Making Law Liveable? Bringing feminist knowledge of care into the curriculum

Note: These comments were originally written for a talk I gave at ‘Liberation through Law’, an event organized by SOAS Feminist Society and SOAS Law Society, on the 25th February. I am grateful to them, particularly Aleksandra Wolek and Sabeehah Motala, and to my co-panelists, Diamond Ashiagbor, Samia Bano and Linda Mulcahy, for generating such a great space to discuss the role of feminist legal theory in the university curriculum.

My comments arise from wanting to think more about how I draw on feminist activisms and organisations as sources of legal knowledge when I teach. This has been inspired in part by the recent successful campaign against Fiona Bruce’s efforts to outlaw sex selective abortion, which involved a wide range of feminist, health and pro-choice civil society organisations, including the End Violence Against Women Campaign, the Iranian and Kurdish Women’s Rights Organisation (IKWRO), Southall Black Sisters, the Royal College of Obstetricians and Gynaecologists (pdf), Antenatal Results and Choices (pdf), the British Pregnancy Advisory Service (pdf) and Voice for Choice.  As we consider and evaluate the ways in which law regulates reproductive lives, what can we learn from the experience and expertise of feminist civil society?

Typically a key feminist topic like abortion rights is taught in a medical or health law course. And the typical things we talk about are the fact that the Abortion Act, 1967, makes abortion a matter of medical discretion rather than a woman’s decision (Sheldon, 1997). Black letter medical law treats abortion differently from most other kinds of healthcare in that women’s views are not legally relevant. What matters according to the law is whether two doctors believe that a particular pregnancy is more likely to put a woman’s health at risk if continued rather than terminated. This takes abortion out of ordinary health care, which is governed by the doctrine of consent for those who are capacitated to make healthcare decisions, and the doctrine of best interests for those who are not so capacitated. Abortion becomes exceptional and women have to negotiate the discipling effects of that regulation when they need to access abortion care. So teaching about abortion law is a great way to consider how legal paternalism makes reproductive decisions on women’s behalf and uses medical authority to distance women from their own lives.

But abortion law also mobilises old-fashioned coercive power against women and their health professionals. Women who find themselves needing an abortion on terms which fall outside of the Abortion Act, 1967, are criminalized and stigmatized. Sarah Catt, who procured her own abortion by taking the abortion pill after the 24 week time limit, was sentenced to 3.5 years in prison, reduced on appeal from an original 8 year sentence by the trial judge (Prochaska, 2012). The full force of the criminal law was brought to bear on this woman as she tried to control her reproductive life. In criticizing and contextualizing that law I, in common with lots of other teachers of health law, use a variety of strategies. One such strategy is the familiar critical doctrinal strategy of flagging up the inconsistencies in black letter law, and looking to general principles of patient autonomy in other areas of health law. I look to critical engagement with human rights norms as a tool for tackling the inadequacies of abortion regulation. And I look to theoretical arguments about voluntary reproduction as an aspect of women’s equality.

But the point I want to focus on here is that often students are surprised to learn these two things about British abortion law: that doctors’ approval is necessary for non-criminal abortions and that some abortions are still criminal. And their surprise presents teachers like me with an opportunity to raise another important aspect of feminist approaches to law and that is the significance of the gap between law and practice. In practice, in the law of everyday life, the way people experience something like legal access to abortion care can be quite different from the way it’s represented on the books (Lee, 2004). And as scholars of legal consciousness have long argued, that everyday experience of law matters. It matters because actual access has immediate impact on people’s lives. But it also matters because those everyday understandings provide important resources for challenging official accounts in their violent, coercive forms and in their disciplining and governmental forms.

One important reason why there is a gap between law on the books and law in practice in the context of abortion in contemporary Britain is due to the presence and effect of pro-choice abortion providers. The presence of a pro-choice provider like BPAS, which has been providing woman-centred abortion care since 1968, makes a profound difference to women’s experience of abortion law. Their willingness to interpret and implement the Abortion Act in light of women’s life concerns has meant that sometimes at least women experience abortion care as if law is listening to them and taking their concerns seriously. But these vital aspects of women’s experience of law, the presence of feminist civil society organisations who work hard to make law a little more liveable, often don’t make it on to the legal curriculum. Or at least they make it on the curriculum in particular kinds of ways: as initiators of judicial review actions, collaborators in clinical education and providers of legal internships.

So how might I address this when I teach about abortion and law? I’ve been thinking about this anew in light of the recent campaign by a wide range of feminist, health and pro-choice civil society organisations against Fiona Bruce’s effort to criminalise sex selective abortion.  The successful and collaborative nature of the campaign mark it out for attention in the first place; but I’m particularly curious about the ways in which it mobilised feminist knowledge of care practice.  Conservative MP Fiona Bruce, together with Jeena International, Stop Gendercide and Karma Nirvana, was initially relatively successful in mobilising concerns about abortion of female fetuses towards support for an amendment to the Abortion Act, 1967. On 4 November 2014, a majority of 181 to 1 voted in favour of debating an amendment to prohibit sex selective abortion at its first reading. But on Monday 23 February 2015, 292 MPs voted against Bruce’s amendment while 201 voted for, defeating the amendment by a 91 vote majority. Why did the momentum change and what does this change have to tell us about the role of feminist civil society in making law a little more liveable (Cruz 2013: 467 citing Butler, 2010: 31)?

In making the case for the amendment, Fiona Bruce made two arguments which looked like they addressed feminist concerns. The first was that sex selective abortion was harmful and worth prohibiting because it was discriminatory in suggesting that girl fetuses are less valuable. The second was that a prohibition of sex selective abortion would help pregnant women who were being abused and pressured into abortion for reasons of son preference. In response, a number of civil society organisations drew on their collective experience of working with women who seek access to abortion care and with women who have lived with violence. In one important intervention in a letter on 19th February, a wide range of people argued that the amendment would have the effect of criminalizing women and their doctors for sex selective abortion, that criminalisation does not help women who are experiencing sexist abuse and pressure, and that funding of support services would be a preferable alternative.

Their arguments reminded us that criminal law itself can be harmful, rather than a means of protecting people from harm, in stigmatising women and preventing them from seeking out help. Others such as Hashmat argued that taking reproductive choice away from a woman in a desperate situation does not tackle the causes of that situation and denies her options in responding to her actually existing reality. These interventions were really good examples of feminist critiques of the carceral state in action and of engagements with a critical harm reduction approach (see further Erdman, 2012; Todd-Gher, 2014; Lamble, 2013; Fletcher, 2014). These kinds of reforms can be dangerous even if they may look to have gendered concerns, because they encourage the punitive state to intervene in women’s sexual and reproductive lives, and are likely to expose women to more rather than less risk.

A second important point was that sex selective abortion is not that prevalent in the UK and is not necessarily a discriminatory decision if and when it does happen. The Department of Health has not identified any evidence of difference in sex ratios and the clinics tell us that women do not report sex of the fetus as a reason for abortion (BPAS, 2015). Fetal sex may be one part of a more complex story as when bringing a girl child into the world at a particular moment may be a threat to a woman’s mental health because she is under significant pressure to have a boy.  In making this kind of argument organisations like BPAS and Voice for Choice remind us of the important of evidence and personal stories in feminist evaluation of legal reform. Concerns about sex selective abortion practices sometimes mobilise a kind of feminist ‘common sense’ that selection must be sexist.  But any such ‘common sense’ needs to be challenged in light of contesting evidence and narrative. We can’t be in a position to decide whether a given practice is actually discriminatory and harmful until we have heard from those experiencing that practice themselves.

Feminist advocacy and care organisations are important legal actors and we could make more of them, with all their imperfections, in the legal curriculum. They provide great examples of legal ideas in practice, as they argue for sexual and reproductive autonomy in a way that is sensitive to diversity and vulnerability. They challenge the reason/affect dichotomy that permeates public debate as they mobilise affective knowledge of women’s experiences towards rational ends. And they show us how to make legal interventions by drawing on feminist experience and expertise while speaking to non-feminist audiences.

The Right to Assistance – The Public Duty to Assist by Jane Krishnadas

The Hands of the CLOCK; Rights as the Intersections

Since the Legal Aid Sentencing Punishment and Offenders Act, 2012 – ‘The Government’s evisceration of Legal Aid leaves those of us involved in the court system feeling a bit like the  inhabitants of an island about to be hit by a tsunami… (Saunders, The Lawyer, 2013).  Having lived, worked and researched in a post-disaster situation, the comparison may seem extreme. However, one year after LASPO, the collaborative efforts of the Community Legal Outreach Collaboration Keele, (CLOCK), have been just in time to assist more than 100 litigants a month facing the loss of livelihood, property or families, which replicated across the UK reaches the disaster scales of 100,000’s of people.

Theoretically, the comparison of the post-disaster sites lies in Arendt’s framework of diminished agency and a declining state (The Human Condition), within which I’ve explored the role of rights within different ‘Scales of Justice’ (Fraser), as a transformative rights strategy; reflecting voices, revaluing resources and relocating sites of justice; (Rights as the Intersections, A Transformative Methodology).

CLOCK

CLOCK Logo

The CLOCK logo presents a visual and practical blueprint of the interrelation of rights and duties within the local justice system (see CLOCK partner leaflet). The Community Legal Outreach Collaboration, Keele (CLOCK) was formed as an umbrella of professional public, private and third sector organisations, to develop a new role ‘the Community Legal Companion’, premised upon the McKenzie Friend principles,  to safeguard the litigant- in-person’s rights to assistance and access to legally-aided and affordable legal services, within the shared commitment to access to justice.

The Community Legal Companion is centred within CLOCK, reflecting Crenshaw’s principle ‘that those concerned with alleviating discrimination’ should begin with ‘addressing the needs and problems of those who are most disadvantaged… for which placing those who are currently marginalised in the centre is the most effective way to resist efforts to compartmentalise experiences’ (‘Demarginalising the Intersection of Race and Class’, Crenshaw, 1989; 167).

However the Legal Companion presents a different starting point to Martha Fineman’s ‘Vulnerable Subject’ (2008). The Legal Companion is an assistant to the legal subject, premised upon the right to reasonable assistance which is embedded within the McKenzie Friend Practice Guidance, July 2010. The text clearly affirms ‘The Right to Reasonable Assistance’. Critically the right of assistance is the right of the litigant. It is not a right of the gratuitous, commercial or politically motivated McKenzie Friend.

The Legal Companion cannot act as an agent for the individual and has no authority to act or speak or advise in any way on behalf of the individual. The litigant’s voice therefore remains their own, as does their actions and decisions- in the words of a litigant, the legal companion is ‘My Calm in the Storm’ (BBC Radio Stoke Discusses Legal Aid and CLOCK).

It is the duty of the court to grant the right of assistance, or provide sufficient reasons why the litigant should not receive assistance. The decision of the court is based upon procedural fairness, the right to a fair trial and the efficient administration of justice. The Chair of the Civil Justice Council Working Party on Access to Justice for litigants-in-person states ‘It is impossible to overstate how important it is for people to have access to justice in a free society”, and calls for ‘concerted leadership to drive collaboration’ (Civil Justice Council Calls for Action).

The CLOCK dial represents a collaborative shared duty to the right of assistance. The Courts provide training on the court forms for suspending evictions, debt, divorce and Children Act applications. The Police and CPS provide training on bridging the civil and criminal processes. The Charitable organisations, circle the CLOCK, providing supporting evidence for legal aid applications, and holistic support; the first quartile, housing and complex needs, Brighter Futures, ASPIRE; the second, family relations, YMCA Family Services, Arch, Savana, Voices of Experience;  the third, community safety, Savana and the fourth, welfare and discrimination, Staffordshire North and Stoke-on-Trent Citizens Advice Bureau, SNCAB. The inner circle of the partner law firms Nowell Meller, Salmons, Young and Co, Lichfield Reynolds and colleagues within the North Staffordshire Law Society‎, and Regent Chambers and Rowchester Chambers,  ensure the companion acts within the professional duty to refer to mediation, legally-aided and affordable legal services. (See: Law Society Litigant in Person, Practice Note; and Bar Society: Guide to Representing yourself in Court).

The legal companion, provides a holding hand, the hands of the clock, to pivot the range of public, private and third sector services, which intersect the complex nature of shattered lives (see Intersectionality and Beyond) for which legal companions have assisted clients to trace multiple legal pathways through criminal, civil, welfare, immigration and domestic violence services (BBC News, Keele students help legal aid gap).

The daily presence of the legal companions in the court, presents a mechanism to draw together evidence to satisfy legal aid criteria, monitor the scope and impact of LASPO on the local community and highlight cases to challenge the fairness of s.10, LASPO, as recommended in the R.1, R.3, and R.4, of the Low Commission Report, Jan 2014.

The hands of the CLOCK  reached the hour, when the Head of Legal Aid visited the domestic violence refuge and listened to ‘Voices of Experience’, to contribute their perspectives on access to legal aid to the  Parliamentary Debate on Baroness Scotland’s Civil Motion to Regret (Head of Legal Aid Commends Legal Companion CLOCK initiative, as “a really positive initiative and could provide a model for similar programmes across the country”).

The endorsement of CLOCK as: an ‘imaginative scheme’ from the Stoke-on-Trent Judiciary; ‘a strategic development in legal education’ (the HEA, Strategic Summit, 2014); an ‘excellent service which epitomises the practical implementation of several of the Working Party’s recommendations’, (Civil Justice Council) and a case study of ‘good practice’ within the Legal Services Consumer Panel Fact Finding Visit, has secured the interest for wider collaboration from Birmingham, Birmingham City and Wolverhampton Courts and Law Schools.

CLOCK has maintained its momentum via the pendulum of in-kind resources, exchanging the costs of court, police, CPS, solicitor barrister and local council time with the experience of the legal companion assistance to navigate the most direct and supported pathways to meet unmet legal needs.

As the past President of the Law Society concludes ‘Sadly the cuts are inevitable’ it may be important to remember the Public interest litigation (S. Krishnadas v Government of Maharashtra). Filed by the, then, law student who initiated the Social Legal Information Centre, Omerga, to fact find information, and with the support of the independent judicial inquiry on the constitutional right to equality won a High Court order for the State to provide financial compensation, housing and basic needs to the earthquake-affected population (see with Krishnadas Sukumaran, Reclaiming Rights, Pluto Press, forthcoming).

Twenty years on, the comparison may seem a travesty, with in effect, “the cessation of the ‘Legal Aid’ programme as it was and its evolution into a new mutation with centralised and commercial controls run from regional centres”, yet the provision of a local service (CLOCK) with “access to citizens in the community will become a resource of huge importance for those who rely on the use of the national legal system. The City which holds the ‘signed’ Magna Carta should also seek to set an example of the standards of performance expected of that document” (David Hallmark, CBE, Worcester Law Society, Visiting Fellow, Oxford. See 2015: Unification of the four surviving original copies of the Magna Carta, celebrating the 800th anniversary of the issue of the Charter).

It is at this intersection in time, where the hands of the CLOCK may indicate a potential for ‘remaking and restructuring the world’, (Crenshaw, 1989; 167)… or at least to bridge our constitutional rights and duties within local spheres of justice… time will tell.

Please note that with due regard to the wider CLOCK partnership, this is a personal narrative of my experience and views. For further information please contact j.h.krishnadas@keele.ac.uk

Revaluing Care Workshop 2: September 2013, University of Adelaide, Australia.

At the beginning of September 2013 our Revaluing Care network had its second workshop, following an earlier workshop at Keele University, UK, in September 2012. This second meeting over two days at the University of Adelaide, in South Australia was marked by its attention to analytical concerns that had been raised in the 2012 session. It was also marked by much convivial discussion over food and wine at the end of each day.

We met in a room with views of the city all around us and, fortunately, the sun shone almost all of the time. What I recall most clearly was the very high standard of the papers, the sense of an extraordinary level of conversation within a group which has now forged a strong identity. The degree of confluence of ideas, of substantive and strongly supportive debate was striking. It is rare to attend such an event and feel constantly engaged by an extremely stimulating exchange of views. The event was both inclusive and demanding in the very best sense.

The workshop looked at a wide variety of existing services around care and their impacts on social interconnection (such as services around HIV/AIDs, young people and dementia care), as well as a range of existing legal and policy frameworks. This international orientation informed extensive discussion around new ways of conceiving care (for instance, in relation to social activism, migration and cross-national mobilities). However, it also enabled us to consider where the term care begins to fall away, or seems insufficiently recognised or activated. Consequently there was a significant interchange over the two days concerning the analytical and practical boundaries of care (for example, in relation to sexualities, diverse families, the notion of the human, marginalised services and public institutions seemingly distant from care including parliaments and courts).

These deliberations led to a range of theoretical and terminological discussions around the continuing usefulness of the notion of care, around what it covers and its limits.

The success of the workshop was not only evident in the strengthening of the network as an active, participatory and supportive research community, but also obvious in the final discussions around building research teams, projects and publications across the world and across disciplinary constraints. We aim as a result to produce articles, books of collected works, and grant applications. Many of these aims are now in process. The group was also firmly of the view that further workshops would be very worthwhile and assist in the development of these aims. So, watch this space.

In sum, I can only say that I, for one, gained immensely from the workshop and now have an even stronger sense of the considerable research capabilities of the group. This is a group with much to gain from our continuing association! It is one of the few research clusters that I have been involved in which shows ongoing promise of generating important intellectual exchanges and innovative new work .

Professor Chris Beasley

Discipline of Politics & International Studies (POLIS)
School of Politics and History
 
Co-Director, The Fay Gale Centre for Research on Gender

Mark Neary’s Tribunal: Unequal access to justice

Read Mark’s blog on trying to self-advocate in a housing battle on behalf of Mark and his disabled son, with no Legal Aid (since cuts), and so no legal representative, up against a powerful local authority’s barrister. Appalling. Shows vividly the power imbalance created by lack of funding for Legal Aid in social welfare disputes. The disempowered are further disempowered by a judicial process to which they do not have equal access.