Call for papers: Indirect discrimination in access to justice

Introduction and Objectives

The proposed event would address the indirect discrimination facing women in relation to access to justice, within the remit of EU competence. For example, cuts to legal aid, shortening court opening hours or compulsory mediation may have a greater impact on women’s ability to access justice in contrast to their male counterparts.

It can be argued when reviewing access to justice and making austerity-based savings decisions, that member states should apply gender-based assessments, to see if the proposed changes would have a significant impact on women. A further challenge arises from enforcement, namely the question of how to challenge indirectly discriminatory rules and practices in courts.

The Commission can take a member state to the CJEU when a state has breached EU law in relation to access to justice and the national remedies are inadequate. However, in cases of indirect discrimination the Commission would need to prove serious and persistent breaches at the CJEU. The importance of these cases cannot be underestimated as CJEU infringement decisions are instrumental in building the cases in national courts.

The aim is to present The Law Society and EWLA as forward-thinking professional organisations that help to develop new approaches to tackling gender discrimination.

The first seminar will be held in early June 2018. EWLA and the UK Law Societies will be seeking to publish the seminar papers.

Call for papers

EWLA and the UK Law Societies Office are looking for papers and speakers on developing legal tools to assess and challenge member state action in situations where there is indirect gender discrimination.

The aim of the seminar is to explore the following:

-          What are the key identifiers of a gender-based assessment in the area of access to justice?

-          What are the indicators that access to justice indirectly discriminates against one gender?

-          How can it be proved in court that access to justice indirectly discriminates against one gender and how can criteria be developed to assess discriminatory impact in legal cases?

-          How can criteria be developed to address serious and persistent breaches of indirect discrimination?

The following are areas of analysis that the speakers may wish to consider:

• Legal aid cuts

-          Amnesty International Legal Aid Report - The UK government carried out limited Equality Impact Assessments to satisfy domestic equality law, which considered whether groups with protected characteristics would be disproportionately affected by legal aid cuts. These assessments concluded that the cuts would have a disproportionate effect on women, Black, Asian and Minority Ethnic individuals and disabled people because they are overrepresented among recipients of publicly funded legal services.

• Vulnerable victims and witnesses

-          In many family law cases, abusive male partners/fathers are granted continued parental contact, despite safety (and other) concerns for the female victims and their children.

-          Other groups at risk include migrant women, asylum seekers and trafficked women. Such women may find it difficult to report a crime due to fear of being expelled and/or because they are unable to communicate with the police or judges in the absence of available interpreters.

-          In the UK, sexual assault victims are often subjected to invasive and unfair questioning regarding their sexual history. Two former Labour solicitor generals, Harriet Harman and Dame Vera Baird QC, are leading a campaign for the reform of section 41 of the Youth Justice and Criminal Evidence Act 1999, which they say is deterring women from reporting attacks.

• Indirect discrimination in the court system – How can this be made more equal?

-          Different areas of civil law are characterised by inequalities in the way that they treat women’s and men’s needs. The tax law system is based on the principle of recognising paid work. However, this system does not take into account domestic work, which is generally carried out by women.

-          Elderly and disabled women, as well as women living in remote areas may not be able to travel long distances, and courts often fail to consider which facilities are needed to ensure that they can testify without travelling.

Deadline for submission of abstracts (max 350 words) for speakers: 30 April 2018

Please forward your submission to EWLA Eliana Zatschler or Rita Giannini from the UK Law Societies Brussels Office:

-          EWLA, Eliana Zatschler, eliana@zatschler.com

-          Rita Giannini, rita.giannini@lawsociety.org.uk

Please also feel free to contact Eliana or Rita if you have any questions.