGCL v Baxter and Another [2009] CSIH 75  293 Funding is found by approaching a bigger organisation, but as a condition of the funding arrangement, ownership of the entrepreneurial firm is diluted and shareholder control by the founding individuals is lost, despite the value of their shareholdings increasing. [9] From this point in the story, the bigger organisation may remove the entrepreneur from their management role, for instance their position as managing director (MD), chief executive officer (CEO), chief operating officer (COO), or whatever title has been adopted by the entrepreneur-leader of the company. In such a situation, the original founder of the company will then have valuable shareholdings but will no longer have an executive, management role in what was once their company. This was Mr Baxter’s position at the crucial time. [10] Under the powers obtained by the larger company in exchange for an injection of funds, it is not uncommon for the original founding executive director to lose his or her paid employment. I label this forced exit, whether the director resigns under the threat of removal or is actually removed. In such situations, the director’s skill set is likely to mean that any new entrepreneurial activity (income generation) may involve working in competition with the first business. Further, should the entrepreneur wish to sell their shareholdings in the first enterprise, there may be more and less tax-efficient ways of doing so (taxation strategy). All three of these elements – forced exit, income generation and taxation strategy – play a part in Mr Baxter’s story. I use these three elements as a way of organising and summarising the relevant facts as distilled from the fulsome evidence as recorded by the Lord Ordinary [2007] CSOH 198. Forced Exit [11] I have reduced the detailed account of the changing shareholdings and directorships of Mr Baxter and his group of companies to three diagrams. Diagram 1 shows the position immediately before the provision of extra funding, which was provided in the event by a company in the Vitol group. The round and square shapes in the diagrams represent companies in Mr Baxter’s group built up from its earliest beginnings as Addison & Baxter Ltd (ABL), which was a private company incorporated in England and Wales in 1985, by Mr Baxter and Mr Jeremy Little. [12] The larger organisation that provided much-needed funding to ABG, COGCL, CGL and GOC (four companies within the group that grew from Mr Baxter’s earlier entrepreneurial activities with ABL) was the Vitol group – a privately owned group of companies, primarily concerned in oil trading. The negotiation was conducted between Mr Baxter and Mr McBain, a consultant with Vitol Services Ltd, a member of the Vitol group. The discussions with Mr McBain resulted in a funding agreement which was implemented in two stages in May and July 2002. This resulted in the Vitol group obtaining a 62.83 per cent shareholding in CGL, and a 42 per cent shareholding in ABG.

294  Alice Belcher Diagram 1  Before extra funding sought from Vitol group Baxter’s shareholding – Baxter is not the only shareholder, but with Little he has shareholder control Baxter and Little hold directorships in all companies in their group. They hold executive positions in all the active companies in the group.

ABG

ABL

ABG is the holding company The arrows indicate ownership of shares

COGCL

= Inactive = Active

CGL

GOC

[13] Mr McBain made it clear that he wished to replace Mr Baxter and Mr Little in the ‘management and control’ – first of CGL and GOC, and then of ABG and COGCL. [14] Because Vitol owned 62.83 per cent of the shares in CGL, which in turn owned 100 per cent of the shares in GOC, the Vitol group could control board appointments and removals at both CGL and GOC. Through control of the ­make-up of these boards, Vitol could also control who was appointed to the role of CEO or equivalent. So, under the threat of being formally removed and replaced, in July 2002, Mr Baxter and Mr Little resigned from their positions as, respectively, the president and chairman of both CGL and GOC (see Diagram 2). [15] In resigning as president, Mr Baxter gave up his executive, full-time director’s role and thus lost the position of ‘management and control’ of CGL and GOC to Mr McBain. [16] For the second part of Mr Baxter’s forced exit, Mr McBain concentrated on removing Mr Baxter and Mr Little from their positions in ABG and COGCL. This was slightly more difficult because the Vitol group had obtained only a 42 per cent shareholding in ABG. What Mr McBain did have, however, was the support of ABG’s other directors, so that Vitol effectively controlled board decisions at ABG. Thus, Mr McBain could ask the ABG board to vote on a resolution to remove Mr Baxter and Mr Little from their executive jobs at ABG, and could ask the ABG board to vote on a resolution to use its position as 100 per cent shareholder of COGCL to convene a shareholders’ meeting of COGCL in order, in turn, to vote on the removal of Mr Baxter and Mr Little as directors of COGCL. [17] This crucial board meeting of ABG was held on 10 September 2002, followed by a shareholders’ meeting of COGCL. Mr Baxter and Mr Little resigned from their remaining executive positions at ABG; and at the shareholders’ meeting of COGCL, they also lost their directorships of COGCL.

COGCL v Baxter and Another [2009] CSIH 75  295 [18] Thus, because of the need for new funding, and the conditions placed on obtaining it, Mr Baxter ultimately lost shareholder control of his companies, and then lost control as manifested in his powerful executive director roles. Executive and Non-Executive Directors [19] The Companies Act 1985 refers to directors without making any distinction between executive and non-executive roles. However, the distinction is significant in this case because executive directors are full-time employees of a company who hold the office of director. Non-executive directors are paid fees based on the time required for their part-time role rather than being remunerated as company employees. Therefore, it was only once Mr Baxter had been forced out of executive roles in his group of companies that he needed to generate income from another source. Further, it was largely due to taxation considerations that Mr Baxter was later reappointed to the office of director of COGCL, a non-executive role, which was remunerated by a fee but with no employment contract. [20] UK companies routinely appoint directors to non-executive and executive roles. The basis upon which they do so is set out in the UK’s Combined Code on Corporate Governance (the Code), which is periodically reviewed by the Financial Reporting Council (FRC). The role of a non-executive director is to contribute to corporate strategy formation and good governance. In the case before us, as will become apparent, the scope and application of directors’ fiduciary duties to nonexecutive directors is at the heart of Mr Baxter’s argument that he is not in breach. Diagram 2  After the funding deal with Vitol, Baxter is no longer employed by any group company Baxter's shareholding Baxter remains a Director of ABL. July 2002 Vitol has shareholder control of CGL. Under threat of shareholder removal, Baxter resigns from executive roles in CGL and GOC but retains his non-executive directorships

42%

ABG

Vitol

62.83% ABL

COGCL 37.17%c CGL

September 2002 Vitol uses its power to remove Little and Baxter from their (executive) directorships of ABG and COGCL. They were also removed as non-executive directors of COGCL

GOC

Arrows indicate share-ownership

[21] Diagram 2 shows the position after Mr Baxter had been replaced in his positions of ‘management and control’. As of 10 September 2002, he was no longer employed by any of the group companies. He was neither an executive nor a non-executive director of COGCL, but he remained a non-executive director

296  Alice Belcher of ABG, CGL and GOC. He was a director of ABL throughout, but ABL had been inactive since it became a subsidiary of ABG, which acted as the holding company for the group. As an inactive subsidiary, ABL did not require any executive leadership. Thus, Baxter’s directorship of ABL did not bring with it any relevant executive powers. Income Generation [22] I now turn to the year ending 10 September 2003 – the first year after Mr Baxter’s forced exit. [23] By the time he was forced out of his executive positions, Mr Baxter’s annual salary as chief operating officer of ABG had reached £118,500. [24] At the crucial ABG Board meeting on 10 September 2002, it was agreed that he and Mr Little were each to receive a ‘termination’ agreement and a ‘consultancy’ agreement. The first consultancy agreement was executed on 13 December 2002, but backdated to be effective for the period from 11 September 2002 to 10 ­September 2003. Under this, Mr Baxter was to be paid US$125,000 for which he could be asked to work for up to six days per month. No reason was put forward for the switch in presentation from sterling to US dollars, but oil is usually priced in US dollars and I assume that this is the explanation. The consultancy agreement between the parties also included a ‘non-compete’ clause, which referred to ­business carried on by the Company or any Group Company in Azerbaijan. [25] By September 2003, the first consultancy agreement was about to expire. Mr Baxter had not been asked to do anything under it. At the end of September 2003, Mr McBain raised with Mr Baxter the possibility of renewing the agreement on the basis that the annual payment would be reduced to US$25,000. Mr Baxter replied that he would ‘rather do without the money than accept the non-compete restrictions’, and that he ‘could not manage’ on only US$25,000 ([2007] CSOH 198 at [57]). As a result, a second consultancy agreement was made for the year to September 2004 for US$25,000, but without the inclusion of a non-compete clause. [26] Mr Baxter said in evidence to the Outer House that, once the second consultancy agreement had been signed (19 November 2003): ‘he saw no obstacle to his seeking out new oil and gas opportunities in Azerbaijan on behalf of a third party or on his own account’ ([2007] CSOH 198 at [65]), and the Lord Ordinary accepted that that was indeed Mr Baxter’s understanding. Taxation Strategy [27] The applicable capital gains tax (CGT) rules provided the basis of Mr Baxter’s taxation strategy. To continue to qualify for taper relief in calculating the CGT payable on a future sale of his ABG shares (later renamed Arawak shares), that shareholding needed to remain a ‘business asset’. For the shares to remain a business asset, Mr Baxter needed to be employed by an ABG (later Arawak) group

COGCL v Baxter and Another [2009] CSIH 75  297 company or to hold an office in a group company. Taper relief, if it remained available, could reduce Mr Baxter’s CGT liability by hundreds of thousands of pounds. [28] As already noted, by September 2002 Mr Baxter had lost his executive roles, and so was no longer an employee of any ABG group company. However, at that time, the shareholding qualified for CGT taper relief by virtue of the offices that Mr Baxter continued to hold as a non-executive director of ABL, ABG, CGL and GOC. [29] In January 2003, ABG announced that the Vitol group had entered into agreements for the sale of its 62.83 per cent interest in CGL to two Chinese-controlled companies. When the Vitol group completed that transaction in March 2003, Mr Baxter retained his non-executive directorships of CGL and GOC, but those two companies ceased to be part of the ABG group. [30] At ABG’s annual general meeting held on 5 May 2003, Mr Baxter was not reappointed as a non-executive director. Thus, as of May 2003, his only office in the ABG group was as a director of the original but now inactive group company, ABL. As illustrated by Diagram 3, this left him relying on his office of director of ABL to preserve his shares as ‘business assets’, thus qualifying them for taper relief. [31] By September 2003, ABG had been renamed Arawak; and ABL was under threat of being wound up or being sold off, possibly to Mr Baxter and Mr Little. Either outcome would result in Mr Baxter losing his sole directorship of a company in the Arawak group (formerly ABG). As a result, his Arawak shareholding would cease to be a business asset and he would lose access to CGT taper relief. On 9 September 2003, Mr Baxter wrote to Mr Little stating that qualifying for accelerated taper relief was ‘singularly the most important issue for me’ ([2007] CSOH 198 at [56]). In pursuance of this, Mr Baxter succeeded in persuading Mr McBain to have him, Mr Baxter, appointed as a non-executive director of COGCL on 13 April 2004 (see Diagram 3). Diagram 3  Baxter likely to lose his only remaining office with the group March 2003 Vitol interest in CGL sold to a Chineseowned group May 2003 Baxter was not reappointed as a director of ABG

Baxter remains a Director of ABL May sell

Baxter’s shareholding

Vitol

Chinese owned

ABG/ Arawak

ABL

By May 2003 Baxter has lost his executive roles and his COGCL directorships in ABG and COGCL, and is about to lose his final office within the group controlled by Vitol with the disposal of ABL September 2003 Baxter expresses his strong desire to keep an office within the group 13 April 2004 Baxter appointed as a non-executive director of COGCL.

COGCL’s 37.17% of CGL is not large enough, on its own, to keep CGL within the group. B is non-executive director

Arrows indicate share-ownership

GOC

62.83% CGL

B is non-executive director

298  Alice Belcher [32] A great deal of the evidence heard before the Lord Ordinary in the Outer House was concerned with the intentions of Mr Baxter and Mr McBain in taking and making (respectively) this appointment. It is clear that Mr Baxter’s key business relationship with the State Oil Company of the Azerbaijan Republic (SOCAR) continued to be one that he hoped would generate income for him. He continued to tap into all possible sources of news about the oil and gas business in Azerbaijan and to spot opportunities. It is also clear that, as a non-executive director of a wholly owned subsidiary (COGCL), Mr Baxter was not called to a single COGCL board meeting. [33] On 7 December 2005, when Mr Baxter remained a member of the board of directors of COGCL, he succeeded in obtaining SOCAR’s agreement to an MoU under which Eurasia (the second defender) was granted an exclusive right, for a period of 12 months, to negotiate with SOCAR on the terms of a possible further agreement relating to the exploration and development of an oil exploration block in Azerbaijan (‘the Eurasia block’). [34] The question before us now concerns the scope and extent of the fiduciary duties owed by Mr Baxter to COGCL at the time of brokering that MoU, and whether – in facilitating the contract between SOCAR and Eurasia – Mr Baxter had breached any fiduciary duties to COGCL. The Law on Directors’ Duties [35] The law applicable to Mr Baxter between 13 April 2004, when he was reappointed to the board of COGCL, and 7 December 2005, when the MoU was signed on behalf of Eurasia, was the common law as it then stood. Since then, the Companies Act 2006 has placed directors’ duties on a statutory footing for the first time. I am mindful that this is one of the last cases that may require to be decided under the common law, but I am also conscious of the potential for this decision to have a lasting effect, even when the new statutory framework is in force. This is because, in interpreting directors’ duties under the Companies Act 2006, section 170(4) stipulates that: ‘regard shall be had to the corresponding common law rules and equitable principles in interpreting and applying the general duties’. [36] I now turn to the applicable common law on directors’ fiduciary duties. Directors’ Duties (the Relationship between the Director and the Company) [37] The law on directors’ duties in relation to conflicts of interest is long-­ established. In 1851, in the case of Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461, Lord Cranworth LC stated: [I]t is a rule of universal application that no one having [a duty to promote the interests of the corporation] shall be allowed to enter into engagements in which he [sic] has or can have a personal interest conflicting or which possibly may conflict with the interests of those whom he is bound to protect (1854) 1 Macq at 471 (emphasis added).

COGCL v Baxter and Another [2009] CSIH 75  299 [38] That case concerned the validity of a contract made between Aberdeen ­Railway Company and Blaikie Bros to supply metal parts used in railway construction. Mr Thomas Blaikie was a director and chairman of the railway company and the managing partner of Blaikie Bros at the time the contract was made. The contract in question required Mr Blaikie’s involvement as a significant actor for both parties: the buyer (the railway company); and the seller (Blaikie Bros). For the railway company, his duty was to obtain a low price, and for Blaikie Bros, his duty was to obtain a high price. The House of Lords held that the contract was invalid. [39] The rule in Aberdeen Railway Co v Blaikie Bros is one that proscribes engagements that carry conflicts of interest. But does this mean that no director can ever become a director of another company if the second company’s interests may conflict with those of the first company? [40] On this question, counsel for Mr Baxter submitted the authority of the decision in London & Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd (Mashonaland) [1891] WN 165 – a single-judge decision on an application for an injunction, and therefore a case of lower authority than Aberdeen Railway Co v Blaikie Bros, but cited with approval in the House of Lords by Lord Blanesburgh in Bell v Lever Brothers [1932] AC 161. [41] In Mashonaland, the director in question was held to be ‘at liberty to become a director even of a rival company, and, it not being established that he was making to the second company any disclosure of information obtained confidentially by him as a director of the first company, he could not at the instance of that company be restrained in his rival directorate’ (per Lord Blanesburgh [1932] AC 161, at 195). [42] In Bell v Lever Brothers, Lord Blanesburgh reconciled the duty to avoid conflicts of interest as expressed in Aberdeen Railway Co v Blaikie with the ­freedom to become a director of a rival company, expressed as the Mashonaland principle, by referring to two classes of contract – a first class of contract, where Aberdeen Railway Co v Blaikie applies, and a second class, described as ‘a director’s own contracts with outsiders in which the company has no financial interest at all’ [1932] AC 161, at 195, where the Mashonaland principle is applicable. [43] The challenging nature of the Mashonaland principle was discussed by Sedley LJ in In Plus Group Ltd and Others v Pyke [2002] 2 BCLC 201, where he concluded that: [T]he Mashonaland principle is a very limited one … I see no reason why the law should assume that any directorship is merely cosmetic. A directorship brings with it not only voting rights and emoluments but responsibilities of stewardship and honesty, and those who cannot discharge them should not become or remain directors ([2002] 2 BCLC 201, at 224–25).

300  Alice Belcher [44] The director in Mashonaland, Lord Mayo, was willing to have his name associated with two rival companies. At the time of the interlocutory action he had done nothing more than that for either company. The companies had been incorporated with rival business aims but were not yet competing for contracts. Sedley LJ considered that not only was the Mashonaland principle limited to narrowly defined circumstances but that those circumstances were likely to be very short-lived: If, for example, the two Mashonaland Exploration companies had been preparing to tender for the same contract, I doubt whether Lord Mayo’s position would have been tenable, at least in the absence of special arrangements to insulate either company from the conflict of his interests and duties (Plus Group Ltd and Others v Pyke [2002] 2 BCLC 201, at 224). [45] In order for the two companies to have put in place ways of managing Lord Mayo’s conflict of interest, as imagined by Sedley LJ, each would need to have been informed of the directorship that Lord Mayo had accepted with the other company. [46] It seems to me, in light of these authorities, that the first step in managing conflicts of interest is to declare those interests, and that such declarations are part of the fiduciary duty of loyalty. Millet LJ in Bristol and West Building Society v Mothew [1998] Ch 1 stated: The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal ([1998] Ch 1, at 18, emphasis added). [47] When Mr Baxter accepted the appointment as a non-executive director of COGCL in April 2004, he was entering into a relationship with that company. Authorities reveal the relationship to be first and foremost one that demands the individual director’s loyalty to the company. Directors’ Duties (as Members of the Board) [48] It is now the norm in the UK for a company to have a unitary board comprised of executive and non-executive directors. For quoted companies, this is the model of governance set out in the Code (FRC, 2003). This states (the Code, main principle A.1) that: ‘Every company should be headed by an effective board, which is collectively responsible for the success of the company’. [49] Article 70 of the Table A articles of association, the default model adopted by many UK companies, states: ‘[T]he business of the company shall be managed by the directors who may exercise all the powers of the company’ (the Companies (Tables A to F) Regulations 1985 (SI 1985/805)).

COGCL v Baxter and Another [2009] CSIH 75  301 [50] The approach I have taken in this judgment is to take notice of the collective responsibility of the board of directors. [51] The idea of the board of directors acting together as a body is present in ­Cranworth LC’s universal rule laid down in Aberdeen Railway Co v Blaikie Bros. The full text of that rule opens with the words: ‘The directors are a body’ ((1854) 1 Macq at 471) (emphasis added). [52] In making a board decision, by a formal vote or through arriving at an ­informal consensus, the directors are effectively saying ‘we have resolved’. This is likely to follow a discussion where each individual director must bring their independent judgement to bear on the matter, but a board decision is, in the end, a collective decision. For an individual director who may be uncomfortable with a board decision, the choice is to accept it, and with it the collective responsibility for its consequences, or to resign from the board. [53] The challenging nature of the collective responsibility of directors, at least in English company law, was noted in Re Westmid Packing Services Ltd, Secretary of State for Trade and Industry v Griffiths [1998] 2 BCLC 646: The collegiate or collective responsibility of the board of directors of a company is of fundamental importance to corporate governance under English company law. That collegiate or collective responsibility must however be based on ­individual responsibility. Each individual director owes duties to the company … to join with his co-directors (at 653). However, the difficulty with this idea of the board’s collective responsibility is that there is currently no legal mechanism by which the board, as a body, can be brought before a court. Collective responsibility can only be enforced through expressing it as a set of individual duties. [54] The quoted passage from Re Westmid Packaging Services Ltd, or some part of it, has been cited in at least eight subsequent directors’ disqualification cases. It is a new departure to consider collective responsibilities explicitly in a case such as this one, but, if indeed the collective responsibility of the board of directors of a company is of fundamental importance, its feasibility and desirability is at least worthy of further examination. [55] In my view, the board of directors is responsible to the company and it is responsible for its decisions. Philosophers have puzzled over what it means for collectives, that is, groups of people, to intend and then to act. A collective intention can be the same as the personal intention of one of its members, but it need not be. In other words, a board can decide to do something against the personal arguments and personal opinion of one of its members. Once the board has formed its intent, collective responsibility will mean the whole board is responsible for that intent, even if there is one member who did not individually form or support that intention.

302  Alice Belcher [56] If this analysis of board collective responsibility is correct, it follows that becoming a member of a group (such as a board of directors) can bring with it individual responsibility for what I intend and do as a member of that group, and collective responsibility as a member of that group, for what the group intends and does. [57] Appointment to membership of a board requires acknowledgment by the appointee of not only their individual relationship to the company and the individual responsibilities that brings, but also their membership of a body with collective responsibilities. To say, ‘I am a board member’ is to say, ‘I am responsible as an individual’ and ‘we are responsible as a body’. My understanding of Lord Woolf ’s statement in Westmid Packing Services is that it is thus an acknowledgment that the board, as a body, cannot be cited as the defender, and so the only way in which collective responsibility can be tested in court is through an action naming an individual director. [58] To say that a board member must work both as an individual saying ‘I am responsible’ and relationally with other board members saying ‘we are responsible’ may be conceptually complicated, but it is something done routinely in many boardrooms. Borrowing an expression from the legal and political theorist Jennifer Nedelsky, a director is regularly required to be a ‘combination of individuality and “enmeshedness”, integrity and integration’ (J Nedelsky, ‘Law, Boundaries and the Bounded Self ’ (1990) 30 Representations 162, 182). [59] Traditionally, and in contemporary times, the registered company has been a form of business organisation that has enabled ‘self-made men’ to realise their ­independent entrepreneurial ideas and grow their personal wealth. In his judgment, the Lord Ordinary noted that Mr Baxter and Mr McBain interacted as ‘intelligent and astute businessmen’ ([2007] CSOH 198, at paragraph 12). In making this assertion, the Lord Ordinary, to my mind, underscores an understanding of the two men, each in a ‘businessman’ role, acting as autonomous, bounded selves, and as ‘self-made men’. One might say – drawing on influential strands of moral psychology – that this reflects the ‘masculine side’ of being a director in a commercial and organisational environment imbued with ‘male’ values. As Carol Gilligan has shown, such male values are ‘inexorable, unemotional and objective’ and can be contrasted against ‘a feminine moral code based on caring and the maintenance of relationships and networks’ (as cited in C Smart, Feminism and the Power of Law (London, Routledge, 1989) page 73). [60] But these atomistic conceptions of the ‘self-made business man’ may also be seen to disguise the more ‘feminine’ undercurrent of company structures, within which the relationality of the corporate board and the collective responsibilities that attend to directorship have remained, notwithstanding the law’s difficulty in calling the board as a whole formally to account.

COGCL v Baxter and Another [2009] CSIH 75  303 [61] I want to apply this thinking to Mr Baxter’s board membership of COGCL in the case before us. Appointed on 13 April 2004, Mr Baxter became individually responsible for his contribution as a director of COGCL and became part of the body that was the company board. But what demands did Mr Baxter’s role and responsibilities place on him in relation to COGCL’s board? Lord Woolf, if I read him correctly, would say that, because the board as a whole cannot be held to account for its responsibilities, an individual’s duties include an obligation to join with fellow directors. [62] We have heard that during the time period crucial for this case – that is, from 13 April 2004 to 7 December 2005 when the MoU was brokered by Mr Baxter – COGCL’s board did not call any official meeting. But this fact in itself does not and cannot excuse Mr Baxter’s alleged breach of duty, and nor does his status on that board as a non-executive, rather than executive, director. [63] Indeed, if Mr Baxter wants to point to his role as non-executive, rather than executive, director, he might expect to be held to the corporate governance norms for non-executive directors, which include a role in providing constructive ­challenge and reminding executive directors of their obligation to meet as a board with sufficient regularity to discharge their duties effectively. [64] This exploration of directors’ collective duties is not strictly required for me to reach a decision in this case, but I have engaged with it here since it serves to highlight a matter of fundamental importance that has not previously been analysed in such detail. Decision on the First Ground of Appeal [65] Counsel for COGCL relied, before this court and before the Lord Ordinary in the Outer House, on authorities that express directors’ fiduciary duties as rules of universal application, (ie, applicable in all circumstances and to all directors). If the fiduciary duty of loyalty is to be of universal application, then it can be framed as follows: the law demands, first, that a director asks themselves whether something they plan to do in their own interest could possibly conflict with the company’s interests and, second, when the answer is ‘yes’, it requires them to act in a way that acknowledges – and where necessary avoids – that conflict. [66] Meanwhile, counsel for Mr Baxter has submitted authorities supporting the proposition that a director’s own contracts, in which the company (in this case COGCL) had no financial interest, fall outside the scope of the authorities that speak of universal applicability. To apply the fiduciary duty of loyalty in accordance with this argument would involve determining whether the ‘conflict’ question should be asked at all. We would need to ask first whether the particular director was in a position akin to Lord Mayo’s in Mashonaland. If yes, then we need not ask the much more general question about the potential for a conflict of interests.

304  Alice Belcher [67] I do not accept that the Mashonaland method for arriving at a conclusion of no breach of fiduciary duty is applicable to Mr Baxter’s circumstances. His position in relation to COGCL cannot be seen as akin to the very narrowly defined position of Lord Mayo in that case. Indeed, the roles of all non-executive directors under the Code, as well as the FRC’s guidance on the Code in its Higgs Report, may mean that no director could ever again be appointed to a role as small as Lord Mayo’s even for a very short period. I leave that matter for a future case. Here it is sufficient to say that when Mashonaland is applied to Mr Baxter’s position it does not help him. [68] Thus, I find Mr Baxter to have breached his fiduciary duty owed to COGCL. More specifically he has breached the ‘time-honoured’ fiduciary duty of loyalty owed by a director to their company. [69] In reaching this conclusion, I am applying the principle expounded by Millet LJ in Bristol and West Building Society [1998] Ch 1 at 18 that a fiduciary’s duty of loyalty means that a director may not act for personal benefit or the benefit of a third person without the informed consent of that director’s principal. Mr Baxter did not inform COGCL, much less obtain its informed consent, and so he fell short of the standards reasonably and appropriately expected in respect of company loyalty. [70] A company is only able to give its informed consent to a director’s involvement in a competing business in accordance with its constitution. If this is a matter left to ‘the directors’, then the (potentially) wrongdoing director would need to inform the board, and the other directors would need to decide to consent. With informed consent in place, the director’s conduct in pursuing an opportunity on behalf of a competing business would not be a breach of fiduciary duty. But Mr Baxter’s actions in arranging for Eurasia to take the commercial opportunity without the informed consent of COGCL did certainly amount to such a breach of duty.

Commentary on Commonwealth Oil & Gas Co Ltd v Baxter ANINDITA JAISWAL

The original judgment, amidst a complex jargon of facts and figures, is essentially focused upon the core issue of whether Mr Baxter was in breach of his fiduciary duties as a non-executive director of COGCL by having steered the memorandum of understanding in his role as the chief executive officer of Eurasia, which gave the latter exclusive negotiating rights in respect of a potential commercial opportunity. It is in relation to these questions of breach of duty and conflict of interest that all other factual intricacies relating to changes in shareholdings, tax arrangements, forced exit and alterations in management/executive roles emerge. The original judgment rests not upon deciding whether Mr Baxter owed any fiduciary duties, but rather in determining the scope or extent of the fiduciary duties of a non-executive director, according to the specific circumstances of each case. Given that Mr Baxter was not tasked to procure any business or commercial opportunities for COGCL, in assessing the extent of his duties, the court that originally heard the case stated that while as a non-executive director ‘he had no obligation to bring that opportunity to the pursuers … his duty barred him from taking the positive step of securing it for a potential rival’.1 In other words, he had a proscriptive and not prescriptive duty towards COGCL. The universality of fiduciary duty across all directors was therefore upheld and, accordingly, Mr Baxter was held liable for his breach of those duties. The judgment written by Lady Belcher conforms to the original outcome but seeks to rationalise it by applying feminist relational theory to the facts of the case. While not challenging the universality of the relevant fiduciary duties, Lady Belcher emphasises the collective responsibility of a director as a member of the board. She stresses that joining as a director not only triggers fiduciary duties (deriving from statute and common law) towards the company, but also signifies joining a group or body with collective/collegiate responsibilities. She proceeds to explain that, on this basis, Mr Baxter was in breach of duties that were premised upon this relationship. Highlighting the tensions between the individual self and the socially



1 Commonwealth

Oil & Gas Co Ltd v Mr Baxter and Another [2009] CSIH 75, paragraphs 13 and 14.

306  Anindita Jaiswal connected self, Lady Belcher’s judgment advocates for greater r­ ecognition of the significance and value of the latter than has informed conventional company law. Undeniably, although not deviating from the final outcome of the original case, the judgment pronounced by Lady Belcher sets out a different perspective for reasoning and justifying the decision against Mr Baxter. This is notable since company, especially management-related, issues are often kept segregated as domains of business or commerce, exclusive of societal or feminist approaches: the two are reckoned as polar topics. At most, the intersection of feminism and business practices can be found only insofar as gender representation on company boards is concerned. Extending feminist theory in subtle but penetrating ways to a strict corporate law dispute is thus novel and encouraging. While welcoming that judicial innovation, I offer here what I hope are a few helpful further insights. First, the feminist relational theory that forms the foundation of Lady Belcher’s judgment goes beyond group/collegiate membership to question the relevance of the situational contexts and experiences of an individual. Emphasising that individuals grow in relation with one another, the theory suggests that ‘the sense of self develops and matures through the process of relationship-differentiation’.2 Considering that such relationships exist within a context of situations and experiences, ‘any theory that does not acknowledge the diversity of experiences is greatly limited in its validity and usefulness’.3 Therefore, any application of relational theory cannot operate in isolation from the specificity of the context and facts of each case. Put simply, to apply relational theory effectively and in its true sense, the duties of a director must be studied in the context of that director’s actual relationship to the body of executive or non-executive/ independent directors. The roles, functions, experiences and expectations of nonexecutive and executive directors have evolved to become significantly distinct from each other from a practical standpoint, and particularly so in contemporary governance regimes. Relational theory gains all the more relevance when reviewed in terms of power quotient, as it is such differentials in relationships that yield inequity in the distribution or exercise of power. Relational theory cannot survive in denial of power differences, rather it depends upon acknowledging and recognising them. ­Applying the theory at an overarching board level to deduce duties that are uniform and identical for the whole collective would essentially ignore the power differentials that exist across the executive and non-executive subgroups, and the relations between them. This suggests that while Lady Belcher’s judgment deserves praise for introducing feminist relational theory to corporate interpretations, it misses an opportunity to identify the various relevant collegiate, group relations for Mr Baxter. Instead of applying the theory at an overall board level, the p ­ eculiarities

2 S Freedberg, ‘Re-examining Empathy: A Relational–Feminist Point of View’ (2007) 52(3) Social Work 251, 254. 3 CK West, ‘The Map of Relational-Cultural Theory’ (2005) 28 Women and Therapy 93, 98.

Commentary on Commonwealth Oil and Gas Co Ltd v Baxter  307 and differential contexts of the subgroups that exist within such a single board, and which determine their true relational aspects, could have been considered. ­Needless to say, the rights, power and influence of an executive director (who runs and controls the management) cannot be equated to that of an independent or nonexecutive director (most often reckoned as an outsider to the board/company). While non-executive directors are responsible for supervising and monitoring the overarching governance of the company, executive directors are in charge of the day-to-day corporate functions. Accordingly, the latter are more individualistic and function-oriented, rather than having representative (or indicative) roles. Likewise, fixing liabilities upon a non-executive director who is only sitting for a fee in occasional board meetings and who is not aware of, or does not have access to, all strategic business information held by the executives on the company’s payroll (who are often paid hefty salaries), cannot be done by regarding the board as a single unit. In such a context, to simplify duties into one size that is supposed to fit the overall board, overlooking the role and power differentials within, may be risky, redundant and inconsequential, both at micro-level for directors and stakeholders and at the macro-level of corporate governance. To explain, this would essentially mean overlap of accountabilities, such that each one would be held liable at a level that is inconsistent with the individual director’s profile and the assigned tasks for which they are actually responsible. While this may deter individuals from assuming directorship responsibilities in future, it may also enable free-riders to escape accountability beneath the shield of more responsible directors on the board. This might further lead to an explosion of lawsuits triggered from an unclear and imprecise bifurcation of director roles and duties. If relational theory were instead applied to the subgroups of non-executive and executive directors, it would be able to penetrate much deeper to reveal the actual dynamics of relations, contexts, roles, power and specificities as they truly exist within a company board. While Lady Belcher does not, in the end, provide a dissenting judgment, in my view relational theory could have been optimally extended to the facts to come to a different conclusion than that of the original decision. More specifically, it could have been used to differentiate the collegiality of non-executive directors from the executive directors (a delineation that is prominent in today’s governance structures).4 Accordingly, since Mr Baxter was a non-executive director who was not otherwise involved in the business decisions of COGCL and had been consciously relieved of non-compete obligations, relational theory could have been applied to redefine or further restrict the scope of his fiduciary duties. Such an approach could perhaps have made the outcome of the judgment more realistic by bringing it closer to the actual relations and dynamics that exist within contemporary boards. This would have functioned, ultimately, to absolve Mr Baxter from any claim of breach or damages. 4 CB Carter and JW Lorsch, Back to the Drawing Board (Cambridge, MA, Harvard Business School Press, 2004) 24–26.

308  Anindita Jaiswal Secondly, some further questions remain that Lady Belcher has not considered. Given that covenants pertaining to non-compete practices were proactively omitted in this case, it might be argued that this signifies an alteration in the relationship between Mr Baxter and the company whereby he was no longer expected to be bound by any fiduciary duty that might otherwise arise. Even if that is not so, whether such a specific and conscious agreement, that is contractually laid down, can ever override the general, relational and collegiate duty that Lady Belcher identifies remains unclear, and some observations on the import of these altered relations could have added more force to the judgment. To conclude, Lady Belcher’s judgment is indeed in line with the global awakening to the relevance of gender and feminism to the corporate domain; in fact, it takes the movement a step further by injecting feminist theories and insights into matters which have conventionally been seen as purely commercial or business. Her judgment must be commended for its innovative blend of corporate governance and feminism, and for building a platform for what surely could become a more empathetic and inclusive corporate jurisprudence in the future.

Reflective Statement: Commonwealth Oil & Gas Co Ltd v Baxter ALICE BELCHER

A  Scottish Judgment As this is the Scottish Feminist Judgments Project, my first priority was to find a case where the litigation started and finished in Scotland. Secondly, I wanted to find a case with at least a hint that Scotland might choose to disagree with developments in company law coming from the English courts. Scots company law has its foundations in a single UK statute with very few provisions requiring different processes or procedures for the different UK jurisdictions. By choosing a case on appeal to the Inner House of the Court of Session, the rules of precedent permitted me latitude to either agree or disagree with rulings of the English Court of Appeal. Commonwealth Oil & Gas Co Ltd v Mr Baxter and Another [2009] CSIH 75 is a case where other judges in the Inner House raised the possibility of disagreeing with the English Court of Appeal. Although Lord President (Hamilton) did not express outright disagreement, he did state (obiter) at paragraph 14 that he was ‘not to be taken as agreeing with the reasoning of the Court of Appeal’. My judgment did not, in the end, need to pursue this opening for an England/Scotland divide.

Replacing a Judge The feminist judgments in this volume maintain the norms for the original court hearing the case. The Inner House of the Court of Session sits with three judges, or five for more difficult cases. In order to keep three judges on the bench I have replaced Lady Paton. I want to make it clear that this is solely because Lady Paton was the judge who said the least on this occasion.

Looking for Feminist Issues in Company Law I was very eager to offer a judgment to this collection of Scottish feminist judgments and to tackle a company law case. I have long believed that company law

310  Alice Belcher could benefit from feminist insights.1 Those feminists who blame the oppression of women on systems of private property and capitalism may suggest that the best feminist approach to companies would be their elimination as a way of organising both production and work. My approach is to begin with the current existence of companies and to work from within companies and within company law.2 My latest research in the field of company law and corporate governance has the directors as its main focus,3 so I have chosen a case concerning a director’s fiduciary duty, where I hoped to be able to explore two aspects of directors’ responsibilities using feminist ideas. More specifically, I hoped to apply to the case some feminist ideas about the boundaries of group membership. Group membership is useful in forming categories for activist campaigning purposes, for example, by the women’s movement; but it is also potentially problematic in re-enforcing differential treatment based on the categories of, for example, male and female. My chosen case can be seen as emphasising the importance of the concept of group/community membership in a rather different environment – relating to membership of a board of company directors. I wanted to point out that taking on the identity of director necessarily comes hand-in-hand with taking up such membership. I wanted also to point out that current corporate governance norms divide directors into subcategories of executive and non-executive, but in drawing distinctions between these two types, corporate governance may have drawn a boundary across the UK’s unitary board. This is a boundary that I wanted to suggest may have played a part in the way that Mr Baxter appears to have forgotten the need to maintain board relationships. Jennifer Nedelsky claims that ‘the boundary metaphor consistently inhibits our capacity to focus on the relationships it is in fact structuring’.4 I wanted to try to bring this insight to bear in respect of directors’ duties. I also hoped to encourage directors actively to remember their identity as directors, and everything that it entails, as they take up membership of a board because, as Derrida expresses it: ‘what is recalled to memory calls one to responsibility’.5 A second area where I felt that directors’ responsibilities might usefully be subjected to feminist rethinking is in relation to the co-existence of a director’s individual responsibility alongside the board of directors’ collective responsibility. I follow Lord Woolf ’s method for operationalising collective responsibility, which has no enforcement mechanism, in terms of an individual responsibility

1 A Belcher, ‘Gendered Company: Enterprise and Governance at the Institute of Directors’ (1997) 5 Feminist Legal Studies 57. 2 I have held the office of non-executive director with at least one company from 2008 to date. 3 A Belcher, Directors’ Decisions and the Law (London, Routledge, 2014). 4 J Nedelsky, ‘Law, Boundaries and the Bounded Self ’ (1990) 30 Representations 162, 171. 5 As cited in G Lloyd, ‘Individuals, Responsibility, and the Philosophical Imagination’ in C M ­ ackenzie and N Stoljar, Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (Oxford, Oxford University Press, 2000).

Reflective Statement: Commonwealth Oil and Gas Co Ltd v Baxter  311 to join with fellow directors. Directors need to be autonomous individuals able to make decisions by exercising independent judgement. However, they also need to be board members and take collective responsibility for the board decisions that are made. As I note in my judgment, feminist scholar Jennifer Nedelsky sees the human being as a ‘combination of individuality and “enmeshedness,” integrity and integration’.6 The limited liability company has been a vehicle for autonomous (rational) investment decisions. Small entrepreneurial companies have also been used by many ‘self-made men’ as a way of organising their businesses and growing their individual wealth. However, the company is a statutory construct that demands the exertions of board members as both autonomous selves and as social selves in collective decision-making and collective responsibility. Thus, board decisions reflect inevitably a form of ‘we-intention’.7 More than 20 years ago, I investigated the registered company form, conceptualising it by way of attributes that have historically been categorised as stereotypically male and female.8 At that time, essentialist feminism opened up a way to think about a proposed reform of company law in terms of a feminising of that law. In this feminist judgment my vision is of every company board as a body that requires its parts to function well in relation to each other. I can arrive at that ideal either by relying on an essentialist view of the female as good at caring and relating,9 or by relying on Nedelsky’s ideas that deliberately turn away from the drawing of boundaries, for example, between the male and the female, and instead focus on a necessary, relational enmeshedness.

A  Lengthy Judgment Converted to a Narrative Judgment The difficulties associated with attempting to write a Scottish feminist company law judgment are not simply that the feminist issues may not be obvious, and that Scottish company law is rarely different from the company law of England and Wales. There is also the problem of length. Company law cases are usually factually complicated and multifaceted, often giving rise to very lengthy judgments. The Lord Ordinary’s judgment in this case – in the Outer House of the Court of Session – uses 25,686 words to set out the facts. Meanwhile, Lord Nimmo Smith’s ‘summary of the essential facts’ in the Inner House runs to 6,224 words. For current purposes, I needed to provide a more concise account. I could not simply thank Lord Nimmo Smith for doing that job for me, as did Lord President

6 Nedelsky, above n 4, 182. 7 R Tuomela, ‘We-Intentions Revisited’ (2005) 125 Philosophical Studies 327. 8 Belcher, ‘Gendered Company’, above n 1. 9 Such as that offered in C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982).

312  Alice Belcher (Hamilton) in the original Inner House hearing. Instead, my approach has been to include diagrams to explain relevant changes in shareholdings and directorships, noting how Mr Baxter’s roles changed. While the diagrams were not prompted by a feminist theory, I hope they prove helpful to the reader, making the judgment more accessible, which is itself a feminist, or at least a democractising, approach to judgment writing. I have also written my account of the facts in a much more narrative style than the accounts given by any of the other judges in the original case. This is in line with the connection currently being made between feminist research and ‘narrative process’.10 Woodiwiss, Smith and Lockwood’s edited volume of 2017 has gathered together work that explores ‘some of the opportunities and challenges of doing research that is at the same time both feminist and narrative’.11 In claiming my version of the facts as part of ‘narrative’ research, I am going beyond the conventional understanding of narrative research as focusing on the analysis of interviews and related documents. My method could be seen as either an analysis of the document that is the Lord Ordinary’s account of the factual evidence taken at first instance, or it could be framed as an analysis of the ‘interviews’ conducted by that court as each witness gave evidence. Miller explains her narrative research as having an ‘individual transition’ as its focus, and for me that transition is the one that is made by a founding, entrepreneurial company director when the requirements of their business for extra funding cause them to lose their job. Miller also says that her approach involves paying attention to the ‘temporal ordering of events’ associated with such an individual transition so that it can be ‘understood and can be narrated’.12 I hope that my narrative account of the facts produces that link between narration and understanding more fully than did the original decision. Finally, this was always intended to be a judgment that came to the same conclusion as the court – it is not a dissenting judgment. The outcome is not different, but the presentation of the facts and the way in which the decision is reasoned are. In this sense, it marks a feminist journey more than a particularly feminist destination, but the way in which this more relational approach to company law, and to directors’ duties in particular, might shift thinking in other cases, provoking alternative outcomes, is yet to be charted in Scotland.

10 T Miller, ‘Doing Narrative Research? Thinking through the Narrative Process’ in J Woodiwiss, K Smith and K Lockwood (eds), Feminist Narrative Research (London, Palgrave Macmillan, 2017). 11 J Woodiwiss, K Smith and K Lockwood (eds), Feminist Narrative Research (London, Palgrave Macmillan, 2017) 1, 2. 12 Miller, above n 10, 42.

15 Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68 Greater Glasgow Health Board v Doogan and Another (Scotland) On appeal from: [2013] CSIH 36 SC 17 December 2014 [2014] UKSC 68 2014 WL 6862756 before Lady Hale, Deputy President Lord Wilson, Lord Reed, Lord Hughes, and Lady Ganguli-Postan Judgment Given on Wednesday 17 December 2014 Heard on 11 November 2014 Judgment Lady Ganguli-Postan Background to this Case 1.

This case concerns the scope of the right to exemption, on grounds of conscientious objection, from participation in lawful activities in connection with the provision of treatment services under the Abortion Act 1967. The petitioners, Miss Doogan and Miss Wood, are experienced midwives who have been employed by the Southern General Hospital since 1988 and 1992 respectively. Both are practising Roman Catholics and hold religious and moral objections to any involvement in the process of termination of pregnancy, which they see as a grave moral offence.

314  Agomoni Ganguli-Mitra and Emily Postan 2. Maternity services in Glasgow are provided at the Southern General Hospital and the Princess Royal Maternity Hospital. The events leading to this case took place in the Southern General Hospital. The majority of terminations that take place in Scotland are performed on the grounds set out by section 1(1)(a) of the Abortion Act 1967, namely that the pregnancy has not exceeded its twenty-fourth week and that its continuance would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. All such terminations at the Southern General Hospital are carried out within the Gynaecology Ward. Terminations performed in emergency situations or under the remaining lawful grounds for termination established by section 1(1) of the 1967 Act – ie, where the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped – are carried out in the Labour Ward. 3. In terminations carried out in the Labour Ward, it is standard practice at the Southern General for a midwife to be assigned to the patient, to monitor her condition and support her through the procedure. The petitioners’ terms of employment included their acting as Labour Ward Coordinators. This involves a responsibility to provide guidance, advice and support to midwives, manage resources on the ward, and oversee the process of booking in patients who have been referred for termination and allocating midwives to them. 4. When the petitioners began their roles at the Labour Ward they both informed their employer, the Greater Glasgow Health Board, of their objections to their involvement in terminations. In the past, it had been possible to find alternatives to avoid assigning the petitioners to tasks associated with termination. However, a restructuring of prenatal care provision across ­Glasgow, as a consequence of hospital closures, threatened the sustainability of this arrangement. 5. The petitioners believed that the reorganisation of maternity services would mean that more terminations would take place within the Labour Ward at the Southern General Hospital, such that the existing ‘work around’ processes in place to accommodate their objections would no longer be suitable. Following what the petitioners considered to be an unsatisfactory response from management to their concerns, they raised an informal grievance process (2009), followed by a formal grievance procedure (2010). The petitioners’ employer has not sought to dispute the petitioners’ entitlement to an exemption, on grounds of conscientious objection, from many of the tasks associated with termination of pregnancy, as provided for under section 4 of

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  315 the 1967 Abortion Act. However, in relation to the remit of that exemption, the petitioners indicated that their objection included: ‘delegating to, supervising and/or supporting staff who are providing care to patients throughout the termination process’ (Doogan v Greater Glasgow and Clyde Health Board [2012] CSOH 32, [25]). The hospital management considered that such activities did not fall under the ambit of section 4 and therefore that the petitioners may lawfully be required to fulfil these as part of their contracts of employment. The petitioners’ challenge to their employer’s decision failed in the Outer House of the Court of Session, before the Lord Ordinary Lady Smith. It was, however, successful on appeal before an Extra Division of the Inner House (Lord Mackay of Drumadoon, Lady Dorrian and Lord McEwan presiding). As a consequence, the employers, Greater Glasgow Health Board, have appealed to this Court. The Abortion Act 1967 6.

The Abortion Act 1967 provides the conditions under which the termination of pregnancy can take place in England, Wales and Scotland. It was meant to clarify – and add to – the grounds upon which a medical practitioner could lawfully carry out an abortion. The Act sets out the procedure under which such terminations can take place. The Human Fertilisation and Embryology Act (HFEA) 1990 amended relevant sections of the Act and modified the circumstances under which termination would be lawful. Beyond situations of emergency, the 1967 Act, as amended, sets a limit of twenty-four weeks’ gestation for terminations. Two physicians must approve in good faith that the conditions are met, and the procedure must be carried out in a National Health Service Hospital or approved clinic. Section 1  Medical Termination of Pregnancy (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith— (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

316  Agomoni Ganguli-Mitra and Emily Postan (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. 7. Also relevant are the amendments to section 1 of the 1967 Act, made by the HFEA 1990, section 37, which reflected the change in the procedures by which terminations are performed, from surgical procedures (when the 1967 Act was passed) to the use of medicine to induce premature labour. Section 1(3) as amended now reads: (3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006 or the National Health Service (Scotland) Act 1978 or in a hospital vested in a National Health Service trust or an NHS foundation trust or in a place approved for the purposes of this section by the Secretary of State. (3A) The power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places. 8. The HFEA 1990 section 37 also amended section 5 of the 1967 Act as follows: Section 5  Supplementary Provisions (1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act. (2) For the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if— (a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus; or (b) any of the other grounds for termination of the pregnancy specified in that section applies. 9. Of particular relevance to the current case is the exemption for conscience, which was introduced into the 1967 Act while the Bill was being debated in Parliament. The resulting section 4, providing for conscientious objection, sets out the conditions under which a medical practitioner may be exempt

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  317 from participating in termination of pregnancy. It states that conscientious objection cannot apply where there is a risk to the pregnant woman’s life, or risk of grave permanent injury to her physical or mental health: Section 4  Conscientious Objection to Participation in Treatment (1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection: Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it. (2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman. (3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section. The Human Rights Act 1998 10. Section 3 of the Human Rights Act 1998 sets out the requirement that legislation, including in the current context the Abortion Act 1967, be interpreted in light of its provisions: Section 3  Interpretation of Legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 11. Of particular relevance to the case before us are the provisions of Schedule 1 to the Act with regard to the right to respect for private and family life: Article 8 1  Everyone has the right to respect for his private and family life, his home and his correspondence.

318  Agomoni Ganguli-Mitra and Emily Postan 2  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. And with respect to the right to freedom of thought, conscience and religion: Article 9 1  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Applying the Law in this Case 12. I have had the great benefit of reading the draft judgment of Lady Hale (with whom Lord Wilson, Lord Reed and Lord Hughes agree). And I have considered the earlier judgments of this case in the lower courts: Doogan v Greater Glasgow Health Board [2012] CSOH 32, 2012 SLT 1041, which found in favour of the Health Board; and Doogan v Greater Glasgow and Clyde Health Board [2013] CSIH 36, 2013 SLT 517, which found in favour of the petitioners. While I concur with the outcome of Lady Hale’s ruling, I consider that the case involves more than mere interpretation of statutory language and raises broader issues of gender equality. Control over one’s reproductive choices is an important aspect of the ability to steer one’s life course, and it is by giving women this ability that we enable them to fully and equally participate in society. In reaching this judgment, I have therefore paid particular a­ ttention to the relevance of structural inequalities, especially with respect to how interpretation and application of the 1967 Abortion Act, regarding women’s access to safe and legal termination, might contribute to reinforcing or alleviating gendered inequalities. 13. The Abortion Act 1967 set out the conditions of lawful terminations in England, Wales and Scotland. The need for legal reform was widely accepted at the time, especially due to the high level of maternal mortality following unsafe and unregulated abortions. Further, Parliament was concerned about an unequal application of the law, due to a thriving private sector in the provision of abortion. But it is also clear that the Act was framed by the patriarchal norms entrenched in British society at the time – as such, it was

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  319 not primarily aimed at reducing paternalistic attitudes towards women or scepticism regarding their ability to make rational and autonomous decisions about their reproductive health. Instead, the legislation, itself an outcome of conflicts between different interest groups, initially served chiefly to increase protections and control of the procedures afforded to the medical profession. Nonetheless, in my view, it is important that in all our readings and applications of the provisions of the Act, we should bear in mind that its practical effect has been to provide women with access to an important healthcare service, and in so doing to enhance substantially (albeit with qualifications) their freedom and liberty. Prior to the Act, seeking and accessing termination would have been a stigmatising, dangerous, even life-threatening undertaking for women. Setting out the conditions for decriminalising the termination of pregnancy thus represented an important moment of moral and legal progress. Given this significant practical effect, it is crucial in my view that – in interpreting the remit of the exemption on the basis of conscious objection under section 4 – we do not interpret the law so as to restrict again that access to safe, non-stigmatising termination. Conscientious Objection in the Abortion Act 1967 14. In interpreting the current entitlement to exemption from particular professional responsibilities on grounds of conscience, it is important to attend to the origins of section 4 of the Abortion Act 1967. As Lady Hale has stated, this conscience clause was included as a quid pro quo, introduced as a means of facilitating the introduction of legislation governing abortion, which – in 1967 – might not otherwise have been possible, given the moral and political disagreement that the subject of terminating pregnancy then generated. In doing so, it allowed legislation to be passed that provides women with access to lawful and safe termination services. The inclusion of this clause thus reflects the necessary compromises that can arise from shaping a law within specific moral and social mores, and the need to consider – at times conflicting – interests while doing so. 15. In her judgment in the court of first instance, Lady Smith, while finding in favour of the Health Board, notes that: In 1967, Parliament sought to accommodate public morality, medical ethics, and religious teachings within a single piece of legislation and it might be thought that it is a tribute to the success of that venture that it has given rise to very little litigation in the last forty-five years despite the fact that very many terminations of pregnancy have been carried out under its authorisation, up and down the country, throughout that time [73]. 16. Crucially, as Lady Smith observed, section 4 does not confer an open-ended or blanket right to conscientiously object to all activities associated with the termination of pregnancy. It only applies to activities included within the category of treatments rendered lawful by the introduction of the Act, as detailed

320  Agomoni Ganguli-Mitra and Emily Postan under section 1. Moreover, it does not apply in emergency circumstances, or where there is a threat to life or of serious harm. Thus, it does not appear that, in legislating, Parliament intended to institute a right of conscientious objection per se. Rather, it sought to allow for some exceptions to professional duties to participate in certain forms of treatment and care that would otherwise be required. The task at hand here is thus not to decide the appropriate scope of a freestanding entitlement to exercise conscientious objection, but rather to determine to what extent this entitlement functions in a way that is consistent with delivering the aims of the Act taken as a whole. The Scope of Section 4 17. My learned colleague, Lady Hale, has restricted her focus here to the statutory construction of section 4 of the 1967 Act: specifically, the meaning of the words ‘to participate in any treatment authorised by this Act’. Determining the breadth of their scope would, she felt, demarcate the scope of the exemption that can be relied upon under the legislation. 18. The consequence of a wide interpretation of either or both of the terms ‘participate’ and ‘treatment’ is that a broader range of activities will be liable to conscientious objection. In turn, this entails a narrower range of professional responsibilities that someone in the petitioners’ position may be required to undertake. Conversely, a narrower interpretation of either or both of these terms reduces the scope of available permitted objection and requires a wider range of professional responsibilities to be undertaken. The meaning of these words, and the breadth of their scope, is indeed relevant to our determinations here. 19. In her judgment in the Inner House of the Court of Session, Lady Dorrian held that both the terms ‘treatment’ and ‘participation’ should be read as having a wide interpretation. In doing so, she did not distinguish between the means of determining the scope of each of the two terms. In my view, however, it is necessary to make this distinction. This is not only because there are separate lines of authority in law for how each should be interpreted. It is also the case that, in my view, the question of what constitutes treatment is a matter that may be determined independently of the question of whether an individual’s interests in respect of protecting their conscience are engaged. The same is not true, however, of what constitutes participation. The proximity of an individual’s professional duties to the objectionable action are intimately connected to the plausibility and legitimacy of their claims that their conscience-related interests are engaged. Therefore, the scope of what is included under ‘participate’ must, in my view, be interpreted with particular attention to the proximity or remoteness to the objectionable activity – that is, the treatment. 20. Turning first to the meaning of ‘treatment’, it is true that section 4 – as understood in light of the judgment in Royal College of Nursing v DHSS [1981] 2 WLR 279 – points to a broad interpretation; that is, one that is s­ufficiently

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  321 wide to encompass the whole course of medical treatment involved in initiating and bringing about the termination of pregnancy, and the associated care of the woman. However, I can see no grounds for supposing that, even with this wide interpretation in place, the meaning of ‘treatment’ should be taken to depart so far from ordinary usage as to include the kinds of supervisory, delegatory and peripheral care roles to which the petitioners, in their capacity as Labour Ward Coordinators, object. These activities were not unlawful before the introduction of the 1967 Act, and nor have they been rendered lawful by the Act. Thus, they are not, in my view, captured by the phrase ‘treatment authorised by this Act’ to which section 4 applies. 21. In deciding what is captured by the term ‘participate’, it is tempting to look no further than the ordinary usage of the word, in which participate means to take part in an activity. However, and here I depart from the reasoning of Lady Hale, I do not accept that the scope of what is captured by ‘participate’ can be interpreted in the abstract and in isolation from the context of the legislation in which it functions. Given that allowing exemptions on ground of conscience may have the effect of limiting access to terminations, it is incumbent upon me to consider the rightful place and scope of the exemptions permitted by section 4 in the context of statutory interpretation. The proper interpretation of the scope of these exemptions cannot be determined purely by the meaning of the words alone. It is necessary to examine further the interests and values that the Abortion Act 1967 functions to protect. Article 8 22. An overly wide interpretation of section 4 might result in giving too much weight to one type of freedom (of conscience) over another (of reproductive choice). It is necessary, therefore, in deciding the scope of section 4, to consider not only the meaning of the words used therein, but also to recognise the consequences of their interpretation for determining the scope of activities to which conscientious objections may legitimately be applied. We must be mindful, in other words, of not limiting access to lawful terminations in such a way as to infringe upon the legitimate rights and interests of women seeking such treatment. 23. Section 3 of the Human Rights Act 1998 requires the interpretation of the 1967 Act in line with the provisions of the European Convention on Human Rights (ECHR). Lady Hale has not discussed the matter of the right to respect for family and private life under Article 8 of the Human Rights Act  1998. However, it seems clear to me that Article 8 of the ECHR is of relevance here. Private life is a broad term encompassing, inter alia, aspects of an individual’s physical and social identity. This includes the right to personal – and reproductive – autonomy, including the choice of whether to become a parent, as well as the right to personal development (Pretty v United ­Kingdom (2346/02) [2002] ECHR 423; Evans v United Kingdom (6339/05) [2007] ECHR 264).

322  Agomoni Ganguli-Mitra and Emily Postan 24. Article 8 has not been interpreted as conferring a right to abortion. However, women’s interests in being able to access lawful abortion services, as well as information about such services, where they are available in the Member State, has been found to come within the scope of their right to respect for their private lives and accordingly under Article 8 (Tysiąc v Poland (5410/03) [2007] ECHR 219; A, B and C v Ireland (25579/05) [2010] ECHR 2032). Importantly in the current context, in RR v Poland (27617/04) [2011] ECHR 828, the Strasbourg Court reiterated that states should organise healthcare provision so that freedom of conscience does not prevent patients from securing healthcare services, including tests necessary to exercise informed choices about their reproductive decisions. 25. Article 8 confers not only the obligation upon states to refrain from infringing the rights of individuals through their own actions, but also positive obligations that may involve the adoption of measures designed to secure respect for private life, including the provision of a regulatory framework of both adjudicatory and enforcement machinery that serves to protect individuals’ rights (Tysiąc v Poland). The Abortion Act 1967 may be seen as delivering an important aspect of the state’s obligation to protect the private lives of women by facilitating access to lawful abortion. Viewed in this light, if the provisions of its section 4 are read too widely, there is a risk that this may impede the fulfilment of this duty. Article 9 26. Respect for an individual’s conscience is protected under Article 9 of the ECHR. This holds that ‘[e]veryone has the right to freedom of thought, conscience and religion’ and to ‘manifest his religion or belief, in worship, teaching, practice and observance’. This, however, is not an absolute right and amongst the limitations to which it is subject are those necessary to allow the protection of public health and the protection of the rights and freedoms of others. Where the conflict between the exercise of this right and the claimant’s professional role has been tested in law, Article 9 has typically been interpreted narrowly. Thus, it has not been held to be unlawfully infringed by requirements that an individual perform duties normally required as part of the terms of their employment, when this entails neither pressure to change their religious views nor obstruction to manifesting their religion ­(Konttinen v Finland (249/49/94) [1996] DR 87; Kalaç v Turkey (20704/92) [1997] 27 EHRR 552). Based on this approach, it is my view that respect for freedom of conscience under Article 9 remains compatible with reasonable restrictions to entitlements to exemptions from particular professional responsibilities on grounds of conscience. The question of what counts as a reasonable restriction will, of course, depend on the nature of the professional role and services provided. In the context of the particular professional responsibilities of the petitioners, this remains to be decided, and it is to that question that I now turn in interpreting the scope of the section 4 clause.

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  323 The Function of the Abortion Act 1967 27. The original intentions of the 1967 Act were to introduce clarity around the conditions under which abortions could lawfully take place, and to protect medical professionals involved in terminations from prosecution. As Lady Hale has observed, the legislation also broadened the permitted grounds for lawful abortion and put procedures in place to ensure that such terminations were conducted in appropriately hygienic conditions and by skilled practitioners. It is abundantly clear, however, that the Act has since come to be seen and used as a way of protecting the reproductive autonomy of women, by providing a legal framework within which to terminate unwanted pregnancies in safe and regulated settings. 28. The Act, despite being revolutionary in moving away from antiquated laws, was also a product of its time. It was limited by existing political, religious and social pressures. It gave women some freedom, but nevertheless left decisions affecting their wellbeing to the discretion of the medical profession, which was at the time almost exclusively male. Even today, the Act represents only a partial protection of reproductive freedoms. Nevertheless, it has played an important role in paving the transition from an era in which women were treated paternalistically or faced hostility in their efforts to exert equal citizenship to one in which women’s choices and decision-making capacities are recognised and respected, and they have significant control over their bodily integrity, reproductive health and wellbeing. 29. By legislating for terminations to take place within the healthcare context, the Abortion Act 1967 also signalled the removal of an important structural barrier for women. Regulated as an activity to be carried out within the National Health Service, access to termination is no longer left to the vagaries of fate or to the ability of women – especially younger, less privileged, women – to seek a trustworthy and safe environment for what should be a relatively low-risk procedure. 30. The Abortion Act 1967 now functions in a social and legal context in which reproductive autonomy is further supported by legislation including the HFEA 1990 (under which several amendments to the 1967 Act were introduced) and Article 8 of the ECHR. The control of one’s own body is a necessary condition for the exercise of agency, and many other freedoms. Recognising access to termination as one such important liberty reflects the state’s commitment to women’s status as equal citizens. 31. This wider context must be reflected, then, in our interpretation of the 1967 Act and its various provisions. A lack of legislative support for safe access to lawful termination presents a considerable structural and institutional obstacle to women at a time when they find themselves in a particularly vulnerable situation, and as such imposes additional burdens on the exercise of an important civil liberty. It is the proper remit of this court to consider robustly the justifications for balancing the interests at play, and to do so with

324  Agomoni Ganguli-Mitra and Emily Postan

32.

33.

34.

35.

36.

a view to further facilitating the removal of structural barriers to accessing healthcare. Any interpretation of the scope of the conscience-based exemption needs to be carried out in light of its impact on the ability of the Abortion Act to function so as to protect reproductive autonomy, so far it is able to do so, in line with respect for private life under Article 8 ECHR. In her judgment, Lady Hale has concluded that it would not be appropriate for this court to dwell upon the potential consequences of adopting a narrow versus a wider interpretation of the conscience-based exemption under section 4. This is because, she believes, there is insufficient empirical evidence on which to base any inference as to whether a narrow or a wide reading would be more likely to have a negative impact on women seeking abortion. In reaching this view, my learned colleague focuses in particular on the lack of available evidence to adjudicate competing claims regarding the possible impacts upon the recruitment and retention of healthcare professionals able and willing to perform terminations. In focusing on the question of recruitment, however, this approach fails to attend sufficiently to other routes by which women’s interests may be negatively impacted. Though no causal connection between a broad interpretation of the circumstances in which conscientious objection is permitted and a detrimental impact upon women’s access and healthcare has been established, it seems eminently plausible in my view to surmise that there could be a correlation. The petitioners have themselves acknowledged that it is vital that the role of Labour Ward Coordinator on any shift is fulfilled by one individual and not patched together by multiple staff. If section 4 is interpreted broadly so as to include exemption from ‘delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process’, as the petitioners desire, it seems clear that the role of Labour Ward Coordinator might not be adequately performed. Moreover, the potential harms of a wide scope of exemption are not limited to the hospital’s ability to provide termination services. They also extend to effects on women’s willingness to access these services and pursue treatment. The refusal of healthcare professionals to provide care, stepping aside from doing so, or referring patients to colleagues on non-clinical grounds, all present additional burdens to pregnant women in what may already be very difficult circumstances. It matters that women seeking terminations have access to timely treatment, that they are not inconvenienced by excessive delays or avoidable referrals, that they benefit from continuity of care, and that they are able to make reproductive choices free from distress, implied judgement or stigma. In the absence of evidence that a narrow interpretation of the permitted scope of conscientious objection would undermine provision of termination services, we should therefore err towards interpreting all provisions of the 1967 Act so as to minimise barriers to the delivery of its chief function,

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  325 that of providing access to safe, lawful, timely and non-judgemental abortion. This is not to say that the conscientious objections of the petitioners are not important. That they are worthy of protection is indicated by the inclusion of section 4 in the 1967 Act. But the protection of conscience is not the primary function of this Act, and where the interests of patients and conscientious objectors conflict regarding the performance of supportive and administrative aspects of the termination procedure, it is my view that the law must prioritise the protection of the fundamental interests of women seeking abortion by removing, wherever possible, structural and institutional barriers to their reproductive liberty. This does not mean encroaching upon the guarantees provided for conscientious objection under the 1967 Act, but it does mean adopting a narrower, as opposed to broader, interpretation of those provisions when determining in relation to which activities it is permissible for an individual to exercise objection under section 4. Conscience-Related Interests 37. As noted, the interests of healthcare professionals in refraining from acting in ways that run contrary to or violate the integrity of their consciences should not be ignored. However, if conscientious objections are to serve as derogations from performing professional tasks that comprise the means by which the Abortion Act 1967 achieves what is now its core function, that of supporting reproductive autonomy and protecting the interests of women in accessing safe and lawful abortions, then the strength and plausibility of these objections and the associated conscience-related interests must also be subject to thorough scrutiny. 38. The first aspect that must be scrutinised is the proximity of the activities, in which the petitioners object to participating, to the process of termination itself. This is relevant to considering how much weight should be given to the interests protected by the conscience clause, in particular when considered against the interest protected by pregnant women’s safe access to healthcare. I would suggest that the scope of exemption cannot be held to include participation in activities that are so causally remote from the core activity that the very engagement of conscience becomes implausible. The disputed tasks that lie at the heart of this case – those of delegating, supervising, or supporting staff to participate in and provide care to patients throughout the termination process – are considerably removed from the processes of termination itself. This, to my mind, also points to a narrow reading of what is covered by ‘participation’ – one that does not include these activities, and that therefore excludes from section 4 the activities to which the petitioners have objected. 39. In her judgment before the Inner House of the Court of Session in this case, Lady Dorrian suggested that one consideration in favour of a wide interpretation of section 4 is that this would remove the need for ‘plac[ing] on

326  Agomoni Ganguli-Mitra and Emily Postan those who may already be struggling with their conscience the additional burden of having to assess whether each task comes within the scope of their conscientious objection and of having to re-state that objection, possibly on a daily basis’ (Doogan v Greater Glasgow and Clyde Health Board [2012] CSOH 32, [34]). She further expressed the concern that a requirement to navigate a more specific range of objected activities, rather than lodging a more all-encompassing objection, could compromise patient safety. These are, in my view, misplaced reasons to favour a wide interpretation. First, the risk that patients could be denied timely, non-judgemental and supportive care as a result of healthcare professionals exempting themselves from core activities of their job seems at least as plausible as any threat to safety. Secondly, appealing to the pragmatism of permitting a broad category of exempt activities implicitly concedes that this may encompass some specific activities to which the professionals do not in fact object, which would run contrary to the explicit provisions of section 4. Thirdly, the opportunity to articulate, and challenge, a conscientious objection is particularly important when assessing the value of respecting conscience against respecting the central function of the Act as I have described it, and in exposing the potential harms and burdens associated with respecting each. Thus, the responsibility remains with the objecting individual to critically evaluate (and be capable of accounting for) how an act offends their conscience. 40. While placing the burden of proof in any legal proceedings for a conscientious objection on the individual objecting, section 4 does not specify any particular way in which this burden must be discharged (save for the evidential requirement of Scots law as specified under section 4(3)). It is certainly not my intention here to institute a requirement in law that conscientious objections must always be articulated and justified in detail. But a mechanism that seeks to respect the consciences of healthcare professionals cannot cogently seek to exempt those wishing to lodge conscientious objections from any requirements to justify their objections and explain how they are engaged by the activities in question. Unlike Lady Dorrian, I do not accept that a legal entitlement to broad exemption – on an unarticulated basis – from a category of activities is a desirable resolution, nor do I accept that such a wide reading of section 4 can be justified on the basis that it avoids any detrimental impact upon people in the position of the petitioners of having to articulate their objection. The Expressive Function of the Law 41. It is possible that a wide interpretation of the conscientious objections of the petitioners might not, as a matter of fact, have identifiable negative impacts on access to terminations, or affect the quality of care and experiences of particular women seeking treatment in the Greater ­Glasgow area, given that it is large and fairly well resourced. There is a more pronounced risk of

Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68  327

42.

43.

44.

45.

impact on access to termination in rural, or smaller communities. However, even within a well-resourced Health Board, a wide interpretation would fail to demonstrate appropriate respect for the rights and interests of women and their reproductive freedoms in another important way. Consideration of structural and institutional barriers directs us to attend to the important, expressive function of the law. The harm inherent in a wide interpretation of the exemption lies not only in the potential detriment to particular patients, but also in undermining the clear communication of support for the principle of access to safe, lawful and non-judgemental abortion services, and for the protection of the interests and reproductive liberty of those women seeking abortion. Here I wish to recall the judgment of the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 CA, in which it was held that, even though the conscientious objection of a registrar to registering civil partnerships might practically be accommodated by the Local Authority due to the availability of other registrars, permitting the appellant to object in this way violated the respondent’s more fundamental commitment to nondiscrimination (Ladele [44]–[45] per Lord Justice Neuberger). In support of their petition for a wide interpretation of ‘participation’, and thus a wide scope of objections, the petitioners emphasised the team-based nature of the delivery of nursing and midwifery services. From a different perspective, it may be recognised that precisely because of the collective and mutually supportive nature of the maternity ward, granting exemptions to some team members from core care and administrative functions may undermine the principle that care for women seeking termination is an appropriate, lawful and valuable activity. A widely interpreted and granted exemption on grounds of conscience could have a detrimental effect on the morale of those members of the caring team who continue to provide termination and associated care, particularly if they also have to do so within an atmosphere of (actual or implicit) disapproval and judgement. In the present case, the opportunity to exercise conscientious objection is indeed protected in the law and is not necessarily intrinsically antithetical to the protection of reproductive liberty. However, a wide interpretation of its scope could well be, given that such interpretation may be perceived as communicating a conditional or compromised commitment to the importance of providing abortion services. For this reason too, then, I support a narrow interpretation of the scope of section 4 – specifically, one that does not include exemption from non-core activities, such as delegating, supervising, or supporting staff to participate in and provide care to patients through the termination process. For these reasons, and on the basis of the above arguments, I would dismiss this appeal, and in doing so find that the petitioners’ Article 9 rights have not been unlawfully infringed.

328  Agomoni Ganguli-Mitra and Emily Postan Further Consideration of Issues of Discrimination 46. A facile analysis of the interests at play in this case would suggest that, since the petitioners agreed to take on this profession, within the Labour Ward, knowing that the activities involved might include association with pregnancy termination, they would therefore have an obligation to accept the consequences of their choices, despite their objections. Such analysis, however, does not address the social and structural conditions that mean that more women join the nursing profession; they will often be lower in a hospital hierarchy, and it is easier for (more typically male) physicians to choose both their specialty and their movement across the hospital system. The language of the Abortion Act 1967 seems even to suggest – through its pronouns – that the objector whom legislators had in mind was the male surgeon. While subsequent amendments to the law, such as the HFEA 1990, have reflected the changing nature of the procedure – for example, surgical abortions being increasingly replaced by medical abortions – and thus broadened the scope of actors involved, there is no recognition of the change in the profile of the potential objector, given the increased involvement of nurses or midwives in the procedure. The current nature of the procedure of termination, as well as an array of social factors, might well result in women, especially nurses, more frequently finding themselves in the positions of conscientious objectors in a system where their freedom might already be considerably constrained, relative to their male colleagues. Although this is not at issue in the current case, I concur therefore with Lady Hale, who observes that the appellants might be within their rights to pursue an employment tribunal claim for unjustified indirect discrimination, under the Equality Act 2010, against their employers, the Greater Glasgow Health Board.

Commentary on Greater Glasgow Health Board v Doogan MARY NEAL

Introduction It is usually taken as axiomatic that feminism entails support for women’s ­reproductive liberty and, to that end, for widespread access to abortion services that are subject to as few restrictions as possible. A familiar argument against permitting conscientious objection to abortion by healthcare professionals is the claim that accommodating such objections will inevitably limit that access for women. As such, on the face of it, feminism and support for conscience rights might seem to be incompatible positions. When the scope of the statutory conscience right in the Abortion Act 1967 is under consideration, then – as it was in Greater Glasgow Health Board v Doogan – it might seem obvious that the feminist preference would (and should) be for the right to be interpreted as narrowly as possible. I question the received wisdom on the opposition of feminism and conscience rights, however; in my view, there is no necessary contradiction between support for reproductive liberty and support for freedom of conscience as expressed in conscientious objection. The idea that there is seems to me to be premised on the tacit, and wholly absurd, assumption that the critical interest protected by the right to conscientiously object – the interest in preserving moral integrity – is either (i) not a ‘women’s’ interest, or (ii) not as critical an interest for women as the interest in bodily integrity. Against this assumption, I hold that feminists can, without contradiction, support an appropriate balancing between what are, after all, two sets of critical interests and rights of women. The respondents in this case were two women seeking to pursue their careers in a way that did not require them to violate their most fundamental moral commitments (as they had always previously been able to do). The question of what constitutes an ‘appropriate balancing’ is, of course, precisely what was at stake in this case. At first glance, it might seem redundant to write a ‘feminist judgment’ in the case of Doogan, given that the original Supreme Court judgment was delivered by Baroness Hale of Richmond, who herself identifies as a feminist judge.1 1 B Hale, ‘Foreword’ in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010).

330  Mary Neal The ­original judgment missed the opportunity for a feminist analysis, however. Crucially, Lady Hale decided to regard the central question in the case (which she insisted is ‘the only question’) as ‘a pure question of statutory construction’.2 By choosing to understand her task in this way, as what Rosemary Hunter has described as a ‘dry technical matter’, Lady Hale preferred a type of approach in which it was difficult to bring ‘a gender-sensitive analysis’ to bear.3 Such a ‘nose-to-statute’ approach declines to engage with quintessentially ­feminist priorities like relationship, care, context and power; as such, it offers scant opportunity for truly feminist judging. It does leave room, however, for an alternative judgment in which considerations about gender are to the fore. In aiming to be the latter sort of judgment, Lady Ganguli-Postan’s analysis of the case seizes a missed opportunity, and it is important to welcome it on that basis alone, before turning to reflect on how successfully it achieves its aim. Lady Ganguli-Postan’s judgment leads the reader through the issues raised by this case lucidly and methodically. Most importantly, it adopts a much more contextual approach to statutory construction than the original judgment, looking beyond the text of the Act and engaging in a more purposive exercise. There is much to praise in the alternative judgment. For example, its acknowledgment of the historical context of the Act (including the particular patriarchal norms of the time) is very welcome, as is its explicit recognition that the case requires us to undertake a balancing of important interests. Inevitably where such a controversial case is concerned, however, there are points on which I would disagree with Lady Ganguli-Postan’s interpretation of the issues. It is to these that I will turn now.

Analysis On the central issue of whether section 4 should be interpreted to include the kind of activity in which the midwives were expected to engage, her Ladyship favours a narrow interpretation on both principled and policy grounds. (i) In terms of principle, she reasons that tasks of ‘delegating, supervising and supporting’ are ‘considerably removed from the process of termination itself ’ and, in fact, ‘so causally remote from the core activity that the very engagement of conscience becomes implausible’ (paragraph 38); but this type of argument is vulnerable in two ways. First, it is by no means clear that delegating, supervising and supporting are causally remote from the process. They seem obviously part of it. Would we say that a consultant who has overall charge of a patient’s care was ‘causally remote’ from the treatment process, because many of the

2 Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68, para 33. 3 R Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119, 134.

Commentary on Greater Glasgow Health Board v Doogan  331 individual acts of treatment were being carried out by others? If we would not, then Lady Ganguli-Postan may err when she says that interpreting ‘treatment’ so as to include delegation, supervision and support represents a significant departure from ‘ordinary usage’ (paragraph 20). There is also at least a superficial tension in simultaneously claiming both that these activities are ‘causally remote’ from the abortion process and that not performing them puts the successful functioning of the process in jeopardy (see discussion below). Moreover, delegation, supervision and support are certainly not morally neutral activities. This matters because the only logical purpose of a conscience clause like section 4 is to protect individuals from having to participate in activity that they regard as seriously immoral.4 ‘Delegation’ means directing someone else to act on my behalf. If I delegate someone to act immorally, is my role really too remote to be culpable? (Here, we are not allowed to assume that terminating a pregnancy is not an immoral act, since that is precisely the point of view that the conscience clause is designed to accommodate.) ‘Supervision’ involves overseeing the actions of others with an interest in those actions being carried out successfully; again, this is not morally neutral. And the non-neutrality of ‘support’ must be self-evident. As I have argued elsewhere, all of this is starkly apparent when the central activity is obviously immoral; we readily acknowledge that those who had indirect, ‘purely administrative’ roles in genocide, for example, are morally culpable.5 In the context of abortion, then, we should be prepared to recognise that those whose contribution takes the form of ‘delegation, supervision and support’ are not too remote to share in culpability (if we take the same view of abortion as these midwives) or credit (if we regard abortion as vital healthcare and its availability as essential for women’s equality and bodily autonomy). Insofar as it relies on the idea that only those activities that were made lawful by the 1967 Act can be regarded as covered by the exemption in section 4, this stage of the judgment also imports some of the problematic reasoning in the original judgment: I have criticised this thoroughly elsewhere,6 and so will not address it further here. (ii) In terms of policy, Lady Ganguli-Postan worries about the impact of a wide reading on access to ‘timely, non-judgemental and supportive care’ (paragraph 39), and makes the separate point that a wide reading of section 4 might also be expressively harmful, by ‘fail[ing] to demonstrate appropriate respect for the rights and interests of women and their reproductive freedoms’ (paragraph 41). This part of the judgment is admirably purposive in its approach. Yet here, too, the reasoning is open to question. For one thing, having correctly identified that we are dealing with a balancing of important interests (paragraph 37), the judgment seems to assume the primacy of the interest in protecting/promoting ‘reproductive liberty’ 4 M Neal, ‘When Conscience isn’t Clear: Greater Glasgow Health Board v Doogan and Another [2014] UKSC 68’ (2015) 23 Medical Law Review 668, 678. 5 ibid 679. 6 ibid.

332  Mary Neal over the interest in protecting conscience, presupposing an answer to the question of how they ought to be balanced without really arguing for it. Of decisive importance here – and I hope I am not misinterpreting Lady Ganguli-Postan – seems to be what is said to be the Abortion Act 1967’s ‘core function … of supporting reproductive autonomy and protecting the interests of women in accessing safe and lawful abortions’ (paragraph 37). But surely this is to cast in a very sympathetic modern light the ‘core function’ of a statute passed when ‘patriarchal norms [were] entrenched in British society’ (paragraph 13)? I suspect that ideas like ‘reproductive autonomy’ and ‘reproductive liberty’ were unknown to legislators in 1967, and that, although the Act was progressive for its time, it is a stretch to regard it as enshrining these ideals at all, let alone as seeking to prioritise such interests over the statutory right to conscientious objection in section 4 (the only right the Act does enshrine). Thus, I would question the ‘purpose’ underpinning Lady Ganguli-Postan’s purposive approach. In addition, I worry that the approach seems to ignore the purpose of the section specifically under interpretation in this case. I have already claimed that the only logical purpose of a provision like section 4 is to protect individual professionals from having to participate in what they regard as immoral activity. Surely this ought to be to the fore in any purposive approach? If it were, it would seem to weigh in favour of protecting any activity that involves moral responsibility, which in my view can include delegation, supervision and support. I do not suggest that this would be decisive, but simply that it would form the basis for a quite different sort of balancing exercise than one in which the primacy of one side of the balance is assumed. As a matter of interpretation, Lady Ganguli-Postan argues that, in the wording of section 4, we ought to approach the meaning of the terms ‘participation’ and ‘treatment’ separately, for two reasons. First, because ‘there are separate lines of authority in law for how each should be interpreted’, and second, because in her view, the meaning of ‘treatment’ can be determined independently of the protection of individual conscience, whereas the meaning of ‘participation’ cannot ­(paragraph 19). The first point is very well made, but I am less persuaded by the second, because it seems to me that deliberations about what constitutes ‘treatment’ can illuminate the issue of conscientious objection very helpfully. Specifically, I have argued recently that understanding the category of ‘proper medical treatment’ as a spectrum, rather than as a flat, undifferentiated landscape, allows us to distinguish a category of treatment which, while still lawful and ‘proper’, is an appropriate context for conscientious objection.7 There is no space to rehearse that argument here, and I mention it simply to note that investigations into the meaning of ‘treatment’ can be part of the process of establishing and circumscribing conscience rights in healthcare. 7 M Neal, ‘Conscientious Objection, “Proper Medical Treatment” and Professionalism: The Limits of Accommodation for Conscience in Healthcare’ in J Adenitire (ed), Religious Beliefs and Conscientious Exemptions in a Liberal State (Oxford, Hart Publishing, 2019).

Commentary on Greater Glasgow Health Board v Doogan  333

Conclusion Whatever my disagreement with Lady Ganguli-Postan on particular points, this is undoubtedly a vividly feminist judgment in which considerations of gender and relationship are strongly emphasised. This is evident throughout, but examples include the consideration of the potential impact of each of the possible interpretations of section 4 upon working relationships and morale (paragraph 43), and the insightful exposition in the final paragraph of how the professional who seeks to benefit from the protection of section 4 might not be ‘the objector whom legislators had in mind’ in 1967 (the relatively powerful male surgeon), but rather a woman who is ‘lower in [the] hospital hierarchy’ and who might herself be vulnerable, therefore, in seeking to depart from professional norms (paragraph 46). In her brief discussion of ‘articulation’, too, her Ladyship demonstrates a concern for relationships: this time, the relationships between the objector, the profession and the wider moral community (paragraph 40). That it sparks so much critical engagement must, ultimately, be seen as a strength of the judgment, not a shortcoming. The facts of the Doogan case inevitably raise a number of profound and controversial legal, ethical and social questions, and a judge committed to contextual judging will be unable to discover answers that do not invite further engagement and reflection. While I agree with some points of Lady Ganguli-Postan’s analysis and disagree with others, then, I warmly applaud the clarity and contextual awareness of her approach.

Reflective Statement: Greater Glasgow Health Board v Doogan AGOMONI GANGULI-MITRA AND EMILY POSTAN

The case in relation to which we have contributed a feminist judgment – Greater Glasgow Health Board v Doogan and another (Scotland) – eventually reached the UK Supreme Court, where Lady Hale delivered the only judgment, in favour of the employers, with which the remaining four Lords concurred. In this feminist judgment, we replace the fourth judge, Lord Hodge. It was a particularly difficult and humbling task to revisit a judgment delivered by a judge known for her commitment to feminism, equality and diversity. We were conscious that a Supreme Court ruling on such the controversial and socially divisive topic would have required of Lady Hale the delicate balancing act of avoiding language or reasoning that could be perceived as politically inflammatory or lacking neutrality. We were inspired by the fact that, despite such constraints, she reasoned in favour of a narrower scope for conscientious objection – and therefore, we believe, achieved an outcome that contributes to enhanced gender equality. Without the burden or benefit of being Supreme Court judges, we have taken the opportunity in this project, however, to rewrite the judgment in a manner that is more overtly feminist. While we broadly agree with the outcome of Lady Hale’s judgment, we depart from her reasoning in several ways. Our approach to this case begins with the assumption that a feminist approach to law – not only statutes and case law, but also broader legal culture – is particularly sensitive to the norms, processes and structures that influence the development, interpretation, and application of legislation. We felt that it would be within the remit of a feminist Supreme Court judgment to aim – to the extent possible within the confines of legal structures – at redressing structural injustice and gender inequality. Specifically, we viewed this as an opportunity to highlight the obstacles, both practical and cultural, that the current law governing abortion in the UK may place in the path of women wishing to access termination. As Sally Sheldon has argued, the 1967 Abortion Act is not a particularly permissive piece of legislation, nor was its original aim that of enhancing women’s reproductive autonomy. Motivation for reform did arise in part from concerns about maternal mortality (from unregulated abortions) and the unequal impacts of existing laws (with those who could afford accessing abortions through the

Reflective Statement: Greater Glasgow Health Board v Doogan  335 private sector). But its aim was also to protect members of the medical profession from prosecution and remove uncertainty about which procedures were lawful.1 And, for the most part, the Act succeeded in giving greater power to the medical profession, granting it both moral authority and control over who could access terminations, and how these were carried out.2 In writing our judgment, we have been sensitive to this historical context. It has provided us with one incentive for interpreting the legislation in a way that would address the missed opportunities of the 1967 reforms. A further key incentive was provided by evidence from other jurisdictions in which abortion is legal, but where, in practice, safe and timely access is increasingly curtailed or even negated by healthcare professionals exercising conscience-based objections.3 In the UK, the 1967 Act was a landmark piece of legislation, which was met with political resistance and fraught with professional rivalries and competing interests, aims and objectives.4 Reflecting on the origins of the Act today, it seems that opportunities to uphold social justice were missed in favour of protecting the profession. In light of this, we have argued that the 1967 Act should be interpreted in terms of the chief function that it now fulfils: that of permitting women to access safe and lawful terminations in healthcare settings.5 There is no single definition of structural injustice. This judgment is primarily inspired by Iris Marion Young’s account of it as ‘produced and reproduced by thousands or millions of persons usually acting within institutional rules and according to practices that most people regard as morally acceptable’.6 Social structures constrain all individuals, but it is the way in which they constrain some while enabling others that is the particular focus of our analysis of what justice looks like in this case.7 In writing our judgment, we were conscious of the need to move away from legislative interpretations that run the risk of reproducing the processes and structures in society that allow some to flourish while others are oppressed. For this reason, we approached the task of defining the scope of permitted conscientious objection under the 1967 Act with the aim of enabling, rather than further restricting access to, what is for women both a critical health service and a key means of exercising reproductive choice.

1 S Sheldon, Beyond Control: Medical Power and Abortion Law (London, Pluto Press, 1997) 14. 2 ibid 27. 3 M Truong and SY Wood, Unconscionable: When Providers Deny Abortion Care (New York, International Women’s Health Coalition and Mujer Y Salud En Urugua, 2018), available at: iwhc.org/ wp-content/uploads/2018/06/IWHC_CO_Report-Web_single_pg.pdf. 4 S McGuinness and M Thomson, ‘Medicine and Abortion Law: Complicating the Reforming Profession’ (2015) 23 Medical Law Review 177. 5 S Harmon, ‘Abortion and Conscientious Objection: Doogan – A Missed Opportunity for an Instructive Rights-based Analysis’ (2016) 16 Medical Law International 143. 6 I Young, Responsibility for Justice (New York, Oxford University Press, 2011) 5. 7 I Young, ‘Responsibility and Global Justice: A Social Connection Model’ (2006) 23 Social ­Philosophy and Policy 102, 114.

336  Agomoni Ganguli-Mitra and Emily Postan While Lady Hale’s judgment also acts to limit the scope of the consciencebased exemptions, in seeking to address structural injustice, our judgment departs from hers in four key ways. First, in interpreting the scope of healthcare professionals’ legal entitlement to object on grounds of conscience to participating in the treatment of women undergoing abortions, we have departed from the strict textual approach adopted by Lady Hale. Instead, we have looked more widely to the role of this exemption within the Abortion Act 1967 and how it ought to be interpreted and operate given the function that this statute serves today. In doing so, we have interpreted the legislation in a way that depends not solely on Parliament’s intention at the time of legislating, but upon the role it fulfils as it continues to speak.8 Secondly, in characterising this role, we have looked to shifting social norms and have introduced a human rights analysis that focuses on the protection of reproductive autonomy and access to abortion services (where provided) as facets of states’ positive obligations under the Article 8 right to respect for private life.9 Thirdly, we have brought to the fore a category of interests absent from Lady Hale’s judgment and those of the lower courts, namely, those of women seeking and undergoing abortions. Finally, we have paid heed to the expressive function of law. In doing so, we have recognised the power of a Supreme Court judgment to communicate the commitment of the state to the provision of safe and accessible abortion, and the risk that permitting a broad scope of conscience-based exemptions under the Abortion Act may undermine that commitment. Thus, we have paid particular attention to the potential practical and expressive impacts on access to termination of a narrow versus wide interpretation of the exemptions permitted under the conscience clause. We have sought to highlight that it does not represent a free-standing right so much as a concession that is necessarily delimited by the imperative that the Act continues to deliver its valuable functions: those of protecting the reproductive autonomy of women seeking abortion, and the avoidance of distress, stigma and threats to their health. This judgment does not reflect a straightforward balancing exercise. We have appealed to the ideas of proximity (to the objected-to activity) and articulation (of the grounds for objection) in seeking to characterise when conscientious objections are sufficiently plausible to engage the protections afforded to them in law. The result of this has been a judgment that does not afford healthcare professionals’ interests in protecting their consciences equal weight to the interests of women seeking or undergoing abortions, but which does not deny protection to the consciences of healthcare professionals either.



8 A

Barak, Purposive Interpretation in Law (Princeton, NJ, Princeton University Press, 2007).

9 Evans v United Kingdom (6339/05) [2007] ECHR 264; Tysiąc v Poland (5410/03) [2007] ECHR 219.

Reflective Statement: Greater Glasgow Health Board v Doogan  337 Co-authoring a judgment presents its own challenges. However, in this instance, where neither of us are legal scholars, we have found the process of engaging with the law together – from the perspective of ethicists unaccustomed to the restrictions and unexpected freedoms that legal writing brings – a rewarding experience. The advice of the editors and colleagues who gave up their time to give us feedback was an invaluable source of support and inspiration for our contribution to this project.

338

part iv Citizenship, Culture and Protection

340

16 Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session Reclaiming Motion of Helen Johnson against Refusal of Judicial Review by Outer House Inner House, Court of Session Opinion of the Court, delivered by Lady Loughran 9 May 2005 This is a reclaiming motion brought against the decision of the temporary Lord Ordinary to refuse an application for judicial review of a decision of the Immigration Appeal Tribunal (IAT) in relation to appeals under sections 65 and 69 of the Immigration and Asylum Act 1999. After marking the reclaiming motion, counsel for the petitioner withdrew the concession made before the Lord Ordinary that no challenge could be made to the adjudicator’s findings on credibility. The petitioner sought, and was allowed, to amend the petition to include such a challenge. Thus, the grounds of appeal now before us reflect that change. As we are concerned here only with issues of law, we have determined to consider all the issues now focused in the petition, rather than remitting the matter to the Lord Ordinary. Ms Johnson claimed asylum in the United Kingdom under the 1951 Refugee Convention (the Refugee Convention) based on fear of persecution on the grounds of religion (Christianity) and race (Kabala tribe) if she returned to Sierra Leone. Ms Johnson’s two minor daughters were dependants upon their mother’s claim. All three are citizens of Sierra Leone. Ms Johnson also lodged a concurrent human rights claim based on the fear that she and her daughters faced breaches of fundamental human rights in terms of Articles 2, 3, 8 and 14 of the European Convention on Human Rights 1950 (ECHR). A series of decisions in relation to those claims have led to the reclaiming motion before us today, and it is necessary to summarise them briefly here.

342  Nicola Loughran The Secretary of State’s Decision In a letter dated 5 December 2002, the Secretary of State for the Home Department refused Ms Johnson’s asylum and human rights claims. The reasons given for this, as laid out by the Lord Ordinary, included: 1. There was no evidence to support that being a Christian is in itself sufficient to demonstrate a well-founded fear of persecution by the authorities in Sierra Leone. 2. The Sierra Leonean Constitution provided protection against discrimination on the basis of race and ethnicity. 3. The specific claims of the petitioner were implausible, for example, ‘if the soldiers were interested in her husband because he was the leader of a men’s Christian prayer group then they would surely have arrested the petitioner at the same time as she allegedly held a similar position’. Ms Johnson appealed this decision to the Immigration Appellate Authority. The asylum and human rights appeals were first heard before an immigration adjudicator on 9 May 2003. Shortly before that hearing, Ms Johnson lodged a supplementary statement dated 6 May 2003 stating that another reason for fearing return to Sierra Leone was that her two minor daughters would be expected by custom to undergo circumcision. This supplementary statement, therefore, contained a further ground for seeking refugee protection – that of membership of a particular social group (PSG). The PSG was females at risk of Female Genital Mutilation (FGM) in Sierra Leone. The Adjudicator’s Determination The immigration adjudicator, by determination promulgated on 20 May 2003, dismissed both asylum and human rights appeals. The reasons are recounted briefly by the Lord Ordinary. The adjudicator found the petitioner not to be credible. He did not believe her account of how she came to leave Sierra Leone to come to the United Kingdom, which he described as ‘incredible’ and a ‘fabrication’. He did not believe Ms Johnson that she feared return to Sierra Leone because her two daughters would be expected to undergo circumcision. The Lord Ordinary recounts: ‘He [the adjudicator] thought that, if that was the case, she would have mentioned it well before she did so in her supplementary statement of 6 May 2003’. In response, Ms Johnson lodged an application for leave to appeal against the decision of the immigration adjudicator to the IAT. Application for Leave to Appeal to the IAT The two grounds tabled in Ms Johnson’s application for leave to appeal to the IAT under sections 65 and 69 of the Immigration and Asylum Act 1999 were, as set out by the Lord Ordinary: 1. ‘[A]according to the CIPU [Country Information and Policy Unit] Report, perhaps 90% of females in Sierra Leone undergo female genital mutilation

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  343 (“FGM”), which is practised by almost all ethnic groups’. Therefore, ‘there was a real risk that the petitioner’s daughters would undergo FGM and “harsh and degrading treatment or punishment”’. 2. ‘… it was unduly harsh for the petitioner to have to relocate to Freetown as she was from Kabala in the north of Sierra Leone. There were difficulties in gaining access to Kabala because of the current security situation’. Decision of the IAT and Outer House The IAT refused permission to appeal against the decision by the adjudicator of the IAT. The reasons the IAT did not grant permission to appeal, as set out by the Lord Ordinary, were: [T]he adjudicator had carefully considered the claimant’s account, which he did not find to be credible, and it was therefore not necessary for him to consider whether the claimant could relocate elsewhere. The grounds of appeal did not identify any errors in the determination which could form the basis of an appeal with any prospect of success. Ms Johnson then brought an application for judicial review before the Outer House of the Court of Session, against the decision of the IAT to refuse her leave to appeal against the asylum adjudicator. The Lord Ordinary refused her application for judicial review. Before us now is a reclaiming motion against that decision. In considering this application, I should make it clear that this court has had the benefit of certain detailed authorities and objective evidence that were not presented before the Lord Ordinary. In addition, since the Lord Ordinary considered the application for judicial review, a motion to amend the petition has been lodged and granted, which withdraws the concession on credibility and includes a challenge to the adjudicator’s findings thereon. It is incumbent upon us, therefore, both to evaluate the arguments that were initially put before the Lord Ordinary and to consider the basis upon which credibility was assessed, and found to be wanting, by the adjudicator. Although the decision under challenge in this petition is that of the IAT, the nature and extent of any errors of law on the part of the adjudicator are what inform consideration as to whether or not the IAT erred in law in refusing leave to appeal against his decision. Arguments for the Petitioner before the Lord Ordinary In her original application for judicial review, the petitioner raised two grounds of appeal: a challenge based on the Refugee Convention; and a challenge on the grounds of human rights. 1. Refugee Convention Challenge The first ground, as set out by the Lord Ordinary, was a challenge under the Refugee Convention: [I]n reaching his decision the adjudicator failed properly to exercise his jurisdiction or take into account all relevant and material considerations … he had

344  Nicola Loughran failed to consider whether as young girls in Sierra Leone society, the daughters were members of a PSG which was at a real and substantial risk, or subject to a real likelihood of being subjected to FGM and whether the petitioner was unwilling to avail herself of the protection of Sierra Leone owing to a wellfounded fear of her daughters being persecuted for reasons of membership of a particular social group (Article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees). It was conceded by counsel for the petitioner that because the Lord Ordinary could not reconsider findings of fact, he was not in a position to take issue with the adjudicator’s finding on the credibility of the petitioner, but he maintained that it was irrelevant that the adjudicator had held her account to be untrue. Although [the adjudicator] had disbelieved her account, there still remained a reasonable likelihood of a fear of persecution. This submission was based upon the findings of the adjudicator at paragraph 20 of his determination, which is in the following terms: ‘Female Genital Mutilation is widely practised on all levels of society, although with varying frequencies. FGM is practised by almost all of Sierra Leone’s ethnic groups and there is no law prohibiting it. Secret societies in Sierra Leone opposed international efforts aimed at ending FGM. Such groups see FGM as a right [sic] of passage, and support the practice on cultural grounds since usually FGM is conducted at puberty in mass ceremonies in the bush’ (emphasis added). The Secretary of State responded that the petitioner’s challenge was misconceived since ‘it did indeed follow from the adverse finding by the adjudicator on the credibility of the petitioner that there was no basis for saying that her daughters would be at risk of persecution’. The Lord Ordinary gave his opinion on the first ground of challenge in no uncertain terms: In my opinion this first ground of challenge is completely misconceived and wholly without merit. Under article 1A(2) of the Refugee Convention a well-founded fear of being persecuted must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The adjudicator rejected the evidence of the petitioner that she and her family were discriminated against because they were Christian and his findings at paragraph 20, far from suggesting that FGM is a practice directed against a particular religion or social group, make clear that it is a lawful practice which is engaged in by almost all of Sierra Leone’s ethnic groups. Accordingly, on no conceivable view could it be said that the practice of FGM is capable of being a reason for persecution (emphasis added).

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  345 With respect, this court finds such reasoning for dismissing the first ground of challenge in terms of Article 1A(2) of the Refugee Convention flawed for the following three reasons: 1. The Persecution Claim and the Refugee Convention Ground The Lord Ordinary correctly started his analysis by stating that a claim under the Refugee Convention must be by reason of one of five grounds. The Lord Ordinary then emphasised that the adjudicator rejected the claim of persecution on the ground of religion and found that FGM was a lawful practice engaged in by almost all of Sierra Leone’s ethnic groups. In our view, he erred, however, in reaching the conclusion that ‘on no conceivable view could it be said that the practice of FGM is capable of being a reason for persecution’. First, the fact that a practice is lawful, and widely endorsed, does not mean that it can never be persecutory (UNHCR Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the Refugee Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002, page 3, paragraph 10). Secondly, the Lord Ordinary appears to have overlooked the ground of PSG on the basis of gender. Thirdly, his approach seems to have inappropriately conflated the type and ground of persecution claimed by Helen Johnson with those of her children. The grounds of persecution – that is, the reasons Helen Johnson feared persecution – are clear: religion (Christianity); and ethnicity (Kabala tribe). The type of persecutory harm that Ms Johnson feared is, however, not quite so clear; there is very little information recorded in the foregoing decisions on the specific type of harm she feared – outwith the very short ‘factual background’ provided by the Lord Ordinary: The petitioner lived with her husband and two daughters in Sierra Leone. She is a member of the Kabala tribe. She and her husband are Christians. According to her account, she was the leader of a women’s Christian prayer group and her husband was a leader of a men’s Christian prayer group. Her husband had been warned to stop preaching. On 5 October 2002 soldiers broke into her house, beat up her husband and abducted him. The inclusion of Articles 2 (right to life) and 3 (torture, or inhumane or degrading treatment) under the ECHR appeal suggests that Ms Johnson feared losing her life or being subject to similar extreme violence as that claimed to have been suffered by her husband, for the same racial and religious reasons, including the claim that Ms Johnson and her husband had prayed and preached against the practice of FGM. By contrast, the type of harm feared by Ms Johnson’s daughters was FGM, as carried out on females in Sierra Leone, and the ground of persecution was PSG. While Ms

346  Nicola Loughran Johnson’s asylum claim was based on the grounds of religion and e­ thnicity, her daughters’ were based, not on their race or religion, but their gender (ie, PSG), with the harm faced being specifically that of FGM. 2. Corroboration The Lord Ordinary upheld the submission made on behalf of the Secretary of State that ‘[the adjudicator’s] adverse finding on credibility affected not only her [Ms Johnson’s] asylum case but also her ECHR case’. The reasons the Lord O ­ rdinary gave for dismissing her human rights challenge included that she had not established a real risk of a breach of Article 3 (that circumcision would be carried out upon her daughters against her wishes) – ‘because the only evidence on that point came from her and that evidence had been disbelieved by the adjudicator’. It is, of course, well known that there is no requirement for corroboration of evidence in asylum appeals. The statement of the appellant is evidence (Kasolo HX-70731-95 v Secretary of State for the Home Department (01/04/96) (TH/13190)). However, the claimed risk of FGM to the daughters was not in fact based solely on the assertion of Ms Johnson, whose evidence was rejected by the adjudicator. The risk was strongly corroborated by the objective evidence before the adjudicator and IAT. It was referred to also in submissions made to the Lord Ordinary. In fact, the objective evidence referred to emanated from the Home Office’s own Country Information and Policy Unit: ‘according to the CIPU Report, perhaps 90% of females in Sierra Leone undergo female genital mutilation (“FGM”), which is practised by almost all ethnic groups’ (as submitted by the petitioner, recounted by the Lord Ordinary). Thus, there was, in our view, ample evidence, and indeed objective corroboration, to support the petitioner’s claim that her daughters faced a real risk of FGM if returned to Sierra Leone. 3. Evidence Assessed on the Applicable Standard of Proof This evidence of FGM being practised legally in Sierra Leone across all ethnic and religious groups was indeed accepted by the adjudicator. Thus, it was not only uncontested, but significant and compelling – suggesting a prima facie objective risk of FGM directed against almost all females in Sierra Leone. This meets, and in our view indeed exceeds, the low standard of proof in asylum appeals – that of the reasonable degree of likelihood (R v Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined Appeals (UN High Commissioner for Refugees Intervening) [1988] AC 958. It is somewhat challenging, therefore, to unravel the rationale behind the Lord Ordinary’s conclusion that ‘on no conceivable view could it be said that the practice of FGM is capable of being a reason for persecution’ (emphasis added). If FGM is ‘lawful’ then there can be no prospect of legal protection against it in  advance of it being carried out. There is, therefore, prima facie, no state

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  347 ­ rotection. Indeed, one could argue that the absence of state protection amounts p to de facto state ‘collusion’. Nor could there be legal redress after the event. As this lawful practice is one which, it has been accepted, is engaged in by almost all of Sierra Leone’s ethnic groups, then ipso facto, it is also one carried out upon almost all of Sierra Leone’s females. The reason for persecution in the form of FGM, therefore, is gender, not ethnic group, or religion, bringing it within the Refugee Convention ground of PSG. The challenge brought before the Lord Ordinary was made on the basis that the adjudicator had failed to consider whether, as young girls in Sierra Leone society, the daughters were members of a PSG, on the basis of gender. It is difficult to discern from the Opinion of the Lord Ordinary to what extent the concept of gender-based persecution was expanded upon in the submission before him. He does not consider whether the persecution allegedly faced by Ms Johnson and her daughters could be based on gender, and therefore be persecution based on membership of a PSG. It is not clear why he did not do so, given the terms in which the challenge was formulated. FGM as Gender-Based PSG Persecution: International Law That gender can constitute a PSG in terms of the Refugee Convention has been established in domestic jurisprudence since at least the leading authority of Shah and Islam (AP) v Secretary of State for the Home Department; Regina v Immigration Appeal Tribunal and Another ex parte Shah (AP) (Conjoined Appeals) [1999] UKHL 20. Furthermore, FGM as the basis of a refugee claim has been recognised by the UN High Commissioner for Refugees since at least 1996: ‘FGM has been acknowledged as a form of human rights abuse, and its threat or forcible imposition can amount to persecution. Therefore, a woman can be considered a refugee if she or her daughters feel they are being compelled to undergo FGM’ (UNHCR Division of International Protection Services, draft general legal advice, Geneva, 21 February 1996). Finally, the fact that FGM is capable of constituting persecution, and females fearing FGM are capable of forming a PSG for the purposes of the Refugee Convention has also been recognised by nation states worldwide, including in the Commonwealth. In 1997, the Australian Refugee Review Tribunal allowed the asylum appeal of a mother and daughter, citizens of Nigeria, who feared infibulation [N97/19046 (16  October 1997)]. In 2000, it also allowed the asylum appeal of a Sudanese woman who had undergone an operation in Australia to repair the damage done by infibulation and who would be under pressure to undergo re-infibulation on return to Sudan [V98/09568 (27 June 2000)]. The Canadian Immigration and Refugee Board, in 2001, allowed the appeal of a Guinean woman whose two daughters feared FGM, finding that they were members of a PSG (women) because the evidence showed that there was ‘more

348  Nicola Loughran than a mere possibility that their genitalia would be mutilated against their will if they had to return to Guinea’ [X v Canada (Immigration and Refugee Board), 2001 CanLII 26898 (CA IRB) dated 18 December 2001, file number: CRDD MA1-00356; MAI00357; MAI-00358, page 4]. The United States Board of Immigration Appeals (BIA) in the case of Re Fauziya Kasinga 21 I & N Dec 357 (US BIA 1996) set the precedent in that continent that FGM or FGS (Female Genital Surgeries) constitute serious harm consistent with their past definitions of persecution (paragraph 20). Asylum was granted to a seventeen-year-old citizen of Togo, whom the BIA found was a member of a social group consisting of young women of the Tchamba-Kunsuntu tribe who have not had FGM. I shall return to Kasinga below, when considering the reasons for the Lord Ordinary’s dismissal of Ms Johnson’s challenge under the ECHR. FGM as Gender-Based PSG Persecution: UK Law The UK Home Office Asylum Directorate Instructions to caseworkers, issued in July 1998, state that acts including genital mutilation, when committed or sanctioned by officials, ‘would probably always constitute torture’ (chapter 3, paragraph 2.1). However, an analysis of decisions reported by the UK Asylum and Immigration Tribunal involving females fleeing FGM and claiming persecution on the basis of membership of a PSG so far reveals a mixed approach. Females fleeing FGM were accepted as constituting members of a PSG under the Refugee Convention by the UK Tribunal in 2000 – Acka Celine Yake 00TH00493/ HX-73331-98 (heard 22 September 1999; notified 19 January 2000). There is also Court of Appeal authority in the UK allowing an FGM-based asylum appeal (‘P’ and ‘M’ v Secretary of State for the Home Department [2004] EWCA Civ 1640). Here, the Court of Appeal warned that ‘[t]here is a real danger of an overly technical approach being adopted to the application of the Refugee Convention’ (paragraph 48). Finally, there is precedent for the Home Office conceding FGM-based appeals before the UK IAT in terms of Article 3 of the ECHR, and, with regard to Sierra Leone, Re RM Sierra Leone v Secretary of State for the Home Department [2004] UKIAT 00108 (notified 17/05/2004). On the other hand, there are several reported IAT decisions dismissing FGM appeals based on the Refugee Convention. An analysis of reported case law reveals four main reasons why such cases appear to have failed. First, to be granted refugee status, it is necessary for those claiming FGM to show both that they have a well-founded fear of persecution, and that the persecution is for a Convention reason – here, membership of a PSG. It has proven difficult for those claiming FGM to show both of these things without defining the PSG

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  349 by reference to the type of persecution itself, thereby eliding the two strands of the test (see Shah and Islam). Many IAT decisions have refused to uphold asylum appeals based on a ‘particular social group’ of females because the actual group of females at risk could only be identified by reference to those who feared FGM (re, eg, Mohamed Elkhair Hashim & 5 [2002] UKIAT 02691; later reported as MH (Art 3 FGM) CG [2002] 02691); Re RM Sierra Leone. Courts have refused to accept that the risk of FGM being carried out is real and well founded, perhaps because an internal flight option exists (RM (sufficiency of protection–IFA–FGM) Kenya CG [2004] UKIAT 00022); and internal flight has been deemed not be ‘unduly harsh’ (Lucy Njeri_[2002] UKIAT 08114 and NK (FGM – Cameroon) [2004] UKIAT 00247); or because of the age of the appellant (Edwige Arma Mouchy [2002] UKIAT 01348). In other cases, claimants have failed to establish that their own state authorities are unable or unwilling to provide protection, as in Ikossie [2002] UKIAT 04437; or that a sufficiency of protection and an internal flight option exists, as in Julia Wanguru Muchomba [2002] UKIAT 01348. For these reasons, it has proven challenging for females fleeing FGM in their own countries of origin and nationality to secure protection abroad under the Refugee Convention, but it is not unprecedented; indeed, there are clear examples of cases, as cited, being upheld on the basis of gendered harm, on the ground of PSG. 2. The Human Rights Challenge Ms Johnson argued that, if returned to Sierra Leone, her daughters would be at risk of FGM, thereby breaching their rights under Article 3 of the ECHR. Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Ms Johnson began the challenge to the dismissal of her human rights appeal before the Lord Ordinary by referring to a similar point to that made in support of the Refugee Convention challenge – that the adjudicator ‘had failed to consider whether her daughters would be subjected to inhuman or degrading treatment in the form of FGM if returned to Sierra Leone’. It was emphasised by counsel for Ms Johnson that, for a human rights-based claim, there was no need to establish a well-founded fear of persecution, ie, for reason of one of the five Refugee Convention grounds. Thus, the issue was simply the likelihood that FGM would be carried out: ‘There could be a breach of Article 3 if the petitioner were returned to a country where the practice of FGM was prevalent and her daughters were at risk of being subjected to it’. Counsel also argued by reference to the adjudicator’s findings that: ‘there was ample evidence to satisfy him that there was a real risk or a reasonable likelihood of a breach of Article 3 in respect of the genital mutilation of the daughters were they to be returned to Sierra Leone’. The error on the part of the adjudicator was, therefore, that ‘he had failed

350  Nicola Loughran properly to apply his mind to the question which arose for consideration under article 3 of the ECHR’. The Lord Ordinary was referred to two decisions of the IAT to support Ms ­Johnson’s challenge. The first was Hashim v Secretary of State for the Home Department [2002] UKIAT 02691. This appeal was allowed in terms of Article 3 ECHR because the daughter of the family was found to be of an age that, if returned to Sudan, she would face being forcibly circumcised. It was noted by the Lord Ordinary that the IAT was correct here in emphasising that the parents in this case ‘were opposed to FGM and there was a risk of the daughter being subjected to it by force’. The second case cited by the Petitioner before the Lord Ordinary was Re RM Sierra Leone. The facts of that case are similar to the one before us in that the female appellant was from Sierra Leone and claimed to have a well-founded fear of persecution as a result of membership of a PSG, namely, a female who is expected to undergo FGM. The Lord Ordinary recorded that the IAT dismissed the asylum appeal of RM, holding that the appellant had not established membership of a PSG within the meaning of Article 1A(2) of the Refugee Convention. However, he also noted that, although the adjudicator went on also to dismiss the Article 3 claims, the representative of the Secretary of State at the IAT hearing announced he was granting the appellant three years’ humanitarian protection, and was therefore conceding that there would not be sufficient protection for her if she were to be removed to Sierra Leone. In response to these arguments by counsel for Ms Johnson, the Secretary of State maintained that there was no evidence before the adjudicator in the present case to establish that the Article 3 rights of the petitioner and her daughters would be infringed if returned to Sierra Leone. I recount here the Secretary of State’s reasoning at length, as his argument was upheld by Lord Ordinary. He stated that (1) ‘once the adjudicator had rejected the evidence of the petitioner about FGM, the only evidence about FGM which was before the adjudicator consisted of the relevant passages in the CIPU Report’; (2) that the practice of FGM would infringe Article 3 ‘only where the intended victim (in the case of an adult) or the parents of the intended victim (in the case of a child) objected – in other words, where FGM was going to be carried out forcibly’; and (3) that ‘Nothing was said in the CIPU Report about forcible circumcision of adults or the inability of parents to prevent it being carried out upon their children. The key issue was not the widespread practice of FGM, it was whether the practice was likely to be carried out forcibly or not’ (emphasis added). Further, the Secretary of State argued that the cases of Hashim and RM were of no assistance to the petitioner because: ‘To engage Article 3 in this case the petitioner would require to establish that there was a real risk of circumcision of her daughters being carried out against her wishes. She had not established such a real risk

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  351 because the only evidence on the point came from her and that evidence had been disbelieved by the adjudicator. His adverse finding on credibility affected not only her asylum case but also her ECHR case’ (emphasis added). Accepting these submissions by the Secretary of State, the Lord Ordinary found in favour of the respondent and concluded that: In order to engage Article 3 of the ECHR it is not sufficient for the petitioner to show that if she and her daughters were returned to Sierra Leone there is a real risk that her daughters would be subject to female circumcision. The Lord Ordinary also held that, since the adjudicator had rejected the petitioner’s evidence about FGM: ‘the only finding is that FGM is widely practised on all levels of society by almost all of Sierra Leone’s ethnic groups and that the practice is lawful. There is no finding that, if the petitioner and her daughters were returned to Sierra Leone, there would be a real risk of her daughters being subjected to FGM against her wishes. The reason why there is not such a finding is because the adjudicator disbelieved the evidence of the petitioner on this point. I therefore reject the ground of challenge set out in article 7 of the petition’ (emphasis added). With the greatest of respect, this court must depart from the conclusion reached by the Lord Ordinary. I offer here five reasons in support of our decision to do so. The first three of these, it is important to note, were not issues raised before the Lord Ordinary at the time of the previous hearing, since at that time the credibility assessment undertaken by the initial adjudicator was not the subject of challenge. The final two reasons reflect our departure from the findings of the Lord Ordinary more broadly. 1. Failure of the Adjudicator to Give Reasons for Decision: The Lord Ordinary noted that the adjudicator disbelieved the evidence of Ms Johnson ‘on this point’ (ie, that she did not wish her daughters to be subjected to FGM). The only reason noted for rejecting this claim is found at paragraph 7 of the Lord Ordinary’s opinion: ‘Nor did he believe her claim that a reason for fearing return to Sierra Leone was that her two daughters would be expected to undergo circumcision. He thought that, if that were the case, she would have mentioned it well before she did so in her supplementary statement of 6 May 2003’. However, we know from the UK Immigration Appellate Authority Asylum Gender Guidelines 2000, that delay in raising certain gender-sensitive aspects of a claim is not necessarily indicative of an appellant being untruthful, particularly where public discussion of, and opposition to, such practices is culturally taboo. Reference can be made here to specific paragraphs of the UK IAA Gender Guidelines: ‘Delay in claiming asylum or revealing full details of an asylum claim will not necessarily be due to the lack of credibility of a particular asylum claim or claimant … Torture, sexual violence and other persecutory treatment produce

352  Nicola Loughran feelings of profound shame. This “shame response” is a major obstacle to disclosure. Many victims will never speak about sexual violence or will remain silent about it for many years. Delay in claiming asylum and/or in revealing full details about an asylum claim may also be validly occasioned by other factors including many procedural and evidential factors outlined in these guidelines, for example, access by women to the asylum determination process at paragraphs (see, for example, access by women to the asylum determination process at paras 5.7–5.14 above)’ (paragraph 5.43); ‘Female asylum seekers’ access to the asylum determination process may be hampered by a variety of factors and this may affect their asylum claims’ (­paragraph 5.7); ‘The Home Office, representatives, and women themselves, often assume that their asylum claims are derivative of male relatives’ claims. A woman’s claim for refugee status is not necessarily derivative and may be as strong or stronger than that of her male relative’ (paragraph 5.10); Women may also experience ‘fear of disclosing information which will bring them into disrepute; fear that details of the interview may be disclosed to others’ (paragraph 5.11). If the delay was the key reason for disbelieving the appellant on this aspect of her claim, consideration of possible valid reasons for delay should have been considered, and further reasons for disbelieving the appellant on this point should have been spelled out by the adjudicator in support of that conclusion. The importance of reasoned findings is paramount in decision-making (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345). 2. Failure of the Adjudicator to Assess the Views of the Children: There is no mention as to whether the daughters’ view or consent to FGM had been considered by the adjudicator. The need to ascertain a child’s wishes is at the heart of the Convention on the Rights of the Child. It goes without saying that a child is equally worthy of the protection of Article 3 (and Article 2) of the ECHR as an adult. Even if there were reasons to find Ms Johnson not credible in her stated objection to FGM, if the daughters’ views were canvassed, a finding given on their evidence as to whether they did, or did not, wish FGM should have been recorded by the adjudicator. 3. Failure by the Adjudicator to Take Appropriate Account of Objective Evidence: It is not clear that the adjudicator appropriately assessed the credibility of Ms ­Johnson’s claim that her daughters faced FGM being carried out in light of the objective evidence before him – including from the Home Office’s own Country Information Policy Unit – which showed that the practice is legal and carried out by almost all ethnic groups in Sierra Leone. Thus, the evidence supporting an objective, or ‘real risk’ of FGM being carried out on her daughters was not based merely on the assertions of Ms Johnson herself.

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  353 The evidence before the adjudicator, IAT and indeed the Lord Ordinary revealed a 90 per cent statistical risk, and neither law nor legal remedy, such as interdict, against FGM exists in Sierra Leone. Given the low standard of proof in the asylum context, in our view, there was sufficient evidence of an objective risk of FGM being carried out if Ms Johnson’s daughters were returned to Sierra Leone, which should have been taken into account by the adjudicator in the initial decisionmaking process. 4. The Requirement for ‘Force’ or Evidence of FGM being Carried Out Against the Mother’s Wishes: One reason focused upon by the Lord Ordinary for dismissing Ms Johnson’s appeal under Article 3 of the ECHR was that there was no evidence that FGM would be forced or ‘carried out against her [the mother’s] wishes’. In our view, the endorsement by the Lord Ordinary of the existence of an additional requirement of evidence of ‘objection to’, and/or evidence of ‘forced’ FGM was both surprising and regrettable. Only one of the previously reported asylum and human rights appeals before the UK IAT appears to have failed in terms of the Refugee Convention for reason of absence of evidence that the FGM feared would be forced. Julia Wanguru Muchomba was a Home Office appeal against the decision of an adjudicator who had allowed Ms Muchomba’s asylum appeal. The Home Office argued successfully that a group of girls from the tribal communities in Kenya where there is an ingrained practice of FGM do not have an ‘immutable characteristic’. The IAT held that ‘not all girls in such rural tribal communities will be forced to undergo FGM as many of the girls undergo FGM voluntarily without any force or coercion. Therefore, on this matter alone, the respondent cannot be described as being a member of a particular social group and the Adjudicator was wrong to describe her as such. It therefore means that there is no Convention reason to her claim’ (IAT, Julia Wanguru Muchomba, paragraph 18). The Tribunal’s reasoning in that case fails to properly appreciate that the girls – whether or not they ‘voluntarily’ accept circumcision – still share the common characteristic of their gender. It is this characteristic that sets them apart from – and is the reason they are treated differently from – other groups in their society. They are all still female. Thus, a ‘particular social group’ does not break down simply because not every one of its members succumbs to the harm (here, FGM) or persecution. In order to make sense of this requirement of evidence of ‘objection to’ FGM or ‘forced’ FGM, I rely on the authoritative writings of the World Health Organization (WHO), Female Genital Mutilation – An Overview (Geneva, 1998), which  – though not put before the Lord Ordinary – were lodged with the amended petition. This provides evidence of what FGM is, how it is carried out, and the degree to which it could be said to be voluntary. In a joint statement by WHO, UNICEF and

354  Nicola Loughran UNFPA in 1997, FGM is defined as comprising ‘all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or other non-therapeutic reasons’ (WHO, Female Genital Mutilation, page 5). The WHO classifies four different types of FGM according to the degree of excision/mutilation involved: Type I: Excision of the prepuce, with or without excision of part or all of the clitoris. Type II: Excision of the clitoris with partial or total excision of the labia minora. Types I and II, we are told, account for 80–85 per cent of all female genital mutilation. Type III – the most extreme form – known as infibulation – involves the complete removal of the clitoris and labia minora, together with the inner surface of the labia majora (excision of part or all of the external genitalia) and stitching/narrowing of the vaginal opening. ‘The raw edges of the labia majora are brought together to fuse, using thorns, poultices, or stitching to hold them in place, and the legs are tied together for 2–6 weeks. The healed scar creates a hood of skin which covers the urethra and part or most of the vagina, and which acts as a barrier to intercourse. A small opening is left at the back to allow for the flow of urine and menstrual blood. The opening is surrounded by skin and scar tissue and is usually 2–3cm in diameter but may be as small as the head of a matchstick’ (WHO, Female Genital Mutilation, pages 6–7). Type IV: Unclassified: includes ‘pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterization by burning of the clitoris and surrounding tissue; scraping of tissue surrounding the vaginal orifice (angurya cuts) or cutting of the vagina (gishiri cuts); introduction of corrosive substances or herbs into the vagina to cause bleeding or for the purposes of tightening or narrowing it’ (WHO, Female Genital Mutilation, page 5). Typically, we learn from the WHO, FGM is performed by non-medically trained elderly women in the community designated for the task or traditional birth attendants. However, in some countries, health professionals, trained midwives and even physicians carry out FGM. FGM is performed as a rite of passage from childhood to adulthood; it may be carried out during infancy, adolescence, on marriage or during a first pregnancy. Most commonly, it is undertaken in a non-sterile environment, in ‘unsanitary conditions using unclean sharp instruments such as razor blades, scissors, kitchen knives and pieces of glass. These are frequently used on several girls in succession causing infection and transmission of viruses including HIV. Antiseptic techniques and anaesthesia are generally not used’ (Heaven Crawley, Women As Asylum Seekers: A Legal Handbook (London, Immigration Law Practitioners’ Association,1997) page 68).

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  355 Serious health complications following all types of FGM are well documented. Immediate consequences include: death in some cases from severe bleeding (haemorrhage shock); pain and trauma (neurogenic shock); severe and overwhelming infection (septicaemia); extreme pain; excessive bleeding ­(haemorrhage); anaemia; shock; injury to neighbouring organs; urine retention; and infections. Long-term complications include: irreparable physical damage; urine retention; infection; failure to heal; abscess formation; dermoid cysts; keloids; urinary tract infection; scar neuroma; painful sexual intercourse; HIV/AIDS, hepatitis B and other bloodborne diseases; pseudo-infibulation; reproductive tract infections; dysmenorrhoea; urinary incontinence; stenosis of the artificial opening to the vagina; complications of labour and delivery; ongoing, long-term, physical, physiological, sexual, and psychological effects (WHO, Female Genital Mutilation, pages 17–21). We do not know what type of FGM the daughters of Ms Johnson feared if returned to Sierra Leone. It is not recorded. Nor do we know if this was offered in evidence, or whether the adjudicator or Home Office asked for details of the FGM. However, given the facts and severity of adverse medical consequences of all types of FGM, this level of evidential detail is otiose from a legal standpoint, as all forms of FGM would constitute serious harm and torture in terms of the ECHR, and all are capable of constituting ‘persecution’ in terms of the Refugee Convention. When we consider what FGM entails, how it is carried out, and are cognisant of its immediate consequences, one wonders what scenario is envisaged when perceiving a situation where FGM against children is not carried out forcibly in some way? The extent to which girls meaningfully ‘choose’ to ‘undergo FGM voluntarily without any force or coercion’ is surely questionable in communities and cultures where the practice is so deeply ingrained, and where objection and resistance would result in complete ostracism from family, community and society. Even accepting the negative credibility findings on Helen Johnson (although, as I have remarked, there were no reasons recorded for why the adjudicator rejected her claimed objection to FGM), it is hard, therefore, to accept that her daughters could be deemed to have meaningfully consented to such a harmful and irreversible procedure: one about which they may not have been told any or all of the consequences, or be able to anticipate the level of pain involved, or be capable of fully comprehending at their age. It is commonly accepted by the United Nations, and recognised throughout multiple international and regional human rights instruments, that FGM constitutes torture: for example, in terms of Articles 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A ­ rticle 7 of the International Covenant on Civil and Political Rights, and ­Article 37(a) of the Convention on the Rights of the Child. As the UNHCR Guidelines on International Protection: Gender-related Persecution within the context of Article 1A(2) of the Refugee Convention and/or its 1967 Protocol relating to the Status of ­Refugees,

356  Nicola Loughran 7 May 2002, states: ‘harmful practices in breach of international human rights law and standards cannot be justified on the basis of historical, traditional, religious or cultural grounds’ (paragraph 5). It appears that the Lord Ordinary considered physical force to be required for FGM. We do not agree. It is also difficult to accept that there can be meaningful consent by children to the harm and pain involved. Thus, in assessing both the Article 3 ECHR and Refugee Convention appeals, the introduction of an additional requirement of evidence of ‘forced’ FGM, or evidence of objection to FGM creates, in our view, an error of law. 5. The Assessment of the Availability of State Protection: The objective evidence before the tribunals and the Lord Ordinary in this case was clear – there is currently no law or legal remedy against FGM in Sierra Leone. This should have been a key consideration in the assessment of both the risk of violations of Articles 2 or 3 of the ECHR and the risk of persecution under the Refugee Convention. It is quite clear from the objective evidence that the State of Sierra Leone is either unable or unwilling to provide protection to female c­ hildren and adults who do not wish to undergo FGM or to parents who do not wish their ­children to be subjected to this inhumane practice. The Refugee Convention provides surrogate international protection where the state in the country of origin proves unable or unwilling to provide protection against a real risk of serious harm (Horvath [2000] UKHL 37), or in the language of the ECHR, against a real risk of death, torture or inhuman and degrading treatment (Articles 2 and 3). The Lord Ordinary accepted the submission by the Secretary of State that the cases of Hashim and RM (Sierra Leone – Female Genital Mutilation – Membership of a Particular Social Group) [2004] UKIAT 00108 were of ‘no assistance to the petitioner’. With respect, we disagree. These decisions were of assistance to the petitioner and her daughters for the following reasons. The court in Hashim accepted that both parents objected to FGM, and that there was a law against FGM in Sudan; yet the risk of FGM being carried out upon the daughter was real, due to the fact that 90 per cent of girls in Sudan underwent FGM. Thus, the court upheld the Article 3 claim. Similar reasoning could have been adopted in Ms Johnson’s case in relation to the human rights challenge; given the same statistical prevalence rate of 90 per cent FGM in Sierra Leone, the Article 3 claim could still have been held to have been made out. Therefore, even if the reasons why the adjudicator discounted Ms Johnson’s evidence as to her objection to the procedure had been clearly explained – which, as stated earlier, is to be expected – it is difficult to accept that she could consent to such a harmful and irreversible procedure on behalf of her children. RM is also of significance here because RM also claimed to have a well-founded fear of persecution if returned to Sierra Leone as a result of her membership of a

Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session  357 PSG, namely, a female expected to undergo FGM. The adjudicator dismissed both the asylum and Article 3 claims. However, as noted by the Lord Ordinary: At the hearing before the IAT the representative of the Secretary of State informed the tribunal that he was granting the appellant three years’ humanitarian protection leave and was therefore conceding that there would not be a sufficiency of protection for her were she to be removed to Sierra Leone. RM concerned the risk of FGM to an adult female in Sierra Leone. It is unclear why the existence of a real risk of FGM to the children of Ms Johnson in the same country would not have been equally credible. The Lord Ordinary in the present case focused on a lack of evidence of ‘forced’ FGM. However, and in line with the reasons articulated below by the Board of Immigration Appeals in the American case of re Fauziya Kasinga 21 I & N Dec 357 (US BIA 1996), this court is of the view that this emphasis was flawed. First, the BIA states that it is ‘surplusage to define the social group in this case by including as an element the applicant’s opposition to the practice’ (Kasinga, paragraph 38). That is, it is not necessary to define the PSG by reference to females who oppose this type of harm, or, as in the present case, insist on evidence of opposition to this practice. One need only establish that the females are at real risk of the harm of FGM. Secondly, the BIA notes that the opinion of the UN High Commissioner for Refugees ‘explicitly encourages the use of “particular social group” analysis to extend protection to women asylum seekers who otherwise satisfy the definition’ (Kasinga, paragraph 49, re pages 4–5 of UNHCR Memorandum: Female Genital Mutilation, Geneva, Division of International Protection, May 1994). Finally, the BIA highlights the absence of reference by the US Immigration Services to their own gender guidelines. Similarly, in the case of Ms Johnson, appropriate reliance does not seem to have been placed upon the Immigration Appellate Authority (UK): Asylum Gender Guidelines (1 November 2000), which state ‘acts involving genital mutilation are infringements of the right to freedom from torture, inhuman and degrading treatment or punishment, of the right to private and family life and may be crimes against humanity, and, as such, will constitute “serious harm”’ (page 19, 2A.22). Conclusions We find that the Lord Ordinary erred in requiring evidence, either of ‘forced’ FGM or evidence of ‘objection to’ FGM on the part of Helen Johnson, in addition to that contained in her supplementary statement. In light of the challenges to the findings on credibility contained in the amended petition, we also find that the adjudicator failed to adequately explain his rejection of Ms Johnson’s claim that she did not wish FGM to be carried out upon her daughters. The real risk of FGM being carried out upon her daughters, in light of the available objective evidence on the prevalence of FGM in Sierra Leone (90 per cent), as well as the existing evidence of absence of legal and other state protection against FGM in

358  Nicola Loughran Sierra Leone was not adequately considered. In our view, therefore, on the relevant low standard of proof applicable in asylum cases, the facts point towards a reasonable likelihood or real risk to Ms Johnson’s daughters of being subjected to FGM on return to Sierra Leone. For the reasons cited above and as focused in the amended petition, the Lord Ordinary’s decision to dismiss the application for judicial review of the decision of the IAT to refuse permission for leave to appeal in this case is vitiated by material errors in law. We therefore recall the interlocutor of the Lord Ordinary and reduce the decision of the IAT refusing leave to appeal. The application for leave to appeal to the IAT will require to be considered afresh by the IAT.

Commentary on Helen Johnson HELEN BAILLOT

Lady Loughran’s feminist judgment in the Helen Johnson case highlights that the original Outer House judgment was, even in 2004, astonishingly retrograde in the narrowness of its approach to the consideration of women’s claims in refugee law. She demonstrates that it would have been well within the ambit of Temporary Judge R F MacDonald’s authority, and in tune with the times in which he presided over the case, to make an entirely different set of findings. I focus in this commentary on two of the issues that were central to this case, before ending with some additional reflections on the topic of female genital mutilation (FGM). Despite many years working alongside people seeking asylum, as a non-lawyer, I can only echo comments in the reflective statement around the complexity of Court of Session procedure. While my comments below refer more pertinently to the first stages of the asylum process, I hope they underscore the importance of high quality and considered first instance decision-making. Had the good practice I refer to been applied initially in Helen’s claim, it may have avoided the need for her to challenge, through the Upper Courts, a somewhat senseless series of refusals.

Links to a Convention ‘Ground’ A crucial step in establishing that Helen Johnson’s daughters would be ‘­persecuted’ within the meaning of the 1951 Refugee Convention was consideration as to whether FGM would be carried out for a Convention reason: on the grounds of race, religion, nationality, political opinion or membership of a particular social group. This requirement for a nexus with a Convention reason has historically disadvantaged women. The Refugee Convention was drafted at a time when social mores, including with respect to the place of women in society, were very different. The Convention’s omission of, inter alia, gender, sexual orientation and gender identity as possible grounds for persecution reflects the fact that these

360  Helen Baillot protected characteristics were, at the time the Convention was being prepared, and for some time afterwards, grounds for state-sanctioned prejudice in refugeereceiving states. For example, in the UK, homosexual acts in private between two men were d ­ ecriminalised only in 1967; while the ‘marital exemption’ on rape within marriage, which left women married to their abusers with no legal protection from sexual violence, was lifted in Scotland only in 1989 and in the rest of the UK two years later.1 Filling these gaps in the Convention through pushing for a more expansive definition of the Convention grounds has often, in women’s cases, resulted in the persecutions they fear being defined as falling within the grounds of a ‘particular social group’ (PSG), as Lady Loughran persuasively argues here. Expanding the ground of PSG to include different forms of gender-based persecution (such as FGM) would not have been avant-garde in 2004. As Lady Loughran points out, a series of internationally respected guidelines clearly pointed to this being the case, all of which would have been available to the Outer House at the time.2 However, such guidelines, although persuasive, do not have the status of legal rules. The absence of any reference to these guidelines in the original judgment appears to illustrate that even the most ground-breaking guidelines do not always filter down to decision-makers and adjudicators on the ground.3 Attempts to define the ‘particular social group’ in women’s cases involving FGM have given rise to some convoluted formulations. In an early case from the United States, Fauziya Kassindja was recognised as having a well-founded fear of persecution on the basis of her membership of ‘a social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice’.4 Lady Loughran’s approach points to a far simpler PSG of ‘females in Sierra Leone’. This, I think, is the correct approach. Arguments such as those advanced by the Home Office in the 2006 case of SSHD v K and Fornah,5 that an expansive approach to defining a PSG would open the floodgates to claims from women in similar situations, ignore the fact that no other Convention ground is limited simply because a large number of people might qualify for protection on that basis. I suggest, however, that there continues to be room, in cases like Helen ­Johnson’s, to push further than even Lady Loughran has done at the limits of the

1 S v HM Advocate 1989 SLT 469; R v R [1991] 2 WLR 767. 2 See, eg, Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-related Persecution (Canada, Immigration and Refugee Board of Canada, 1996); N Berkowitz and C Jarvis, Immigration Appellate Authority Gender Guidelines (London, Immigration Appellate Authority, 2000); and ­Guidelines on International Protection: Gender-related Persecution (HCR/GIP/02/01, Geneva, UNHCR, 2002). 3 S Ceneda and C Palmer, Lip Service or Implementation: The Home Office Gender Guidance and Women’s Asylum Claims in the UK (London, Asylum Aid, 2006). 4 Matter of Kasinga 21 I & N Dec 357 (US BIA 1996). 5 SSHD v K and Fornah [2006] UKHL 46.

Commentary on Helen Johnson  361 Refugee Convention. It remains unusual to argue that a woman’s or girl’s rejection of FGM in and of itself constitutes a political act. As Alice Edwards asks: Why is it so difficult to recognize acts of a woman in transgressing social customs as political? … Why are young girls who refuse to undergo female genital mutilation not political dissidents, breaking one of the fundamental customs of their society?6

The grounds for persecution are not mutually exclusive. Making the case for women like Helen Johnson, and their daughters, to be offered protection because they fear persecution on grounds of political opinion, as well as because of their membership of a PSG defined by their gender, would recognise Helen not just as a concerned mother, but as a political activist.

Credibility Judgements of the credibility of the accounts given by people seeking international protection are critical to the outcome of individual cases.7 The difficulty of assessing credibility in a cross-cultural, linguistically diverse context continues to exercise academics, policy-makers and practitioners. Women in general may face barriers in presenting credible accounts. The harms they fear may be suffered in private, giving rise to little or no documentary evidence. Gendered views of women’s roles and lives in distant societies may colour decision-makers’ assessments of whether their narratives ‘ring true’.8 Furthermore, procedural failures have the potential to impede disclosure, and so prevent women from effectively stating their cases. In 2003, when Helen Johnson first arrived in the UK, there was little, if any, recognition that women might feel unable to discuss intimate matters with men present. Gender guidance for Home Office decision-makers was introduced only in 2004 and, even then, was not uniformly applied by Home Office personnel.9 Thus, women were not as standard offered the option that their Home Office interviews be carried out by female interviewers with, where necessary, female interpreters. People with children often attended their substantive interview with the Home Office with their children present, as no provision was made for childcare. This situation was remedied only in 2018 after a sustained campaign by advocacy and

6 A Edwards, ‘Age and Gender Dimensions in International Refugee Law’ in E Feller, V Türk and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge, Cambridge University Press, 2003) 68. 7 M Kagan, ‘Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination’ (2003) 17 Georgetown Immigration Law Journal 367; H Baillot, S Cowan and V Munro, ‘Reason to Disbelieve: Evaluating the Rape Claims of Women Seeking Asylum in the UK’ (2014) 10 International Journal of Law in Context 105. 8 O Jubany, ‘Constructing Truths in a Culture of Disbelief: Understanding Asylum Screening from Within’ (2011) 26 International Sociology 74. 9 Ceneda and Palmer, above n 3.

362  Helen Baillot human rights groups. For women with sole responsibility in the UK for their children, like Helen Johnson, this could have required her to speak in detail, in front of her young ­children, of the severe harm she feared they might face. We can only speculate whether any of these barriers to disclosure applied in Helen Johnson’s situation. However, we do know that she only put forward her fear that her daughters would be compelled to undergo FGM after her initial refusal by the Home Office. This late disclosure was held against her by the Immigration Appeal Tribunal (IAT),10 as cited in the Outer House’s original judgment: Nor did he believe her claim that a reason for fearing return to Sierra Leone was that her two daughters would be expected to undergo circumcision. He thought that, if that were the case, she would have mentioned it well before she did so in her supplementary statement of 6 May 2003.11

Frustratingly, this view was taken even though the Immigration Appellate Authority’s own Gender Guidelines, adopted in 2000, caution against allowing a woman’s delay in revealing the full details of her asylum claim to automatically undermine her credibility.12

Female Genital Mutilation and Children’s Rights FGM has received considerable media and policy attention over recent years, frequently in relation to concerns around the perpetuation of the practice by migrant communities now living in Europe. With this has come the risk that Western commentators condemn FGM from a standpoint of cultural superiority, situating themselves as coming from cultures where women and girls enjoy absolute equality with men and are never subjected to discriminations on the basis of their gender. Indeed, evidence of the health impact of FGM, used by Lady Loughran to point to the catastrophic consequences of FGM and so to argue that young girls can never be considered to have consented to it, has itself been critiqued as essentialising the experiences of women and girls from the Global South while ignoring the multiple oppressions, including with regard to bodily integrity, faced by Western women.13 However, within the asylum courtroom, the principal point of relevance is that ‘whatever cultural consensus exists, refugee law protects an individual who wishes to distance herself from that consensus’.14 10 The IAT was the second tier of the Immigration Appellate Authority (IAA), replaced in 2005 by the Asylum and Immigration Tribunal (AIT), and then in 2010 by the Asylum and Immigration Chamber of the First-Tier Tribunal. 11 Petition of Helen Johnson (AP) for Judicial Review Outer House, Court of Session P340/04, paragraph 7. 12 Berkowitz and Jarvis, above n 2, para 5.43. 13 M Dustin, ‘Female Genital Mutilation/Cutting in the UK: Challenging the Inconsistencies’ (2010) 17 European Journal of Women’s Studies 7. 14 D Anker, ‘Refugee Law, Gender and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights Journal 133.

Commentary on Helen Johnson  363 We must remember, however, that the individuals whose protection was at stake in the Helen Johnson case were her two young daughters, Fai and Lili. Both are almost entirely invisible in the original Outer House decision. Lady Loughran moves to remedy this through explicit mention of Fai’s and Lili’s rights under the UN Convention on the Rights of the Child (UNCRC). I suggest that these could be brought even further to the foreground, particularly those safeguarded by ­Articles 3, 19 and 24 of the UNCRC. This would confirm the capacity of refugee law to offer protection not just to women but to children, who face harms that are particular to their age and stage of development.15 Of course, back in 2004, the UK government’s reservation to the UNCRC allowed it not to apply the Convention to children and young people subject to immigration control. This reservation was lifted in 2008. One could therefore hope that children’s best interests, and their right to have a voice in decisions concerning them, would now be more prominent in contemporary asylum cases.

Final Comments Less than two years after Helen Johnson’s case was heard at the Court of Session, the UK House of Lords delivered the landmark judgment of SSHD v K and Fornah, definitively recognising that a fear of FGM could give rise to a claim for protection under the terms of the Refugee Convention.16 Sadly, we have no way of knowing whether this came too late for Helen Johnson and her daughters to avoid returning home to face the persecution that they feared. Nonetheless, we can hope that women and children seeking asylum on a similar basis in 2019 would have a better chance of being granted protection. Doctrinal debates around the formulation of PSGs and the seriousness of harm embodied by FGM have been largely resolved. Yet many of the procedural barriers inherent to the asylum process and the documented failures in credibility assessment remain. So too do the very real barriers of immigration control and socio-economic status that prevent most women and girls who fear persecution from ever reaching the UK to exercise their right to seek asylum.

15 J Pobjoy, ‘A Child Rights Framework for Assessing the Status of Refugee Children’ in SS Juss and C Harvey (eds), Contemporary Issues in Refugee Law (Cheltenham, Edward Elgar, 2013). 16 SSHD v K and Fornah [2006] UKHL 46.

Reflective Statement: Helen Johnson NICOLA LOUGHRAN*

The case of Helen Johnson and her two daughters had haunted this asylum lawyer since reading it in 2004. So, when the suggestion to imagine a further ‘appeal’ (reclaiming motion) of the decision was offered by this project, I was honoured to take the chance. My considerable reservation about attempting to position myself in the Inner House of the Court of Session to do so was only overcome by a feeling that this case could have been decided differently; key objective evidence and arguments that could have been raised in the initial appeal against the decision of the first instance adjudicator were not evident. The challenge I faced was finding a creative way to enable a radically reimagined judgment by bringing the missing arguments and evidence into a much later appeal against an application of judicial review, while still abiding by complex rules of procedure. At the time this decision was issued, I was representing many women who had sought asylum in the UK on the basis that their daughters would be forced to undergo Female Genital Mutilation (FGM) if returned home. When these women talked about their claims they broke down in tears. Recalling the horror of FGM they were forced to endure as children, they begged me to help them protect their daughters against suffering the same fate. ‘The cut’ had been forced upon them, they invariably uttered, at an age too young to even fully understand what was happening to them, or the long-term consequences. They were given no choice in the matter. As girls, they were not even told in advance what was going to happen. If they found out and tried to object, they were ignored or silenced. This, they were told, would be ‘a celebration’ of ‘becoming a woman’. These women’s pain and suffering did not end with being cut. Physically, emotionally and psychologically, they were scarred for life. They continue to suffer pain and infection. What drove them to cross the world with their children, in frequently perilous journeys, was to ensure their daughters were not harmed in the same devastating way or, worse, lose their lives. When I listened to these women, learned what pain and suffering FGM causes and the number of girls and women cut around the world (estimated then to be around two million), I pondered the fact that some do not * Thanks to Dr Sarah Craig who suggested Helen Johnson, having heard me discuss it in her and Maria Fletcher’s excellent Asylum Law Honours class at Glasgow University. And thank you to ­Professor Rebecca Wallace and Professor Peter Robson, and to Judge John McDonald, for their unfailing support.

Reflective Statement: Helen Johnson  365 survive because they bleed to death, and that many survivors are left mutilated for life. I could not believe it. But what was even more surprising and disappointing to me as an asylum lawyer was that, in my experience (circa 2004), these types of asylum applications were not granted by the Home Office. Furthermore, the asylum and human rights appeals of these decisions to the Immigration Appellate Authority (Immigration Appeal Tribunal, then Asylum Appeal Tribunal from 5 April 2005) were seldom allowed. Yet, unlike many of the male asylum seekers I represented, these women had already suffered torture in a way that would be recognised under the Refugee Convention if it was targeted at these women because of their particular politics, religion, ethnicity, or race. Why, then, did the fact that females were being singled out as females for FGM not appear to be accepted by our courts as a valid reason for claiming asylum? Although gender is not one of the five recognised grounds for asylum, females who are at risk of FGM can ground their claim of well-founded fear of persecution via the fifth refugee ground, ‘Particular Social Group’ (PSG). I began to keep a record of all reported asylum and human rights decisions on FGM. A number of reasons why some FGM appeals succeeded, and why some failed, began to emerge. The landmark House of Lords decision in 1999 of Shah and Islam1 established, on the one hand, that some persecution against women could be recognised as a ground under the Refugee Convention via ‘particular social group’ because their persecution was based on their gender. But, on the other hand, Shah and Islam was frequently cited to support a view that ‘PSG’ could not be defined by reference to the harm the sub-group fears.2 This was a major stumbling block for asylum-seeking women, who had to explain the reason for their persecution as a ground recognised by the Refugee Convention without reference to FGM. If the group was simply ‘women’ this was found to be too large and some of the group may not have been subject to FGM. The alternative was to define the group as women who feared FGM, but that fell foul of the perceived rule in Shah and Islam, ie, barring definition of the group by reference to the persecution. This restrictive line of thinking pervaded reported decisions issued from the Immigration and Asylum Tribunal and Asylum and Immigration Tribunal between 2000 until the landmark Supreme Court case of Fornah in 2006.

1 Shah and Islam (AP) v Secretary of State for the Home Department; Regina v Immigration Appeal Tribunal and Another Ex Parte Shah (AP) (Conjoined Appeals) [1999] UKHL 20. 2 See Auld LJ’s opinion in the Court of Appeal’s dismissal of Fornah, at paragraph 44: ‘To confine the grouping to young, single girls who, for the time being, have not been circumcised, though logical, would be contrary to the general rule that it is impermissible to define the group by reference to the threat of the persecution’. Zainab Esther Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, United Kingdom: Court of Appeal (England and Wales) 9 June 2005; or Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 263 – there can only be a particular social group if it exists independently of the persecution to which it is subject: 639–40, 656–57, 658.

366  Nicola Loughran However, I had never encountered reasons for a dismissal of an FGM-based asylum and human rights claim quite like those stated in the Outer House decision of Helen Johnson. From my reading of the World Health Organization on FGM, and from my clients’ description of their experiences, I could not envisage a scenario where FGM would not be forced. What ‘evidence’ of force was the Outer House envisaging – outwith the medical evidence and the mother’s testimony? What ‘choice’ did her daughters have? Surely the children could not ‘choose’ to be cut? Even if the adjudicator found some aspects of Ms Johnson’s claim not to be made out, what were his reasons for disbelieving this mother when she stated she did not wish her children to be mutilated? If FGM is a ‘lawful practice engaged in by almost all ethnic groups in Sierra Leone’, why did the Outer House conclude that ‘on no conceivable view could it be said that the practice of FGM is capable of being a reason for persecution’? Why was the ‘key issue’ in this case ‘whether it was likely to be carried out forcibly or not’, rather than whether it was likely to be prevented or not? Articulating why the Outer House decision was challengeable in law, however, was not an easy task. I struggled to express the legal arguments, feeling the logic, clarity and precision that are characteristic of good judicial writing eluding me at each sentence. And my creative challenge to the credibility findings could only become procedurally possible before the Inner House if an amendment to the grounds of appeal and underlying petition had been made and accepted. I had initially completely missed these procedural steps that would enable the new arguments to be incorporated at all, demonstrating the challenges of following complex rules of Court of Session procedure, even for a practising solicitor! The process of attempting to write a judicial determination has therefore left me with even more respect for those who shoulder that enormous responsibility daily and served to remind me of the crucial importance for lawyers of challenging, where appropriate, first instance credibility findings at the earliest stage of appeal. Otherwise the challenge to such core findings may be lost forever, rendering other potential errors in law impervious to later legal challenge higher up the appellate structure. I would like to offer a brief comment on Helen Baillot’s insightful commentary, particularly that women’s objection to FGM is an overtly political act. I agree. The consequence of objecting to FGM being performed on them and/or their daughters often brings family and community punishment and societal ostracism.3 To reject FGM can leave girls and women unmarriageable and, in societies where 3 Strengthening Protection from Female Genital Mutilation (FGM) A Scottish Government Consultation (October 2018) 11; ‘Responding to female genital mutilation: multi-agency guidance’; Scottish Government, Population Health Directorate (27 November 2017); Forward (15 February 2008), available at: forwarduk.org.uk/uganda-we-escaped-female-genital-mutilation-fgm/; G Gangoli, A Gill, N Mulvihill and M Hester, ‘Perception and Barriers: Reporting Female Genital Mutilation’ (2018) 10(S) Journal of Aggression, Conflict and Peace Research 251, available at: doi.org/10.1108/JACPR-09-20170323; Maryum Saifee, ‘I’m a survivor of female genital cutting and I’m speaking out – as others must too’ The Guardian (8 February 2016), available at: www.theguardian.com/commentisfree/2016/feb/08/ victim-fgm-speaking-out-cut-genitals-culture-of-silence.

Reflective Statement: Helen Johnson  367 e­ ducational and employment prospects are limited, they can be left without a means of surviving. The political aspect of their bravery in opposing this custom with the dire, sometimes fatal, consequences which ensue cannot be overemphasised. However, the reason why a particular harm is targeted at particular groups can be different from the reason why particular groups oppose that harm. A pivotal aspect of the Refugee Convention is that the reason for persecution must be based on one of five grounds. In the case of FGM, the reason FGM is targeted at females (only) is because they are female. Women and girls’ objection to FGM may well be perceived as a political act. And on this ground, as Helen says, females would and should also qualify for protection under the Refugee Convention. But I think it is important to recognise that women and girls are targeted for FGM because of their gender for several reasons. First, on a jurisprudential level, this reflects the reality of the reason for this type of persecution of females. Explicitly recognising their gender in the ground for protection means they can be protected as such – as women and girls – and not necessarily solely as ‘political activists’. This would tie in with how other groups are understood to be persecuted – because of their race, ethnicity, religion etc, and are recognised and protected for this reason – on those grounds. This is similar to the way we use the ground of PSG to protect LGBTQ claimants who are persecuted on the grounds of their sexuality, even though their opposition to their persecution can be viewed as ‘political’ as well. We are not required to argue their case on the ground of political opinion. Opposition to any form of persecution could be viewed as political but the reason for persecution is not always political. In the case of FGM, the persecution is rooted in gender, and this fact should be acknowledged, I think, by maintaining its centrality to the claim. Secondly, on a practical level, unless or until ‘gender’ is included as a distinct group under the Refugee Convention, I think it is important to keep gender at the forefront of our minds by arguing that females can constitute a ‘particular social group’ in order to allow a legal representative to argue this as the ground on which they are claiming asylum. In order to develop the law in ways that recognise gender-based persecution, we need, as Helen stresses, to keep shaping legal procedures and processes in ways which enable the most vulnerable and least-heard voices, for example, those of children, women and those suffering from mental health problems, to be heard. The Immigration Appellate Authority Gender Guidelines – if consulted – assist in that endeavour, particularly in guiding decision-makers in the infinitely difficult task of assessing credibility. One of the points made in the Gender Guidelines which could potentially have made a difference in the initial assessment of Helen Johnson’s credibility was that delay in raising particularly sensitive gender-related aspects asylum claims should not necessarily be viewed as an indicator of the applicant not telling the truth. This is particularly so in the context of cultures where gender-based violence is prevalent, legal protection from state authorities is lacking, and objecting to practices such as FGM is taboo. However, there appears to be a worrying lack of reference to these very helpful Gender Guidelines within reported case law.

368  Nicola Loughran If mutilation were targeted at any other group recognised by the Refugee Convention, this would entitle them to surrogate international protection. Surely the health and lives of women and girls are as deserving of protection as other groups? Baroness Hale believes so. As she so succinctly put it, just 23 months after the Outer House dismissed Helen Johnson’s case: ‘They are just as worthy of the full protection of the Refugee Convention as are the men who flee persecution because of their dissident political views’.4 The gap between the idea that females are just as worthy of the full protection of the law, and often the reality of that protection, is explored by this Feminist Judgments Project through re-envisaged judgments. It would be an important and lasting legacy if decision and policy-makers shepherd the reimagined into the realm of reality.



4 SSHD

v K and Fornah [2006] UKHL 46, paragraph 115.

17 Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527 Rape Crisis Centre v Secretary of State for the Home Department Court of Session (Outer House) 2000 Lord Kagiaros I. The Facts and Petitioners’ Arguments Earlier this year, the boxer Mike Tyson, a citizen of the United States, was invited to fight two boxing matches, one in Glasgow and the other in Manchester. In 1992, Mike Tyson was tried and convicted of rape in the United States. He was sentenced to six years in prison and eventually served close to three years of this sentence. In 1999, Mr Tyson once again served nine months in prison for assaulting two motorists after a traffic accident. Upon his release, Mr Tyson returned to boxing, and continued what had been a successful career. In order to enter the United Kingdom lawfully, Mr Tyson was required under section 3(1) of the Immigration Act 1971 to apply for leave. The grounds on which leave for entry to the United Kingdom can be refused are to be found in section 3(2) of the 1971 Act. This provision allows the Secretary of State ‘from time to time … to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom’. Rule 320 of the rules, produced under section 3(2) of the 1971 Act, sets out in more detail the grounds on which permission to enter the United Kingdom will normally be refused. Paragraph 18 of rule 320 stipulates that leave can be refused in the following circumstance: [S]ave where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United ­Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom.

370  Dimitrios Kagiaros Rape is an offence which fulfils this criterion, as it is punishable in Scotland with imprisonment for a period exceeding that of 12 months (see R v Roberts and Roberts [1982] 4 Cr App R (S) 8). The legal status of the immigration rules is difficult to categorise or classify. As stated by Lord Denning MR at pages 780–81 in R v the Secretary of State for Home Office ex parte Hosenball [1977]: They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases … In addition, the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether the officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law. The decision-maker has significant discretion in deciding whether and how they will be used in practice, as the provision stipulates that the rules will apply ‘normally’. In light of this, Mr Jack Straw MP, acting in his capacity as Secretary of State, instructed immigration officers to allow entry to Mr Tyson to the United Kingdom so he could participate in both boxing matches. The decision was announced in the House of Commons during Parliamentary Question Time by Mr Straw. More specifically, Mr Straw noted the following: In reaching my decision I took note of the fact that Mr Tyson has relevant convictions for the purpose of the application of this Rule. I also noted that there are recent allegations of an assault on an employee of a night-club in Las Vegas, but we understand this is still under investigation. And I took into account the views expressed by the public about Mr Tyson visiting the UK. I did not consider that there were strong compassionate reasons which would justify admission in Mr Tyson’s case for the purposes of the Rules. However, I concluded that there were other exceptional circumstances which justified his entry to the country for the purpose of participating in the boxing match. My decision took account of the following factors: ‘that Mr Tyson’s behaviour on his previous visit to the UK was satisfactory’; ‘that any risk to the public to which his criminal convictions and the other allegations referred to above might be relevant, would be minimised by the circumstances of his proposed visit, ie, his high media profile, the presence of his trainers and other supporting entourage and the limited duration of his visit’; and ‘that a refusal to permit entry would result in loss of economic benefit to the UK and in particular to the areas in which engagements took place and would not enhance the UK’s standing as a venue for major sporting events’ (HC Deb 18 May 2000, vol 350, cols 211–2W). The first petitioners, Rape Crisis Centre, offer free and confidential emotional and practical support, information and advocacy to all members of the public who

Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527  371 have experienced sexual violence at any time in their lives. Furthermore, they work to change attitudes about gender-based violence and improve services for survivors of sexual assault. The second petitioner, Ms Brindley, is employed by Rape Crisis Centre and assists rape and sexual assault victims in their subsequent interactions with the police and the criminal justice system. She also serves as a member of the Scottish Partnership on Domestic Abuse, a body funded by the Scottish Executive to reduce the number of incidents of rape and violence in Scotland. The petitioners seek the reduction of the Secretary of State’s decision on the ground that the decision is procedurally improper. They note that, in his statements, the Secretary of State accepted that he ‘took into account the views expressed by the public about Mr Tyson’s visiting the United Kingdom’. This referred to a meeting the Secretary of State had with individuals who would describe themselves as supporters of Mr Tyson, namely individuals who had invited Mr Tyson to Glasgow. The petitioners’ argument is as follows: as this was a matter of exceptional and legitimate public interest, it was procedurally improper for the Minister not to also receive representations from groups opposing Mr Tyson’s entry into the country. While the petitioners concede that hearing views from the public is at the Minister’s discretion, by seeking the views of one party he should have acted in accordance with the rules of natural justice and taken representations from the opposing side as well. The petitioners argue that this duty was dictated by the principle of audi alterem partem. The petitioners argued that they had important additional material to bring to the attention of the Secretary of State, which arose from their activities in Scotland, that would have allowed him to make a more informed decision on the issue at hand. Counsel for the Secretary of State argued that Mr Straw was aware of the arguments against entry and that the petitioners would have nothing of substance to add to the information of which he was already aware. Additionally, the petitioners argued that the considerations Mr Straw took into account when reaching his decision were irrelevant and, consequently, he was abusing the discretion conferred on him by the 1971 Act. Therefore, it is for this court to respond to three questions: Do the petitioners fulfil the requirements of locus standi in Scots law? Namely, can they demonstrate both title and interest to sue? 2. Do the rules of natural justice generate a legal duty for the Minister to hear representations from the petitioners before reaching his decision to allow Mr Tyson entry to the United Kingdom? 3. Were the considerations Mr Straw took into account when reaching his decision relevant? More specifically, was Mr Straw’s key consideration (that hosting a sports event of international interest would enhance the UK’s sporting reputation), one that the Secretary of State was entitled to take into account when exercising his discretion in relation to immigration? 1.

The court will address each of these issues in turn.

372  Dimitrios Kagiaros II. Rules of Locus Standi Before examining the merits of the petitioners’ arguments, this court must assess whether the petitioners satisfy the criteria for standing (locus standi). The rules of standing differ between Scotland and England. In Scotland, petitioners are required to demonstrate that they have both title and interest to sue. It is not contested by the parties that the petitioners, by virtue of their function, have interest to sue. Rape Crisis Centre is a well-known organisation that supports survivors of sexual assault. Ms Brindley has many years of experience representing the i­nterests of those who have been exposed to any form of sexual violence. Therefore, they clearly have an interest in the decision being set aside. With regard to title to sue, Lord Dunedin’s dictum in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 remains relevant. In that judgment, his ­Lordship explained that, in order to have title to sue, the petitioner must demonstrably be ‘a party (using the word in its widest sense) to some legal relation which gives him [sic] some right which the person against whom he raises the action either infringes or denies’. This precludes this court from examining petitions where the petitioner can only demonstrate an academic interest in the outcome of the case or is seeking to reduce a decision merely because it is not to her liking. Such petitioners do not satisfy the criteria required to invoke the supervisory jurisdiction of the Court of Session in Scotland. The rules on which Mr Straw relied do not confer any rights to the general public. The only rights they confer are to Mr Tyson and potentially the boxing promoter. This of course means that the petitioners in this case do not meet the criteria for locus standi in Scotland. Such a requirement for the petitioner to show title to sue is not in place in England, where petitioners need only demonstrate a sufficient interest in the outcome of the case. Earlier this year, for instance, Mr Tyson’s visit to the United Kingdom for the boxing match scheduled to take place in Manchester was the subject of a different legal challenge before Mr Justice Sullivan in Regina v Secretary of State for the Home Department ex parte Bindel at the High Court of Justice Queen’s Bench ­Division. While the petitioners, a similar women’s group, were ultimately unsuccessful on the merits, no issue of standing arose, unlike in these proceedings. The rules of standing, as formulated in Scotland, require campaign and advocacy organisations who wish to challenge administrative decision-making to either seek litigants who fulfil the criteria for standing or limit their contribution to public interest interventions under Rule 58.8A of the Rules of the Court of Session where this is possible. In cases like these, the title and interest requirement found in Scots law renders decisions such as the one made by Mr Straw potentially immune from judicial review as exercised under the supervisory jurisdiction of the Court of

Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527  373 Session. In the case at hand, since the Minister’s decision is favourable to Mr Tyson and the boxing promoters, the decision becomes one that is out of the reach of the Scottish courts, since only Mike Tyson himself or the boxing promoters could have petitioned to challenge the Secretary of State’s decision. Thus, there are key and perhaps problematic differences in how public interest issues are dealt with in England as compared with how they are dealt with in Scotland. This brings to mind the dictum by Lord Diplock, making reference to the English rules of standing in R v Inland Revenue Commissioners ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, page 644: It would, in my view, be a grave lacuna in our system of public law if a pressure group were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. There are of course good reasons to justify the restrictive rules in Scotland. If mounting a challenge were open to anyone, significant court time might be taken up, and respondents (mostly government departments already f­ unctioning on limited budgets) would be forced to withstand the time and costs of litigation brought against them by such petitioners. This approach, however, is deeply disadvantageous to vulnerable groups or individuals, who may not wish to be involved in litigation or lack the necessary resources, and usually rely on the assistance of NGOs or other charities to put forward legal arguments on their behalf. In England, women’s pressure groups have achieved some success by petitioning against administrative decisions without having to produce a litigant with title to sue. For instance, the House of Lords in R v Secretary of State for Employment ex p Equal Opportunities Commission [1995] 1 AC 1 permitted the Equal Opportunities Commission to challenge provisions of the Employment Protection (Consolidation) Act 1978 on the basis that these were incompatible with the United Kingdom’s anti-discrimination obligations under European Community law, namely Council Directive 75/117/EEC of 10 February 1975 (the Equal Pay Directive) and Council Directive 76/207/EEC of 9 February 1976 (the Equal Treatment Directive). In this case, the group was found to have ‘sufficient interest’ on the basis that the organisation played a key role in the fight for equality and the elimination of gender discrimination. Also, the organisations in question played an important role in giving advice, guidance and assistance to any claimants for these purposes. This was considered sufficient for the petitioners to fulfil the requirement of locus standi. In light of this, in this case, the court also notes the nature of the work carried out by the petitioner organisation. It seeks to support victims of rape, and sexual assault more broadly, all particularly odious crimes where survivors have to overcome significant obstacles when deciding to disclose their experiences, including

374  Dimitrios Kagiaros the distress of recounting their experience in a courtroom. This makes many survivors reluctant to speak up. As a result, their experiences have often been overlooked or disregarded. This makes the role of organisations such as those petitioning the Court of Session in this case all the more important. Academic research by mental health professionals treating survivors of sexual violence demonstrates the ‘secondary victimisation’ of rape victims who speak up to seek redress (eg, Rebecca Campbell and Sheela Raja, ‘Secondary Victimization of Rape Victims: Insights from Mental Health Professionals who Treat Survivors of Violence’ (1999) 14 Violence and Victims 261). The petitioner organisation is therefore indispensable in giving voice to the very serious concerns raised by Mr Tyson’s visit and providing, beyond psychological support to survivors, legal interventions where it is in the interest of its members or the broader public interest to do so. It is therefore hoped that the rules of locus standi in Scots law, which prohibit the petitioners from suing in this instance, will be revisited by the Inner House of the Court of Session or the Appellate Committee of the House of Lords soon, to correct what seems to be an unjust system of determining standing. A lack of standing usually means that the reviewing court will not examine the remaining arguments put forward by the petitioners. However, the Secretary of State has argued that the petitioners’ averments are irrelevant and that the petition should be dismissed for that reason, quite apart from questions of title and interest. For reasons of clarity and completeness, even though there is no standing in this case, I provide responses to the Secretary of State’s arguments against the claim brought by the petitioners. It is a matter of primary significance whether Mr Straw’s actions were procedurally improper and whether his decision was one he was entitled to reach. Even if this court cannot provide a remedy due to lack of standing in this case, it can assist in determining future similar cases, by suggesting what the rules of natural justice require for a decision of this kind to be fair. III. Right to be Heard/Audi Alteram Partem The petitioners seek reduction of the Secretary of State’s decision on the basis that Mr Straw exercised his discretion to accept submissions from Mr Tyson’s supporters. This, according to the petitioners, generated a common law duty on Mr Straw to also hear submissions from those opposing Mr Tyson’s entry to the United Kingdom. The petitioners argued that the Minister would have reached a more informed and balanced decision by providing them with the opportunity to make representations. This argument raises important questions relating to the common law principles of natural justice (fairness), a component of which is audi alteram partem (the right to be heard). This common law principle allows an individual who may be adversely affected by an impending decision to make representations to the decision-maker. In Ridge v Baldwin [1964] AC 40, Lord Reid famously noted that the principle of audi alteram partem ‘goes back many centuries in our law and

Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527  375 appears in a multitude of judgments of judges of the highest authority’ (at page 64). This principle, along with the common law rules against bias, is a prerequisite for a decision to be fair. But when is this duty triggered? Namely, under what circumstances will a failure of a decision-maker to take representations before reaching a decision render their decision unfair and therefore a nullity? Fairness in decisionmaking is a broad principle and its exact meaning falls to be determined in the specific context of each case. As Lord Bridge explains in Lloyd v McMahon [1987] AC 625, 702–03: [T]he so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. Therefore, the norms the decision-maker has to follow to ensure the fairness of the decision will depend on various factors. It is not surprising that Mr Straw sought to hear from Mr Tyson’s team, as their interests, primarily pecuniary in nature, would be directly affected by the decision. Would fairness in this context, however, also create a duty on the Minister to hear representations from the petitioners? Here it is important to keep in mind Glidewell LJ’s dicta, in R v Lautro ex parte Ross [1993] QB 17, page 50: ‘the law does not require the decision-making body to give an opportunity to every person who may be affected, however remotely, by its decision, to make representations before the decision is reached. Such a ­principle would be unworkable in practice’. Therefore, it is for this court to determine whether in this case the interests of the petitioners (which will be discussed further below) can be viewed as ‘remote’, so as to absolve the Minister of the duty to take representations. The purpose of audi alteram partem is to ensure that anyone whose interests may be affected negatively by an imminent decision is permitted to argue their position before the decision-maker in advance of that decision being made. There must, however, be some nexus between the decision and the interests of the petitioners. As discussed above in reference to the issue of standing, the immigration rules do not confer any rights to the petitioners or generate any obligations on them. The two parties involved in the decision to grant leave to enter to Mr Tyson are Mr Straw and Mr Tyson himself. Any dispute about Mr Tyson’s entry to the country would be a dispute between the Minister and Mr Tyson. Lord Diplock addressed this point in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180. At page 190, he held that: Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural

376  Dimitrios Kagiaros justice has never been extended to give such persons … rights to be heard by the decision-making tribunal before the decision is reached. In accordance with this authority, it would be difficult to conclude that Mr Straw was under a common law duty to take representations from the petitioners for his decision to be fair. The lack of a legal duty, however, should not discourage a ­Minister from seeking the broadest possible assistance when reaching decisions that will cause distress to marginalised groups. Administrative decision-making can only benefit from exposure to all available advice, especially advice that is the result of comprehensive research on (and engagement with) the issues that form the basis of the petitioners’ specialist knowledge in this case. Ignoring the concerns, and expertise, of the petitioners and choosing to meet Mr Tyson’s representatives in secret does not contribute to the values of openness and transparency one would associate with fair decision-making. Mr Straw’s refusal to meet the petitioners and engage with their views may undermine the legitimacy of his decision in the eyes of the public and sends an alarming message to survivors of sexual assault. It suggests that the government not only does not have their interests in mind, but refuses to engage with them altogether. Additionally, counsel for Mr Straw argued that he was aware of the issues the petitioners were planning to raise and therefore it was not necessary to provide them with a hearing. The suggestion that Mr Straw had no need to hear opposing views because he was already aware of the arguments the petitioners would have presented is unconvincing. The petitioners were hoping to deliver evidence to the Minister, based on their expertise, that rewarding Mr Tyson with significant sums of money for a boxing match would send the wrong message to impressionable young males, therefore contributing to the perpetuation of ‘rape culture’. Mr  Tyson’s visit could thus be viewed as a direct insult to women in Scotland who have survived rape, sexual assault and are facing, on a day-to-day basis, the repercussions of the violence to which they were subjected. While the threat of Mr Tyson reoffending while in the UK was taken into account by Mr Straw, who concluded that no such risk exists, it was also vital for the Minister to consider the psychological harm his visit, and the celebrations associated with it, could cause to others. The key concerns associated with permitting Mr Tyson entry to the UK, beyond the risk of his reoffending, relate to the fact that his example would affect impressionable young minds and further the suffering of women and other survivors of sexual assault by celebrating and normalising his behaviour, while at the same time ignoring the harm that this celebration might trigger. Both the petitioners, Rape Crisis Centre and Ms Brindley, through their work and advocacy, are uniquely placed to provide information to the Minister on the impact his decision would have upon survivors of sexual assault and more widely. In carrying out this assessment, no other body in Scotland could have provided more insight and vital information. It is highly unpersuasive for the Minister to proclaim that his expertise on the matter equals that of the Centre and that the

Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527  377 petitioners would have nothing of substance to add. While Mr Straw may believe he has a clear idea of how allowing a convicted rapist into the country may affect survivors – and broader perceptions about how seriously sexual crime is treated – he certainly would have more to hear from the petitioners. Hearing their views on a matter of public interest when reaching this decision, especially in light of its impact, would not have been too onerous. In spite of this, it would be unpersuasive to suggest that hearing the representations from the petitioners was a duty that is recognised in law. For reasons of propriety, Mr Straw should have been more attuned to the concerns of the petitioners before making his decision. Yet, based on our understanding of fairness as developed through common law, especially R v Lautro ex parte Ross [1993] QB 17, the scheme of immigration rules under which Mr Straw made his decision to admit Mr Tyson into the UK created no legal duty to take representations from the petitioners. It is hoped that, notwithstanding this fact, more attention will be paid to such matters in administrative decision-making when similar issues arise in the future. Good decision-making can only be achieved where decisionmakers seek the widest expertise available on an issue, and they should aspire to this even when they do not have a legal duty to do so. IV. Relevant and Irrelevant Considerations/Abuse of Discretion Another ground on which the decision should be examined is abuse of discretion on the basis of irrelevant considerations. The petitioners argue that Mr Straw’s consideration when applying the immigration rules (protecting the reputation of the United Kingdom as a desirable venue to host sporting events) was irrelevant. If this is the case, Mr Straw would be abusing his discretion and the decision would be a nullity. Judicial control of administrative action has developed so as to allow courts to assess whether or not the decision-maker’s discretion was exercised properly (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). A ­decision-maker can, among other reasons, misdirect herself in the law when she takes into account extraneous or irrelevant considerations. On occasion, the statute that confers decision-making powers to the decision-maker will explicitly set out the considerations that must be taken into account for the decision to be reached lawfully. More often, however, it is for the courts to determine which matters are relevant or irrelevant, after examining the terms of the legislation as a whole (Harvey v S­ trathclyde Regional Council 1989 SLT 25; 1989 SLT 612, HL). It was also established in R v Secretary of State for the Home Department ex parte ­Venables [1998] AC 407, that power is not lawfully exercised if a body takes ‘irrelevant considerations’ into account or fails to take account of relevant factors. Additionally, in R v Somerset County Council ex parte Fewings [1995] 3 All ER 20, it was held that while a body may not take into account any irrelevant considerations, it is not required to take into account all relevant considerations.

378  Dimitrios Kagiaros Applying the law to the case at hand, when reaching his decision, Mr Straw helpfully laid out the considerations he took into account. He evaluated Mr Tyson’s behaviour during his last visit to the United Kingdom, he assessed the financial damage to the organisers if the event did not go ahead as planned, he claimed to be aware of the issues raised by the petitioners and, finally, he argued that ‘a refusal to permit entry … would not enhance the UK’s standing as a venue for major sporting events’. It is not for the court in the course of judicial review proceedings to weigh these competing considerations against each other and determine which would be paramount. That discretion has been conferred by Parliament to the Minister. Judicial review is not an appeal on the merits of the decision and does not allow the court to set aside the decision merely on the ground that it would have reached a different conclusion under the same circumstances. It is for the Court of Session, however, in the exercise of its supervisory jurisdiction, to determine whether the Minister was entitled to take these considerations into account when exercising his discretion. It is clear that the immigration rule in question – rule 320 – confers significant discretion to the Minister to allow entry to convicted criminals for reasons other than compassion (which is explicitly mentioned in the rules). However, even though the discretion is considerable, it is not without limits. Here, I will focus on one of the considerations mentioned above, namely, the interest relating to the enhancement of the UK’s reputation as a sporting venue. In order to determine whether such a consideration would be relevant, the court must first establish the policy and object of the power-conferring instruments, namely the 1971 Act and the immigration rules themselves. In Padfield v Minister of Agriculture, Fisheries and Food, Lord Reid noted at page1029 that: Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court. Reading the 1971 Act as a whole, alongside the immigration rules, the following conclusions about their policy and object can be reached. The 1971 Act seeks to regulate the entry of foreign nationals into the UK and to provide a statutory basis for deportations. The key consideration behind administrative decisions in the Act is the promotion of ‘the public good’. Entry or deportation of foreign nationals is assessed on this basis. More specifically, there are multiple references to the ‘public good’ in the Act – for instance section (5)(b) or section 9(4)(a) – that instruct the Minister to make immigration-related decisions with reference to this public good. Additionally, the rules regulate the conditions for entry into

Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527  379 the UK of convicted criminals. The assessments that immigration officials are required to make relate to the potential harm that could be caused by allowing entry to the offender (rule 320(19)). Additionally, the rules call upon immigration officials to focus on the character of the convicted individual (rule 320(19)) and their past behaviour (rule 320(18)). The rules explicitly prohibit entry into the UK of convicted criminals whose offences are punishable by at least 12 months’ imprisonment and create an exception to this rule for compassionate reasons. These  references to potential harm, the character of the offender and their past behaviour, and the bar to entry for individuals who have committed offences carrying sentences of at least 12 months’ imprisonment lead me to very specific conclusions about the policy and object of the immigration framework. It is evident to me that this framework is intended to secure public safety and to ensure that members of the UK public are not exposed to undue harm. The overriding purpose of barring convicts from entering the UK is to protect the public, and any exceptions must be examined through this lens. Therefore, there is in the broader immigration framework within which Mr Straw’s decision is located a presumption in favour of not providing entry to individuals in Mr Tyson’s circumstances. It is this potential harm to public safety that Mr Straw seems to have ignored by refusing to meet with the petitioners. While he noted that he was aware of their concerns and confirmed that he took into account the possibility of Mr Tyson committing new crimes in the UK (a possibility that was remote according to the Minister), Mr Straw did not adequately examine the concerns the petitioners had about Mr Tyson’s visit. I have discussed these concerns in detail when examining audi alteram partem in this judgment: they relate to the endorsement of rape culture caused by Mr Tyson’s visit and the psychological harm to which survivors of sexual assault will be exposed, both of which might be conceived of as related to public safety. Instead, Mr Straw chose to focus on how Mr Tyson’s visit will affect the reputation of the UK as a desirable sporting venue. While the Minister has significant discretion to override the presumption in favour of not allowing Mr Tyson to enter the UK, Mr Straw’s suggestion that the normal rule will not apply on the basis of enhancing the reputation of sport in the UK is difficult to accept as a consideration that is in line with the overall purpose of the immigration framework discussed above. A ‘sports exception’ to immigration laws for convicted criminals seems to be drawn out of thin air. It does not seem to me to be the result of a thorough assessment of the issues at hand, keeping in mind the policy and objectives of the framework under the 1971 Act and the rules and, as such, could rightly be described as an irrelevant consideration. While the court agrees with counsel for the government that compassionate reasons are not the only reasons that would allow the Minister to grant leave to a convicted criminal, these other reasons for such exceptional treatment must be linked closely to the overall policy objectives promoted by the immigration framework. Otherwise, the decision is arbitrary.

380  Dimitrios Kagiaros To conclude, the very real and concrete harm caused by the visit, which the petitioners highlighted, cannot within the bounds of the Minister’s discretion be balanced against an opaque and unprovable promise that Mr Tyson’s visit will enhance the UK’s sporting reputation. The Minister’s taking into account such considerations is extremely difficult to justify when attending to the purpose of the 1971 Act and the immigration rules. Therefore, I reach the conclusion that in this matter, by allowing exceptional entry to the UK for Mr Tyson, the Home Secretary abused his discretion by taking into account irrelevant considerations. Due to the lack of standing, however, this court cannot nullify Mr Straw’s decision. V. Conclusion It is unfortunate that the rules of standing in Scotland do not allow this case to move forward as the equivalent case, brought by a similar pressure group, did in England. This speaks to the obstacles particular to Scotland that pressure groups and NGOs such as Rape Crisis Centre face when trying to challenge decisions of this nature. This is detrimental not just to the petitioners and those they represent but more broadly to the rule of law. Judicial review is a key means by which to check the powers of the state and to ensure that decisions reached are lawful. Invoking the Court of Session’s supervisory jurisdiction should, therefore, not be restricted to too small a group of persons. The ability to invoke this jurisdiction should extend to groups acting in the public interest who can convincingly argue that the relevant decision affects the interests of the section of the public they seek to represent. This is particularly pertinent where survivors of rape seek representation through an organisation, such as Rape Crisis Centre, which has developed unparalleled expertise in fighting on their behalf.

Commentary on Rape Crisis Centre v Secretary of State for the Home Department SANDY BRINDLEY

It has been interesting to revisit this case as a commentator, having been one of the petitioners in the original case. Much has changed in Scotland in relation to responses to rape in the 18 years since the rape crisis centre I worked at sought permission to take this judicial review, but many issues remain, not least in relation to access to justice. The rewritten judgment by Lord Kagiaros gives far more space to the arguments we would like to have made, had we been judged to have standing. At the time, we had to consider a number of different factors when deciding whether to attempt to seek a judicial review of the then Home Secretary’s decision to make an exception to immigration rules to enable Mike Tyson, a convicted rapist, to enter the UK for the purposes of a boxing match in Glasgow. We would not normally as an organisation focus on one individual case or individual rapist. We knew that if we took this action, it would be crucial for us to be very clear that our focus was on the decision of Jack Straw, the Home Secretary, and our concerns about the message this decision sent. We were aware that there was a possible racist narrative around Black men as rapists which we very clearly wanted to avoid. There was also a potential political agenda. This case happened the year after the Scottish Parliament was established, but as immigration is reserved to ­Westminster, the new Parliament had no say in the decision to allow Mike Tyson to enter Scotland for the boxing match. It was not for us, as a charity, to comment on what powers the Scottish Parliament should or shouldn’t have, and we needed to ensure that we avoided getting caught up in a constitutional argument. There were also concerns about how we, as a small charity with very limited financial resources, could cover the costs of legal action. We were extremely ­fortunate to have a legal team who agreed to work for free (we couldn’t ­possibly have taken the action if we had to pay lawyers’ fees), but we had to weigh up the risk of having expenses awarded against us. We knew, however, from a recent case in England, where Justice for Women took a judicial review of a similar ­decision around Mike Tyson, that the Home Office were unlikely to seek expenses against us. We also knew prior to undertaking the action that we were unlikely to be

382  Sandy Brindley successful, as the rules on standing at the time were so strict that we were unlikely to be granted permission for the judicial review to go ahead. Our purpose in taking it was to counter the message that we felt was being given by the Home Secretary’s decision, which we felt prioritised economic considerations over the impact and seriousness of rape. Weighing up all these factors, we took the view the decision allowing entry required to be challenged, and that we should seek permission to take a judicial review. Although the action fell at the first hurdle, taking it definitely felt like the right thing to have done. The case raised the technical question of standing, which was later developed in AXA General Insurance Limited and Others v The Lord Advocate [2011] UKSC 46, which relaxed the rules in relation to standing in Scots law, and significantly broadened their scope. Our involvement in the case also had a positive impact on Rape Crisis as a movement in Scotland. It was our first experience of engaging in strategic litigation. It involved a lot of work and some risk, but it significantly raised our profile as an organisation and as a movement for change. Having a higher profile in the media brought with it a number of benefits: it enabled us to get our message out to survivors and the general public, and it also gave us an additional level of ‘clout’ in our engagement with policy- and decision-makers. Most important, however, was the impact of our action on survivors of sexual violence. Rape Crisis Centre retained all the original material relating to this case, including the letters from members of the public responding to our legal action. Not everyone agreed with us – we received a small number of negative letters, which were often abusive and homophobic. The majority of correspondence, however, was from survivors, saying what a difference it made to them to have us challenging the idea that economic considerations should ever override the importance of treating rape with the seriousness it requires. One of the most moving letters we received arrived the morning we went to court. It said: ‘I am an ordinary woman whose life, like many others, has been changed forever by rape. When you are at court today, you are speaking for all of us’. This is why it is important that organisations like ours are able to take challenges of this nature. No organisation can speak for all survivors of sexual crime – everyone’s experience is different; there is no homogeneous view that can be drawn on. It may be that some survivors didn’t agree with the action we took. However, based on decades of experience of supporting survivors, we are able to make a judgement about situations where we feel it is important that we speak out, and give a voice to people who may not be able to speak, or if they do speak to have their voice heard. In his reflective statement, Lord Kagiaros identifies that, despite the changes wrought by the Axa case, standing remains an issue for organisations like ours who are representing the interests and rights of a group of people who may face particular barriers as individual victims seeking judicial review. We were confronted directly with this issue last year, when we sought advice on judicially reviewing the rape clause and family cap, a Westminster policy which restricted child tax credits to two children, except in cases of so-called ‘non consensual c­ onception’.

Commentary on Rape Crisis Centre v Secretary of State  383 Rape  Crisis Scotland, along with sister organisations Engender and Scottish Women’s Aid, had grave concerns about the implementation of this policy, specifically the requirement for rape survivors to fill out a form declaring their child a result of rape, and making them have this ‘externally validated’ by an external organisation. We felt strongly that forced disclosure of rape to access benefits was intrinsically harmful. However, we were unable to seek a judicial review of the policy, as the rights protected under the European Convention on Human Rights (ECHR) can only be accessed by a ‘victim’. In these circumstances, it is almost impossible to think of someone pregnant as a result of rape being in a position where they feel able to undertake a judicial review of the benefits system. Lord Kagiaros is thus correct in identifying the ongoing obstacles that survivors of rape may face in speaking up and the disregarding of their experiences. He identifies the importance of organisations like Rape Crisis in putting forward legal arguments on their behalf. Restricting access to challenges under the ECHR to victims can mean that judicial review is not a meaningful remedy for people in some of the most desperate circumstances.

Reflective Statement: Rape Crisis Centre v Secretary of State for the Home Department DIMITRIOS KAGIAROS

Rape Crisis Centre v Secretary of State for the Home Department, decided on 2 June 2000 by the Outer House of the Court of Session, offers ample opportunity to engage with the key themes and objectives of the Scottish Feminist Judgments Project. The original judgment delivered by Lord Clarke is straightforward. The petitioners did not satisfy the test of standing that applied in Scotland at the time and, consequently, the case was dismissed. Lord Clarke in the original judgment eloquently summarised the relevant law and offered convincing reasons for his conclusions. When viewed through a feminist lens, however, the judgment is disappointing. This is not merely because the judgment did not deliver the outcome the petitioners would have hoped for, but because the facts of the case raised significant feminist issues which were largely left unaddressed. This provided fertile ground for a rewritten, feminist judgment which would delve in greater depth into these points. In my view, there are a number of key issues in the case which I hoped to address in my rewritten judgment. First, the issue of standing raises important questions about the role of pressure groups such as Rape Crisis Centre in keeping government accountable for its actions through judicial review. This is a particularly pressing matter for organisations that represent women who have survived sexual assault and who may, for very good reasons, not be willing or able to initiate litigation themselves. Secondly, and turning to the substance of the Minister’s decision, I was struck by Mr Straw’s approach to weighing the competing considerations in this case. As activists at the time eloquently argued, Mr Straw had clearly placed profit and the UK’s reputation as a desirable sports venue before the specific needs of survivors of rape and, indeed, those of the public at large. Could there be any legal recourse for this, considering the limited role of judicial review in challenging the merits of administrative decision-making? This, I felt, was at least worth exploring. Finally, the rather condescending approach by Mr Straw towards the petitioners and their expertise (according to him, they had nothing

Reflective Statement  385 of substance to add to what he already knew) was endorsed by Lord Clarke in the original judgment, when he noted: While counsel for the petitioners endeavoured to persuade me that the petitioners had particular additional material to bring to the attention of the Secretary of State which arose from their activities in Scotland, I was not satisfied that counsel was in a position to specify anything which raised matters of substance, which differed from, or would have added materially to, the views of which the Secretary of State must have already been fully aware.1

This approach seemed problematic to me particularly because it ignored the specialist knowledge and expertise that Rape Crisis Scotland had developed over the years. These issues became the impetus for me to explore whether a judgment that addressed these controversies head-on, relying on the law as it was at the time, would have made any substantial difference or added anything of value to the original judgment. Rewriting the judgment required me to make many difficult choices. I was originally planning to discuss the relevance of the economic considerations that, according to Mr Straw, outweighed the legitimate concerns the petitioners had about Mr Tyson’s entry to the UK. This was one of the key aspects of Mr Straw’s decision that rightfully outraged feminist campaigners and rape support groups at the time.2 From a legal standpoint, and taking into account the limited capacity judicial review offers to challenge the merits of a decision, I discovered that it was difficult to argue credibly that this consideration was one the Minister was not entitled to take into account. Even though I believed the decision was wrong in this respect, I struggled to find a convincing avenue to challenge its legality. ­Ultimately, I decided to abandon this dimension of the judgment and focus instead on other considerations that seemed to me to stretch the Minister’s powers under the immigration framework to their limits. While I was in the final stages of rewriting this judgment, the controversies surrounding the rules of standing once again generated debate amongst constitutional lawyers following the UK Supreme Court’s judgment in Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27. In this judgment, the UK Supreme Court determined by a majority of 4:3 (with Lady Hale, Lord Kerr and Lord Wilson dissenting) that the Northern Ireland Human Rights Commission did not have standing to challenge legislation banning abortions in Northern Ireland as being incompatible with the European

1 Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527, 538. 2 A spokesperson for Rape Crisis Centre at the time commented: ‘Given the gravity of the crime of rape, we were deeply saddened that the Home Secretary appears to have given economic considerations greater weight than the trauma experienced by women and girls who have suffered the crime of rape’ in ‘Women’s Group Seeks Tyson Review’ (BBC News, 26 May 2000), available at: news.bbc.co.uk/1/hi/ scotland/765641.stm.

386  Dimitrios Kagiaros ­ onvention on Human Rights. For the majority, the Commission did not satisfy C the ‘victim test’ that petitioners are expected to demonstrate when reviewing administrative action on Convention grounds. This did not deter the majority of Supreme Court justices from declaring the impugned Act disproportionate and therefore incompatible with the rights protected under the European Convention, although the appeal was eventually dismissed due to the lack of standing. I decided to follow a similar approach in my rewritten judgment. Rape Crisis Centre precedes the landmark judgment of AXA General Insurance Limited and Others v The Lord Advocate and Others [2011] UKSC 46, where the rules of ­standing in Scotland were significantly relaxed by the UK Supreme Court. Rather than pre-empting Axa and having the Outer House of the Court of Session change the rules of standing 11 years before the UK Supreme Court did, I decided that the petitioners would not have standing and their case would be dismissed. I would, however, go on to assess the substance of the case and reach a conclusion as to its lawfulness. Therefore, I decided that the key difference between Lord Clarke’s judgment and my own would be that my feminist rewriting would more clearly highlight the feminist issues arising in the case; it would more thoroughly address the pitfalls of a stringent standing test that would exclude groups such as Rape Crisis Centre from seeking to set aside such decisions; and it would provide more rigorous scrutiny of the Minister’s exercise of discretion. My rewritten judgment reflects the law as it was at the time and chooses to rely heavily on obiter statements to highlight the issues and concerns raised for various pressure groups, especially those that provide assistance to classes of individuals that have traditionally faced societal or other barriers when bringing their cases to court. While much debate still exists on the appropriate approach to standing, hopefully such a judgment, had it been delivered in 2000, would have contributed to this discussion and become the impetus for change. The many obiter statements I have included could have had some persuasive value in subsequent judgments. When reading the rewritten judgment, one could object to the tone and style of its delivery. It would be fair for readers to question whether a judgment containing such extensive obiter statements chastising a Minister could have ever been delivered. It is also up for debate whether a judgment of this nature would realistically contribute to the clarity and precision of the law, something we have come to expect from judges in their opinions. I believe that such objections may be missing the point of the project. The impetus behind rewriting these judgments, in my view, is to push the boundaries of what may have been conceivable to include in a judgment at the time the case was decided and to offer an alternative, feminist perspective. This should then allow us to assess whether a more overt consideration of the feminist issues underpinning the case would have had an impact upon our understanding and development of the law. Hopefully, the rewritten judgment will provide such food for thought. While working on the Rape Crisis Centre judgment, I heavily relied on the invaluable expertise of Sandy Brindley, one of petitioners in this case, who continues to be at the forefront of the battle for supporting survivors of sexual assault,

Reflective Statement  387 fighting domestic violence and trying to effect change through activism. In our meeting, she shared her frustration in relation to the continuing difficulties posed to pressure groups by particularly restrictive standing rules. For instance, in spite of the changes brought by the Axa judgment, for challenges on Convention rights grounds, petitioners must demonstrate ‘victim status’ for their case to proceed. This sets obvious obstacles for survivors of sexual assault and the pressure groups hoping to support their interests. For my analysis, I also found accounts on the law at the time by engaging with a variety of useful sources.3 The contributions of the editors and the fellow feminist judges during the various workshops were equally indispensable in highlighting the feminist issues in the judgment and finding ways to interpret the law in that direction. As a final point, it may be interesting to examine what happened in the end with Mr Tyson’s match in Glasgow. In his analysis of the Rape Crisis Centre judgment, Lord Hope4 recounted his experience from attending the eventual match. As he describes: Outside the Hampden Park Stadium there was large crowd of women who were engaged in a protest. They had lined the streets with banners reading ‘Straw equals Tyson equals Money before Justice’. Those who had dared to enter the stadium had had to run the gauntlet of their drum beats and cat-calls. The women belonged to an organisation known as Glasgow Women against Rape.5

It is hoped that in similar situations where the legal process fails to provide a remedy, concerned citizens will continue to raise their voices and cause discomfort to those who try to ignore them.

3 T Mullen et al, Judicial Review in Scotland (Oxford, Wiley, 1996); S Blair, Scots Administrative Law: Cases and Materials (Edinburgh, W Green/Sweet & Maxwell, 1999); A O’Neill, Judicial Review in ­Scotland: A Practitioner’s Guide (Oxford, Butterworths, 1999). From more recent publications, I relied on C Himsworth and C O’Neill, Scotland’s Constitution Law and Practice (Hayward’s Heath, Bloomsbury Professional, 2015); P Reid, Public Law (Edinburgh, W Green, 2015); J Beatson et al, Administrative Law: Text and Materials (Oxford, Oxford University Press, 2011); RJA McQuigg, ‘The Victim Test under the Human Rights Act 1998 and its Implications for Domestic Violence Cases’ (2011) 3 European Human Rights Law Review 2943; R Campbell and S Raja, ‘Secondary Victimization of Rape Victims: Insights from Mental Health Professionals who Treat Survivors of Violence’ (1999) 14 Violence and Victims 261. 4 Lord Hope, ‘Mike Tyson Comes to Glasgow – A Question of Standing’ [2001] (Summer) Public Law 294. 5 ibid 294.

388

18 Salvesen v Riddell [2013] UKSC 236 SALVESEN V RIDDELL (LORD ADVOCATE AND ADVOCATES TO THE COURT INTERVENING) ON APPEAL TO THE UNITED KINGDOM SUPREME COURT FROM THE INNER HOUSE OF THE COURT OF SESSION, SECOND DIVISION 23 APRIL 2013 LADY MCHARG (WITH WHOM LORD NICOLSON AGREES) (DISSENTING) The Issue before the Court The question before this court is a devolution issue arising under the Scotland Act 1998 concerning whether section 72 of the Agricultural Holdings (Scotland) Act  2003 (the 2003 Act) is outwith the legislative competence of the Scottish ­Parliament. Section 72 is alleged to breach Article 1 of the First Protocol (A1P1), read together with Article 14 of the European Convention on Human Rights (ECHR), because it retrospectively interferes with the property rights of certain agricultural landlords. By virtue of section 29(2)(d) of the Scotland Act 1998, an Act of the Scottish Parliament is ‘not law’ if it is incompatible with Convention rights. At the heart of this issue, however, there is in fact a conflict of property right claims. The dispute from which the devolution issue arose involved, on one side, a claim by Mr Alastair Salvesen, the owner of Peaston Farm, near Ormiston, East Lothian, for vacant possession of the farm, following the issuing of a notice of dissolution of the limited partnership which holds the lease to the farm. The limited partnership consists of Mr Salvesen’s nominee as limited partner and Mr John Riddell and Mr Andrew Riddell (a father and son) as general partners. On the other side, the Riddells sought confirmation that they are entitled to be regarded as tenants of Peaston Farm in their own right in terms of section 72 of the 2003 Act, and to the security of tenure and other entitlements which such tenancy would bring with it. The Riddell family has farmed Peaston Farm since 1902. The lease was originally held by Mr John Riddell’s father. It was a secure tenancy in terms of the

390  Aileen McHarg and Donald Nicolson ­ griculture (Scotland) Act 1948 and its statutory successors (now the AgriculA tural Holdings (Scotland) Act 1991 (the 1991 Act)), and as such it was bequeathed to Mr Riddell’s brother on his father’s death. However, the brother died with no successors and the tenancy came to an end. The then owner of the farm, Hopetoun Estate, was willing to re-let the farm to Mr Riddell and his son, but only on a limited partnership basis. The limited partnership came into effect in 1992 and was due to run until 28 November 2008, and on a year-to-year basis thereafter unless terminated by notice. Mr Salvesen, a billionaire businessman and heir to the Christian Salvesen shipping fortune, bought the farm from Hopetoun Estate in 1998, and his nominee became the limited partner in succession to the previous landlord’s nominee. A limited partnership tenancy is a device used to avoid the security of tenure conferred on agricultural tenants by part 3 of the 1991 Act. Agricultural policy since 1939 has promoted security of tenure as a way of fostering a long-term approach to agricultural husbandry in order to encourage investment in farms so as to increase food production and, in more recent times, to promote environmental sustainability. However, the inflexibility of 1991 Act tenancies makes them unattractive to landlords, and reduces the capital value of their land. As it is not possible to contract out of the security of tenure provisions in the 1991 Act (Johnson v Moreton [1980] AC 37; Featherstone v Staples [1986] 1 WLR 861), the device of granting the lease to a limited partnership was employed as an ­alternative mechanism to allow landlords to regain possession of their land at the end of a fixed or minimum term of let. Although the lease enjoyed by the limited partnership was a 1991 Act tenancy with full security of tenure, by dissolving the limited partnership, the landlord could effectively bring the lease to an end because the tenant ceased to exist. While advantageous to landlords, limited partnership tenancies were obviously considerably less advantageous to farmers than 1991 Act tenancies held in their own right. Indeed, in MacFarlane v Falfield Investments Ltd 1998 SC 14, an attempt was made to challenge the validity of the use of limited partnership tenancies as effectively amounting to a sham, although the argument was rejected by the Inner House which did not regard the arrangements as either deceitful or contrary to public policy. Thus, although the Riddells clearly agreed to the limited partnership arrangement, this was most likely something of a Hobson’s choice if they wished to continue the family business and remain in the family home. In fact, by the time they entered into the arrangement, limited partnership tenancies had become the dominant form of tenure for new agricultural lets across Scotland. The dispute between the parties was originally heard before the Land Court, which found for the Riddells in July 2010, and then on appeal to the Inner House, which found for Mr Salvesen in March 2012. Following the Inner House decision, Mr Salvesen served notice to quit on the Riddells, and the parties reached a

Salvesen v Riddell [2013] UKSC 236  391 settlement in summer 2012. Tragically, however, in October 2012, after gathering in his last harvest, and obviously distressed at the prospect of losing his home and livelihood, Mr Andrew Riddell took his own life. Sadly, such suicides are all too common amongst farmers and in our rural communities, a phenomenon frequently linked to economic insecurity. Given these tragic events, Mr John Riddell understandably no longer wishes to participate in further proceedings before this court. Having recovered vacant possession of Peaston Farm, neither does Mr Salvesen. Nevertheless, the appeal against the Inner House’s decision was maintained by the Lord Advocate as intervener. The devolution issue raises a point of general public importance, which it is desirable to resolve at this time. The validity of section 72 of the 2003 Act affects numerous other limited partnership tenancies, and the facts of this case remain illustrative of the nature of the issues at stake. The Agricultural Holdings (Scotland) Act 2003 The 2003 Act is part of a broader programme of land reform pursued by the Scottish Parliament since its inception. Even before devolution, land reform was identified by the Scottish Office as a priority area for the new institutions, given both the highly unequal pattern of landownership in Scotland, and the perception that significant reform had effectively been blocked at Westminster due to a combination of lack of legislative time and the influence of powerful land-holding interests in the House of Lords. Thus, in 1997, the Scottish Office established the Land Reform Policy Group (LRPG) to make recommendations for reform (see Land Reform Policy Group Recommendations for Action (Scottish Office, January 1999)). As regards agricultural holdings, the LRPG recognised the need to strike a better balance between the interests of landlords and tenant farmers, allowing landlords the ability to grant fixed-term tenancies without the inflexibility and loss of control entailed by 1991 Act tenancies, but giving tenant farmers greater rights and security than afforded by limited partnership tenancies. It therefore recommended the discontinuation of limited partnership tenancies, and the introduction of new forms of fixed-duration tenancies, although existing 1991 Act tenancies would be unaffected, and it would remain possible to create new 1991 Act tenancies. As initially introduced, the Agricultural Holdings (Scotland) Bill provided for two new forms of agricultural tenure – limited duration tenancies and short limited duration tenancies (see 2003 Act, part 1). It also provided that, if a new limited partnership tenancy was entered into after the coming into force of the Act (whether a 1991 Act tenancy or a limited duration tenancy), the general partner would become tenant in their own right on the same terms as the limited partnership tenancy in the event that the limited partner sought to dissolve the partnership (see 2003 Act, section 7). In effect, while the Scottish Parliament could

392  Aileen McHarg and Donald Nicolson not prevent tenancies being granted to limited partnerships (partnership law being a matter reserved to the UK Parliament), it sought to deter the creation of new limited partnership tenancies. In its initial form, however, the Bill did not affect existing limited partnership tenancies. Nevertheless, as commonly occurs, the Scottish Ministers’ policy evolved during the passage of the Bill through the Parliament. Law-making in the Scottish Parliament is expected to be a collaborative and participatory process, between the Scottish Ministers, the Parliament and the interested public, particularly via the role of the relevant subject committee. In its report on Stage 1, the Rural Development Committee invited the minister in charge of the Bill (Ross Finnie MSP) to re-examine the extent to which the provisions of the Bill (in particular the preemptive right to buy introduced for 1991 Act tenants) should apply to existing limited partnership tenancies. Accordingly, on 3 February 2003, the minister tabled amendments for consideration at Stage 2. These did two things. First, they extended the provisions of the Act to existing limited partnership tenancies. By virtue of what became section 72 of the 2003 Act, if a landlord sought to terminate a pre-existing limited partnership tenancy after the Act came into force, the general partner would, on giving a counter-notice, be able to assume a 1991 Act tenancy in their own right. But, under section 73, this would be subject to the landlord’s absolute right to gain vacant possession by giving notice to quit of between two and three years. Second, the amendments proposed an anti-avoidance measure: if a dissolution notice were served between 4 February and 1 July 2003 (the date on which the provision was expected to come into force), the general partner would be entitled to continue the tenancy under section 72, on application to the Land Court. The response from landlords, including Mr Salvesen, was a flood of dissolution notices issued on 3 February, obviously timed to avoid being caught by the amendments. In response, further amendments were tabled at Stage 3. These moved the start date for the anti-avoidance provisions back to 16 September 2002 (the date on which the Bill was first published), such that the dissolution notices issued on 3 February would now be caught retrospectively by the Act. They also provided that section 72 would automatically apply on the issuing of a notice to assume the tenancy by the general partner under section 72(6), subject to the right of the landlord to apply to the Land Court for an order that the general partner should not assume the tenancy (section 72(8) and (9)). The Land Court could only issue such an order if it were satisfied that the dissolution notice had been issued for a purpose other than to defeat the rights of the general partner under section 72, and if it considered it reasonable to do so. Further, unlike limited partnerships dissolved after the Act came into force, landlords who had engaged in antiavoidance tactics would not be able to invoke the right to give an extended notice to quit under section 73. Their general partners would, in other words, be entitled to a full 1991 Act tenancy.

Salvesen v Riddell [2013] UKSC 236  393 Proceedings before the Land Court On 3 February 2003, Mr Salvesen gave notice that the limited partnership in respect of Peaston Farm would be dissolved on 28 November 2008. On 12  ­December 2008, the Riddells gave notice under section 72(6) of their intention to assume the tenancy in their own right. Mr Salvesen applied to the Land Court under section 72(8), arguing that it had always been his intention to dissolve the limited partnership when the agreement came to an end, and to amalgamate Peaston Farm with adjoining farms that he also owned. The Land Court refused the order, without allowing a proof, holding that the timing was such that the purpose of issuing the notice of dissolution could only be regarded as having been to defeat the general partners’ rights under the 2003 Act. Proceedings before the Inner House Mr Salvesen appealed to the Inner House on two grounds: first, that the Land Court had applied the wrong test in determining the purpose of the dissolution notice; and, second, that section 72 of the 2003 Act violated his rights under A1P1 and Article 14 ECHR. The Lord Justice Clerk held that, in order for section 72(8) and (9) to be meaningful, they must be taken as referring to the landlord’s underlying purpose in seeking to regain possession of the land, and not simply to his motivation for the timing of the dissolution notice. Accordingly, he held that the Land Court had erred in refusing Mr Salvesen proof before answer. The Lord Advocate has not sought to dispute this ruling, and it must surely be correct. The Lord Justice Clerk also held that the retrospective variation of the effect of the dissolution notice breached the landlord’s property rights under A1P1, since it was unjustifiably discriminatory, as compared with the treatment of landlords who dissolved limited partnership tenancies after the Act came into effect, and arbitrary in its scope. In his Lordship’s view, the amendments to the Bill were motivated by the desire to punish landlords who had sought to avoid the consequences of the legislation. Moreover, he considered that there was nothing immoral or deserving of punishment in exercising rights under a contract which had been freely entered into. No separate question of discrimination arose under Article 14 ECHR, since no protected status was involved. The majority of judges in this court agree with the Inner House that there has been a breach of A1P1, although their finding of incompatibility is limited to section 72(10) (which deprives landlords in Mr Salvesen’s position of the benefits of section 73), rather than the whole of section 72. Property Rights in Context The courts in Scotland, as elsewhere in the United Kingdom, are rightly concerned to ensure that property rights are respected, that contractual bargains freely entered into are upheld, and that rights and expectations are not interfered with

394  Aileen McHarg and Donald Nicolson retrospectively. All three are vital elements of the Rule of Law as it is understood in a liberal democracy, serving to protect individuals’ autonomy and their ability to plan their affairs. Property rights in particular provide the foundation for personal security, economic wellbeing and individual freedom. Nevertheless, it is important not to lose sight of the wider context in which property rights are enjoyed. In the first place, property rights are rarely absolute, and different property rights may also conflict. In the current situation, the effect of maintaining the rights of landlords is to deny valuable property rights to their tenants – rights on which they have legitimately relied for more than 10 years and on the strength of which they may have invested considerable sums in their homes and businesses. Lord Hope, in giving judgment for the majority, acknowledges this problem (at paragraphs 54–55). His solution is to suspend the effect of the finding of incompatibility, pending the development and enactment of a solution by the Scottish Ministers and the Scottish Parliament. However, if the majority’s finding of a breach of A1P1 is to be respected, it is unclear what options are open to ministers and legislators other than to deny the tenants the security of a full 1991 Act tenancy. Indeed, the prospect may arise of further claims being made under A1P1 by disappointed farmers thereby deprived of their legitimate expectations. Secondly, property comes in different forms. On the one hand, there is property in those things that are necessary to human flourishing: rights in one’s home and to the secure protection of oneself and one’s family, or to the necessities of life, or to the means of earning a livelihood, as well as ownership of the possessions that facilitate self-expression. Property rights in this sense are at the core of the autonomy-promoting function of property identified above. On the other hand, property may simply represent an economic asset – a means to enhance one’s material wealth. In this sense, property can be a significant source of power – not merely self-mastery, but potentially also power over other people who may need or want access to those resources. Where property rights are unequally distributed – and Scotland has one of the world’s most concentrated patterns of landownership  – social and economic power is also unequal. Property rights might therefore be regarded as carrying with them the responsibility to ensure that power is not abused. Finally, property may be understood not merely as a set of individual rights, but also as a social institution. Contrary to the traditional view of ownership as a means of achieving autonomy, the exclusion of others, and dominion over nature, more critical approaches found in the work of feminist, communitarian and environmentalist scholars advance an understanding of property as a means of expressing oneself through connection with others and with nature (see, eg, CM Rose, ‘Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory’ (1990) 2 Yale Journal of Law & the Humanities 37; LS ­Underkuffler,

Salvesen v Riddell [2013] UKSC 236  395 The Idea of Property: Its Meaning and Power (Oxford, Oxford University Press, 2003); S Coyle and K Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Oxford, Hart Publishing, 2004)). On this view, the role of property rights is not simply, as in more traditional legal conceptions, to mark out a sphere of private autonomy free from public intrusion; nor is the allocation and configuration of property rights derived from some natural state of affairs. Rather, property rights are the product of positive law, intended to achieve social purposes which include, but are not limited to, the promotion of individual autonomy. In this sense, property can be understood as consisting not primarily of a set of rights, but rather a set of relationships – between individuals, between individuals and things, and between individuals and the community as a whole. It ‘mediates people’s connections with each other instead of serving to map the boundaries of their separation’ (M Stone, ‘Equity, Property, and the Ethical Subject’ (2017) 11 Pólemos 73, 73). Since the definition and enforcement of property rights are dependent upon collective choices and collective action, law-makers may therefore legitimately regard certain interests in or relationships with or forms of property as more or less worthy of promotion or protection. This ‘social’ or ‘relational’ view of property as an embedded element of social relations is particularly pertinent in the context of agricultural holdings, where landowners and tenants manage the land not only in their own interests, but also in the interest of the wider community, through the maximisation of food production, and in the interests of future generations, through the sustainable stewardship of land. As Lord Hailsham of St Marylebone put it in Johnson v Moreton [1980] AC 37, referring to English statutory provisions on security of agricultural tenure: These are not simply matters of private contracts from which the landlord can stipulate that the tenant can deprive himself as if it were a jus pro se i­ ntroductum. It is a public interest introduced for the sake of the soil and husbandry of England, of which both landlord and tenant are in a moral, though not of course a legal, sense the trustees for posterity (at page 59 G–H, emphasis added). It is not the function of this court to adjudicate between different conceptions of property rights, nor to decide whose interests should be preferred. Rather, the question is whether the Scottish Parliament, in the exercise of its legislative functions in the public interest, is entitled to confer a secure 1991 Act tenancy on farmers in the position of the Riddells, albeit that this amounts to a retrospective interference with the exercise of contractual rights and a frustration of the expectation of landowners in the position of Mr Salvesen of regaining vacant possession of their land. The key issue is whether this legislative choice is compatible with the constraints imposed on the Parliament by the provisions of the ECHR. It is therefore to the Convention that I must now turn.

396  Aileen McHarg and Donald Nicolson The Convention Rights A1P1 of the ECHR provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Article 14 provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Both the Lord Justice Clerk in the Inner House and Lord Hope for the majority in this court conclude that no issue of discrimination within the meaning of Article 14 arises in this case, since the difference in treatment between particular groups of agricultural landlords is not one based on ‘status’ within the meaning of Article 14. I agree, and will not consider this issue further. It is, on the other hand, common ground before this court that A1P1 is engaged. Like most Convention rights, however, the rights conferred by A1P1 are not unqualified. Property rights may be limited in the general interest, provided that the restrictions are authorised by law (as that is understood in the jurisprudence of the European Court of Human Rights) and they are not disproportionate. The courts in Strasbourg and in the United Kingdom have recognised that even retrospective interferences with property rights may sometimes be permissible, although as a prima facie departure from the Rule of Law, retrospective interference requires special justification (Bäck v Finland (2004) 40 EHRR 1184; AXA General Insurance Limited v The Lord Advocate and Others [2011] UKSC 46; R (Huitson) v Revenue and Customs Commissioners [2011] EWCA Civ 893). Analysis of the text of A1P1 reveals that property rights may also be interfered with in different ways. In Sporrong & Lönnroth v Sweden (1983) 5 EHRR 35, the European Court of Human Rights identified three rules contained within A1P1: (1) a general prohibition on interference with ‘peaceful enjoyment of possessions’; (2) a specific prohibition on ‘deprivation’ of property; and (3) restrictions on the ‘control of use’ of property. In the current case, the conferring of a right to security of tenure amounts to a control of use of property (Barreto v Portugal App no 18072/91, ECtHR, 21 November 1995, unreported, at paragraph 35; Spadea v Italy (1995) 21 EHRR 482, at paragraph 28; Gauci v Malta (2009) 52 EHRR 25, at ­paragraph 52). The landlord retains his ownership of the land and the right to

Salvesen v Riddell [2013] UKSC 236  397 receive rents, but his ability to regain possession of the land is restricted, and this reduces its capital value. It is, in other words, his economic interests that are prejudiced. The pre-emptive right to buy conferred by the 2003 Act upon holders of 1991 Act tenancies constitutes a further restriction on the landlord’s right to freely dispose of his property (although the Inner House has recently held that even an absolute right to buy does not, by itself, constitute a breach of A1P1: Pairc Crofters Ltd v Scottish Ministers 2013 SLT 308). In accordance with the general structure of the Convention, the less severe the interference with property rights, the less is required by way of justification. For instance, a deprivation of property will almost certainly not be justified ­without payment of compensation (James v United Kingdom (1986) 8 EHRR 123; ­Lithgow  v  United Kingdom (1986) 8 EHRR 329), whereas this is not necessarily required in relation to a control of use or other forms of interference with the peaceful enjoyment of possessions. In addition, under A1P1, the state is entitled to a particularly wide margin of appreciation in making assessments of what the general interest requires by way of restrictions on property rights, particularly in areas of social or economic policy (J&A Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 1093, at p ­ aragraph 75). In the domestic context, the margin of appreciation translates as a duty on the courts to respect the legislature’s discretionary area of judgment, and not to substitute its view of the general interest for that of the legislature (AXA General Insurance Limited v The Lord Advocate). It is also worth noting that a range of other rights, as well as considerations of the general interest, may be engaged in decisions to restrict property rights. Particularly relevant in the present context are the right to respect for one’s home under Article 8 ECHR – which may impose positive obligations on contracting states (Chapman v United Kingdom (2001) 33 EHRR 399) – and rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, to which the United Kingdom is also a party, such as the right to work (Article 6) and the right to an adequate standard of living (Article 11). Although these rights have not been relied upon directly in this case, they may be relevant to the question of whether the interference with rights under A1P1 is justified. Proportionality Since A1P1 is engaged, the question on which this case turns is the proportionality of the interference with the landlord’s property rights via section 72 of the 2003 Act. By now, the stages of a proportionality analysis are well understood (see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (in particular the speech of Lord Steyn); R v Shayler [2003] 1 AC 247, at paragraphs 57–59 (Lord Hope of Craighead); Huang v Secretary of State for the Home Department

398  Aileen McHarg and Donald Nicolson [2007] 2 AC 167, at paragraph 19 (Lord Bingham of Cornhill); and R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621, at paragraph 45). The court must ask itself: 1. 2. 3. 4.

Does the impugned measure serve a legitimate aim? Is the measure suitable to achieve the legitimate aim? Is it no more than necessary to achieve the legitimate aim? Does it strike a fair balance between the interests of the right-holder and the general interest?

In view of the contested questions of social and economic policy and as to the appropriate balance between private property and state regulation which arise in the context of A1P1, the test to be applied at the first three stages is one of ‘manifest unreasonableness’ (AXA General Insurance Limited v The Lord Advocate). In other words, the court must not ask itself whether it agrees with the legislative judgment, nor whether some alternative measure might have been adopted instead (James v United Kingdom), but rather whether there is some reasonable foundation for the legislative choice. In relation to the final stage, the question is whether the individual has been made to bear ‘an individual and excessive burden’ (Sporrong & Lönnroth v Sweden, at paragraph 73; James v United Kingdom, at paragraph 50). The Aim of Section 72 The Lord Justice Clerk in the Inner House and Lord Hope for the majority in this court agree that the 2003 Act as a whole pursued a legitimate aim. It was certainly legitimate for the Scottish Parliament to seek a more equitable balance between the interests of agricultural landlords and their tenants, and to seek to end the practice of limited partnership tenancies. Notwithstanding the decision in MacFarlane, such tenancies were clearly an artificial device – or as the C ­ onservative Party spokesman (Alex Fergusson MSP) put it during the Stage 3 debate on the Bill, a ‘dodge’ (Official Report, 12 March 2003, column 16324) – intended solely to avoid the provisions of the 1991 Act, and which disproportionately benefited landlords at the expense of their tenants. There is also no dispute that it was legitimate to include existing limited partnership tenancies within the scope of the legislation, notwithstanding that this meant rewriting settled contractual bargains (Bäck v Finland, at paragraph 68; Mellacher v Austria (1990) 12 EHRR 391, at paragraph 51). Moreover, although the Lord Justice Clerk’s opinion might be read as suggesting otherwise, in my view there was no unfairness in the fact that the provisions affecting existing limited partnerships were added as the Bill progressed through the Parliament, particularly given that representatives of landholding interests, as well as of tenant farmers, were fully consulted and involved throughout the legislative process. If existing limited partnership tenancies were to be caught by the Bill, it is further accepted that it was legitimate to take anti-avoidance measures, even though these operated retrospectively to alter the effect of notices of dissolution issued

Salvesen v Riddell [2013] UKSC 236  399 before the legislation came into effect (R (Huitson) v Revenue and Customs Commissioners). There was some debate in the Parliament about the date from which these anti-avoidance measures should apply. Some members wished to extend what became section 72 further back to catch notices of dissolution issued from 16 April 2002 (the date on which the draft Bill was published). However, it was recognised that whatever date was chosen would necessarily be somewhat arbitrary. Such arbitrariness is inherent in the nature of a rule, and not in itself a reason for condemnation under the Convention (R (T) v Greater Manchester CC [2013] EWCA Civ 25). What the Lord Justice Clerk and Lord Hope object to primarily, though, is the suitability and necessity of the anti-avoidance measures that were taken, particularly the fact that landlords who gave notice of dissolution before the legislation came into effect could end up being treated more harshly than landlords who waited until after it came into force before doing so. According to the Lord Justice Clerk, this was not a legitimate anti-avoidance measure because it went further than necessary: [80] I proceed initially on the basis that section 72 of the 2003 Act was enacted purely as an anti-avoidance measure. On that basis, section 72 is inappropriate, in my view, because of its excessive effect and its arbitrary scope. A classic antiavoidance measure simply nullifies the benefit gained by the avoiding action. Section 72 operates altogether differently. In his view, ‘the inclusion of section 72 was essentially a retaliatory act based on the Ministerial view that dissolutions effected in anticipation of the legislation were “immoral”. The conclusion is irresistible … that the provisions of section 72 were essentially punitive’ (paragraph 90). He went on to say that: ‘I can find no intellectual justification in any of the Deputy Minister’s words for the proposition that it was immoral for a landlord to bring about a result that the general partner had contracted for’ (paragraph 91). Nor did he consider it accurate for the minister to have claimed that the ‘attempt by landlords to protect their position put the general partners in a situation of great uncertainty and faced them with the threat of imminent eviction’ (Official Report, 12 March 2003, col 16315). According to Lord Hope, ‘[a] reader of what the deputy minister said during [the Stage 3] debate might be forgiven for thinking that it displayed a marked bias against landlords’ (paragraph 38). Although he recognises that ministerial statements should not necessarily be taken as indicative of the objective intention of the Parliament in enacting section 72 (paragraph 37), he makes no attempt to ascertain a possible alternative parliamentary motive. Consequently, he agrees with the Lord Justice Clerk that the treatment of landlords in the position of Mr Salvesen appears to amount to arbitrary penalisation (paragraph 42), with no objective justification for the difference in treatment between those giving notice

400  Aileen McHarg and Donald Nicolson of dissolution before and after 1 July 2003 (paragraph 44). He therefore agrees that section 72 does not pursue an aim reasonably related to the aim of the legislation as a whole (­paragraph 44). It is important to bear in mind that the test to be applied in assessing the suitability and necessity of measures is one of manifest unreasonableness. A measure is not disproportionate simply because an alternative approach might have been taken which the court considers would have been preferable. The question is whether the measure which was adopted had any rational basis. In my view, it is not appropriate to characterise section 72 as having no rational basis. The sudden rush to issue notices of dissolution on 3 February 2003 clearly did leave general partners in an uncertain situation. While some landlords indicated that the notices were simply a legal device and that they intended to enter into new limited duration tenancies after the legislation came into effect, others did not. In the latter situation, general partners did therefore face genuine uncertainty about whether they would be able to continue their businesses, and in many cases to remain in their homes, once their limited partnership came to an end. Further, even for those in the former situation, while the Bill was still going through the legislative process, there would have been uncertainty about the precise form that any new tenancy arrangements might take. This contrasts with the position of landlords seeking to dissolve limited partnership tenancies after the Bill came into effect, where general partners would have much greater clarity about their legal position, and a reasonable time in which to make adjustments should their landlord wish to regain possession of the land or to transfer to a limited duration tenancy. In this context, I do not consider that it is manifestly unreasonable to take the relational view of property, discussed above, which regards the economic power enjoyed by landlords as carrying with it responsibilities not to abuse that power, and to take into account the interests of others. From this perspective, taking action to disturb settled and productive tenancy arrangements purely to avoid being caught by the 2003 Act could reasonably be regarded as irresponsible, and certainly showed little concern for the human impact that such action would have on the material and emotional wellbeing of tenants. It might well be thought that the issuing of dissolution notices in these circumstances was precisely the type of abuse of the limited partnership device that the legislation was aimed at eradicating. This conclusion is reinforced if one takes the view that agricultural landlords and tenants are in a position of collective stewardship over land as a common good. Again, it is not manifestly unreasonable to consider that landlords who are prepared to prioritise their own short-term interests over the maintenance of settled and productive tenancy arrangements are not to be trusted with unfettered control of something so valuable to society as agricultural land (see MM Combe, ‘Human Rights, Limited Competence and Limited Partnerships: Salvesen v Riddell’

Salvesen v Riddell [2013] UKSC 236  401 (2012) Scots Law Times 193, page 199). The productive use of agricultural land is, moreover, essential to the fulfilment of other rights, such as the right to adequate food contained in Article 11 ICESCR. Indeed, it might be argued that a rejection of the notion of land as a commodity and of tenancies as purely business arrangements is at the heart of the wider programme of land reform of which the 2003 Act forms part. It is also worth noting that the discussion of the amendments at Stage 3 divided along party lines: Conservative members were opposed, while all the other parties supported them. This underlines the deeply political nature of the legislative choices being made. Lord Hope accuses the Deputy Minister of anti-landlord bias, but a reader of the majority judgment might equally conclude that it exhibits a pro-landlord bias. Certainly, it fails to acknowledge the insight of feminist and other critics that formal equality conceals and legitimates underlying imbalances of social power. It is precisely to avoid such allegations of political bias that unelected judges ought to be extremely wary of trespassing upon the judgments of elected politicians. Fair Balance The issue remains whether section 72 strikes a fair balance between the interests of landlords and the legitimate aim it pursues. The question is whether it imposes an excessive burden on landlords, but it is important to bear in mind the potential impact on other rights and interests, particularly those of tenants, were the provision held to be invalid. What, then, is the impact of section 72 on landlords who sought to dissolve their limited partnerships between 16 September 2002 and 30 June 2003? As already noted, the interests that are at stake for the landlords are primarily economic ones: the imposition of a secure 1991 Act tenancy means that they have greatly reduced flexibility to regain vacant possession of their land, and the capital value of the land is thereby significantly reduced. Under the 2003 Act, they are also under a variety of other obligations, for instance, to compensate tenants for any improvements they have made. In the current case, Mr Salvesen claimed that he sought to dissolve the limited partnership not solely to defeat the Riddell’s statutory rights, but because it had always been his intention to resume possession of Peaston Farm at the expiry of the limited partnership and to farm the land himself. Nevertheless, it seems clear that Mr Salvesen bought the farm as an investment, not because he intended to occupy it as his home or his primary means of making a living. In any case, if a particular landlord does have some good underlying reason for having given notice of dissolution within the relevant period, they may apply to the Land Court under section 72(8) and (9) for an order preventing the general partner assuming the tenancy in their own right. Although the Land Court in this case erred in its interpretation of these provisions, if they are applied in the

402  Aileen McHarg and Donald Nicolson manner correctly held by the Inner House, this constitutes a significant protection for landlords which should ensure that the regime does not operate excessively harshly. It should also be pointed out that, far from being discriminated against, a landlord who is successful in obtaining an order under section 72(8) and (9) is in a better position than a landlord who seeks to end a limited partnership tenancy on or after 1 July 2003, who does not have the option of applying to the Land Court. Finally, it is worth noting that, although the Lord Justice Clerk and Lord Hope characterise the different treatment of landlords who give notice of dissolution before and after enactment of the 2003 Act as discriminatory, they accept, as discussed above, that this is not a distinction based on status. Nor is it in any sense discrimination associated with any form of systematic disadvantage, as in the classic instances of unlawful discrimination based on gender, race or other protected characteristics. On the contrary, it would be absurd to characterise agricultural landlords in Scotland as a class as anything other than highly privileged – a minority perhaps, but not a disadvantaged minority. On the other hand, as the plight of the Riddells in these proceedings makes clear, the impact on tenants of striking down section 72 is potentially very severe. For many tenants, this is not simply a question of an investment which turns out to be less profitable than they anticipated. Rather, they may face the loss of their homes and livelihoods; of being evicted from land with which they have a lived relationship, and which may have deep personal meaning reaching back for generations. Here we may be talking about property rights not simply as an entry on a balance sheet, but in relational terms as something intimately connected with a person’s sense of self and their connection with others with whom they have built a family. Although frequently in tension with the dominant conception of property as a means to autonomy and wealth creation, the law has always recognised a more primordial association of property with ‘hearth and home’, acknowledging nurturing and husbandry as something worthy of protection – more recently, of course, via Article 8 ECHR. The adverse effect on tenants of a finding that section 72 is invalid is increased by the fact that they have for 10 years been led to believe that they were entitled to a secure 1991 Act tenancy. The disappointment of finding themselves back in the same precarious situation they were before the enactment of the 2003 Act, dependent upon the goodwill of their landlord, may be profound. Moreover, they may, as already noted, have invested and planned on the strength of this expectation – investments for which, in the absence of a 1991 Act tenancy, they will have no right to compensation, notwithstanding any enhancement of the value of land or buildings which may accrue to their landlord. Set against any burden on landlords, therefore, there is a significant risk of harm and injustice to tenants, compounding the historic injustices and systematic disadvantage that the 2003 Act sought to address.

Salvesen v Riddell [2013] UKSC 236  403 Conclusion A fair balance must be one that takes account of the potential impact of the decision on all relevant interests, and which considers who is best placed to bear any unavoidable harms. In this case, I conclude that any adverse impact on landlords is not excessive when compared with the effect on their tenants of removing their rights to secure 1991 Act tenancies under section 72 of the 2003 Act. Accordingly, I find that there has been no disproportionate interference with the rights of landlords under A1P1 and that section 72 of the 2003 Act is within the legislative competence of the Scottish Parliament.

Commentary on Salvesen v Riddell SHAZIA CHOUDHRY

A central issue in the long-standing calls for land reform in Scotland continues to be the very concentrated pattern of private landownership in rural Scotland; a relatively small number of landowners with large properties own the majority of Scotland’s land area. According to the final report of the Land Reform Review Group in 2014,1 432 private landowners own 50 per cent of the private land in rural Scotland, which means Scotland has a more concentrated pattern of large-scale private landownership than any other country in the world. Apart from the clear discrepancy between Scotland and other countries, the Group listed two further reasons why this is problematic. First, given that land is a finite national resource and ownership is the key determinant of how land is used, the concentration of private ownership in rural Scotland can often stifle entrepreneurial ambition, local aspirations and attempts to address identified community need. Second, concentrated ownership of private land places considerable power in the hands of relatively few individuals, which can in turn have a huge impact on the lives of local people and jars with the idea of Scotland being a modern democracy. As a result, the Group considered that a less concentrated pattern of landownership would open up increased economic and social opportunities in many parts of rural Scotland, helping create stronger and more resilient communities. It is against this context that we must view the attempt to reform the law on agricultural property holdings in the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act) and the attempt via section 72 of that Act to deal with the resultant flood of dissolution notices to a number of agricultural tenants, served to avoid the Act’s effect. As the Supreme Court noted,2 for much of the post-war period agricultural tenants effectively enjoyed indefinite security of tenure under statute. However, a practice had been established whereby new agricultural tenancies

1 Land Reform Review Group, ‘The Land of Scotland and the Common Good’ (Final Report, Edinburgh, Land Reform Review Group, 23 May 2014) s 24, available at: www.gov.scot/ Publications/2014/05/2852. 2 Salvesen (Appellant) v Riddell and another (Respondents), Lord Advocate intervening (Scotland) [2013] UKSC 22, paragraphs 8–9.

Commentary on Salvesen v Riddell  405 were granted to limited partnerships, constituted under the Limited Partnerships Act 1907, in which the landlord or her nominee was the limited partner and the tenants of the farm were the general partners. When such a limited partnership is dissolved, the remaining partners cannot carry on the business of the farm, and there therefore ceases to be anyone who can claim to be the tenant. As a result, by dissolving the limited partnership, the limited partner had a way of terminating the tenancy. Landlords were reluctant to let agricultural land on any other basis, and the practice of letting by way of limited partnerships became widespread. The situation was clearly in need of some reform, which came in the passing of section 72(6) of the 2003 Act. The section provided that if the limited partner served a dissolution notice after 16 September 2002, the tenancy would continue to have effect, and the general partner would become the tenant in his own right, provided he gave notice to the landlord as required under the subsection. Section  72 also provided that, if the dissolution notice were served between 16 September 2002 and 30 June 2003, the landlord could apply to the Land Court for an order that section 72(6) would not apply. The Land Court could make such an order only if it was satisfied that (a) the dissolution notice had been served otherwise than for the purposes of depriving any general partner of any right derived from the section, and (b) that it was reasonable to make the order. Section 72(10) provided that where a tenancy continued to have effect by virtue of section 72(6) and the dissolution notice was served on or after 1 July 2003, section 73 would apply. Section 73 allowed the landlord to terminate the tenancy at the end of its term by giving intimation of his intention to do so and then serving a notice to quit. It is this section, and the conditions for its application in section 72(10), that gave rise to the devolution issue in the case. The Agricultural Holdings (Scotland) Bill had been introduced into the ­Scottish Parliament on 16 September 2002. Amendments were published on 3 February 2003, which included the precursor to section 72. At that stage, the start date of the period on or after which a notice of dissolution would trigger the application of the provision was 4 February 2003. On or about 10 March 2003, an amendment to that provision was published which moved the start date back to 16 September 2002. The aim was apparently to address urgently the mass service of dissolution notices that had occurred and to prevent any further steps by landlords to avoid being affected by the Bill. The March 2003 amendment was retrospective. It caught dissolution notices that had been served in the period since the Bill was introduced, which included the notice served by Mr Salvesen. The facts of Salvesen v Riddell thus concerned an appeal to the UK Supreme Court from the Inner House of the Court of Session, Second Division, by an owner of farmland (Salvesen), who was prevented from recovering possession of it from his tenant (Riddell) by virtue of section 72 of the 2003 Act. Though Salvesen’s appeal to the Inner House (from the original successful application by Riddell to

406  Shazia Choudhry the Land Court) had been settled by the time the case was heard, the Supreme Court was tasked with considering the compatibility with his human rights of section 72, which purported to restrict his rights of appeal. The Supreme Court held, as a starting point, that Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR) was engaged by the facts of this case (as conceded by the Lord Advocate). Second, the court held that the effect of section 72(10) was to deny the benefit of section 73 in all cases where the tenancy was terminated between 16 September 2002 and 30 June 2003, but which continued to have effect by virtue of section 72(6). The landlords who served dissolution notices during that period were therefore in a worse position than those who served notices from 1 July 2003. The provision was therefore held to be discriminatory due to the fact that it affected the landlords’ right to the enjoyment of their property and had been designed to penalise landlords in this group retrospectively. Third, the court was not persuaded that there was a justified difference in treatment between this group and landlords of continuing tenancies who served notices from 1 July 2003. Section 72 was therefore held to be unfair and disproportionate on the basis that it was intended to have an effect which was permanent and irrevocable and did not pursue an aim that was reasonably related to the aim of the legislation as a whole. Ultimately, the Supreme Court found that Mr Salvesen’s A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision was outside the legislative competence of the Scottish Parliament. The case is of particular interest from a number of perspectives. From a public law perspective, it was the first case in which the Supreme Court held any part of an Act of the Scottish Parliament to be unlawful on any of the grounds set out in section 29 of the Scotland Act 1998. From a human rights perspective, the case provided a good opportunity for the Supreme Court to apply the proportionality test contained within A1P1, to consider the amount of deference that could be given to the devolved legislature of Scotland, and to balance the interests of a private party against those of the state. The case also provided the opportunity to consider the Riddells’ right to family life and the right to a home, contained in Article 8 ECHR, which were also engaged by the case. Unfortunately, the Supreme Court failed to do so, concentrating solely on A1P1 and briefly on Article 14 (protection from discrimination), without considering Article 8 at all. This was a rather glaring omission, not least because of the considerable jurisprudence that had built up from the European Court of Human Rights (ECtHR) on the positive obligations upon the state to ensure that Article 8 rights are respected. Moreover, the case also provided an opportunity to interpret the communitarian focus of the ECHR, found in its qualified rights (including A1P1 and Article 8), as a means to demonstrate the legitimate aim being pursued by the Scottish Parliament; that is, its attempt to reform the law relating to agricultural property ownership by providing enhanced protection for the continuation of agricultural tenants and their relationship with the land and rural communities.

Commentary on Salvesen v Riddell  407 Lastly, from a property law perspective, the case represented an opportunity to consider the particular social and policy context of agricultural property ownership in Scotland, outlined above. The feminist judgment is mainly focused on the proportionality test and the balancing of the interests of the two parties involved. It does this by considering the particular social and policy context of agricultural property ownership in Scotland and, to a certain extent, by providing a new interpretation of the rights and interests of property owners in that regard. The judgment considers most of the same cases that were considered by the original court, and the effect of Article 8 (the right to a home) and the positive obligations imposed upon the state in this regard are discussed, albeit briefly, to bolster the case for the tenant family. What ensues is a well-developed and detailed proportionality analysis, supported by the arguments about the social aspects of property ownership mentioned above. Here, a careful and detailed retelling of the legislative background to the changes in the law is used to make an argument for the rationality and proportionality of the decision of the Scottish Parliament, which in turn tips the balance in favour of the tenants. The detailed arguments made in relation to the effect on landowners versus the effects on tenants demonstrate, in sum, that the interference with the Convention rights of the landowners was not disproportionate and that it pursued a legitimate aim – that of the much-needed reform of the law on agricultural property ownership in Scotland. In addition, the feminist judgment touches upon some of the positive obligations stemming from the Article 8 right to a home. The ECtHR has established that the notion of ‘home’ is an autonomous concept, which does not depend on the classification under domestic law.3 Accordingly, whether a habitation constitutes a ‘home’ under the protection of Article 8(1) depends on the factual circumstances, namely the existence of sufficient and continuous links of a person with a specific place.4 It has been held that changes to the terms of a tenancy will amount to an interference with the right to a home.5 The facts of the case would therefore have engaged the Riddells’ right to a home, and the claim made by Salvesen amounted to an interference with it. Furthermore, while Article 8 protects individuals against interference by public authorities, the ECtHR has also held that it may also require that the state adopt measures to secure the right to respect for one’s ‘home’ in the sphere of relations between private individuals.6 In this case, the state (Scotland) was interfering in the A1P1 rights of Salvesen, but this did not preclude a discussion by the Supreme Court in its original judgment of the interference with the Article 8 home rights of the Riddells by Salvesen in making his claim to the Land Court in the first instance.



3 Chiragov

and Others v Armenia [2015] ECHR 647. and Others v France [2013] ECHR 984. 5 Berger-Krall and Others v Slovenia [2014] ECHR 807. 6 Surugiu v Romania (application no 48995/99) 20 April 2004. 4 Winterstein

408  Shazia Choudhry As a result, the original judgment should have weighed up the competing interests at stake from both the point of view of an interference by a public authority that has to be justified under paragraph 2 of Article 8, and the positive obligations requiring the state to protect the right to respect for one’s home under paragraph 1. In doing so, the original judgment should also have borne in mind the positive obligations of national authorities to protect vulnerable occupants and minority lifestyles, which might have extended to the Riddells. In this respect, although the ECtHR has mainly focused on the vulnerability of Roma and Travellers, a similar argument could nonetheless have been made in relation to the agricultural tenants in rural Scotland and the protection of a way of life.7 This may have added to the arguments made in favour of the tenant farmers in the case. Moreover, an exploration of the impact of eviction on the family life of the tenant and his family under Article 8 would also have been relevant, particularly with regard to the relational approach to the dispute adopted in the feminist judgment. This was not merely a dispute between two individuals – the ‘landlord’ and the ‘tenant’ – and their individual rights; it concerned a whole family, a community and a way of life. The framing of the case around the categories of ‘landlord’ and ‘tenant’ within the original judgment hid a number of assumptions and expectations about the role of the ‘tenant’, which failed to take into account the lived reality of his life. This is, sadly, not surprising. These relational assumptions are often never examined, questioned or even recognised in legal judgments (and particularly in cases involving land or property), but they often drive the logic of legal decision-making (and law-making) and have a real impact on the construction of societal roles and relationships. Thus, considering the impact of the claim made by Salvesen on the Riddells’ right to a home and the right to a family life would have provided an opportunity to analyse the case in relational terms. In contrast to the original judgment, the feminist judgment focuses on the social and policy context of the dispute. This commences with an outline of these issues and, in particular, the rather unjust environment within which the Riddells found themselves and the background to the amendments made by the 2003 Act. The judgment starts with a full factual outline of the case and this, in contrast to the original judgment, means that the full history of those involved is outlined: namely, the fact that the Riddell family had held the lease since 1902 and that it had been passed from father to son, and from brother to brother. In doing so, Lady McHarg and Lord Nicolson draw our attention to the connection the family had with the land and the circumstances of bereavement that meant the tenancy could not continue as a secured tenancy and had to be restarted on a limited partnership basis. We are then invited to note the contrasting situation of the landlord, his motives for the dissolution notice, ostensibly to consolidate his large portfolio of neighbouring land, and his considerably much more fortunate position.

7 Chapman

v United Kingdom (2001) 33 EHRR 18.

Commentary on Salvesen v Riddell  409 Finally, the facts as outlined talk of the impact that the dissolution notice and the proceedings had on the Riddell family and the tragic outcome for one of its members: a suicide. Another notable difference from the original judgment is the discussion of the different meanings of property. This gives us the opportunity to reconsider the predominant understanding of property ownership: that it is rarely, if at all, to be interfered with. We are reminded that property ownership is hardly ever an absolute right in itself; the ownership of property and the leasing of it to others for a lengthy period of time has consequences for others. In doing so, the judgment neatly introduces us to a communitarian view of property. However, not all the significant features of the case, set out above, are dealt with. It would have been interesting for Lady McHarg and Lord Nicolson to have considered the implications of the decision in terms of the devolution arrangement, and the Supreme Court’s rather activist stance regarding its lack of deference to the Scottish Parliament, from a feminist perspective. On reading the original judgment I found myself asking whether the treatment of the Scottish legislature by the Supreme Court could be said to be of a patriarchal/ paternalistic nature. It was, after all, the first time a UK court had struck down a Scottish legislative provision as opposed to a Scottish court doing so.8 An exploration of whether the Supreme Court’s use of its power over the Scottish courts to conclude that the actions of the Scottish Parliament, in seeking to protect a vulnerable class of agricultural tenants, constituted a disproportionate interference with the rights of a historically privileged class of agricultural landowners, reflected any wider issues concerning the role of the English in interfering with the rights of the Scottish people may have been apt. This may also have provided an opportunity to consider the whole project of devolution against this context, particularly in respect of decisions that seek to curtail the fundamental rights of the Scottish people. The feminist judges were keen to write a plausible judgment, and this is indeed its strength, particularly in the use of detail in relation to the rather complex legislative background to the case and in use of the facts, the human story behind the dispute and the effect the dispute had on this particular family. As such, including material from which a discussion of the variety of possible interpretations of property ownership and a relational/communitarian approach to the dispute might stem seems entirely appropriate. It is this context that allows the authors to reinterpret the relevant legal doctrine to achieve an outcome that is opposite to that of the original judgment and which is ultimately the more feminist.

8 The first time a legislative provision was struck down under s 29 of the Scotland Act 1998 was by a Scottish court in Cameron v Cottam [2012] HCJAC 19; it was not appealed.

Reflective Statement: Salvesen v Riddell AILEEN McHARG AND DONALD NICOLSON

Our challenge in writing a feminist judgment for Salvesen v Riddell was the fact that the case has no gender angle. Nevertheless, we chose it because it seemed to lend itself to a feminist rereading, employing an ethic of care as opposed to the arguably more masculinist ethic of justice1 that appeared to us to imbue the original judgments in both the Inner House and the Supreme Court. As is well known, whereas the ethic of justice is founded on the idea that everyone should be treated equally in formal terms and according to their rights irrespective of the consequences, the ethic of care requires that as far as possible no one should be hurt, and that relationships and loved ones be protected. Whereas the ethic of justice assumes that one can resolve moral dilemmas by abstract and universalistic moral reasoning, the ethic of care requires due attention to context and the specific circumstances of each situation. And, in resolving disputes, applying an ethic of justice involves the ranking of principles and rights, whereas an ethic of care requires the concrete needs of all to be addressed and that, if anyone is going to be harmed, it should be those who can best bear the harm. In both the Inner House and the Supreme Court in Salvesen v Riddell, the issues were presented in very formalistic and rights-based terms: the landlord (Salvesen) had exercised a contractual right freely entered into by the tenants (the Riddells) and had been (unfairly) retrospectively penalised by the Scottish Parliament, leading to a breach of his right to property under Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights. The interests – and indeed the rights – of

1 See C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1993); N Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Chicago, IL, Chicago University Press, 1984); JC Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1993); C Menkel-Meadow, ‘Portia in a Different Voice: Speculations on a Women’s Lawyering Process’ (1985) 1 Berkeley Women’s Law Journal 39; and C Menkel-Meadow, ‘Portia Redux: Another Look at Gender, Feminism, and Legal Ethics’ in S Parker and C Sampford (eds), Legal Ethics and Legal Practice (Oxford, Clarendon Press, 1995). See also the related idea of the role of love and compassion in law and judging: MC Nussbaum, ‘Compassion: The Basic Social Emotion’ (1996) 13 Social Philosophy & Policy 27; MC Nussbaum, ‘Emotion in the Language of Judging’ (1996) 70 St John’s Law Review 23; MC Nussbaum, Political Emotions: Why Love Matters for Justice (Cambridge, MA, Belknap Press, 2013); see also special issue on Law and Compassion (2017) 13 International Journal of Law in Context.

Reflective Statement: Salvesen v Riddell  411 the tenants, as well as the tragic human story that lay behind the legal case, were almost entirely missing. Our primary rhetorical strategy in developing a feminist rewriting of the case was therefore to reinsert the Riddells, and the human impact of the decision to invalidate section 72 of the 2003 Act, into the judgment. We also sought to construct the case not simply as involving an interference with the landlord’s A1P1 rights, but as involving a range of (actually or potentially conflicting) rights, needs and interests. This was not a case in which the legislature was interfering with the landlord’s rights in pursuit of some abstract, disembodied public interest. Rather, it was intervening in support of other concrete rights and interests – most obviously those of agricultural tenants, but more generally in support of the (social and economic) rights of the general citizenry who benefit from the productive and sustainable use of agricultural land. In this respect, we had the benefit of hindsight. A group of tenants in the same position as the Riddells subsequently successfully sued the Scottish government for breach of their own A1P1 rights as a consequence of the Remedial Order enacted to give effect to the decision in Salvesen v Riddell.2 In addition, the Scottish government has in recent years sought to justify its ongoing land reform programme by reference to a range of social and economic rights in order to counterbalance the property rights claims of existing owners.3 Reinserting these broader rights and interests into the judgment was important because, as we understand the ethic of care, this requires attention to the full range of rights, needs and interests implicated in a dispute, rather than the abstraction of a narrow set of legal issues from their broader social and legal context. Finally, we sought to emphasise the imbalance of power between agricultural landlords and their tenants, the comparative vulnerability of the tenants, and hence the greater ability of landlords to bear the harms resulting from the resolution of their conflicting rights. In order to get to the point of applying an ethic of care, however, we had to progress further in a proportionality analysis under A1P1 than the Inner House or the Supreme Court; we had to reach the final stage, which requires a balancing of property rights against the legitimate aims being pursued by the legislature. By contrast, both Lord Gill in the Inner House and Lord Hope in the Supreme Court concluded their proportionality analysis at an earlier stage, holding that the retrospective effect on the landlords went further than was necessary to achieve the aims of the legislation, and was therefore punitive and discriminatory. Here we employed two further feminist strategies. First, we drew upon feminist understandings of property as a social and relational institution4 to challenge 2 McMaster v Scottish Ministers [2018] CSIH 40. 3 See Scottish Government, Scottish Land Rights and Responsibilities Statement (2017), published under Part 1 of the Land Reform (Scotland) Act 2016, available at: www.gov.scot/Publications/2017/09/7869. 4 See, eg, CM Rose, ‘Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory’ (1990) 2 Yale Journal of Law & the Humanities 37; FW Rudmin, ‘Gender Differences in the Semantics of Ownership: A Quantitative Phenomenological Survey Study’ (1994) 15 Journal of Economic Psychology 487; J Nedelsky, ‘Law, Boundaries, and the Bounded Self ’ (1990) 30 Representations 1620.

412  Aileen McHarg and Donald Nicolson the highly formalistic analyses employed by Lord Gill and Lord Hope. Such an understanding sees property in terms of connecting, relating to and uniting people rather than in terms of autonomy, exclusion and wealth creation. This allowed us to emphasise the responsibilities, as well as the rights, that come with ownership, and the social objectives that are a legitimate part of a democratic decision to allocate and reallocate property rights. We recognise that the alternative property theories we draw upon here are not exclusively feminist.5 However, our aim was not so much to defend a feminist understanding of property, but rather to use feminist and other critical theories to problematise and politicise the idea of property, thus justifying judicial deference to the political choices made by the legislature  – ­deference which was conspicuously absent from the original judgments. Second, we sought to challenge the idea that the differential (and less favourable) treatment of landlords caught retrospectively by section 72 should thereby be regarded as discriminatory. Instead, we drew upon feminist and other similar critical understandings of discrimination as involving systemic disadvantage – or social domination6 – to challenge what we regarded as the absurd construction of wealthy agricultural landlords as a persecuted minority. Instead, it is agricultural tenants who have suffered systemic disadvantage, and this reinforced the legitimacy of the Scottish Parliament’s attempt to redress the balance of power in their favour. Our biggest challenge in rewriting Salvesen v Riddell through a feminist lens was to construct what we regarded as a plausible judgment – both as a matter of law, but also as a matter of style. As regards the latter, we did not think it plausible that Supreme Court judges would refer explicitly to feminist theory. Accordingly, we tried to echo the language of feminist scholarship rather than to pin our colours overtly to a feminist mast. As regards legal plausibility, we were also mindful of the institutional constraints on the feminist judge qua judge, and in particular of the potential rule of law objections to an approach to judging which abandons the ethic of justice in favour of an ethic of care.7 We hope we have managed to strike the balance appropriately and provided a legally persuasive (or at least plausible) judgment which demonstrates the relevance of feminist legal sensibilities beyond the gender context. 5 Of the vast literature, see, eg, K Gray and SF Gray, ‘The Idea of Property in Land’ in S Bright and J  Dewar (eds), Land Law: Themes and Perspectives (Oxford, Oxford University Press, 1988); LS ­Underkuffler, The Idea of Property: Its Meaning and Power (Oxford, Oxford University Press, 2003); S  Coyle and K Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Oxford, Hart Publishing, 2004); M Stone, ‘Equity, Property, and the Ethical Subject’ (2017) 11 Pólemos 73. 6 See, eg, CA MacKinnon, ‘Difference and Dominance: On Sex Discrimination’ in D Kelly Weisberg (ed), Feminist Legal Theory: Foundations (Philadelphia, PA, Temple University, 1993). 7 See, eg, RA Epstein, ‘Compassion and Compulsion’ (1990) 22 Arizona State Law Journal 25; N Boger, ‘Liberal Democracy and a Theory of Care’ [1999] UCL Jurisprudence Review 20; D Markel, ‘Against Mercy’ (2004) 88 Minnesota Law Review 1421; SA Bandes, ‘Compassion and the Rule of Law’ (2017) 13 International Journal of Law in Context 184.

INDEX abortion: see Doogan revisited Abrams, L, 267 abuse of discretion (omission/inclusion of relevant and irrelevant considerations), 377–80: see also Rape Crisis Centre revisited jurisprudence Fewings, 377 Harvey, 377 Padfield, 377, 378 Venables, 377 objectives of legislation under consideration as starting point, 378–9 Adjin-Tettey et al, 11, 15 Adler, Z, 45 Adshade, M and N McArthur, 84 Africa, FJP, 2, 3 Agricultural Holdings (Scotland) Act 1991: see limited partnership tenancies Agricultural Holdings (Scotland) Act 2003, legislative history: see also limited partnership tenancies (termination of practice (s 72 of 2003 Act)); Salvesen v Riddell revisited legitimacy of legislative process, 398 LRPG Recommendations for Action, 391 Stage 1 Bill, 391–2 Stage 2 Bill amended in response to the Rural Development Committee’s report, 392, 405 flood of dissolution notices timed to avoid being caught by the amendments, 392, 404–5 Stage 3 Bill amended to catch the dissolution notices (retrospective effect), 392, 405 assumption of tenancy by general partner, means of preventing, 392 Ahmed, S, 21, 107 Angelou, M, 290 Anker, D, 362 Anzaldúa, G, 4

Arshad, R, 29 Ashiagbor, Diamond, xv: see also Rainey revisited (commentary (Ashiagbor)) asylum appeals delayed claim, effect on credibility (IAA Asylum Gender Guidelines 2000), 351–2, 361–2 evidence of child, 352 corroboration rule, exemption from (Kasolo), 346 standard of proof (‘reasonable degree of likelihood’) (Sivakumaran), 346, 352–3, 358 grounds for rejecting (UK law), 348–9 reasoned findings, importance (Wordie), 351–2 Auchmuty, R, 238 audi alteram partem (right to be heard), 374–7: see also Rape Crisis Centre revisited jurisprudence Cheall, 375–6 Lloyd v McMahon, 375 Ridge v Baldwin, 375–6 Ross, 375, 377 as natural justice/fairness, 371, 374–7 nexus between decision and interests of the petitioners, need for, 375–7 ‘awareness of views’, adequacy, 376–7 desirability of hearing views in absence of, 17, 376–7 Australia: see FJP (Australia) Baillot, Helen, xv: see also Johnson revisited (commentary (Baillot)) Baillot, Helen, S Cowan and V Munro, 361 Bandes, SA, 412 Bańkowski, Z, 6 Bańkowski, Z and M Del Mar, 11 Barak, A, 336 Bartlett, K, 11, 35–6, 56–7, 259

414  Index Baxter revisited (fiduciary duty of loyalty): see Baxter revisited (commentary (Jaiswal)); Baxter revisited (judgment (Belcher)); Baxter revisited (reflective statement (Belcher)) Baxter revisited (commentary (Jaiswal)), 305–8 deliberate omission of non-compete covenant, effect on fiduciary duty, 308 feminist relational theory, 305–7 Baxter revisited (judgment (Belcher)), 291–304 background (facts) (Baxter’s position and role), 292–8 diagram 1 (before extra funding), 294 diagram 2 (post extra funding), 295 diagram 3 (after appointment as non-executive director of COGCL/ entry into a relationship with the company), 297–8 forced exit, 293–6 funds in exchange for powers, 292–3 income generation (first and second consultancy agreements), 296 taxation strategy (access to CGT) (including retention of office within the group), 296–9 background (issues), 291–2 background (law): see also directors’ duties (common law) directors’ duties as members of the Board/ collective responsibility, 298–300 directors’ duties (relationship between director and the company/conflicts of interest), 298–300 executive vs non-executive directors (Combined Code on Corporate Governance), 295 ‘collective responsibility’, 301–2 applicability to Baxter’s membership of the COGCL Board, 303 in conjunction with individual responsibility, 302 decision (breach of fiduciary duty of loyalty) (Bristol and West Building Society principle), 303–4 Mashonaland, applicability, 304 Baxter revisited (reflective statement (Belcher)), 309–12 feminist issues in company law, 309–11 co-existence of directors’ individual and collective responsibilities, 310–11 group/community membership, 310

a narrative judgment, 311–12 reasons for choice of case for project, 309–11 Beatson, J et al, 387 Becker, HS, 149, 150 Belcher, Alice, xv, 310, 311: see also Baxter revisited Bell, JG (Principles of the Law of Scotland) First Edition, 1829, 227 Fourth Edition, 1839, 234, 236 Tenth Edition, 1899, 226, 227–8, 229–30, 233 Berkowitz, N and C Jarvis, 360, 362 Berns, S, v–vi, 14 Bingham, Lord (‘The Discretion of the Judge’), 162 Black, Gillian, xv: see also Coyle revisited (commentary (Black)) Blackstone’s Commentaries (ed Morrison 1999), 215, 239 Blair, S, 387 Boal’s Theatre of the Oppressed/theatre workshop, 13–15 effect on modes of engagement/relationships within the project, 14–15 effect on perceptions of the judging process, 13–14 Boger, N, 412 Bogle, Stephen, xv: see also Jex-Blake revisited (commentary (Bogle)) Boog Watson, NN, 264 Borchard, E, 46 Bottomley, A, 216 Brand, DW, 27 Brindley, Sandy, xv: see also Rape Crisis Centre revisited (commentary (Brindley)) Brodsky, G and S Day, 168 Browne, S, 28 Burdon, PD, 237 Burge, William (Commentaries on Colonial and Foreign Laws, 1838), 215 Burns, Alison (composer), ix, xv, 14 Burns, C, 148 Busby, Nicole, xv: see also Rainey revisited Butler, J, 150, 154 Cairns, Ilona, xv, 54–5, 59, 62: see also Smith v Lees revisited Cairns, JW, 20–1, 25 Callander, Isla, xvi, 59, 81: see also Smith v Lees revisited (commentary (Callander)) Campbell, Liz, xvi: see also Ruxton revisited (commentary (Campbell)) Campbell, R and S Raja, 387

Index  415 Canada: see FJP (Canada) Carloway Review, 54n6, 80 Carroll, S, 82 Carter, CB and JW Lorsch, 307 Casey, Juliette, xvi, 121: see also Drury revisited (commentary (Casey)) Castle, Barbara MP, 289–90 Ceneda, S and C Palmer, 360, 361 Chalmers, J, 23, 57, 61, 77, 80 Changes in the Value and Division of Unpaid Care Work in the UK: 2000 to 2015 (ONS), 166 Child Rights Convention (1989) FGM, need for improved protection against, 362–3 torture, prohibition (CRC 37(a)), 355 UK reservation (immigration control), 363 Children (Scotland) Act 1995 court orders (s 11) desirability in absence of agreement between parents, 161, 164–5 discretionary nature of decisions, 162 Porchetta, 156 Sanderson, 156 welfare check-list, effect of absence, 162 ‘welfare of the child … as its paramount consideration’/‘no-order’ principle (s 11(7)(a)), 156, 162–4 ECHR, compatibility of Act with Court’s conclusion, 165 ECHR 8 (family life), 164 ECHR 14 (non-discrimination), 164–5 obligation to interpret statutes ‘if possible’ consistently with (HRA 3), 172–3 entrenched heterosexist norms, 9, 158–9, 162, 166–8, 170–3 paramountcy principle, 168–70 ‘best interests of the child’ (CRC 3(1)), 169 Sanderson, 156, 169 ‘shall be [the court’s] paramount consideration (ss 11(7)(a) and 16(1)), 156, 162–4 White, 168–70, 173 parental equality disadvantages for women bearing a disproportionate part in parenting, 158–9 as key aim, 157–8 Law Reform (Parent and Child) (Scotland) Act 1986 distinguished, 147 pre-1995 jurisprudence, relevance, 159 substantive vs formal equality, 9, 166–71, 172–3

parental equality following separation or divorce balancing of resident and non-resident parent responsibilities, 158–9 co-decision-making responsibility, 160–1 equality of responsibility vs equality of time, 160–1 technical irrelevance, 157–8 ‘parents’ rights’ (s 2) as misnomer, 161, 171 unmarried fathers, differentiation amendment (Family Law (Scotland) Act 2006), 173 as anomaly, 160 intention to avoid (SLC Report, 1992), 159 as legislative choice, 160–1 McMichael, 10–11 Choudhry, Shazia, xvi: see also Salvesen v Riddell revisited (commentary (Choudhry)) Cockburn, HT, 20 coercion/duress: see also necessity immediacy requirement, 91–2 jurisprudence Cochrane, 108n2 Docherty, 92 Thomson, 91 Collier, R and S Sheldon, 166, 167: see also Sheldon, S common law offences/defence, rape, 63, 67, 76 common ownership (Scotland): see also Rafique revisited alterations to common property, prohibition as absolute rule, 226–33 Bell (Principles of the Law of Scotland), 227, 230 as Roman Law rule, 227–8 alterations to common property, prohibition, jurisprudence Anderson v Couper, 228 Anderson v Dalrymple, 228 Dow and Gordon v Harvey, 229 Gellatly v Arrol, 228–9 Taylor v Dunlop, 229 alterations to common property, unanimity requirement, 225 reasonable exercise of the veto, scope for, 230–3 cooperative or individualistic?, 16–17, 234–9 division or sale option as absolute right, 225–6 division or sale option, exclusion contracting out, 226

416  Index estoppel (words or actions leading to belief, to fellow common owner’s prejudice, that an agreement to exclude division and sale is in place), 226 impracticality (‘a thing of common and indispensable use’), 225 statutory regulation where husband and wife are common owners, 226 division or sale option, jurisprudence Allan, 225 Grant v George Heriot’s Trust, 225–6 Menzies v Macdonald, 225 Menzies v Wentworth, 225 Upper Crathes Fishings, 226, 229 judicial factor/judicial regulation, 225 summary of the law (Stair Memorial Encyclopaedia (1993)), 335–6 company law: see Baxter revisited; directors’ duties (common law) conscientious object to abortion: see Doogan revisited corroboration rule: see also corroboration/ distress rule; sexual offences; sexual offences, problems of proof; Smith v Lees revisited ‘a precious feature of Scots law’, 54 asylum appeals, exemption from (Kasolo), 346 definition (requirement for ‘crucial’ facts to be proved by two independent sources of evidence) (facta probanda), 40–1, 54 mutual corroboration (Moorov doctrine), vi, 41, 55, 61–2 proposed abolition (Lord Carloway’s review of Scots evidence law (2011)), 54–5, 83 Cairns’s views on, 62 objections to/failure of provision in Criminal Justice (Scotland) Bill 2013 to win approval, 55 corroboration/distress rule applicability to non-rape cases, 43 applicability to rape cases actus reus, 74–5 mens rea, 73–5, 80 risk of rape becoming an unprovable crime, 80 context, relevance as aid to the jury, 49–50, 53 attrition rate/barriers of proof, need to address, 40–1, 56

‘does not raise … any question as to what the law ought to be’ (Lord McCluskey), 40–1, 50 definition and scope, 43–7, 55 circumstantial evidence, treatment as, 43, 44, 48, 49, 50, 53 ‘condition of the complainer’ concept and, 43 distress as corroboration of mens rea/lack of reasonable belief, 57, 61 ‘ordinary human experience’ test vs case-by-case approach, 52, 53, 57, 61 time-frame requirement, 43, 45–6, 57 expansion/dilution of rule/management of the risks confessions, 46–7, 54 identification requirements, 46 judicial acceptance of dilution in non-sexual cases, 47 jury scrutiny, 46 jurisprudence Begg v Tudhope, 43, 45 Bennett, 43 Cannon, 45 Drummond, 80 Ferguson, 57, 61 Fox, 74 Gracey, 43, 74 Graham, 80 Horne, 43 McKearney, 73–5, 80 McLellan, 43 Maqsood, 57, 62, 84 Moore, 43, 45 Moorov, vi, 41, 55, 61–2 Mutebi, 80 RWP, 57, 61 Smith v Lees, 74: see also Smith v Lees revisited Stobo, 40–1, 42, 43–5, 48, 50–3, 55, 56–7, 58 Wilson, 57, 61 Yates, 43 jury’s right to draw inference, 39–40, 42–4, 55 distinguishability between rape and non-rape cases, 49–50 risk of ‘rape myths’ prejudice, 30, 53, 58, 59, 61 that the complainer’s account was ‘more likely’ than the appellant’s, 48–50, 56–7 value of other non-probative contextual evidence, 49–50, 53

Index  417 Cover, R, 5, 6, 11, 19 Cowan, Sharon, xvi, 33, 59, 80, 361 Coyle revisited (financial provision on divorce): see also Coyle revisited (commentary (Black)); Coyle revisited (judgment (Muir)); Coyle revisited (reflective statement (Muir)) (the challenge of writing a ‘feminist’ judgment) Note: section references in Coyle are to the Family Law (Scotland) Act 1985 Coyle revisited (commentary (Black)), 190–5 statutory provision (Family Law (Scotland) Act 1985), 190–1 Divorce (Scotland) Act 1976 compared, 191 lump sum vs periodic payment approach, 191 striking a balance (s 9(1)(b)) economic advantage to one party and economic disadvantage to other party as separate issues, 194–5 failure to look beyond finance-based benefit to the benefit derived from harder to measure services, 191–4 flexibility offered by the Act, 194–5 future disparity, 193–4 importance of recognizing contributions made by looking after family home/ family as (s 9(2)), 194 Coyle revisited (judgment (Muir)), 175–89 background (facts), 175–6 divorce, 176 statutory provisions (Family Law (Scotland) Act 1985), 176–7 summary of claim for financial provision, 177 issue 1: fair sharing of the matrimonial property (s 9(1)(a)), 178–9 civil law community of acquests regime compared, 186 demeanour of the parties, 178 equal sharing as fair sharing (s 10(1)), 178 joint minute with list of matrimonial assets and value, 178 ‘matrimonial property’ (s 10(4)), risk of unfairness in regard to family business not forming part of the matrimonial property, 179 pension provisions (s 10(5)) as possible means of resolving s 10(4) unfairness, 179

issue 2(a): defender’s economic advantage from contributions of other party (s 9(1)(b)), 179–84 contributions made by looking after family home/family as (s 9(2)), 179 demeanour of the parties/preferred evidence, 180 failure to look beyond finance-based benefit to the benefit derived from harder to measure services, 182–4 ‘fair account’ as exercise of discretion, 184 parties’ evidence, 179–80 issue 2(b): pursuer’s contribution to home/ family (s 9(2)), 180–2 absence of evidence relating to the economic cost and value of domestic services, 182 evidence (pursuer), 181 evidence/counter-arguments (defender), 181–2 forced renunciation of her career, effect, 180–2 issue 3: pursuer’s economic disadvantage, 184–7 comparator earnings as benchmark, 184–5 ‘compensation’ to homemaker for future loss of earnings, 185–6 correction of ‘any resulting imbalance … a sharing of the value of the matrimonial property’, 186–7 Ogden Tables, 186 orders, 187–9 resources/difficulty of establishing the defender’s, 187 Coyle revisited (reflective statement (Muir)) (the challenge of writing a ‘feminist’ judgment), 196–200 Coyle, S and K Morrow, 394–5, 412 Crawford, E, 215 Crawford, R, 19 creative contributors, ix, 13, 14–15, 35–6 creative legal activity, 3, 11, 17–18, 23–4, 104, 364, 366 Crenshaw, K, 29 Criminal Justice (Scotland) Act 2016 by section 32 (suspect’s right to have a solicitor present during interview), 54 44 (suspect’s right to consultation with solicitor at any time), 54 Cunningham, J, 26 Curley, EM, 78

418  Index Da Lomba, S M Fletcher and R Zahn, 22 Davies, M, 6, 9 Denning, Lord, 218, 273, 283, 370 Dennis, I, 99 directors’ duties (common law), 298–303: see also Baxter revisited continuing relevance following introduction of statutory framework (Companies Act 2006, s 170(4)), 298 loyalty as first duty of fiduciary, 300, 303–4 as members of the Board/collective responsibility, 300–3 Aberdeen Railway Co v Blaikie Bros, 301 Re Westmid Packing Services Ltd, 301, 302 relationship between director and company/ conflicts of interest, 298–300 Aberdeen Railway Co v Blaikie Bros, 298–9 Bell v Lever Brothers, 299 Bristol and West Building Society, 300, 304 Mashonaland, 299–300, 303–4 Pyke, 300 unitary board (executive and non-executive directors) (Combined Code on Corporate Governance), 295, 300–1, 304 distress doctrine: see corroboration rule; corroboration/distress rule; Smith v Lees revisited diversity issues: see Scots law/legal system, diversity issues divorce: see Coyle revisited Dobash, RE and R Dobash, 93, 105 domestic violence/violence against women and girls ECtHR Osman, 97 ‘victim status’ requirement, 387 European Convention on preventing and combating violence against women and domestic violence (2011), 123 legislation Abuse Bill 2019, 123n15 Abusive Behaviour and Sexual Harm (Scotland) Act 2016, 59, 61 Criminal Justice and Licensing (Scotland) Act 2010, s 39 (‘abusive behaviour towards a partner’), 130 Domestic Abuse (Scotland) Act 2018, 102–3, 107, 123, 125, 130 as a matter of public concern, 90 necessity and, 8–9: see also necessity; Ruxton

policy interventions/research Equally Safe: Scotland’s Strategy for Preventing and Eradicating Violence against Women and Girls (Scottish Government, 2018), 30, 102 ‘Violence in the Family’ (House of Commons Select Committee Report (1975)), 97–8 Zero Tolerance campaign, 30, 90, 105 risks of/alleviation safe havens, importance, 93 tendency to underestimate/‘sanitize’, 92, 95, 105–6 Donaldson, Rachel (illustrator), ix, xvi, 14, 15 Doogan revisited (conscientious objection to abortion): see also Doogan revisited (commentary (Neal)); Doogan revisited (judgment (Ganguli-Mitra and Postan)) (background); Doogan revisited (judgment (Ganguli-Mitra and Postan)) (analysis/application of the law); Doogan revisited (reflective statement (Ganguli-Mitra and Postan)) Note: AA section references in Doogan are to the Abortion Act 1967 Doogan revisited (commentary (Neal)), 329–33 approaches to the case feminist judge’s contextual approach, 330 Lady Hale’s focus on narrow technical statutory interpretation, 9, 329–30 differences from feminist judge balancing of ‘reproductive liberty’ and protection of conscience, 331–2 causal remoteness of ‘delegating, supervising and supporting’, 330–1 interpretation of ‘core function’ of AA by refence to modern standards, 332 ‘treatment’ as appropriate context for conscientious objection, 332 perception of likely objector as male (AA 4), 333 Doogan revisited (judgment (Ganguli-Mitra and Postan)) (background) facts maternity services at Glasgow Southern General Hospital/use of Labour Ward Coordinators, 314

Index  419 petitioners, 313 petitioners’ fears of effect of reorganization of maternity services on their right of conscientious objection (AA, s 4(1)), 314 issue (classification of ‘delegation, supervision and support’ as ‘treatment’ for purposes of conscientious objection (AA 4(1))), 314–15 procedural history informal/formal grievance procedure, 314–15 Outer House of the Court of Session/Extra Division of the Inner House, 315 relevant legislation: Abortion Act 1967 (AA) (as amended by the HFEA) by section (text) 1(1) (medical termination of pregnancy: conditions), 315–16 1(3) (approved places), 316 1(3A) (approval of places in relation to the use of medicine), 316 5 (unlawfulness of terminations not carried out in accordance with the provisions of the AA), 316 s 4 (conscientious objection to participation in treatment), 317 relevant legislation: Human Rights Act 1998 by section (text) 3 (interpretation of legislation), 317 Schedule 1:8 (family life), 317–18 Schedule 1:9 (freedom of thought, conscience and religion), 318 Doogan revisited (judgment (Ganguli-Mitra and Postan)) (analysis/application of the law) AA moral and legal progress represented by, 319, 323 as reinforcement of paternalistic attitudes/ powers of the medical profession, 318–19, 323, 328 AA 4 (conscience clause) limited applicability/exceptions to, 319–20 perception of likely objector as male, 328 as quid pro quo/compromise, 319 AA 4 (conscience clause) (‘participate in any treatment’) Lady Dorrian on (wide interpretation of/ same approach to both terms), 320, 326–7

Lady Hale on (limitation to narrow technical statutory interpretation), 9, 318, 320, 321 Lady Smith on, 319–20 ‘participate’ and ‘treatment’, need to differentiate, 320 AA 4 (conscience clause) (‘participation’) burden/standard of proof, 326 ECHR 8 (private life), obligation to interpret AA consistently with (HRA 3), 321–2: see also private life (ECHR 8) ECHR 9 (freedom of thought, conscience and religion), justified restrictions, 322 interpretation by reference to the function/purpose of the AA, need for, 321, 323–5 proximity of activities to termination process as test, 325 wide interpretation, disadvantages, 325–7 AA 4 (conscience clause) (‘treatment’) applicability to supervisory, delegatory and peripheral care roles of Labour Ward Coordinators, 321 broad interpretation, 320–1 RCN v DHSS, 320–1 Doogan revisited (reflective statement (Ganguli-Mitra and Postan)), 334–7 AA access to safe and lawful terminations as current chief function, 335 as reinforcement of paternalistic attitudes/ powers of the medical profession, 334–5 original judgment (Lady Hale), departures from contextual interpretation of AA as ever-speaking instrument, 336 inclusion of interests of women seeking/having abortions, 336 introduction of human rights concepts including obligations under ECHR 8, 335 narrow interpretation of conscience clause, 336 proximity of activities to termination process as test, 336 rebalancing interests of health professionals and women seeking or undergoing abortions, 336 use of judgment to communicate state’s commitment to provision of safe and accessible abortion, 336

420  Index Douglas, H, F Bartlett, T Luker and R Hunter, 2 Douzinas, C and L Nead, 12 Dressler, J, 99 Drury revisited (provocation: sexual infidelity exception): see Drury revisited (commentary (Casey)); Drury revisited (judgment (McDiarmid)); Drury revisited (reflective statement (McDiarmid)) Drury revisited (commentary (Casey)), 121–5 Coroners and Justice Act 2009 adoption of ‘loss of control’ as replacement for provocation defence, 123–5 lessons for Scotland, 125 object and purpose, 123 uncertainties following, 124–5 proportionality requirement (sexual infidelity exception), as outmoded concept/as ‘man of honour’ concept, 121–2 Drury revisited (judgment (McDiarmid)), 109–20 abolition of sexual infidelity exception, desirability, 119–20 adultery as the ‘highest invasion of property’/ownership of women and, 119–20 ‘man of honour’ concept and, 112, 114, 120 application of provocation defence requirements to Drury appropriate response, 118–19 immediate loss of self-control, 117–18 provoking act (expectation of fidelity (trial court’s finding)), 116–17 facts, 109–10 appellant’s stalking of victim, 116–17 proportionality requirement (sexual infidelity exception) application/further expansion post-Hill, 114–16 expansion of doctrine to include, inter alia, killing of wife on suspicion of adultery (Hill), 113–14 historical basis (Hume/Macdonald), 111–13 McKean as sole example of unique application to a woman, 115 social acceptance of different forms of relationship, 114–16 provocation defence, definition, 111 provocation by violence and sexual infidelity exception distinguished, 111

Drury revisited (reflective statement (McDiarmid)), 126–30 anger as mitigating factor, 126–8, 130 provocation by violence and provocation by sexual infidelity distinguished, 127–8 sexual fidelity exception, failure of Scottish law to respond to social developments, 130 stalking of the victim, 128–30 Duff, P, 55, 78 Dustin, M, 362 ECHR interpretation of legislation ‘so far as possible’ consistently with (HRA 3), 172 interpretation of as ‘a living instrument’, 140, 143–4 effectiveness, 140 ‘victim status’ requirement, 382–3, 387 Edwards, A, 361 Ellison, L and VE Munro, 34, 58 England: see FJP (England and Wales) Enloe, Cynthia, vii Epstein, RA, 412 Equal Pay Act (1970 Act)/Sex Discrimination Act (1975 Act): see Rainey revisited Equally Safe: Scotland’s Strategy for Preventing and Eradicating Violence against Women and Girls (Scottish Government), 30, 102 Erskine, John (An Institute of the Law of Scotland, 1805), 215, 233 Evans, N, 26 evidentiary issues: see corroboration rule; Smith v Lees revisited Family Law: Report on Aliment and Financial Provision (SLC, 1981), 198 Family Law (Scotland) Act 1985: see Coyle revisited (judgment (Muir)) family life (ECHR 8)/marriage relationship: see also marriage, right of (ECHR 12); private life (ECHR 8); R & F revisited ‘best interests of the child’ and, 164–5 as broader concept than right to marry (ECHR 12), 138–9 ECHR 12 (right to life) as lex specialis/ priority, 139 jurisprudence Berrehab, 164 Boughanemi, 164 Johnston, 139, 164

Index  421 K and T, 139 Keegan, 164 Kroon, 139, 164 Marcx, 139, 164 matrimonial and divorce law, margin of appreciation, 139 requirement to divorce as infringement of existing right, 138–9 Farmer, L, 21, 22, 23 Faulkner, J, 78 feminist activism in Scotland 1970s’ initiatives/second-wave feminist ideology, 29 Tayside Women’s Liberation Newsletter, 29 late 70s–80s development of schisms within the Scottish movement and internationally, 29–30 Nessie, 29 radical vs socialist approaches, 29–30 switch to human rights/more narrowly focused issues, 29–30 1990s activities, 30 post-1999 devolution education programmes, 30 engagement with law-makers, increased opportunities for, 30–1 partnership approach to governmental funding for support providers, effectiveness, 30–1 targeting of specific legislation, 30 Glasgow Women’s Library archives, 28–9, 105 importance to understanding the role of feminist judging, 28 feminist activism in Scotland (FJP activist focus group: themes), 31–6 best tactics contextualisation/intersectional mode of engagement, 34–5 litigation strategy, 34 distinctive nature of Scottish national contribution, 35–6 engagement with law-makers, increased opportunities for post-devolution, 31–2 concentration of key figures in compact geographical area, advantages, 32 partnership approach to governmental funding for support providers, effectiveness, 32–3 engagement with lawmakers, concerns academicalisation, 32 courts’ patronising attitude, 34

courts’ slowness to adopt a creative approach, 33–4 handling interactions between reserved and devolved, 32 perceived conservatism of Westminster civil servants compared with Scottish, 32 slow rate of change for individuals, 33–4 standing/legal aid issues for advocacy groups, 33–4 participants, 31 feminist judging, characteristics, 10 alternative narratives, 153–4 alternative reading of the facts, 81 citation selection/handling of institutional writers, 20–1, 24, 107, 230–3, 235–6, 239 collaborative approach, 235–6 Coyle (Mair’s reflective statement), 196–9 dignity, kindness and respect for others, 79–80 ethic of care vs ethic of justice, 410–12 ‘gender-sensitive approach’, 330 importance of retaining credibility/avoidance of ‘feminist’ subjectivity, 101, 409, 412 ‘individual good’ vs ‘collective good’ dilemma, 6, 60–2 mutuality of consent requirement, 79–80 narrative approach, 311–12 redressing of structural injustice and gender inequality, 334, 335–6 reinterpretation of precedent, 10 relational approach/feminist relational theory, 5, 11, 237, 305–7, 308, 311, 312, 395, 402, 408, 409 rule-flexibility, identification of missing points of view and attention to context, 55–6, 229–30, 321, 330 sensitivity to factors influencing the development, interpretation and application of legislation, 334 Ferguson, Pamela, xvi, 54, 83: see also McKearney revisited FGM (female genital mutilation): see asylum appeals; FGM, definitions/characteristics; FGM as gender-based PSG persecution (RC 1A(2)); FGM as torture or inhuman or degrading treatment (ECHR 3); Johnson FGM, definitions/characteristics Female Genital Mutilation – An Overview (WHO, 1998), 353–5

422  Index Forward (15 February 2008), 366 ‘I’m a survivor of female genital cutting and I’m speaking out’ (Maryum Saifee, The Guardian, 8 February 2016), 366 ‘Perception and Barriers: Reporting Female Genital Mutilation’ (2018)’ (A Gill, N Mulvihill and M Hester), 366 ‘Responding to female genital mutilation: multi-agency guidance’ (Scottish Government, 27 November 2017), 366 Strengthening Protection from Female Genital Mutilation (FGM) (Scottish Government, October 2018), 366 FGM as gender-based PSG persecution (RC 1A(2)) child rights, need for improved protection of, 362–3 defining the group, 365–6 FGM as basis of a refugee claim (UNHCR Division of International Protection Services, 21 February 1996), 347 FGM as persecution/females fearing as PSG for the purposes of RC 1A(2) Australian Refugee Review Tribunal (1997/2000), 347 Canadian Immigration and Refugee Board (1996), 360 Canadian Immigration and Refugee Board (2001), 347–8 UNHCR Guidelines on International Protection: Gender-related Persecution (2002), 360 US Board of Immigration Appeals (BIA) (1996 (Kasinga)), 348, 357, 360 gender as basis for PSG (Shah and Islam), 347 inability or unwillingness of country of origin to provide protection (Horvath), 356 lawfulness/as wide-spread practice, relevance to classification as persecution (UNHCR Guidelines on International Protection: GenderRelated Persecution within the context of RC 1A(2) (2002)), 345, 355–6 link with RC ground requirement as disadvantage to women, 359–61 omission from RC 1A(2) of gender as a possible ground for persecution, 359–61 UK jurisprudence Acka Celine Yake, 348

Edwige Arma Mouchy, 349 FGM – Cameroon, 349 Ikossie, 349 Julia Wanguru Muchomba, 349 K and Fornah, 360, 363, 365 Mohamed Elkhair Hashim, 349 ‘P’ and ‘M’, 348 Re RM Sierra Leone, 348, 349 RM (sufficiency of protection – IFA – FGM) Kenya CG, 349 Shah and Islam, 347, 349, 365 woman’s opposition to FGM as a political act, 360–1, 366–7 FGM as torture or inhuman or degrading treatment (ECHR 3), 349–58 evidence of child, importance, 352 Home Office Asylum Directorate Instructions to caseworkers (1998) (FGM ‘would probably always constitute torture’), 348 jurisprudence Hashim, 350, 356 Johnson, 349–58 Julia Wanguru Muchomba, 353 Re RM Sierra Leone, 350, 356–7 non-refoulement in case of ‘real risk of death, torture or inhuman and degrading treatment’ (ECHR 2/ECHR 3), 396 recognition as CAT 1/CAT 16, 355 CRC 37(a), 355 IAA Asylum Gender Guidelines (2000), 357 ICCPR, 7, 355 UNHCR Guidelines on International Protection: Gender-related Persecution within the context of RC 1A(2), 355–6 use of force/evidence of FGM against mother’s wishes, relevance, 350–1, 353–7, 366 well-founded fear of persecution (RC 1A(2)), relevance, 349 financial provision on divorce: see Coyle revisited FJPs (general), 1–36 description of the process/self-imposed constraints, 1 former colonial territories, special problems of, 3 insights derived from epistemic injustice, 1 maleness of the system, 1

Index  423 as international exercise, 3 projects other than FJP’s ‘spawned’ by, 3n13 provoking change/effectiveness, 10 range of projects, 1–2 FJP (Africa), 2, 3 FJP (Australia) (Australian Feminist Judgments: Righting and Rewriting Law), 2 indigenous scholars, inclusion of, 2 scope, 2 survey of feminist judges’ experiences of/ approaches to judging, 2 FJP (Canada), Women’s Court of Canada (2006), 1 FJP (England and Wales) (Feminist Judgments: From Theory to Practice), 2 FJP (India), 2, 3 FJP (New Zealand) (Te Rino: A Two-Stranded Rope) focus on indigenous people, 2 as intersectional project, 2–3 FJP (Northern Ireland/Ireland) (Northern/ Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity), 3 differences between Northern Irish and Irish judicial identities, 3 as intersectional project, 3 poetry, inclusion of, 12 FJP (US) ‘Balkin Court’ (2002/2005), 1 Feminist Judgments: Rewritten Opinions of the United States Supreme Court (2016), 3 future projects, 3 form vs substance, 8–9, 23–4, 27, 35, 157, 166–71, 172–3, 211–12, 401, 410 Foucault, M, 154 Fredman, S, 167, 168, 282 Freedberg, S, 306 freedom of thought, conscience and religion (ECHR 9) reasonable limitations including those necessary for the protection of public health and the rights and freedoms of others, 322 requirement to perform employment duties (Konttinen/Kalaç), 322 Fricker, M, 1 Fudge, J, 282

Ganguli-Mitra, Agomoni, xvi: see also Doogan revisited Gardner, J, 99, 216 Gardner, J and S Shute, 79 gender-based discrimination: see paternalist norms/heterosexist ideologies, persistence of; patriarchal assumptions/presumed dependence of wife ‘Gender Pay Gap Statistics’ (Close the Gap Working Paper 16), 167, 168 Gender Recognition Act 2004 (UK) (GRA), proposed reforms, 153 Gender Recognition Act 2004 (UK) (GRA) by section: see also R & F revisited 1 (right to apply for a GRC), 134 2(1)(a) (requirements: diagnosis of gender dysphoria), 134 2(1)(b) (requirements: two years living with acquired gender), 134 2(1)(c) (requirements: intention to live with acquired gender to death), 134 3(1)(a) and (b) (evidence: medical professionals reports), 134 4(2) (successful applications: unmarried applicants), 135 4(3) (successful applications: married applicants), 135 4(4) (successful applications: interim GRC as ground for divorce), 135 5(1)(b) (grant of full gender recognition certificate consequent on divorce), 135 9(1) (acquired gender as gender for all purposes), 135 confusion of gender/sex terminology, 151–2 Gijs, L and RA Carroll, 149 Gill, A, N Mulvihill and M Hester, 366 Gilligan, C, 302, 311, 410 Glasgow Women’s Library archives, 28–9, 105 Glazebrook, P, 99 Gordon, E and G Nair, 266 Gordon, GH, 54, 70, 127 Graham, N, 237 Gray, Carolynn, xvi: see also R & F revisited Gray, KJ, 216 Gray, KJ and SF Gray, 412 Gretton, G and A Steven, 238

424  Index Hale, B, 329 Hale, Lady, 9, 25, 26, 193n5, 320, 326–7, 329–30: see also Doogan revisited (reflective statement (Ganguli-Mitra and Postan)), original judgment (Lady Hale), departures from Haraway, DJ, 237 Harding, Rosie, xvii, 170: see also White revisited (commentary (Harding)) Harmon, S, 335 Harris, A, 29 Hayes, LJB, 199 Herman, J, 80 Hewitt, J, 11 Himsworth, C and C O’Neill, 387 Holligan, Bonnie, xvii: see also Rafique revisited (commentary (Holligan)) home, right to respect for (ECHR 8), 407–8 ‘home’ as autonomous concept, 407 jurisprudence Berger-Krall, 407 Chiragov, 407 Surugiu, 407 Winterstein, 407 state’s obligation to protect the vulnerable, 408 homeless patriarchal attitudes, 211–12 reasonableness of action under the Tenants’ Rights, Etc (Scotland) Act 1980, 209–12 short Scottish secure tenancies (SST) (Homeless Persons Code of Guidance (2005)), 221 Hope, Lord (JAD Hope), 387 in McLellan, 43 in Miller v Miller, 193, 196 on Rape Crisis Centre, 387 in Salvesen v Riddell, 386, 394, 398–402, 411–12 in Sanderson, 156 in Shayler, 397 on Smith v Lees, 55, 56–7, 62 in Stobo, 39–40, 44, 50–1, 55 on Stobo, 56 in Upper Crathes Fishings Ltd v Bailey’s Executors, 229 on women in the judiciary, 25–6 on writing judicial opinions, 14 Horder, J, 121–2 Horder, J and K Fitz-Gibbon, 124–5

House of Commons proceedings Castle, Barbara MP, 289–90 Cowper-Temple, WF, MP, 264 Gurney, R, MP, 264 household: see patriarchal assumptions/ presumed dependence of wife Hume, Baron David (Commentaries), 64, 65, 74–5, 90, 107, 110–14, 117, 119, 121, 122, 127 Hunter, R, 5–6, 25, 57, 58, 60–1, 197, 236, 330 immigration guidelines Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-related Persecution (Immigration and Refugee Board of Canada, 1996), 360 Guidelines on International Protection: Gender-related Persecution (UNHCR, 2002), 345, 355–6, 360 IAA Gender Guidelines (2000), 351–2, 357, 360, 362, 367 immigration rules (UK): see also Rape Crisis Centre revisited ‘sports exception’, whether, 379 status (Hosenball), 370 India (FTP project), 2, 3 indigenous sources and perspectives, FJP efforts to embrace, 2–3, 11–12 artistic work as expression of, 12 for examples see individual FJPs ‘How Indigenous Art is Challenging Colonial Law’ (J Hewitt), 11 institutional writing, problems and solutions, 20–1, 24, 107 Ireland: see FJP (Northern Ireland/Ireland) Jaiswal, Anindita, xvii: see also Baxter revisited (commentary (Jaiswal)) Jex-Blake, S, 247, 266 Jex-Blake revisited (admission of women to Edinburgh University medical school): see Jex-Blake revisited (commentary (Bogle)); Jex-Blake revisited (judgment (Kennedy)); Jex-Blake revisited (reflective statement (Kennedy)); Jex-Blake, subsequent developments Jex-Blake revisited (commentary (Bogle)), 257–65 background original proceedings (appeal), 258 original proceedings (Lord Ordinary), 257–8

Index  425 issue 1: provisions of founding document interpretation (‘writings … may be cleared up and interpreted … by the usages of possession’), 258–9 the ‘real evidence’ of usage (feminist judgment), 260 the ‘real evidence’ of usage (University’s arguments), 259–60 issue 2: interpretation of 1869 regulations, 261 issue 3: implementation of declaratory judgment by the University, 262 legality vs unfairness of original judgment, 265 success of feminist judgment in addressing original Court’s focus on non-legal arguments, 262–3 what happened next?, 263–4 Jex-Blake revisited (judgment (Kennedy)), 243–56 background (judicial proceedings) Lord Ordinary’s finding for the pursuers/ reclaim by Senatus, 146 parties’ arguments (chancellor), 245–6 parties’ arguments (pursuers), 145 public petition supporting the pursuers/ professional endorsement, 251 background (University proceedings), 243–5 conclusion/implementation of 1869 Regulations, 254–6 issue 1: provisions of founding documents applicability of benignior interpretatio, 251 practice of University of Bologna as model for the founding of Edinburgh, 247 use of male terms, 247–8 issue 2: custom of ‘men only’ actual disadvantages to men of women’s achieving higher education/ professional careers, 249 alleged disadvantages to women of higher education/professional careers, 249 high esteem in own home and equality of opportunity distinguished, 248–9 prejudice against independent or educated women as justification for the practice, 248 use of evidence from jurisdictions other than Scotland, 24, 247, 251 women’s alleged failure to avail themselves of the original right, 248, 251 issue 3: centrality of graduation admission of women too lectures before the 1858 Act, 250–1

registration as medical practitioner, dependence on (Medical Act 1858), 250 issue 4: administrative arrangements damaging effect of mixed classes on the ‘courtesy, reverence, and tenderness of manhood’, 253 impropriety/immorality of mixed classes, 252–3 mixed views on the prospect of mixed teaching, 253–4 presence of women as onerous and disruptive, 251–2 segregated classes option, 254–5 unsuitability of women for rigours of academic learning, 252 Jex-Blake revisited (reflective statement (Kennedy)), 266–8 gender relations as index of civilisation, 266–7 the ‘glorious uncertainty of the law’, 266 intended messages impact of gender perspectives on majority judges, 267 presentation of egalitarian conceptions of gender relations, 267 weakness and inconsistencies of the majority’s arguments, 267 perceived advantages to women of being saved from the strain of academic study/paid employment, 266 Jex-Blake, subsequent developments, 263–4 educational/medical establishments admission of women (in separate classes) to University of Edinburgh (1896), 264 Irish College’s recognition of the London School of Medicine for Women/ grant of degrees and registration to Jex-Blake et al (1877), 264 London School of Medicine for Women, 264 Jex-Blake’s persistence on chosen route/a divisive character, 263–4, 268 legislative progress Cowper-Temple’s Bill 1876/withdrawal, 264 Gurney’s Bill 1876, 264 Medical Act 1876 (permissive powers to grant qualifications to women), 264 on-going problems divided views of campaigners on the best way forward, 263–4 problems likely to remain had case been successful, 263

426  Index Johnson revisited (FGM): see FGM (female genital mutilation); Johnson revisited (commentary (Baillot)); Johnson revisited (judgment (Loughran)); Johnson revisited (reflective statement (Loughran)) Johnson revisited (commentary (Baillot)), 359–63 children’s rights, 362–3 delay in claiming asylum/giving full details of claim, effect on credibility (IAA Asylum Gender Guidelines 2000), 361–2 link with RC ground requirement as disadvantage to women, 359–61 reasons for choice of case, 364–5 woman’s opposition to FGM as a political act, 360–1 Johnson revisited (judgment (Loughran)), 341–58 background (procedural history in date order) petitioner’s application for asylum/ concurrent human rights claim, 341 Home Secretary’s refusal of claim, 342 appeal to Immigration Appellate Authority, 342 supplementary ground for seeking asylum: membership of females at risk of FGM PSG, 342 IAT adjudicator’s dismissal of both asylum and human rights appeals, 342 IAT’s refusal of leave to appeal/Lord Ordinary’s refusal of request for judicial review, 343 reclaiming motion against refusal of judicial review, 343 grounds of appeal: 1. Refugee Convention challenge corroboration rule, exemption from (Kasolo), 346 FGM as basis of a refugee claim (UNHCR Division of International Protection Services, 21 February 1996), 347 FGM as persecution/females fearing as PSG for the purposes of RC 1A(2), 347–9 gender as basis for PSG (Shah and Islam), 347 grounds for rejecting asylum appeals (UK), 348–9

lawfulness/as wide-spread practice, relevance to classification as persecution (UNHCR Guidelines on International Protection: GenderRelated Persecution within the context of RC 1A(2) (2002)), 345, 355–6 petitioner’s claim and that of her daughters distinguished, 345–6 standard of proof (‘reasonable degree of likelihood’) (Sivakumaran), 346, 352–3, 358 summary of Lord Ordinary’s findings, 343–4 grounds of appeal: 2. FGM as torture or inhuman or degrading treatment (ECHR 3), 349–58 delay in claiming asylum/giving full details of claim, effect on credibility (IAA Asylum Gender Guidelines 2000), 351–2 evidence of child, importance, 352 Home Office Asylum Directorate Instructions to caseworkers (1998), 348 use of force/evidence of FGM against mother’s wishes, relevance, 350–1, 353–7 inability or unwillingness of country of origin to provide protection (Horvath), 356 reasoned findings, importance (Wordie), 351–2 Johnson revisited (reflective statement (Loughran)), 364–8 the creative challenge, 364, 366 defining the PSG, 365–6 reasons for choice of case, 364–5 woman’s opposition to FGM as a political act, 366–7 Jubany, O, 361 judging, feminist perceptions of, deintellectualizing the process, effect, 13–14 jury, role of: see corroboration/distress rule, jury’s right to draw inference Kagan, M, 361 Kagiaros, Dimitrios, xvii: see also Rape Crisis Centre revisited Kaufmann, Becky, xvii: see also R & F revisited (commentary (Kaufmann))

Index  427 Kennedy, Chloë, xvii, 20: see also Jex-Blake revisited Kennedy-McNeill, Jill (textile artist), ix, xxiii, 14–15 Kerr, JB and P Jennings, 29–30 Kishimoto, K and M Mwangi, 14 land reform Land Reform Policy Group Recommendations for Action (Scottish Office, 1997), 391 Scottish Land Rights and Responsibilities Statement (2017) (Scottish Office), 411 Larcombe, W, 6 Latham-Gambi, Alexander, xvii: see also Lumsden revisited (commentary (Latham)) Lawrence, AA, 149 legal method, limitations, 7–9 characterising the legal issues exclusion of ‘non-legal’ social and political context, 7–8 ‘feminist knowledge’, impact, 8 marginalisation or erasure of women’s perspectives and experiences, risk of, 8 conservative approach to statutory interpretation, 9: see also statutory interpretation as instrument of order/tool for imposition of conservative norms, 5, 8–9, 148–50 legal precedent, 8–9: see also legal precedent over-generous margin of appreciation, 8 legal precedent absence of precedent/‘it’s not been done before’ as major impediment to new ideas, 8 feminist re-interpretation of, 10 as non-transparent normative choice, 8–9 Scots law preference for principles, 22 setting-in-stone of unhelpful precedent, 6, 147 as tool for maintaining the status quo/ rationalizing the denial of new claims, 8–9 legitimate aim (ECHR), 398–401 Lillis, T, 11 limited partnership tenancies as device to escape the inflexibility of the 1991 Agricultural Holdings (Scotland) Act, 390, 398, 404–5

jurisprudence: see also Salvesen v Riddell revisited MacFarlane, 390, 398 McMaster, 411 LRPG recommendation for discontinuance, 391 limited partnership tenancies (termination of practice (s 72 of 2003 Act)): see also Agricultural Holdings (Scotland) Act 2003, legislative history as legitimate aim for ECHR purposes existing tenancies, 398–9 fair balance, whether, 401–2 legitimacy of legislative process, 398 tenancies subject to dissolution notices prior to the Act (retrospective effect), 399–403 summary of provision, 392, 405 Livingston, E, 289 Lloyd, G, 310 locus standi (standing) (Scotland/England) interest, sufficiency (England), 372–3 Bindel, 372 Equal Opportunities Commission, 373 National Federation of Self Employed and Small Businesses, 373 title and interest requirement (Scotland), 372 disadvantageousness of rule to the vulnerable, 373–4 justification for restrictive rules, 373 potential consequences of ‘title’ requirement, 372–3 relaxation of rule (AXA), 382–3, 386 ‘title’ (D & J Nicol), 372 ‘victim status’ requirement, 382–3, 387 Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), 385–6 Loft, P, 20 Lorde, A, v-vi, 10, 239 Loughran, Nicola, xvii: see also Johnson revisited Lumsden revisited (patriarchal assumptions): see Lumsden revisited (commentary (Latham)); Lumsden revisited (judgment (Robson)); Lumsden revisited (reflective statement (Robson)); patriarchal assumptions/presumed dependence of wife; ‘residing with’; Tenants’ Rights, Etc (Scotland) Act 1980

428  Index Lumsden revisited (commentary (Latham)), 213–17 background facts, 213–14 sheriff principal’s decision (‘residing with’/as ‘member of the tenant’s household’), 214 patriarchal assumptions/presumed dependence of wife, 213–15 an alternative reading, 215–17 marriage, changing concepts of, 214–17 Lumsden revisited (judgment (Robson)), 201–12 background facts, 201–2 sheriff principal’s decision, 203–5 tenancy agreement (‘shall not … permit any person to … cause any nuisance’), 202 decision, 212 patriarchal assumptions presumed dependence of wife as ‘member of the tenant’s household’, 204–6, 207 SSHA housing policy, 211–12 statutory provisions (Tenants’ Rights, Etc (Scotland) Act 1980) ‘reasonable in all the circumstances’ given risk of homelessness, 209–12 as rectification of insecurity of tenure of public sector tenants under the Rent (Scotland) Act 1971, 202 repossession of a property for conduct which is a nuisance or annoyance (schedule 2, part 1, para. 7), 203 ‘residing with’, 203–10 Lumsden revisited (reflective statement (Robson)), 218–21 attitudes of public and private housing sectors compared, 218–20 changes of practice since Lumsden Housing (Scotland) Act 2001 guidelines on anti-social behaviour, 219–20 joint tenancies, 220–1 short Scottish secure tenancies (SST) (Homeless Persons Code of Guidance (2005)), 221 McCarthy, Frankie, xvii: see also Rafique revisited McClain, LC, 216 McCluskey, Lord in McKearney, 65, 75–6, 78, 80n12, 81, 83–4

in Smith v Lees, 49–50 ‘does not raise … any question as to what the law ought to be’, 40, 56 McDiarmid, Claire, xxiii, 21, 126: see also Drury revisited Macdonald, JHA (Criminal Law), 69, 111–12, 114, 117, 121, 126 McGlynn, Clare, xxiii, 18: see also McKearney revisited (commentary) (McGlynn) McGlynn, Clare and N Westmarland, 82 McGuinness, S and M Thomson, 335 MacIntyre, A, 23 MacKay, AEJG, 258 McKay, R, 129 McKearney revisited (sexual assault): see McKearney revisited (commentary) (McGlynn); McKearney revisited (judgment (Ferguson)); McKearney revisited (reflective statement (Ferguson)) McKearney revisited (commentary) (McGlynn), 77–82 corroboration/distress rule, applicability to mens rea in rape cases, 80 risk of rape becoming an unprovable crime, 80 feminist judging, characteristics alternative reading of the facts, 81 dignity, kindness and respect for others, 79–80 mutual approach to consent, 79–80, 82 McKearney revisited (judgment (Ferguson)), 63–76 background (evidence/trial proceedings), 63 corroboration/distress rule, applicability to rape cases, 73–5 direction to jury to disregard the question of honest belief, necessity in cases where there is no doubt, 71–3 errors affecting mens rea English vs Scottish approaches to, 67–9 in rape cases, distinguishably from error in general, 69–70 the issues, 64 ‘knows or is reckless’ of non-consent, 65 proof of force as proof of mens rea/removal of force as a required element, effect, 65 rape as a common law offence/need for reform, 63, 67, 76 rape (definition: actus reus), 64

Index  429 rape (definition: mens rea) direction to jury on removal of force as a required element, need for, 64, 65 honesty/reasonableness of belief in consent, relevance, 65–73 Meek/Jamieson, challenge to reliance on, 65–7, 71–3, 75–6 misreading of submission as consent/need for mutuality of consent, 71–3 post-Morgan changes to English law, 70–1 McKearney revisited (reflective statement (Ferguson)) problems of the corroboration rule, 83–5 continuing existence of rape ‘myths’, 83–5 MacKinnon, CA, 412 McNeil, J et al, 150 MacQueen, HL, 21, 22, 23, 27 McQuigg, RJA, 387 Maher, G, 21, 77 Mair, Jane, xvii, 196: see also Coyle revisited Mair, Jane, E Mordaunt and F Wasoff, 191, 197 Majury, D, 1–2 Malleson, K, 25 margin of appreciation Goodwin matrimonial and divorce law (ECHR 12) as matters within State’s margin of appreciation, 16, 138, 142, 143–4, 145, 146, 148–9 sexual or gender identity/right to private life (ECHR 8), 16, 139–41 interference with peaceful enjoyment of possessions (ECHR Protocol 1:1), 397 R & F (marriage for trans people), 8, 16, 138–9 Markel, D, 412 market forces as mask for gender discrimination, 7, 16, 279–81, 284–6 marriage, changing concepts of, 214–17: see also patriarchal assumptions/ presumed dependence of wife marriage, right of (ECHR 12): see also family life (ECHR 8)/marriage relationship; R & F revisited conventional approach to marriage, ECtHR’s willingness to ensure progressive development of ECHR rights/ continuing resistance to change, 143–4 domestic law as applicable law, 143

legislative changes (UK)/continuing divergencies between rights and protections, 152 opportunities for further advancement, 153–4 proposed GRA 2004 reforms, 153 as lex specialis/priority of competing rulings over ECHR 8, 129 margin of appreciation/exclusion of restrictions undermining ECHR 12 rights, 142–4 Corbett, 144 Cossey, 143–4 F v Switzerland, 142–3 Goodwin, 143 Rees, 142, 143 transsexual persons’ right to (Corbett), appropriateness as precedent in particular for Scottish law, 144–5, 152, 154 possible alternative to, 145–6 Marshal, C, 80 Marx, K, 150 Matrimonial Homes (Family Protection) (Scotland) Act 1981, 136, 226, 238 medical training for women: see Jex-Blake revisited; Jex-Blake, subsequent developments Menkel-Meadow, C, 410 Miller, T, 312 Morris, S, S Anderson and L Murray, 129 Morton, J, 28 Mossman, MJ, 5, 7, 8–10 Mullen, T et al, 387 Munro, Vanessa E, xxiii: see also Ruxton revisited Nakou, Sofia (theatre practitioner), ix, xxiii, 14 Neal, Mary, xviii, 331–2: see also Doogan revisited (commentary (Neal)) necessity: see also Ruxton revisited cautious approach to/as underdeveloped concept, 90–1, 99–100 definition/scope applicability to a ‘private sort of violence’ (Hume’s Commentaries), 90, 107 immediate danger of death/great bodily harm, 90–4 strict liability cases, 89, 90 ‘immediacy’, 91–4 coercion test, applicability, 91–2

430  Index contextual assessment, importance of, 92–4, 96, 100–1, 105–7 material time (point of police apprehension), 91 strict test, appropriateness, 91–3 jurisprudence Docherty, 92 Donnelly, 101–2 Moss v Howdle, 89, 90–1, 94, 100, 101, 106 Thompson, 91 Tudhope v Grubb, 91–2, 93, 100–1, 106 prudent legal alternative/‘real choice’, 94–6, 100–2, 106 Nedelsky, J, 235, 302, 310, 311, 411 Nicolson, Donald, xxiii, 260: see also Salvesen v Riddell revisited Noddings, N, 410 Northern Ireland: see FJP (Northern Ireland/ Ireland) Nussbaum, MC, 410 O’Brien, Becky (choreographer), ix, xix, 14 O’Donoghue, A, 2–3 O’Donovan, K, 123 O’Neill, A, 387 Orr, Jess (writer), ix, xix, 14 Orücü, E, 21 Osborne, BD, 23 paternalist norms/heterosexist ideologies, persistence of Abortion Act 1967, 318–19, 330, 332, 334–5 changing attitudes to sexual orientation/ gender identity vs stagnation of the law, 151 compartmentalisation of gender from other important issues, 16–17 legislative equality and, 27 parenting/child care, 9, 158–9, 162, 166–8, 170–1 sexual infidelity exception to provocation defence as reinforcement of, 119–20, 127–8 Supreme Court’s treatment of Scottish Parliament’s actions, 409 traditional legal methods and, 5, 148–50 patriarchal assumptions/presumed dependence of wife English/Scots law concepts of marriage (coverture/communio bonorum), 215 homelessness, protection against, 211–12

‘household’ as domain of heteropatriarchal control, 16, 204–5, 207–15 an alternative reading, 215–17 ‘residing with’, 204–5 SSHA practice of granting tenancies to the husband, 211–12, 215 switch to joint tenancies, 220–1 peaceful enjoyment of possessions/property rights (ECHR Protocol 1:1), interference with in the general interest ECHR 8, ICESCR 6 and ICESCR 11 protection of property rights, 397, 406, 407–8 interference with ‘control of use’ of property Barreto, 396 Gauci, 396 Pairc Crofters, 397 Spadea, 396 Sporrong, 396 justification, dependence on severity of interference, 397 margin of appreciation, 397 retrospective interference, special justification requirement AXA, 396 Bäck, 396 Huitson, 396 Pearson, H, 150 persecution, well-founded fear of for reasons of membership of a PSG (RC 1A(2)): see FGM; Johnson Pobjoy, J, 363 Postan, Emily, xix: see also Doogan revisited precedent: see legal precedent private life (ECHR 8): see also family life (ECHR 8)/marriage relationship; R & F revisited abortion, access to lawful services/ information (Tysiąc/A, B and C v Ireland/RR v Poland), 322 acquired agenda for all legal purposes, dependence on divorce (GRA 5(1)(b)) as infringement, 141 Goodwin, significance, 14 interference with (ECHR 8(2)), particularly serious reasons requirement balance between interest of the community and interests of the individual, Goodwin, 140–1 Dudgeon, 139 Smith and Grady, 139, 141

Index  431 obligation to take measures to secure respect for/Abortion Act (UK) as, 322 personal autonomy, importance (Pretty/Goodwin/Evans), 141, 321 sexual orientation/gender identity, applicability to, 139–41 Cossey, 139–40 Goodwin, 139–41 I v UK, 139–40 Rees, 139–40 Sheffield and Horsham, 139–40 X, Y and Z, 139–40 ‘property’, meanings of, 409: see also Agricultural Holdings (Scotland) Act 2003; common ownership (Scotland); limited partnership tenancies; peaceful enjoyment of possessions/property rights (ECHR Protocol 1:1), interference with in the general interest; Salvesen v Riddell revisited as an economic asset, 394 autonomy promoting function, 394–5, 402, 412 balancing conflicting interests, 394 as social/relational institution, 395–6, 408–9 proportionality: see also provocation, proportionality requirement; Salvesen v Riddell revisited elements of analysis, 397–8 fair balance requirement, 401–2 interference with the peaceful enjoyment of possessions (ECHR Protocol 1:1), 397–403 jurisprudence AXA, 398 Daly, 397–8 James, 398 Quila, 397–8 Shayler, 397–8 Sporrong, 398 legitimate aim requirement, 398–401 ‘manifest unreasonableness’ test, 398, 400–1 provocation: see also Drury revisited abolition of defence (Coroners and Justice Act 2009) (England, Wales and Northern Ireland), 123–4 adoption of ‘loss of control’ alternative, 123 lessons for Scotland, 125 trigger 1 (s 53(3)) (fear of serious violence from the victim), 123

trigger 2 (s 55(4)) (circumstances of extremely grave character causing justifiable sense of being seriously wronged), 123–4 uncertainties following, 124–5 women killing abusive partners/ controlling men killing female partners, as attempt to balance, 123 anger as mitigating factor, 117–18, 126–8, 130 C v Harris, 118 definition/requirements, 110–13 immediate loss of self-control requirement, 110, 117–18 proportionality requirement (provocation by violence) Donnelly (Nico), 122 Kizileveczius, 111 Low and Reilly, 110 Macdonald (Criminal Law), 111, 117, 121, 126–7 Thomson, 111 proportionality requirement (sexual infidelity exception) abolition of exception, desirability, 119–20 adultery as the ‘highest invasion of property’/ownership of women and, 119–20, 122 appropriateness of response as test, 118–19 Coroners and Justice Act 2009, impact, 123–5 expansion of doctrine to include, inter alia, killing of wife on suspicion of adultery, 113–16 Hume (Institutions), 111–13, 114, 121 Macdonald (Criminal Law), 111–12, 114, 117, 126 McKay, 127 McKean as sole example of application to a woman, 115, 128 ‘man of honour’ concept and, 112, 114, 120, 121–2 social acceptance of different forms of relationship, 114–16 proportionality requirement (sexual infidelity exception), jurisprudence Callander, 115–16, 118, 127 Christie, 110, 111–12, 127 Clinton, Parker and Evans, 124 Delaney, 117, 118, 127 Drury, 110–11, 121–2, 128–30 Gilmour, 113, 115–16, 118

432  Index Hill, 113–16, 117, 118, 120, 127–8 McCormack, 127 McDermott, 115–16, 118, 120, 127 McKean, 115, 118, 127, 128 Mawgridge, 122 Rutherford, 115–16, 117, 127 public life, resistance to women in: see also Jex-Blake revisited artists reaction to, 14 Quick, O and C Wells, 123 R & F revisited: see R & F revisited (commentary (Kaufmann)); R & F revisited (judgment (Gray)); R & F revisited (reflective statement (Gray)) R & F revisited (commentary (Kaufmann)), 147–50 nominalisation of deviance, 149–50 R & F revisited (judgment (Gray)), 133–46 alleged breach of ECHR 8 (Court’s assessment: family life), 138–9: see also family life (ECHR 8)/marriage relationship alleged breach of ECHR 8 (Court’s assessment: private life), 139–41: see also private life (ECHR 8) alleged breach of ECHR 8 (parties’ arguments) (private life/family life), 138 alleged breach of ECHR 12 (right to marriage) (Court’s assessment), 142–6: see also marriage, right of (ECHR 12) conventional approach to marriage, ECtHR’s willingness to ensure progressive development of ECHR rights/continuing resistance to change, 143–4 margin of appreciation/exclusion of restrictions undermining ECHR 12 rights, 142–4 transsexual persons’ right to (Scottish law), appropriateness of Corbett precedent/possible alternative, 144–6 alleged breach of ECHR 12 (right to marriage) (parties’ arguments), 141–2 background (facts and procedure) circumstances of the case, 133–4

complaints (alleged breach of ECHR 8, 12, 13 and 14), 136–7 exhaustion of domestic remedies/ sufficiency of declaration of incompatibility as effective remedy, 137 relevant UK jurisprudence Bellinger, 135–6, 140 Corbett, 135–6, 144–6 relevant UK legislation Civil Partnership Act 2004 (CPA), 136 Divorce (Scotland) Act 1976, 136 Family Law (Scotland) Act 1985, 136 Family Law (Scotland) Act 2006, 136 Gender Recognition Act 2004 (UK) (GRA), 134–5: see also Gender Recognition Act 2004 (UK) (GRA) by section Marriage (Scotland) Act 1977, s 5(4)(c) (same-sex marriages), 135–6 Matrimonial Homes (Family Protection) (Scotland) Act 1981, 136 R & F revisited (reflective statement (Gray)), 151–4 changing attitudes to sexual orientation/ gender identity vs stagnation of the law, 151 confusion of gender/sex terminology (GRA 9(1)/jurisprudence), 151–2 Corbett, problems caused by adherence to, 154 ECtHR’s conservative approach to LGBTQI+ issues, 151–4 advances made by UK legislation/ continuing divergences and protections, 152 opportunities for further advancement, 153–4 proposed GRA 2004 reforms, 153 feminist judgment, approaches to, 153 Rackley, E, 6–7 Rafique revisited (common ownership): see Rafique revisited (commentary (Holligan)); Rafique revisited (judgment (McCarthy)); Rafique revisited (reflective statement (McCarthy)) Rafique revisited (commentary (Holligan)), 234–7 alternative approaches offered by feminist judgment, 235–6 boundary drawing, 235

Index  433 property law as protection of individual rights (original judgment), 234–5 tenement architecture, role, 246 Rafique revisited (judgment (McCarthy)), 223–33 alterations to common property jurisprudence, 228–9 prohibition as absolute rule, 226–33 reasonable exercise of the veto, scope for, 230–3 unanimity requirement, 225 background division or sale option, exclusion, 225–6 division or sale option as absolute right, 225–6 facts, 223–4 legal issue, 224 decision, 224, 230 division or sale option as absolute right, 225–6 jurisprudence, 225–6 reasons for exclusion, 225–6 Rafique revisited (reflective statement (McCarthy)) cooperative or individualistic?, 16–17, 238–9 Rose’s view of property law rules, 238–9 sexual property law, 238 Rahmatian, A, 22, 24, 27 Rainey revisited (equal pay): see Rainey revisited (commentary (Ashiagbor)); Rainey revisited (judgment (Busby)); Rainey revisited (reflective statement (Busby)) Rainey revisited (commentary (Ashiagbor)), 282–7 equality clause, 282–3 feminist judge’s distinctive approach limitation of justifications/focus on legislative intention, 286 reinstatement of Clay Cross limitation to personal factors, 286–7 strict scrutiny test, 286 jurisprudence Bilka, 284 Clay Cross, 283 Enderby, 284, 285–6 Rainey, 283–5 justifications for differential treatment market forces, 284–6 material factors (UK courts), 284

organisational factors, 284 ‘personal’ factors, limitation to (Clay Cross), 283 proportionality (ECJ), 284, 287–8 pay inequity between men and women, factors contributing to, 282 Rainey revisited (judgment (Busby)), 269–81 background (facts relating to employment) appellant’s salary history following direct recruitment into the NHS, 270 comparator’s salary history following transfer from NHS, 270 continuing disparity between salaries of prosthetists transferring to the NHS and direct entrants, 270, 272 salary options available to private sector prosthetists on joining the NHS in 1980, 269–70 dismissal of appeals to the Employment Appeal Tribunal and the First Division of the Inner House, 271 facts (Industrial Tribunal proceedings under the Equal Pay Act 1970) complaint (breach of breach of section 1(1) and 1(2)(a) of the 1970 Act), 270–1 defence (variation due to material difference (other than sexual)), 271 Tribunal’s decision (dismissal) (different salary scales not gender-based), 271 feminist judge’s analysis all-male constitution of transferee cohort/ female status of appellant (direct recruits), 275–6 factors such as method of entry or intake as ‘material difference’, 275 interrelationship between 1970 and 1975 Acts, 275 market forces as mask for gender discrimination, 279–81 Parliament’s expectation, 274 unintentional discrimination (s 1(1)(b)(ii) of 1975 Act), 274–5 issue for determination (existence of ‘a material difference (other than the difference of sex)’ between the parties under s 1(3) of the 1970 Act), 271 jurisprudence Bilka (ECtHR), 277–8 Clay Cross (UK court of Appeal), 273–4 Griggs (US Supreme Court), 276–7

434  Index parties’ arguments (appellant) absence of a genuine ‘material difference’, 272 pay policy as indirect discrimination under s 1(1)(b), 272–3 parties’ arguments (respondents), relevance of factors such as method of entry or intake, 275 Rainey revisited (reflective statement (Busby)), 288–90 choice of case, reasons for, 208 continuing inequality of pay, 288–9 legislative intention (Barbara Castle) as key, 289–90 Raitt, F, 54, 58, 59 Rape Crisis Centre revisited (challenging administrative decisions): see Rape Crisis Centre revisited (commentary (Brindley)); Rape Crisis Centre revisited (judgment (Kagiaros)); Rape Crisis Centre revisited (reflective statement (Kagiaros)) Rape Crisis Centre revisited (commentary (Brindley)), 381–3 original request for judicial review considerations underlying, 381–2 locus stand issues, impact on, 382 Rape Crisis, impact on status of, 382 as strategic litigation, 382 ‘victim status’ requirement (ECHR), 382–3 Rape Crisis Centre revisited (judgment (Kagiaros)), 369–80 background (petitioners’ arguments), 371 background (Tyson’s application for leave to enter the UK (IA 3(1)))/grounds for refusal (IA 3(2)), 369–70 announcement of decision, 370 Immigration Rule 320(18), 369–70 Immigration Rules, status, 369–70 issue 1: locus standi, 372–4: see also locus standi (standing) (Scotland/England) disadvantageousness of rule to the vulnerable, 373–4 petitioners’ failure to meet the criteria, 372 potential consequences of ‘title’ requirement, 372–3 title and interest requirement (Scotland) vs interest only requirement (England), 372–4

issue 2: audi alteram partem (right to be heard), 374–7 ‘awareness of views’, adequacy, 376–7 desirability of hearing views in absence of nexus, 376–7 as natural justice/fairness, 371, 374–7 nexus between decision and interests of the petitioners, need for, 375–7 issue 3: abuse of discretion, 377–80 omission of some relevant considerations/ inclusion of irrelevant considerations, 377–8 Rape Crisis Centre revisited (reflective statement (Kagiaros)), 384–7 choice of focus, 385–6 original request for judicial review failure to address key feminist issues, 384 locus standi, role of pressure groups and, 384 Minister’s balancing of competing considerations/discounting of petitioners’ potential contribution, 384–5 rape (definition: actus reus) Barbour, 64 corroboration, need for, 74–5 Hume’s Commentaries (1844), 64, 65, 74–5 Lord Advocate’s Reference (No 1 of 2001) (removal of use of force as a required element), 64, 77–8 rape (definition: mens rea): see also McKearney revisited complainer’s distress de recenti as evidence of accused’s mens rea, 73–5, 80 corroboration of accused’s state of mind, need for, 74, 80 risk of rape becoming an unprovable crime, 80 direction to jury to disregard the question of honest belief, necessity in cases where there is no doubt McKearney, 71–3 Quinn, 73 direction to jury on removal of force as a required element, need for, 64, 65 errors affecting mens rea (English law), 67–8 vs Scots law, 68–9 errors affecting mens rea other than in rape cases (bigamy) (English law), Tolson, 67 errors affecting mens rea other than in rape cases (self-defence) (English law) Albert v Lavin, 67

Index  435 Chisam, 67 Fennell, 67 Rose, 67 Williams (Gladstone), 67–8 errors affecting mens rea other than in rape cases (self-defence) (Scots law) Crawford, 68 Jones, 68 McCluskey, 68 Owens, 68 errors affecting mens rea other than in rape cases (theft) (Scots law), Dewar, 68–9 errors affecting mens rea in rape cases, distinguishably from error in general, 69–70 honesty/reasonableness of belief in consent, relevance, 65–73 lapse of time, relevance, 81 McKearney (LJC), 65 McKearney (Lord McCluskey), 65, 75–8, 81, 83–4 Meek/Jamieson, 65–7, 71–3, 75–6, 79–80 misreading of submission as consent/ need for mutuality of consent, 71–3, 79–80, 82 Morgan, 66–8, 69–71 post-Morgan changes to English law, 70–1 Sexual Offences Act 2003, s 1, 70–1 ‘knows or is reckless’ of non-consent, 65 Lord Advocate’s Reference (No 1 of 2001), 65, 77–8 McKearney, 65 Sexual Offences (Amendment) Act 1976, s 1, 70 marital rape exception, exclusion, S, 112 mens rea as factum probandum, 73–4 proof of force as proof of mens rea, 65 removal of force as a required element, effect, 65 rape as a common law offence/need for reform, 63, 67, 76 rape ‘myths’ counter evidence, 45 distress doctrine, negative impact of, 44–6, 52, 53, 58, 59, 60–2 evidence of continuing existence, 47, 58, 83–5 Seaboyer, 45 mitigation possibilities admission of evidence of other emotional states, 46

admission of expert of psychological or psychiatric evidence, 46 educational campaigns, 30, 59 jury directions, 46, 59, 81–2 time-frame, less strict approach to, 46 research on, 58, 61 Refugee Convention (1950) (RC): see asylum appeals; FGM as gender-based PSG persecution (RC 1A(2)) Reid, KGC, 225, 227, 234, 236 Reid, P, 387 relational theory: see feminist judging, characteristics, relational approach/ feminist relational theory ‘residing with’: see also Lumsden revisited; Tenants’ Rights, Etc (Scotland) Act 1980 jurisprudence Brown, 208, 209 Collier, 206–8 Edmunds, 206–8 Haskins v Lewis, 205 Lumsden, 204–5 Skinner v Geary, 208–9 presumed dependence of wife as basis, 204–5 Rent Acts, 205–9 Tenants’ Rights, Etc (Scotland) Act 1980, 203–10 Rich, A, 29 Rittich, K, 282 Robson, Peter, xix: see also Lumsden revisited Robson, Peter and P Watchman, 218 Rose, CM, 238–9, 394–5 Rudmin, FW, 411 Ruxton revisited (domestic abuse): see Ruxton revisited (commentary (Campbell)); Ruxton revisited (judgment (Cowan and Munro)); Ruxton revisited (reflective statement (Cowan and Munro)) Ruxton revisited (commentary (Campbell)), 99–103 immediate danger of death/great bodily harm/‘immediacy’, 100 importance of retaining credibility/avoidance of ‘feminist’ subjectivity, 101 necessity, cautious approach to/as underdeveloped concept, 99–100 police handling of the case, 102–3 prudent legal alternative/‘real choice’, 100–2 contextual assessment, importance of, 100–1

436  Index Ruxton revisited (judgment (Cowan and Munro)), 87–98 background, 87–8 facts, 88–9 issues for consideration, 88 trial judge’s decision, 89–90 conclusion, 96 domestic violence safe havens, importance, 93 tendency to underestimate/‘sanitize’, 92, 95 immediate danger of death/great bodily harm/‘immediacy’, 90–4 coercion test, applicability, 91–2 contextual assessment, importance of, 92–4, 96 material time (point of police apprehension), 91 strict test, appropriateness, 91–3 obiter dicta disproportionality of penalty, 97–8 police handling of the case, 96–7 prudent legal alternative/‘real choice’, 94–6 contextual assessment, importance of, 94–6 Ruxton revisited (reflective statement (Cowan and Munro)), 104–7 citation selection/handling of institutional writers, 107, 112 contextual assessment, importance of, 105–7 domestic violence, tendency to underestimate/‘sanitize’, 105–6 importance of retaining credibility/avoidance of ‘feminist’ subjectivity, 106 prudent legal alternative/‘real choice’, 106 reasons for choice of Ruxton and approach to, 104–6 Salvesen v Riddell revisited (compatibility of Agricultural Holdings (Scotland) Act 2003, s 72 with ECHR Protocol 1:1): see Agricultural Holdings (Scotland) Act 2003, legislative history; limited partnership tenancies; ‘property’, meanings of; Salvesen v Riddell revisited (commentary (Choudhry)); Salvesen v Riddell revisited (judgment (McHarg and Nicolson)); Salvesen v Riddell revisited (reflective statement (McHarg and Nicolson))

Salvesen v Riddell revisited (commentary (Choudhry)), 404–9 2003 Act, s 2003 (limited partnership tenancies) legislative history, 405 summary of provisions, 405 context concentrated private land ownership, 404 limited partnership tenancies, 404–5 ECHR 8, ICESCR 6 and ICESCR 11 protection of property rights, 405 feminist judging, importance of retaining credibility, 409 feminist judgment, omissions, devolution dimension of Supreme Court’s striking down of a Scottish legislative provision, 409 feminist judgment, positive features consideration of proportionality and balance, 407 consideration of the ‘right to a home’ (ECHR 8), 407 discussion of different meanings of ‘property’, 409 focus on social and policy context, 408–9 home, right to respect for (ECHR 8), 407–8 procedural history, 405–6 Supreme Court findings, 406 Salvesen v Riddell revisited (judgment (McHarg and Nicolson)), 389–403 background (history of Peaston Farm tenancy), 389–90 dissolution notice (3 February 2003), 393 s 72(6) notice of intention to assume tenancy in own right, 393 s 72(8) application for order, 393 background (legal matters) Agricultural Holdings (Scotland) Act 2003 (legislative history), 391–2 ECHR 8, ICESCR 6 and ICESCR 11 protection of property rights, 397 ECHR Protocol 1:1 rights, 396–7 limited partnership tenancies, reasons for/ problems, 390 proportionality: see proportionality below background (legal proceedings (s 72(6)/s 72(8))) Inner House, 391, 393 Land Court, 390–1, 393 background (property rights in context), 393–5 feminist judge’s conclusion, 403

Index  437 issue (compatibility of Agricultural Holdings (Scotland) Act 2003, s 72 with ECHR Protocol 1:1), 389, 394 proportionality of challenged measure, 397–403 elements of analysis, 397–8 fair balance requirement, 401–2 legitimate aim requirement, 398–401 ‘manifest unreasonableness’ test, 398, 400–1 Salvesen v Riddell revisited (reflective statement (McHarg and Nicolson)) approaches to challenge of writing a ‘feminist’ judgment, 410–12 ethic of care vs ethic of justice, 410–12 importance of retaining credibility/avoidance of ‘feminist’ subjectivity, 412 Scotland with particular reference to the relationship with England/rest of the UK, 19–24 independence of/în-dependence on, 19–20 Scottish national identity, importance of understanding, 19–20 Supreme Court’s striking down a Scottish legislative provision, appropriateness, 409 Scots law/legal system: see also Scotland common law (Scotland) definition, 20 as replacement for ius commune, 20 courts’ discretion/inherent equitable and declaratory powers (common law), 20 devolution, effect, 22–4 as disincentive to use of non-Scottish sources, 21–2, 24 lack of diversity, impact on, 26–7 stare decisis doctrine, impact on/courts’ continuing rule-building capacity, 21 distinctive nature of Scottish national contribution to FJP global efforts to challenge gender inequalities, 35–6 diversity issues, 24–8 absence in the Scottish system of a leading feminist judge, 25–6 applicability of diversity beyond gender, 27–8 disparity between proportion of women students/solicitors and representation at the Bar/judiciary, 25 encouraging developments, 27–8

impact of lack of diversity on the exercise of discretion, 26–7 Judicial Appointments: An Inclusive Approach (Scottish Government, 2000), 25 persistence of sexist attitudes, 26–7 women judges, comparison of proportions in the Scottish/UK systems with other jurisdictions, 26 institutional writings continuing authority, 20–1 definition, 20–1 as male preserve/FJP alternatives to, 20–1, 24, 107, 112 legal education, 25 internationalisation of Scottish law schools, effect, 27 preservation of autonomy/as bastions of Scottish identity post-1707, 20, 21–4 Cooper–Smith ideology, 22 devolution, effect, 22–4 Scotland-specific legislation (1707–1999), as preserve of Westminster/paucity, 20 consequential importance of non-legislative sources, 20 judiciary’s compensatory role, 20 structure of the judiciary, 21n13 Supreme Court, role, 21n13 Scottish Parliament proceedings post-devolution legislative activity, 6, 22–4 Supreme Court’s treatment of, 409 sexual infidelity: see provocation, proportionality requirement (sexual infidelity exception) sexual offences: see also Smith v Lees revisited problems of proof, 40–2, 54: see also corroboration rule insufficiency of evidence of complainant on its own regardless of credibility, 40–1, 54 as a ‘private sphere’ crime, 40, 54 rape ‘myths’: see rape ‘myths’ restrictions on admissibility of confession and corroborative evidence following Cadder, 54 statistics (Scotland) increase in recorded offences/ proportionate decline in convictions (1977–96), 40–1 male vs female victims, 60 Natsal-3: Key Findings from Scotland (Scottish Government, 2015), 60

438  Index Sexual Offences Act 2003, 70–1 Sexual Offences (Amendment) Act 1976, 70 Sexual Offences (Scotland) Act 2009, 30, 60, 77, 83 sexual orientation/gender identity, margin of appreciation, 139–41 Sheldon, S, 334–5: see also Collier, R and S Sheldon Smart, C, 10, 13, 302 Smith, DE, 149, 150 Smith v Lees revisited (corroboration/distress rule): see Smith v Lees revisited (commentary (Callander)); Smith v Lees revisited (judgment (Cairns)); Smith v Lees revisited (reflective statement (Cairns)) Smith v Lees revisited (commentary (Callander)), 54–9 approach of the original judgment and feminist judgment compared consciousness of context/wider impact, 56 ‘ordinary human experience’ test vs case-by-case approach, 57 respect for complainer’s account [of distress]/jury’s right to draw inference, 56–7 ‘restoring the purity of the law’ vs rule flexibility, 55–6 contribution of feminist judgment/as missed opportunity application of the ‘feminist’ approach (rule-flexibility, identification of missing points of view and attention to context), 55–7 recognition of impact of distress doctrine on rape ‘myths’/jury prejudice, 58, 59 viable reform option, 59 corroboration/distress rule developments since original judgment (relaxation of time-frame rule/mens rea issues), 58, 61 problems with/‘fiddles’ to resolve, 54–5 Smith v Lees revisited (judgment (Cairns)), 39–53 context, relevance as aid to the jury, 49–50, 53 attrition rate/barriers of proof, need to address, 40–1 ‘does not raise … any question as to what the law ought to be’, dissent from, 40–1, 50

distress as corroboration as circumstantial evidence, 43, 44, 48, 49, 50, 53 definition and scope, 43–7 distinguishability between rape and non-rape cases, 49–50 expansion/dilution of rule/management of the risks, 46–7 jury’s right to draw inferences, 39–40, 42–4, 48–50 Lord Hope’s approach (limits on use), challenge to, 39–40, 50–2 ‘ordinary human experience’ blanket test vs case-by-case approach, 52, 53 rape ‘myths’ and, 44–6 review of the jurisprudence pre-Stobo, 43–4 review of Stobo, 43–5 facts of the case complaint, 41–2 evidence supportive of claimant, role, 42 grounds of appeal, 42 sheriff ’s finding of credibility/ corroborative distress, 42 overview, 39–40 rape ‘myths’ mitigation efforts, 46 negative impact of distress doctrine, 44–6 Smith v Lees revisited (reflective statement (Cairns)), 60–2 abolition of corroboration rule, concerns, 62 ‘individual good’ vs ‘collective good’ dilemma, 60–2 adoption of case-by-case approach, 61 South Africa customary law, Scots lawyers’ failure to appreciate, 22 FJP, 2, 3 Spiers, E, 84 Spiller, Jo (photographer), ix, xix, 14 Springham, Kay, QC and David Stephenson QC, 25 SSHA v Lumsden revisited: see Lumsden revisited Stair, JD (Institutions of the Law of Scotland, 1693), 215, 227, 230–1 stalking, 116–17, 128–30 standing: see locus standi (standing) (Scotland/England) Stansfeld, J, 263 statutory interpretation, conservative approach to, 9

Index  439 Stobo (corroboration rule), 40–1, 42, 43–5, 48, 50–3, 55, 56–7, 58 Stone, M, 395, 412 Stott, G, 26–7 substance vs form, 8–9, 23–4, 27, 35, 157, 166–71, 172–3, 211–12, 401, 410 Sulkowitz, E, 12 Temkin, J, 45, 78 Temkin, J and B Krahé, 58 Tenants’ Rights, Etc (Scotland) Act 1980: see also Lumsden revisited; ‘residing with’ ‘permit any person’, 209 ‘reasonable in all the circumstances’ given risk of homelessness, 209–12 as rectification of insecurity of tenure of public sector tenants under the Rent (Scotland) Act 1971, 202 repossession of a property for conduct which is a nuisance or annoyance (schedule 2, part 1, para. 7) categories of person covered by, 203 Housing (Scotland) Act 2001 guidelines on anti-social behaviour, 219–20 text, 203 ‘residing with’, 203–10 presumed dependence of wife as basis, 204–5 Thomson, E, 264 Todd, M, 268 trans’ right to marry: see also marriage, right of (ECHR 12); R & F revisited changing attitudes to trans people/legislative changes, 30, 147–8, 151 decision to transition as matter of private law, 16 ECtHR’s conservative approach to, 8, 148–9, 151–4 margin of appreciation, 16 nominalisation of deviance, 149–50 transparency accountability and, 10 fair decision-making and, 376 feminist judges’ approach to, 7, 8–9 selection of judges, 25 Tronto, JC, 410 Truong, M and SY Wood, 335 Tuomela, R, 311 Ullrich, K, MSP, 129 Underkuffler, LS, 412 United States: see FJP (US)

‘victim status’ requirement (ECHR), 382–3, 387 Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), 385–6 violence against women and girls: see domestic violence/violence against women and girls Wales: see FJP (England and Wales) Walker, LE, 123 Walker, N, 24 Walker and Walker: The Law of Evidence in Scotland, 40–1 Watts, R, 267 Webster, E, 11 West, CK, 306 West, R, 216, 238, 259 Wheatley, J, 26, 27 White revisited: see White revisited (commentary (Harding)); White revisited (judgment (Norrie)); White revisited (reflective statement (Norrie)) White revisited (commentary (Harding)), 166–73 disadvantages accruing to women bearing a disproportionate part in parenting, 9, 168–9 substantive vs formal equality, 9, 157, 166–71 paramountcy principle, 168–70 persistence of entrenched heterosexist norms, 166–8 White revisited (judgment (Norrie)), 155–65 aims of the Act balancing of resident and non-resident parent responsibilities, 158–9 exclusion of separation or divorce as a factor in itself, 157–8 non-discrimination between unmarried fathers and married fathers/ unmarried mothers (SLC Report, 1992), 159 parental equality/ending of gendered assumptions, 157–8 background facts, 155 sheriff principle’s approach, 156–7 sheriff ’s approach, 154–5 court orders (s 11) discretionary nature of decisions, 162

440  Index welfare check-list, effect of absence, 162 ‘welfare of the child … as its paramount consideration’/‘no-order’ principle (s 11(7)(a) and 16(1)), 156, 162–4 ECHR, compatibility of the Act with Court’s conclusion, 165 ECHR 8 (family life), 164 ECHR 14 (non-discrimination), 164–5 parental equality following separation or divorce co-decision-making responsibility, 160–1 equality of responsibility vs equality of time, 160–1 factors militating against, 158–9 ‘parents’ rights’ (s 2) as misnomer, 161, 171 persistence of heterosexist norms, 9, 158–9, 162 unmarried fathers, differentiation, as anomaly, 160 White revisited (reflective statement (Norrie)), 172–3 entrenched heterosexist norms, 172–3

obligation to interpret statutes ‘if possible’ consistently with (HRA 3), 172–3 paramountcy principle, 173 substantive vs formal equality, 9, 170–1, 172–3 unmarried fathers, abolition of differentiation (Family Law (Scotland) Act 2006), 173 Whittaker, Jay (poet), ix, xix, 14 Whitty, NR, 21 Wilkinson, AB and K McK Norrie, 157: see also White revisited Williams, P, 1 Willock, ID, 22 Winkel, F and L Koppelaar, 45 Winters, K, 149 Witz, A, 264 Women in medicine: see Jex-Blake revisited; Jex-Blake, subsequent developments Woodiwiss, J, K Smith and K Lockwood, 312 Young, A, 12 Young, I, 335