Indirect discrimination in access to justice: European outlook

The first session started with presentation from Christina Blacklaws, President of the Law Society of England and Wales where she emphasises that access to justice is as important as access to education but unfortunately doesn’t receive the same support. She discussed the issues with cuts to legal aid and the detrimental effect this has on access to justice, creating what she called “legal advice deserts” in some underprivileged areas. She stressed the importance of early professional legal advice especially considering that in a recent survey, 20% of people never resolved their matters due to lack of early intervention. Christina explained what the Law Society was doing to combat indirect discrimination in access to justice including lobbying the government on early professional legal advice, taking the government to court and even initiating judicial review. She mentioned that one solution to the cuts and lack of early intervention is the rise of technology, artificial intelligence and the use of algorithms. New technology should be explored from an access to justice standpoint. It could be used to develop more guidance and “self-help” options for the digitally able and could offer online direct legal aid to those that most need it and are at their most vulnerable.

The next speaker, Anna Rurka, President of the Conference of International Non-Governmental Organizations of the Council of Europe, emphasised that gender equality is a big issue for the Council. She also spoke about “soft laws” on gender bias and issues surrounding under-reporting indirect discrimination on gender which does not just affect the data but democracy too. 

The event was moderated by Katharina Miller, President of EWLA, who explained that one of the biggest issues with access to justice is the lack of money and structure. She explained that in her experience, the CJEU judges have asked EWLA to bring cases forward but lack of funding makes this incredibly difficult. She also raised the issue of transparency and a general lack of awareness as some people are unaware that they are being discriminated indirectly against.

Katharina was followed by Álvaro Oliveira, European Commission, DG JUSTICE, who was a replacement for Karen Vandekerckhove who went “back to basics” and discussed the influences behind indirect discrimination which has emerged not from social law, but from trade law. He explained that to address indirect discrimination in access to justice is to ask the question, “do you want to take access to justice seriously or not?”. He emphasised that we rely on access to justice for the European Union to perform or even exist at all and the EU are acknowledging the issue and are working on new proposals such as collective redress to make access to justice easier.

The panel discussed policy issues with a specific focus on the gender pay gap in UK and public awareness of this issue. The panel agreed that transparency is key for the public and especially women to be aware that they are being indirectly discriminated against. Katharina emphasised that it is a lack of funding and not a lack of willingness to bring forward cases on indirect discrimination and it’s an issue for EU and MS to ensure there is direct access to funding. All countries need a properly funding legal aid system which is the hallmark of a civilised society. Without access to legal advice by expert professionals, it becomes exponentially difficult for the disempowered to not only access justice but enforce their rights. Discussions around institutions, training and awareness are extremely important and is at the easier end of things to do in terms of solutions.

Christina closed the first session emphasising that we need to carry on relentlessly pressing these issues as representatives of a large body of people, to ensure that access to justice is achieved.

After an interesting and thought provoking first session, the second session started with a new set of panellists. The first speaker, was Maria Abrahamyan, expert at the Group of Public Monitors Implementing Supervision over the criminal-executive Institutions of the MoJ of the Republic of Armenia. She discussed her paper on “Legalizing the stereotypes: women victims: access to justice and gender stereotyping in the framework of gender based violence judicial proceedings”. Its main aim was to show how rights are being protected when going to the courts in Armenia and whether women victims received remedies or biases in the court. She raised the issue of patriarchal norms and how the housewife woman stereotype can affect both what happens in the court room and when in the police station giving evidence. She compared the questions asked to women victims against male perpetrators and difference in treatment was eye-opening. She highlighted that gender bias can affect the impartiality of judges especially in gender based violence judicial proceedings where judges have ignored statements of long term abuse to the victims and are keen to apply mitigating factors for the perpetrators. She explained how this negatively affects justice and the extreme stereotyping can lead to new crimes.

The next speaker was Julen Fernández Conte, EU Director, Abogacía Española, who replaced Berta Alvarez Ciordia, and discussed a number of different indicators which affect indirect discrimination and access to justice. These included judicial indicators such as access to legal aid, legislative indicators such as implementation of EU Law, constitutional indicators such as best practice guidelines correlative indicators such as integrated systems and the use of a one stop shop and work life balance indicators such as focussed time. He discussed the recent collective redress initiative and how this at the moment only applies to consumers and cannot be used at the moment for employees being indirectly discriminated against.

Julen was followed by Dr Ana Vidu, University of Deusto, who discussed gender based violence and the importance of victim support and legislative involvement. Women’s rights are impacted by gender violence and explained her research on how bystander involvement in gender based violence crimes is the most useful as we need responsible, committed people to enact protocols. She also discussed the Second Order of Sexual Harassment, case law on the topic in Spain and the social and political opportunity for women at the moment following the widespread attention the “#MeToo” movement has gained.

The final speaker of the event was Claude Cahn, Human Rights Advisor, office of the United Nation High Commissioner for Human Rights. He discussed CJEU case law on indirect discrimination including a detailed overview and assessment of the CJEU’s judgment in CHEZ (C-83/14) and indirect discrimination by association. He also discussed the use of direct discrimination and indirect discrimination by lawyers as a form of legal strategy, stating that indirect discriminated is used as a fall back or second shot at the barrel if a complainant cannot get higher remedies associated with direct discrimination.

The second session was concluded with a short sum up by Katherina Miller and attendees were invited to lunch at the UK Law Societies Brussels office. The event was attended by approximately 40 people.