Leicester Student Law Review Vol. 12

THE LEICESTER STUDENT LAW REVIEW 2022-2023 ISSUE 12 NOTE FROM THE EDITOR-IN-CHIEF The Leicester Student Law Review is an academic journal which has been published in Leicester, United Kingdom for the last eight years to allow students to contribute to the field of legal academic writing. Over the years, the Law Review has allowed students to participate in legal discourse on a variety of topics, challenging the status quo. I am extremely pleased to present this year's journal to the public. The articles contained were carefully selected for the insight that they provide on a variety of topics. This year's journal includes papers on the lack diversity in the judiciary, gender inequality, ongoing challenges in the European Union, failings of the criminal justice system and medically assisted suicide in Canada. All of the papers are written by current students of law at the University of Leicester. I am extremely grateful to our talented team of editors who worked tirelessly to ensure that the papers presented to you are of the highest quality. I also owe a great debt of gratitude to our Managing Editor, Rachel Hodgett, who helped lead with strength and grace. For every challenge the Law Review faced, Rachel always remained focused on finding solutions and a way forward. I would also like to thank former Editor-in-Chief, Alanis Ortiz, for helping to provide guidance and mentorship throughout the process. Lastly, I'd like to thank Maryam Ahmad, Hinda Abdi, Adrianna Strzepka and Reda Hussain for all their work behind the scenes. My personal journey into law was encouraged by great role models who taught me to fight for "the little guy", men like human rights lawyer Burnley "Rocky" Jones and elder Matthew "Emmett" Peters. I hope that I can use the fire that they ignited in me, along with my legal education, to be of service to others. I think they would both be proud to hear the podcast episodes we put out this year. I brought Zach Gladstone several concepts for episodes that I thought would present new and challenging perspectives to the student body. He and the podcast team helped turn these loose concepts into a polished, high quality series of episodes for our subsidiary Let's Review podcast. While we have tried our hardest to present a journal of the highest quality, please forgive any errors in grammar or in judgment made along the way. Angel Panag Editor-in-Chief, 2022-2023 For more information—follow us at: Instagram: @uollawreview | Website: www.leicesterstudentlawreview.com Or send us an e-mail at leicslawreview@le.ac.uk 2022-2023 COMMITTEE MEMBERS Angel Panag Editor-in-Chief Rachel Hodgett Managing Editor Zach Gladstone Podcast Lead Maryam Ahmad Secretary &EVBSEP
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4US[FQLB PODCAST RESEARCHERS Justin Kalirai, Safa Salman 3 This page is intended to be blank 4 University of Leicester Student Law Review Table of Contents 1. How the Law is Built Against Women, and the Sluggish Battle for Sexual Equality 6 - 21 Paige Tume 2. Perspectives on Canada’s Revision to the Medical Assistance in Dying Legislation to Include Mental Disorder as the Sole Underlying Condition 22 - 29 Mirette Abdo 3. The Lack of Diversity in the Judiciary, and its Impact 30 - 33 Aminah Chowdhury 4. The Failings of the Criminal Justice System and Proposed Solutions 34 - 41 Marta Baluczynska 5. An Analysis of the European Parliament Voter Turnout Marta Baluczynska 5 42 - 46 University of Leicester Student Law Review Issue 12 (2023) How the Law is Built Against Women, and the Sluggish Battle for Sexual Equality Paige Tume Department of Law, University of Leicester Leicester, United Kingdom Disclaimer: The paper includes discussions of sensitive combination of numerous factors is not necessary to discuss. topics such as rape, domestic abuse, and abortion. The underlying theme is that of a patriarchy. It is only recently that women have been recognised Some scientists argue that women are naturally and treated somewhat as equal in the eyes of the law. Despite encoded to submit to men.4 There are numerous biological the social and moral shifts seen through the lens of feminism, theories regarding hormones, evolution, brain matter, and women continue to face gender-based discrimination. The physical attributes. The male descendant is seen to be more extent to which they are legally protected is questionable, superior, often described as an heir in the family.5 This despite efforts by legal systems to address the issue. attitude is reflected in legal history, which we will cover shortly. In this context whether the law would have stemmed Patriarchy and The Law from a historical perspective which categorically undermines It's plausible that if patriarchal systems did not exist, ‘females.’ the relationship between women and the law would not be a At times, sacred texts of various religious traditions topic of discourse today. Despite the notion of the law being view women as submissive beings.6 They are seen as a impartial, its origin is rooted in a discriminatory and unjust subservient class to a male-dominant society. Most history. Some critics argue that the law first came to our mainstream Gods are addressed as ‘He’. In Greek society through the bible.1 Others argue that the law mythology,7 if there is a female god, they often come across developed from the rise of economies.2 Some even argue that the law has always been there. They suggest the law 4 stemmed from human nature, and that the legal authority we formation: Reflections on the psychoanalytic theory of know today is merely the solidification and development of sexual development” (Psychoanalysis and Contemporary laws that we inherently know.3 Whether or not there is a Thought, 1992, 15(3), 267-304) 5 1 Chodorow NJ, “Heterosexuality as a compromise Hardy SB, Judge DS, “Darwin and the puzzle of primogeniture” (Human Nature, March 1993, 4(1):1-45) Lyons E, “The Patriarchal Law” (Apologetics Press, December 31, 2001). 6 2 (Lost Sheep for Christ, July 5, 2018) Benson B, “Where Does Law Come from?” (FEE Freeman J A, “Are Women Being ‘Suppressed’ in Today's World?” Article, December 1, 1997). 7 3 Women and Goddesses in Ancient Greek Art” (Open Access Guttentag, Michael D. ‘Is There a Law Instinct?" (The Free Durham G, “Escaping the Patriarchy: The Depictions of Kent State (OAKS), April 9, 2019) Library, 01 March 2009) © 2023 LSLR Publishing 6 University of Leicester Student Law Review Tume as less powerful or submissive to another male entity. Even Marriage within itself has a sexist foundation. As in positions of absolute power, women are still living in a civilization evolved, the institution of marriage is thought to male’s shadow. They are also over-sexualised and written have emerged over 4,000 years ago.11 In these early societies, from the ‘male gaze’.8 The rise of Roman Catholicism in men held positions of power and women were relegated to Europe could be one plausible reason for the elements of raising their children. Marriage essentially became a way for 9 religious attitudes in some legal systems. men to secure offspring – with the woman’s father handing her off to another male.12 Arranged marriages were a The economic theory of the law has undertones of common event in relation to this reasoning. Over time, both the theories discussed above. The attitude towards marriage became a rather religious ceremony as religion women is historically simple: they are the weaker sex. This expanded in society.13 However, the misogynistic values of led to a female dependency on men, who were perceived as marriage are still prevalent in modern-day ceremonies, it is builders, warriors, protectors, and leaders. As society only recently that we can begin to see a shift from the developed in population, land, and intelligence, this reliance patriarchal norms and gender roles. on men resulted in a significant lack of women in the workforce.10 In the UK, The Married Women’s Property Act 1882 enabled women to earn their own income and own their own As a result, women have historically lacked equal property separate from a husband. Prior to this, marriage was standing under the law, and this disparity remains evident in a ‘property transaction,’ and women had significantly fewer modern systems. The law has been infused with patriarchal rights than men.14 In some parts of the Middle East today, the norms and sexist views. While some legal systems have law enforces ‘wife obedience.’15 In Afghanistan for instance, begun to move away from this, there is still significant a woman is restricted in her right to leave her home when she development to be made. This development varies in the is married.16 nature of the laws. Women and Legal Rights: 11 Staff, “The Origins of Marriage” (The Week, January 8, 2015) In this section, we will be covering specified areas of the law that relate to feminism, and discussing their 12 historical developments, before finally establishing the Dictionary) present standing of the law in these areas. 13 Lord Nicholls, Bellinger v Bellinger [2003] UKHL 21 - Marriage is ‘an institution of relationship deeply embedded Marriage and Divorce Law in the religious and social culture of this country’ 14 8 Harper D, “Etymology of Marriage.” (Online Etymology Snow E, “Theorising the male gaze: Some problems” Offen K, “A Brief History of Marriage: Marriage Laws and Women's Financial Independence” (International Museum of (Representations, 1 January 1989, 25, 30-41) Women) 9 15 (Romans 5:20) Hegland ME, “Wife abuse and the political system: A <https://biblehub.com/romans/5-20.htm&gt> Middle Eastern case study” (InSanctions and Sanctuary, 28 10 May 2019, Routledge, 203-218) Wright T, “Women's experience of workplace interactions in male dominated work: The intersections of gender, 16 sexuality and occupational group. Gender, work & Afghanistan Barred from Leaving Home without a Man” organisation” (May 2016, 23(3), 348-62) (The Independent, August 17, 2021) Oppenheim M, “'Prisoners in Homes': The Women in © 2023 LSLR Publishing 7 University of Leicester Student Law Review Tume A key demonstration of the misogynistic values ‘return’ her to her father and find another wife.22 As society embedded in the institution of marriage can be observed in developed, the law remained reluctant to view women on an the history of age of consent for marriage and the evolution equal basis to men. of the right to consent to sexual activity within marriage. As The 1600’s is an iconic era for matrimonial rights, previously stated, marriage was primarily viewed as a predominantly seen in King Henry VIII’s marriages, and the transaction that promised offspring. This attitude still trickles transfer of annulment decisions from Roman Catholicism to through the cracks of matrimonial law today. According to legal authority.23 While the Tudors were infamously sexist, the case of R v R (1991), martial reliance was a defence to the recognition of divorce was, at least, legally accepted.24 rape until the final appeal in the court.17 A woman could not Prior to the 1600’s, separation a mensa et thoro, or make a claim against her husband for rape, because she had annulment, were the common options – neither of which consented to sex upon marriage. Martial rape was not recognised a marriage ending. Annulment considered the criminalised in the UK until after this case in 1992, and in marriage to have never existed, and separation a mensa et the US in 1993.18 This raises historical questions about the thoro did not dissolve the marriage.25 The Matrimonial right of women to consent to marriage in the first place. In Causes Act 1857 solidified the double standard for divorcing the US, girls can still be married as young as 15, but boys couples in British history.26 Men could seek a divorce on the under 17, and their consent can be vitiated by the court.19 claim of the woman’s adultery alone, whereas women were There is no federal law restricting the age of marriage, and only permitted a strict fault-based approach. The severe child marriage remains legal in 43 states.20 social consequences of a woman seeking divorce from a Furthermore, a brutal reality of marriage is the husband is not of legal concern but can be seen in the famous possibility of divorce. The power of divorce originally rested theatrical literature of the time. Particularly, A Doll’s house, with the male.21 Men were favoured by the law in this area, by Henrik Ibsen, provides insight to the reality of a married and this may be due to the root of marriage, the sanctity of woman, and the consequences of divorce.27 the ceremony, and its meaning for men. If a woman was In the most severe cases, which still occur unable to bear children for her husband, he could simply internationally today, women couldn’t even pursue a 17 R v R [1991] UKHL 12 22 18 Geis G, “Rape-in-marriage: Law and law reform in 2015) Staff, “The Origins of Marriage” (The Week, January 8, England, the United States, and Sweden” (Adel. L. Rev, 23 1977, 6, 284) (Vardags, December 13, 2017) 19 24 Migiro G, “10 Modern Countries Where Child Marriage Oxley J, “Divorce and Womens Rights: A History” Pruitt S, “Henry VIII Wanted a Divorce so He Sparked a Still Occurs” (WorldAtlas, February 10, 2020) Reformation” (History.com, October 22, 2018) 20 25 “Child Marriage in the United States” (Equality Now, Jeffers R, “Mensa Et Thoro? How It Differs from November 9, 2022) Divorce...” (ReginaJeffersBlog, June 11, 2016) https://www.equalitynow.org/learn_more_child_marriage_us/ 26 21 Laws, 1857–1923” (1995) 20 Law & Social Inquiry 601 Butler SM, “Divorce in Medieval England: from one to 27 two persons in law” (Routledge, 5 March 2013) Holmes AS, “The Double Standard in the English Divorce Isben, H, “A Doll’s House” (1897) © 2023 LSLR Publishing 8 University of Leicester Student Law Review Tume divorce.28 A primary danger of this is the risk of being despite the efforts of the law to enforce otherwise.34 A trapped in an abusive relationship. Whilst women in the UK married woman who decides to leave her job to focus on are somewhat protected by the Matrimonial Causes Act 1973 raising her children and managing the household is often –which changed the grounds for divorce to make them more faced with lower earnings compared to a single woman. On accessible –there has been clear favouritism of the husband the other hand, a woman who continues to work and 29 in English law up until this point. We can see this through simultaneously attends to her familial responsibilities is the financial provision claims after a divorce is passed. In the effectively performing the duties of two jobs for a lower case of Watchel v Watchel, Lord Denning reaffirms the income compared to her spouse.35 Upon divorce, this is not traditional ‘housewife’ view of women. He suggests that the priority of the court, in fact, it is the welfare of the where an unmarried man would remarry or employ a children.36 In addition, it is also the reasonable amount housekeeper, a woman would do all the work herself.30 Lord necessary to provide the wife with a life she is used to.37 In Nicholls in McFarlane v McFarlane recognised the risks some cases, courts seek to remedy her loss based on what she imposed by the law on women by the ‘housewife’ standard. would have earned, but many feminists argue that this is He describes a wife’s ultimate loss as a ‘double loss’: a loss unquantifiable.38 Regardless of the amount the courts reward in her own earning capacity as well as the financial reliance the wife, she will suffer an unfair detriment in either her 31 on her husband’s earnings. Although there is some time, money, effort or assets. recognition of women who adhere to the role of the It is understandable in this regard then, why traditional wife, there are resolutions provided where this is marriage has historically been viewed as a business not the case.32 Many feminists continue to argue that the transaction for women.39 Marriage should ideally be an neutrality of divorce law is still applied in systematically expression of unity and love, and a promise of a future. It biassed ways.33 should not be a financial agreement where women must try More specifically, it is arguable that the current to protect themselves, or a promise to the man for offspring divorce law fails to recognise the financial detriment suffered and a housemaid.40 The changes in marriage and divorce law by women. Women already earn significantly less than men, 28 Oxley J, “Divorce and Womens Rights: A History” 34 The Sex Discrimination Act 1975 35 Myrdal A, Klein V, “Women's two roles: Home and work” (Vardags, December 13, 2017) (Psychology Press, 1956) 29 36 The Matrimonial Causes Act 1973, s25 two persons in law” (Routledge, 5 March 2013) 37 Thorpe J in F v F (Ancillary Relief: Substantial Assets) 30 Watchel v Watchel [1973] Fam 72 [1995] 2 FLR 45 31 McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 38 Butler SM, “Divorce in Medieval England: from one to Carbone JR, “A Feminist Perspective on Divorce” (The 618 Future of Children, 4(1), 183 – 209, 1994) 32 <https://pubmed.ncbi.nlm.nih.gov/7922279/> Scott ES, “Rehabilitating liberalism in modern divorce law” (Utah L. Rev, 1994, 687) 39 33 anthropology of marriage transactions” (Ethnology. 1 April Sisterhood and After Research Team, “Marriage and Civil Bossen L, “Toward a theory of marriage: the economic Partnership” (British Library, March 8, 2013) 1988, 27(2):127-44) <https://www.bl.uk/sisterhood/articles/marriage-and-civil-par 40 tnership> women in the 1950s” (Penguin UK, 5 March 2015) Nicholson V, “Perfect wives in ideal homes: The story of © 2023 LSLR Publishing 9 University of Leicester Student Law Review Tume are only recent, however, change is not happening quickly George Norton in the early 1800’s.45 From this publicly enough to protect the women of the 21st century.41 controversial case stemmed the Custody of Children’s Act 1839, The Matrimonial Causes Act 1857 and the Married Women and Motherhood Women’s Property Act 1870, the latter two of which we have Traditionally, women have been deemed to be more 42 nurturing, emotional, and sensitive than men. already discussed. Caroline Norton, an under-recognised Societally, feminist icon in law, kickstarted the change in the assumption they were expected to raise children and care for the home. that all property, including children, belonged to the husband. As mentioned earlier, breakdowns of relationships and state Today, the progress of this law is substantial. Over intervention already fail women who sacrifice numerous 90 percent of cases result in the mother receiving custody of areas of their lives to raise children, and do not necessarily the children.46 This undoubtedly created a debate as to the provide a subsequent remedy for such a loss. However, the discrimination against fathers in modern law. It is evident in law continues to have a biassed tendency towards women the arguments in this context that the reason behind the regarding children, and whether this is a benefit for a woman majority result of these cases is due to the assumption that in some countries is up for debate. women are the primary caregivers of children.47 It is arguable Initially, the law viewed children as belonging to the that this bias, whether intended to discriminate against men 43 or not, is a consequence of the patriarchal norms society has husband. This attitude, again, is extremely profound in historical literature, which provides great insight into the practical impacts of patriarchal 44 laws. The adhered to for centuries. social Initially, the law viewed all property as belonging to implications of such a bias is not necessarily an argument in the husband, but this notion did not align with the core values a legal debate, but it is worth mentioning in this context of marriage when it emerged. Historically, women were because it provides further insight into the consequences of expected to care for and raise a man's children, while the law the laws’ reluctance to recognise women as equal to men. often failed to acknowledge wives as equals to men. Despite The best perception of the rights of women in progress, the judicial system still faces challenges in relation to their children can be seen in divorce law – recognizing the nurturing capabilities of men in regard to the particularly of couples who have children. The first case well-being of children.48 This could, in some ways, be recognising the discriminatory assumption that children beneficial to women today who seek to keep custody of their belonged to the father was the case between Caroline and children in the process of a divorce. 41 45 Carbone JR, “A Feminist Perspective on Divorce” (The Atkinson D, “Caroline Norton and the Custody Battle That Future of Children, 4(1), 183 – 209, 1994) Changed the Law” (Daily Mail Online, July 14, 2012) 42 46 Held V and Noddings N, “Caring (1984),” Justice and “Why Do Women Get Child Custody in 90 Percent of All care: Essential readings in feminist ethics (1st edn, Routledge Cases? Isn't It Gender Discrimination?” (EMY A. Cordano, 1995) Attorney at Law, June 28, 2018) 43 47 Lorber J., “The variety of feminisms and their Reynard C, “Women Still Primary Carer in Most contributions to gender equality” (BIS Verlag; 1997) Households” (Your Money, April 4, 2018) 44 48 Isben, H, “A Doll’s House” (1897), Alcott, LM “Little Women” (1868-69) “Are the Courts Gender Biased in Custody Cases?” (Weinman & Associates, PC, December 23, 2020) © 2023 LSLR Publishing 10 University of Leicester Student Law Review Tume in Malta – an anti-abortion country – signing the statement.52 Those that believe there is sexual discrimination towards men, they have actually experienced a faster Abortion has been a controversial debate for generations, 49 development of law than women historically. Lawyers have widely known as the ‘pro-life’ or ‘pro-choice debate’. There immediately begun to rally around ‘struggling fathers’, and it are arguments as to when a foetus is considered a baby, and is not unfathomable to suggest that the male dominance in whether a woman should be allowed to abort a child for any 50 law will provoke rapid changes. Therefore, even if it can be reason. Currently, abortion rights are not very profound. said that women have a small benefit deriving from Even in the England, where abortion has been legal since patriarchal values, this benefit is vulnerable to change, and a 1967,53 women must follow a strict set of procedures to woman’s ‘inverse’ right in this regard is not protected. legally access abortion services.54 It is important to note that Despite laws failing to acknowledge women as equal to men abortion at a national level for the UK has only been legal in terms of work, sex, marriage, and inheritance, there since 2019. Particularly, in Northern Ireland, it was only remains a hesitation to break from this unequal pattern in 1945 where the only exception applied to an 1861 law that regards to custody rights. This indicates that the law is not illegalised procuring a miscarriage was given to women, and easily swayed towards change, it reduces one of the few that was to preserve her life.55 Up until 2019, rape, incest or rights given to women stemming from the patriarchy, fatal foetal abnormality were not sufficient to allow an contrasting with their standing to reduce men’s rights as a abortion in Northern Ireland. The reasoning behind this positive step towards feminism. overturned decision was the breach of Human Rights Law enacted in 1998, which seems like an extremely delayed Criminal and Human Rights Law: Abortion and Rape response to such a significant breach. Crucially, these areas are seen to have undergone This, to me, is absurd. Since 1992, martial rape has the most prominent shift regarding feminism. Whether this is been recognised as a criminal offence.56 A recent study due to the changing attitudes towards women, or human life suggests that the majority of adolescent pregnancies stem in general, is up for debate. from sexual abuse, and this is without the consideration of A well-known example of women’s rights in current rape within adult relationships, marriages, or in social news would be the US Supreme Court’s decision to overturn circumstances.57 This is an apparent failure on the laws Roe v Wade, which had provided citizens of America a behalf to protect women and girls from abuse and rape. The 51 constitutional right to abortion. Shortly after this decision, the UK Parliament removed references to abortion rights for 52 women in an international human rights statement, resulting 49 “UK Government Deletes Abortion from International Human Rights Statement” (Politics.co.uk, July 19, 2022) 53 The Abortion Act 1967 54 “What Are the UK's Laws on Abortion?” (BBC News, October 22, 2019) Network LFLN, “The Patriarchy of Rape Laws – Need for Gender Neutrality” (LexForti, June 12, 2020) 55 50 What Do They Mean?” (BBC News, October 22, 2019) Center TML, “Women and Divorce: The New Reality of Connolly M-L, “Northern Ireland Abortion Law Changes: Child Custody” (The Men's Legal Center, October 20, 2022) 56 The Sexual Offences (Amendment) Act 1992 51 57 Boyer, D, and D Fine, “Sexual abuse as a factor in Most D and Bouranova A, “Supreme Court Overturns Roe v. Wade, Ending 50 Years of Abortion Rights” (Boston adolescent pregnancy and child maltreatment.” (Family University, June 24, 2022) planning perspectives, vol. 24, 1, 1992, 4-11, 19) © 2023 LSLR Publishing 11 University of Leicester Student Law Review Tume law fails victims of sexual and domestic violence by not is obviously failing at protecting women’s autonomy when it allowing them the right to what is arguably their own bodily comes to sex, marriage, and relationships. Instead of trying to autonomy if they end up pregnant. Moreover, the debates further protect them, the law has instead taken the approach surrounding motherhood and the gender pay gap between to disregard the consequences of their failures and essentially genders further emphasises the judicial system's failure to hold women accountable for their own fertility. Women are fully acknowledge and address discrimination faced by expected to resolve a problem before it even occurs. 58 women in both their careers and in the domestic sphere. More crucially, the current laws in the UK and other As previously mentioned, women must go through western countries are what we consider to be ‘modern’.65 an unyielding process to obtain abortions even where they Countries such as Afghanistan do not recognise legal are accessible, regardless as to whether they are a victim or abortions, or martial rape, reasoning that a wife should obey not. The current law in the UK suggests that two doctors her husband.66 The current crisis in Ukraine has gone under must approve of the abortion on any of three grounds: the the radar, where citizens are being raped by Russian mother’s life being endangered, high physical or mental soldiers.67 Approximately 46 countries are failing to meet the health risk or if there is a risk of severe abnormality in the minimum requirements set forth by the Trafficking Victims 59 60 baby. Not only is there an essence of ableism here. The Protection Act 2000 and have not demonstrated any fact that a woman must present a reason to two doctors as to meaningful efforts towards compliance. These countries why she does not want a child, beyond the explanation that include Russia, North Korea, and Equatorial Guinea.68 There she simply does not want one, is relatively outdated.61 is a worldwide crisis relating to women’s bodily autonomy, and yet we’ve only come as far as an uncertain debate.69 The age of consent to sex is 16 years old.62 Girls in This, evidently, is not enough. other countries can be married at an even younger age.63 Martial rape has only recently been recognised, whereas the Women in the Line to Succession 64 reported occurrences of rape continue to increase. The law 58 This element of law relates directly to the House of Lords. Only 28% members of the chamber are women.70 Smith R, “Gender Pay Gap in the UK: 2020” (Gender pay gap in the UK - Office for National Statistics, November 3, 65 2020) Approaches” (The Consortium on Gender, Security and 59 The Abortion Act 1967 Human Rights, 2005) 60 R. (on the application of Crowter) v Secretary of State for 66 The Shia Personal Status Law, Article 134 (2) Health and Social Care [2022] EWCA Civ 1559 67 Sleigh S, “Russian Soldiers Rape Children and Brand 61 Women with Swastikas, Ukraine MP Claims” (HuffPost UK, Regan L, Glasier A, “The British 1967 Abortion Act-still Buss D and Manji A, “International Law: Modern Feminist fit for purpose?” (Lancet, 26 October 2017, 390, 1936-7.) April 4, 2022) 62 The Sexual Offences (Amendment) Act 2000 68 63 “Discriminatory Marriage Laws Are Putting Women and Today” (WorldAtlas, January 17, 2019) Misachi J, “Worst Countries for Human Trafficking Girls at Risk of Child Marriage, Rape, and Abuse” (Equality 69 Now, October 11, 2022) Committees - UK Parliament” (UK Parliament, November 64 23, 2022) Jones P, “Crime in England and Wales: Year Ending June “Legal Rights to Access Abortion to Be Debated by MPs - 2022” (Crime in England and Wales - Office for National 70 Statistics, October 26, 2022) Lords” (Lords Library, February 24, 2021) Haves E, “Representation of Women in the House of © 2023 LSLR Publishing 12 University of Leicester Student Law Review Tume Most of these women were accepted into Parliament under 71 the Life Peerages Act 1958. breach of Article 3 of the ECHR, read in line with Article 14. 74 In essence, they had an inherited right. Due to the misogynistic attitudes and the Despite this, there has been a failure on the law's human nature theory, sons were often treated as the heirs of behalf to recognise its own misogynistic structure. The the family and women were seen as an element of trade. Sons failure of passing bills regarding equality, and the fact that no were pressured to become well-respected and successful, whereas women were pressured to marry change has been made to the accessibility of seats, or that the into a gender pay gap has not yet been neutralised, suggests that the well-respected and successful family.72 This pattern is well UK legislature is passing laws faster than it is adapting to represented through the history of succession to the throne. them. The legal authority of the UK is predominantly male, The Succession to the Crown Act 2013 only recently and it is arguable that, due to this, feminist law is moving at a abolished the preference of males succeeding the crown, but much slower pace than it potentially could. This therefore this attitude remains in the legal system. creates a risk for women in the UK, as their rights do not Prior to 1958, women were completely excluded accommodate their current position in society. Women who from the House of Lords, despite them being a hereditary seek to address this issue within the governing body are peer. Even now, there is a significant domination of men in severely limited by a male-dominated majority.75 the chamber, and this is due to the Life Peerages Act 1958, Another important fact to consider is that UK law which enables numerous seats in the chamber to be an currently represents a modernised version of feminist law, inherited right. Much like the crown, this right was typically and in some countries, particularly in the Middle East or reserved for the eldest son, regardless of any elder daughters. Africa, are substantially behind in allowing women to work Since 2013, numerous Bills regarding the equality of female in high professions.76 succession have been discussed in Parliament, but none so Today’s Law and Women far have been passed.73 Furthermore, the Daughter’s Rights campaign seeks to bring awareness, as well as a case, to With consideration to the development of law in Parliament regarding the sexual discrimination of daughters certain areas, we will now review whether these more recent of peers. There is an outstanding majority of seats saved for changes in law effectively provide remedial protection to the men in the chamber, and much like Susan B Anthony states, modern-day women more sufficiently than amended “There never will be complete equality until women patriarchal law. themselves help to make laws and elect lawmakers”. The Women in Law and the Working World Daughters Rights movement argues that Parliament is in 74 Daughters Rights, “The Case” (Daughters Rights Movement, September 7, 2018) 71 The Life Peerages Act 1958 <https://daughtersrights.co.uk/> 72 Eisenmann L, “The Impact of Historical Expectations on 75 Watkins MB, Smith AN, “Importance of women's political Women's Higher Education” (InForum on Public Policy skill in male-dominated organizations” (Journal of Online 2007, Vol. 2007, No. 3, p. n3) Managerial Psychology, 4 Feb 2014) 73 76 Evennett H, “Women, Hereditary Peerages and Gender Shelley J, “Women's Rights-Why the West Shouldn't Inequality in the Line of Succession” (House of Lords Abandon the Middle East” (The Washington Institute, Library, October 3, 2022) August 31, 2022) © 2023 LSLR Publishing 13 University of Leicester Student Law Review Tume The significance of the legal advancement of Domestic abuse has been around for as long as the feminist ideals can be argued to be deeply ingrained in this patriarchal norm.83 The assault on women in the home goes text. Women, just 100 years ago, were not able to work in the hand in hand with archaic attitudes previously discussed. It legal sector in the US and UK.77 The 'The First 100 Years' was accepted and expected by courts in the 18th Century with campaign sheds additional light on this issue.78 Legal a ‘rule of thumb’.84 As the law developed, domestic abuse Feminism, therefore, cannot even be said to have existed for was slowly recognised in a legal sense, however, only more than a hundred years, let alone be capable of review or recently has there been legislation that covers all areas of a source of prediction and reference.79 Women would domestic abuse.85 Before this, victims of domestic abuse arguably have had less understanding of the law, and even would need to rely on numerous sources for their claim.86 today, remain in men’s shadow considering respectability Domestic Abuse has only now been wholly within the sector.80 recognised in the 21st century, and ultimately demonstrates It was only 1993 when the US legalised women the slowest area of law to change.87 The reluctance mainly being able to wear trousers in the Senate,81 whereas it was stemmed from the worry of invading the privacy of the only 2013 where France overturned a rule that banned ‘traditional home’, however, the rise of Women’s Aid helped 82 women from wearing trousers. Despite feminism becoming change that.88 The accessibility of legal aid in relation to somewhat mainstream in the generations before us, the shift family law (which has since been ‘scrapped’) has also in equality has been slow. Modern law has failed to reconcile contributed.89 Therefore leading to domestic abuse claims with the shifts towards sexual equality with any expression of acceptance or enthusiasm. Hand in hand with this, the law, being outdated and somewhat incompatible with the modern woman, has shown how it also fails to respect and represent women in today’s world. 83 Women in the Home: Domestic Abuse Law Protect Women and Girls – Five Areas Need to Change” Proudman C, “I'm a Barrister and I Know the Law Doesn't (The Independent, November 27, 2022) 77 84 Blacklaws C, “One Hundred Years since Women Became Shaw N, “The Devon Judge and His 'Rule of Thumb' on People” (The Law Society, November 1, 2017) Beating Your Wife” (DevonLive, November 3, 2017) 78 85 The Domestic Abuse Act 2021 (The Women in Law Initiative, April 23, 2020) 86 “History of Domestic Violence and Legislation in the UK” 79 (UK Essays, November 2018) Malekpour-Augustin J, “100 Years of Women in Law” Proudman C, “I'm a Barrister and I Know the Law Doesn't Protect Women and Girls – Five Areas Need to Change” 87 (The Independent, November 27, 2022) in England and Wales 1770-2020 Working Paper No. 2. 80 Domestic Abuse: Responding to the Shadow Pandemic” Randall C-A, “100 Years of Women in Law: A Timeline of Godfrey B, Richardson J and Walklate S, “Domestic Abuse Sexism and Equality” (Law Gazette, November 8, 2019) (University of Liverpool, July 11, 2020) 81 88 Sears J, “Why Women Couldn't Wear Pants on the Senate “Women's Aid Federation of England” (Women's Aid, Floor until 1993” (Mental Floss, March 22, 2017) 1974) <https://www.womensaid.org.uk/> 82 89 Lichfield J, “At Last, Women of Paris Can Wear the “Legal Aid Reforms Scrapped by Michael Gove” (BBC Trousers (Legally) after 200-Year-Old Law Is Declared Null News, January 28, 2016) and Void” (The Independent, February 4, 2013) <https://www.bbc.co.uk/news/uk-354325812> © 2023 LSLR Publishing 14 University of Leicester Student Law Review Tume becoming more common.90 While it could be argued that the erasure of the cultural practices of native people is limited in legal response to domestic abuse has been most clarifying, vision and exclusionary in practice.”94 and one of the most effectively developed areas of feminist To this extent then, the fact that social issues such as law thus far, it is worth noting that the consistent reluctance LGBTQ+ rights and racism are still in a similar fight for to acknowledge domestic abuse towards women has resulted equality to feminism, shows the importance of recognising in numerous abusers and victims falling under the law’s that all forms of discrimination operate in a cog-like system radar.91 What the law sees as abuse now was still the same that enables intersectionality, due to their shared opposition abuse not considered prior to enactment.92 Moreover, the to colonial norms.95 The Equality Act arguably is as effective 2020 act includes gender neutral terms. While this is most as the Sex Discrimination Act, which we have already certainly positive, it should be worth noting how rapidly the discussed is not enough. Therefore, it is not unreasonable to court accepted the idea of protecting men in the home in suggest that until all discriminated minorities reach absolute comparison to abused women. equality, it is unlikely that any single one will.96 This contrast speaks volumes. Not only has the International Women and Current Affairs judicial system failed to defend the rights of women in the past, but even today, the law appears to exhibit a clear bias in We have established that the current relationship favour of men, who have had to put forth less effort for their between women and the law is not a positive one for women. rights to be acknowledged by the legal system. Some nations have made the impression of effort towards sexual equality.97 However, there is still a significant way to Intersectional Feminism go internationally. As mentioned previously, the current crisis Intersectionality is based on the concept of a in Ukraine involving women’s safety, has gone significantly person’s life being affected because of the meeting of more under the radar in comparison to the Ukrainian war’s impact than one form of discrimination (the intersection of one’s on international trade.98 However, beyond just the news on identities).93 This is an essential element to feminism. Marie 94 Anna Jaimes Guerrero states, “Any feminism that does not Alexander MJ and Mohanty CT, Feminist Genealogies, Colonial Legacies, Democratic Futures (Routledge 2012) address land rights, sovereignty, and the state’s systemic 95 Strange G, “Intersectionality and 21st Century Colonialism” (Presbyterian Mission Agency, January 11, 2018) 90 96 Jones P, “Crime in England and Wales: Year Ending June “Intersectional Feminism: What It Means and Why It 2022” (Crime in England and Wales - Office for National Matters Right Now” (UN Women – Headquarters, July 1, Statistics, October 26, 2022) 2020) 91 97 Proudman C, “I'm a Barrister and I Know the Law Doesn't “World Conferences on Women” (UN Women – Protect Women and Girls – Five Areas Need to Change” Headquarters) (The Independent, November 27, 2022) https://www.unwomen.org/en/how-we-work/intergovernment 92 al-support/world-conferences-on-women#beijing Cooper Y, “The Law Is Failing Domestic Abuse Victims in England and Wales. but We Can Change It” (The Guardian, 98 November 19, 2021) Girls” (UN Women – Headquarters, September 22, 2022) 93 <https://www.unwomen.org/en/news-stories/in-focus/2022/0 Coleman AL, “What Is Intersectionality? A Brief History “In Focus: War in Ukraine Is a Crisis for Women and 3/in-focus-war-in-ukraine-is-a-crisis-for-women-and-girls> of the Theory” (Time, March 28, 2019) © 2023 LSLR Publishing 15 University of Leicester Student Law Review Tume there are numerous countries encourage feminism worldwide.105 The laws in these experiencing protest and violence in response to feminist countries are slow and reluctant to reform, which could be, in related events. an alternate light, encouraging countries further behind in Russia and Ukraine, development not to do so.106 While the law of a State should The US and UK are currently experiencing not oppose one another, there have been instances where the numerous strikes due to abortion laws within their country.99 law of other States have been considered when legislative Short of that, in 2021 Poland had protests for the very same authorities enact national State law. Moreover, international reasons.100 Iranian women are cutting their hair publicly and law is seen to have had an impact on State law for other causing riots in response to the death of Mahsa Amini, who minorities for example, the LGBTQ+ community in the case was taken to a “re-education centre” for lessons in Fitzpatrick v. Sterling Housing Association Ltd. modesty.101 Meanwhile, in India, Muslim women are fighting 107 In addition, Ghaidan v. Godin-Mendoza also had an impact. 108 for their right to wear their scarves.102 Both have relations to There is no reason as to why ‘developed’ states could not Islamic tradition. This therefore highlights how the law is not encourage feminism on an international scale. oppressing women in a binary way.103 Instead, law internationally is being used to oppress women in any Furthermore, the scattered directions of laws that direction possible. Even more so, sexist discrimination is have not developed in feminism in relation to Islam only being disguised by the veil of Islamophobia or Islamic solidifies the uncertainty of the permanence of such conflict. developments in other states. The lack of progress in certain countries, the lack of discouragement of such from other It's arguable then, that the law is somehow going States, as well as the States own reluctance to develop, only backwards in its development in feminism.104 While some provides a fear of the capability of such developments being countries are viewed as having acknowledged and amended reversed. We have already seen this exemplified in the repeal patriarchal values, these countries are not doing enough to of Roe v Wade. Therefore, it is not unreasonable to suggest that the law today is also seen to fail to succinctly protect 99 women of the present and the future. Reporters PA and Clark D, “Protestors in the UK Gathered after the USA's Decision to Scrap Abortion Rights” (The Conclusion Mirror, June 25, 2022) 100 It could not be clearer that women today are still “Poland Abortion Ban: Thousands Protest for Third Day” being failed by the legal systems that proclaim to support (BBC News, January 29, 2021) 101 equality. Even more so, there are still numerous countries Alkhaldi C and Ebrahim N, “Grief, Protest and Power: that openly oppress women, contrary to international human Why Iranian Women Are Cutting Their Hair” (CNN, rights, yet receive no outstanding repercussions for doing so. September 28, 2022) 102 105 Tamer R, “Burned in Iran, Banned in France: Why “'Sexism and Misogyny' Heightened; Women's Freedoms Women Are Fighting for Choice on Wearing the Hijab” (SBS Supressed” (United Nations, October 18, 2021) News, September 28, 2022) 106 103 Law Should Be Doing More” (LSE Women, Peace and Stacey A, “Does Islam Oppress Women?” (The Religion Mudgway C, “Smashing the Patriarchy: Why International of Islam, January 18, 2010) Security blog, October 7, 2019) 104 107 [1999] UKHL 42 108 [2004] UKHL 30 Berns S, “Women Going Backwards: Law and change in a family unfriendly society” (Routledge, 8 May 2018) © 2023 LSLR Publishing 16 University of Leicester Student Law Review Tume The law today has its words speaking far louder than its The Domestic Abuse Act 2021 actions, but this does not cover up the fact that women today The Life Peerages Act 1958 remain vulnerable and subject to discrimination in numerous The Married Women’s Property Act 1882 areas. Although modern legal systems have enacted certain legislation to encourage gender equality, the law itself is not The Matrimonial Causes Act 1973 doing enough to enforce this legislation as a fundamental The Sex Discrimination Act 1975 human right beyond simply enactment. Patriarchal values are still being debated in validity, even though it can be argued The Sexual Offences (Amendment) Act 1992 that the norms of such a society are extremely outdated. The fight for gender equality is not complete, regardless of what The Sexual Offences (Amendment) Act 2000 national legislation may say in writing. The practical reality The Shia Personal Status Law, Article 134 (2) of modern law, and the discrimination suffered by women at an international scale, is too significant. As such, the world The Succession to the Crown Act 2013 requires reformation to renew gender equality, and to embed The Trafficking Victims Protection Act 2000 it into the very nature of legal systems on a global scale. 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Rev, 1994, 687) Snow E, “Theorizing the male gaze: Some problems” (Representations, 1 January 1989, 25, 30-41) © 2023 LSLR Publishing 18 University of Leicester Student Law Review Tume Durham G, “Escaping the Patriarchy: The Depictions of Jones P, “Crime in England and Wales: Year Ending June Women and Goddesses in Ancient Greek Art” (Open Access 2022” (Crime in England and Wales - Office for National Kent State (OAKS), April 9, 2019) Statistics, October 26, 2022) Evennett H, “Women, Hereditary Peerages and Gender “Legal Aid Reforms Scrapped by Michael Gove” (BBC Inequality in the Line of Succession” (House of Lords News, January 28, 2016) Library, October 3, 2022) <https://www.bbc.co.uk/news/uk-354325812> Godfrey B, Richardson J and Walklate S, “Domestic Abuse “Legal Rights to Access Abortion to Be Debated by MPs in England and Wales 1770-2020 Working Paper No. 2 - Committees - UK Parliament” (UK Parliament, Domestic Abuse: Responding to the Shadow Pandemic” November 23, 2022) (University of Liverpool, July 11, 2020) Lichfield J, “At Last, Women of Paris Can Wear the Guttentag, Michael D. ‘Is There a Law Instinct?" (The Trousers (Legally) after 200-Year-Old Law Is Declared Free Library, 01 March 2009) Null and Void” (The Independent, February 4, 2013) Harper D, “Etymology of Marriage.” (Online Etymology Lyons E, “The Patriarchal Law” (Apologetics Press, Dictionary) December 31, 2001) Haves E, “Representation of Women in the House of Malekpour-Augustin J, “100 Years of Women in Law” Lords” (Lords Library, February 24, 2021) (The Women in Law Initiative, April 23, 2020) Hegland ME, “Wife abuse and the political system: A Migiro G, “10 Modern Countries Where Child Marriage Middle Eastern case study” (InSanctions and Sanctuary, Still Occurs” (WorldAtlas, February 10, 2020) 28 May 2019, Routledge, 203-218) Misachi J, “Worst Countries for Human Trafficking Today” (WorldAtlas, January 17, 2019) “History of Domestic Violence and Legislation in the UK” (UK Essays, November 2018) Most D and Bouranova A, “Supreme Court Overturns “In Focus: War in Ukraine Is a Crisis for Women and Roe v. Wade, Ending 50 Years of Abortion Rights” Girls” (UN Women – Headquarters, September 22, 2022) (Boston University, June 24, 2022) <https://www.unwomen.org/en/news-stories/in-focus/202 Mudgway C, “Smashing the Patriarchy: Why 2/03/in-focus-war-in-ukraine-is-a-crisis-for-women-and-g International Law Should Be Doing More” (LSE Women, irls> accessed December 5, 2022 Peace and Security blog, October 7, 2019) “Intersectional Feminism: What It Means and Why It Myrdal A, Klein V, “Women's two roles: Home and Matters Right Now” (UN Women – Headquarters, July 1, work” (Psychology Press, 1956) 2020) Offen K, “A Brief History of Marriage: Marriage Laws J A, “Are Women Being ‘Suppressed’ in Today's World?” and Women's Financial Independence” (International (Lost Sheep for Christ, July 5, 2018) Museum of Women) Jeffers R, “Mensa Et Thoro? How It Differs from Divorce...” (ReginaJeffersBlog, June 11, 2016) © 2023 LSLR Publishing 19 University of Leicester Student Law Review Tume Oppenheim M, “'Prisoners in Homes': The Women in Sleigh S, “Russian Soldiers Rape Children and Brand Afghanistan Barred from Leaving Home without a Man” Women with Swastikas, Ukraine MP Claims” (HuffPost (The Independent, August 17, 2021) UK, April 4, 2022) Oxley J, “Divorce and Womens Rights: A History” Smith R, “Gender Pay Gap in the UK: 2020” (Gender pay (Vardags, December 13, 2017) gap in the UK - Office for National Statistics, November 3, 2020) “Poland Abortion Ban: Thousands Protest for Third Day” (BBC News, January 29, 2021) Stacey A, “Does Islam Oppress Women?” (The Religion of Islam, January 18, 2010) Proudman C, “I'm a Barrister and I Know the Law Doesn't Protect Women and Girls – Five Areas Need to Staff, “The Origins of Marriage” (The Week, January 8, Change” (The Independent, November 27, 2022) 2015) Pruitt S, “Henry VIII Wanted a Divorce so He Sparked a Strange G, “Intersectionality and 21st Century Reformation” (History.com, October 22, 2018) Colonialism” (Presbyterian Mission Agency, January 11, 2018) (Romans 5:20) <https://biblehub.com/romans/5-20.htm&gt> Tamer R, “Burned in Iran, Banned in France: Why Women Are Fighting for Choice on Wearing the Hijab” Randall C-A, “100 Years of Women in Law: A Timeline (SBS News, September 28, 2022) of Sexism and Equality” (Law Gazette, November 8, “UK Government Deletes Abortion from International 2019) Human Rights Statement” (Politics.co.uk, July 19, 2022) Reporters PA and Clark D, “Protestors in the UK Gathered after the USA's Decision to Scrap Abortion “What Are the UK's Laws on Abortion?” (BBC News, Rights” (The Mirror, June 25, 2022) October 22, 2019) Sears J, “Why Women Couldn't Wear Pants on the Senate “Women's Aid Federation of England” (Women's Aid, Floor until 1993” (Mental Floss, March 22, 2017) 1974) <https://www.womensaid.org.uk/> “'Sexism and Misogyny' Heightened; Women's Freedoms “World Conferences on Women” (UN Women – Supressed” (United Nations, October 18, 2021) Headquarters) https://www.unwomen.org/en/how-we-work/intergovern Shaw N, “The Devon Judge and His 'Rule of Thumb' on mental-support/world-conferences-on-women#beijing Beating Your Wife” (DevonLive, November 3, 2017) accessed December 5, 2022 Shelley J, “Women's Rights-Why the West Shouldn't Abandon the Middle East” (The Washington Institute, NOTE: For the purposes of this essay, there has been a use of August 31, 2022) sources that do not concern legal systems, legislation, or law Sisterhood and After Research Team, “Marriage and Civil practices directly. This is because feminism exists in more Partnership” (British Library, March 8, 2013) than just law, and sexual discrimination comes in many <https://www.bl.uk/sisterhood/articles/marriage-and-civil forms. When talking about the law, it’s important to -partnership> © 2023 LSLR Publishing 20 University of Leicester Student Law Review Tume understand the implications the law has on other elements of society. This is best seen in non-legal related sources. © 2023 LSLR Publishing 21 University of Leicester Student Law Review Issue 12 (2023) Perspectives on Canada’s Revision to the Medical Assistance in Dying Legislation to Include Mental Disorder as the Sole Underlying Condition Mirette Abdo Department of Law, University of Leicester Leicester, United Kingdom The Parliament of Canada released an AMAD “grievous and irremediable medical condition” criteria.5 This Committee Report summarising the future of Medical means that unless the clause was amended, the mental illness Assistance in Dying (MAiD), which will enable mental exclusion would be revoked. Fast forward to March 17, disorders to be a sole underlying condition for seeking 2023, and mental disorder could be considered in place of a MAiD.1 The report discusses that on April 16, 2016, Bill “serious and incurable illness, disease or disability” within C-14, which details medical assistance in dying, was brought the eligibility criteria. While the specific MAiD practice forth to the House of Commons, which regarded medical standards are still being developed by the Government of assistance in dying, and received Royal Assent two months Canada’s appointed Task Group of experts, these standards 2 will be ready country-wide by February 2023.6 later. Bill C-14 made amendments to the Criminal Code of Canada by allowing medical practitioners and nurse It is important to note that Canada was not always this practitioners to administer or help self-administer a substance liberal with medical assistance in dying. The Supreme Court that ends the patient’s life. This Bill came with an extensive of Canada’s decision in Rodriguez v British Columbia eligibility criterion that was soon disputed in Truchon c. (1993)7 banned physician-assisted suicide and continued to Procureur general du Canada (2019)3, which led to Bill C-7 decline any bills seeking to decriminalize physician assisted being passed in return to the decision held. Bill C-7 suicide for two decades more to come. Fast forward 6 years, essentially struck down the requirement that natural death and it is now legal, (with the help of Truchon c. Procureur must be reasonably foreseeable in order for an individual to general du Canada (2019) and Carter v Canada (Attorney access MAiD, on the grounds of infringing on the Canadian General) (2015).8 Charter of Rights and Freedoms.4 Bill C-7 also featured a sunset clause on the exclusion of mental illness from the 5 AMAD (44-1) No.1 Canada Dof Justice, “Statement by Ministers Lametti, Duclos and Bennett on Medical Assistance in Dying in Canada” (15 December, 2022) Canada.ca <https://www.canada.ca/en/department-justice/news/2022/12 /statement-by-ministers-lametti-duclos-and-bennett-on-medic al-assistance-in-dying-in-canada.html> Accessed 26 January, 2023 7 [1993] 3 SCR 519 8 [2015] SCC 5 6 1 “Committee Report No. 1 - Amad (44-1) - Parliament of Canada” (Committee Report No. 1 - AMAD (44-1) Parliament of Canada) <https://www.parl.ca/DocumentViewer/en/44-1/AMAD/repo rt-1/page-48#10> Accessed 26 January, 2023 2 Ibid. 3 [2019] QCCS 3792 4 The Canadian Charter of Rights and Freedoms 1982 © 2023 LSLR Publishing 22 University of Leicester Student Law Review Abdo Why is it on hold? the concerns MAiD has always brought. Canada is known for This new law was scheduled to come into effect on being a country filled with rights and freedoms, however the March 17, 2023, however, on December 15, 2022, the essence of a right is questioned when discussing MAiD and Government of Canada released a statement regarding an the ‘right to die.’ update on the implementation timeline. The Honourable Patient autonomy David Lametti, Attorney General of Canada, the Honourable Jean-Yves Duclos, Minister of Health, and the Honourable Allowing MAiD is viewed as a controversial Carolyn Bennett, Minister of Mental Health and Addictions subject, since there are uncertainties with respect to the level and Associate Minister of Health held discussions with of autonomy a mentally disabled patient holds. It is also subject matter experts and Canadians and came to the argued that there should be more social and medical support decision that the March 17 date needs to be temporarily for those suffering with unbearable mental disorders, rather 9 delayed. The delay is to allow more time for than having the option of dying, which can be seen as “dissemination” and discussion before the submission of the beneficial, or a ‘goal’ for many mentally ill patients who final report in February 2023. generally experience the desire to commit suicide. Many The Government of Canada is essentially taking the mental disorders still require much more research, and this time to ensure this next legislation is thoroughly considered. raises concerns regarding the notion of ‘irreversibility’ when Allowing for patients solely suffering with mental illness is a discussing what qualifies a patient for MAiD. challenging subject as Canada will become one of the very A research paper published in May 2022 by few countries that allow for this treatment. More discussion PubMed Central looked to examine the relationship between is taking place as medical professionals and citizens have patient autonomy and mental disorders.10 The paper voiced their concerns regarding this legislation, and the concluded that validated instruments capable of measuring bioethical complications it presents. autonomy in psychiatry are needed to explore this area of research.11 However, their research does suggest that mental What are the bioethical complications? disorders compromise one’s sincerity and competency, which The original legalization of MAiD for physical lowers their ability to self-govern, as an autonomous disorders has sparked numerous debates and controversies individual would.12 Their research also found that the path to regarding the right to life and right to death, patient regaining autonomy looks different for each patient, as it is autonomy, the implications on medical professionals, power linked to many of their pre-existing 13 perspectives, of the state, and so forth. It is expected that adding mental experiences, and social environments. Furthermore, the disorder to be the sole underlying condition for requesting article suggests that autonomy is linked to personal recovery, MAiD to the mix would spark conversation and bring forth such that a patient that is progressing in their personal bioethical concerns that the Government of Canada must recovery is increasing their autonomy simultaneously.14 address. The bioethical concerns this new condition brings Thus, it can be inferred that a patient who is struggling with involves questioning the autonomy a patient with a mental 10 Bergamin J and others, “Defining Autonomy in Psychiatry” (May 31, 2022) Frontiers in Psychiatry <https://pubmed.ncbi.nlm.nih.gov/35711601/> 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. disorder has, and how to assess whether they are autonomous enough to make such a decision. It also questions the recovery path in certain mental disorders, all in addition to 9 Canada Dof Justice n6 © 2023 LSLR Publishing 23 University of Leicester Student Law Review Abdo their current mental disorder, so much to the point that they legislation is within the patient’s best interest, or the request MAiD, may not be making this decision from a fully government’s. autonomous position. Recovery for patients with mental All in all, it seems reasonable to presume the disorders looks like someone living with their mental patients solely suffering from mental disorders are not fully disorder and becoming more familiar with their conditions. autonomous and may not be capable of making possibly the Because the patient is requesting MAiD, one can infer they biggest decision they will ever encounter. This varies case by are not living and coping well with their mental disorder. case, however there will need to be strict standards that Another contributing factor to patient autonomy is healthcare practitioners must follow to determine which the ability to have options, in order to determine if one is patients are truly fit to receive MAiD treatment. According to truly making an autonomous choice, free from external the Centre for Addiction and Mental Health (CAMH), influences.15 This may be difficult for patients suffering with Canada’s largest mental health teaching hospital, there are mental disorders to do, because of external socio-economic presently no agreed upon standards used to determine influences that may be decreasing their quality of life and treatment eligibility.18 CAMH wrote a letter to the Special feeding into their desire to commit suicide. These external Joint Committee on MAiD expressing their concerns with influences can be poverty, lack of food and shelter, difficulty increasing MAiD eligibility to patients solely suffering with finding work, and so forth. There needs to be better mental disorders.19 This letter discusses the lack of agreement institutions and social programs in place within Canada that CAMH physicians have on whether mental disorders can be assist individuals to rise from these social external considered ‘grievous and irremediable’ for receiving influences, otherwise many patients will continue to believe MAiD.20 It also discusses the lack of research regarding the that their sole option is MAiD. Doctors have expressed trajectory of mental disorders, to be able to label it concern that access to mental health services are still limited, “irremediable”.21 The point of the letter is to communicate to and that MAiD cannot take the place of food, housing, and the government that there is simply not enough research on 16 overall adequate support. A patient recovering from a this topic, and that extending eligibility must be delayed until mental disorder spoke up at a CAMH conference and said “it there is sufficient research.22 This can take years or possibly doesn’t make sense to me for physicians, people who are decades, however there is intrinsic value found in investing supposed to help, and the system in general to say we’re in these streams of research. This all leads to the conclusion going to help you die, but we’re not going to help you to that it may be too early for MAiD to be available for patients recover and live, because that was my experience with the solely suffering from mental disorders. 17 mental healthcare system”. When an affected patient feels their government rather end their life than invest in ways to 18 “Medical Assistance in Dying (Maid) and Mental Illness – Faqs” (CAMH) <https://www.camh.ca/en/camh-news-and-stories/maid-andmental-illness-faqs#:~:text=On%20February%202%2C%202 023%2C%20the,delay%20from%20the%20original%20timel ine> 19 Stergiopoulos V, Rajji T and Simpson A, “Mental Health and Criminal Justice Policy Framework - CAMH” (Accessed May 6, 2022) https://camh.ca/-/media/files/pdfs---public-policy-submission s/mh_criminal_justice_policy_framework-pdf.pdf 20 Ibid. 21 Ibid. 22 Ibid. support and prolong their life, it questions whether this 15 Wertenbroch K and others, “Autonomy in Consumer Choice” Nature Public Health Emergency Collection 31(4) (2020): 429-439 16 “Evidence - AMAD (44-1) - No. 9 - Parliament of Canada” (May 26, 2022) <https://parl.ca/DocumentViewer/en/44-1/AMAD/meeting-9/ evidence> 17 Medical Assistance in Dying (MAiD) and Mental Health (Full) (Directed by CAMHTV YouTube 2017) <https://www.youtube.com/watch?v=rsNQomwa8WE&gt> 18:40-18:59 © 2023 LSLR Publishing 24 University of Leicester Student Law Review Abdo Maid or Suicide? opportunity to end their lives, especially while the opposite may have been encouraged most of their lives. It seems Mental disorders must be seen similar, if not illogical to reaffirm suicidal thoughts of patients with mental identical, to physical disorders when discussing the amount disorders. of attention they deserve and the impact they can have on This legislation questions the efforts of the suicide one’s life. Mental health is just as important as physical prevention campaigns and hotlines the country runs as it health. In fact, many people in favour of MAiD for patients simultaneously hands over the tool to the same group of solely suffering from mental disorders will argue that it is individuals they are trying to convince not to commit suicide. essential in the de-stigmatization of mental illness that this It appears contradictory that the same nation discouraging form of illness is seen as equal to physical illnesses. suicide is simultaneously allowing suicide, albeit when However, it is difficult to argue the same when trying to preformed by a medical professional. compare the suffering of mental illness to the suffering of physical illness. All mental disorders introduce the symptom Medical Practitioners & Ethics of suicidal thoughts in those suffering23, and it is difficult not Another highly overlooked matter regarding MAiD to see suicide as medical assistance in dying. It’s clinical concerns definition, provided by the National Institute of Mental the trust Canadian doctors and medical professionals have in this form of treatment, and their Health, is “death caused by self-directed injurious behaviour outlooks toward providing such treatment. The Ontario with intent to die as a result of the behaviour”.24 A mental Medical Association in 2021 surveyed Ontario psychiatrists health professor at L’Universite du Québec a Trois-Rivières to understand their perspectives on the law, and 91% of them questions the difference between a person who says, “I’m objected to it.27 Another study published by PubMed Central suffering, I want to die” and the person who says “I’m in 2017 found that only 29.4% of the 528 psychiatrists suffering, please help me die”.25 Additionally, Dr. Mishara, a surveyed support MAiD for patients suffering only from doctor mentioned in Parliament’s interim report, expressed mental illness.28 The number of medical professionals that concern regarding the lack of fixed rules used for object to MAiD is concerning for its practicality in Canada. differentiating a suicidal request for MAiD and a rational As per the ruling in Christian Medical and Dental Society of request for MAiD.26 It would be assumed that at the least, a Canada v College of Physicians and Surgeons of Ontario diagnostic criterion is provided to better direct medical (2019)29, medical professionals who refuse MAiD as a professionals and limit the number of requests they receive treatment to their patients, for personal reasons, are obliged from the public. It seems unsuitable to give a certain group of to provide a referral to a medical professional who is people suffering with very little will to live the legal comfortable with administering medical assistance in death. 23 Singhal A and others, “Risk of Self-Harm and Suicide in People with Specific Psychiatric and Physical Disorders: Comparisons between Disorders Using English National Record Linkage” Journal of the Royal Society of Medicine 107(5) (2014): 194-204 24 “Suicide” (National Institute of Mental Health) <https://www.nimh.nih.gov/health/statistics/suicide> 25 Dellplain M and others, “The Right to Die: Should Maid Apply to Those Whose Sole Condition Is Mental Illness?” (May 25, 2022) Healthy Debate <https://healthydebate.ca/2022/05/topic/maid-mental-illness/ > 26 AMAD (44-1) No 1 It is my opinion that denying medical assistance in dying should be permissible and socially accepted. This is because it is a recent requirement that medical professionals established in the workforce or entering the workforce did 27 Parliament of Canada (no 16) Rousseau S and others, “A National Survey of Canadian Psychiatrists' Attitudes toward Medical Assistance in Death” Canadian journal of psychiatry/Revue canadienne de psychiatrie 62(11) (2017): 787-794 29 2019 ONCA 393 28 © 2023 LSLR Publishing 25 University of Leicester Student Law Review Abdo not expect to be obliged to them, and now have a great Belgium and the Netherlands”.31 When speaking of bioethical weight added onto them. Denying MAiD can be permissiveness, Lemmens speaks of how Canada’s MAiD complex in certain situations that medical professionals are rates are quickly surpassing those of Belgium and the faced to work through, such as if you are a long-term family Netherlands, which is already frightening without the physician that is trusted, and the patient wishes to receive the addition of mentally disabled to the list of patients eligible to treatment from you specifically. Another instance is if your receive MAiD. This is because patients in Canada can practice is the closest one in the vicinity and travelling to decline treatment and move forward with MAiD, while in another medical professional would impose a large and Belgium and the Netherlands, it is required for doctors to unnecessary burden on suffering patients. Though it is discuss and pursue mental illness treatment first with their essential to prioritise the needs of the patient, this is a patient. This shows that these countries put effort in having circumstance wherein the feelings of medical practitioners MAiD as an entirely last resort, however with Canada’s must be considered, as they are the ones that must live with growing permissiveness regarding MAiD, it may simply be their conscience and the consequences of their actions. viewed as a treatment option in itself to the patients. For religious doctors, it can be a delicate topic to When pondering the future of Canada with its new navigate as one chooses between valuing their religion’s legislation, the nation must turn to the countries with doctrine against MAID or to grant what their autonomous experience to be guided through what safety precautions are patient views as the best form of care for them. For compulsory to ensure maximum purpose and efficiency of nonreligious doctors it can also be something daunting to MAiD. As mentioned, Belgium and the Netherlands are two consider, as they risk the anti-MAiD public labelling them countries that have legalised MAiD for physical and mental murderers, or they worry that once incurable illnesses will disorders, along with Luxembourg and Switzerland.32 It is soon have a cure. Furthermore, worries about being necessary that the Canadian government analyses how each convicted rests on their shoulders, as the legislation bioethical threat is handled in each country and follows their regarding MAiD is placed in the Criminal Code of Canada. safe practice. Much research is needed on how the This implies that if a medical professional does not strictly circumstances are likely to differ in Canada by comparing follow the guidelines for performing MAiD, they can be tried Canada’s mental disorder resources, their rates of mental 30 for murder. It is no wonder so many doctors and nurse disorders, population sizes, and so forth, to better predict the practitioners are reluctant to provide MAiD, as there is likelihood of Canada having similar responses to the always a lot involved in taking someone’s life. Should MAiD legalisation as these countries. be available for patients suffering only from mental The fact of the matter is that mental disorders are disorders, it will further the burden medical professionals still a relatively new subject. It is certainly on the rise and must face, but their perspectives cannot be left out of the more awareness is surfacing as the world works towards conversation. de-stigmatizing mental disorders. However, there may not be What does this mean for the future of Canada? enough research completed to expose the harm this new law So, where does Canada stand in comparison to the rest of the world? Trudo Lemmens, a health law specialist at 31 Paul Webster, “Worries Grow about Medically Assisted Dying in Canada” The Lancet 400 (September 10, 2022): 801-2 32 van Veen S and others, “Physician Assisted Death for Psychiatric Suffering: Experiences in the Netherlands” (June 20, 2022) Frontiers in Psychiatry <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9251055/> the University of Toronto, argues that “Canada’s approach is far more permissive than comparator nations, including 30 Dellplain (no 17) © 2023 LSLR Publishing 26 University of Leicester Student Law Review Abdo may be imposing on individuals suffering from mental this imminent legislation will need to be the product of disorders. More research must be conducted before it is joined legal and medical forces. advertised that there is an unnatural way out of the pain and suffering. Furthermore, once MAiD has been approved for mental disorders, it may be difficult to rewind without extensive data to show that it should not have been authorised in the first place. Should this occur, it may have negative impacts on the country’s trust in the medical department that falsely portrayed MAiD as a perfectly acceptable method of dealing with mentally ill patients. It can come up in question how many lives we allowed as a country to end because of the lack of information we had, yet still permitted such a choice. Conclusion Medical assistance in dying (MAID) has been a highly controversial matter within the medical and bioethical field. It poses many philosophical questions to the patient that one may internally answer, along with medical questions that have no answers. However, it also raises ethical challenges for medical professionals when faced with a patient that wishes to undergo MAiD. Further questions arise when trying to navigate MAiD for mental disorders as Canada usually allows for physical disorders. The reason there are so many worries and questions arising for this legislation is due to the lack of research currently available to support the autonomy of a mentally disordered patient. Some Canadians are calling out for their government to permanently withdraw eligibility for patients only suffering from mental disorders, while others may be wanting to temporarily withdraw eligibility, merely until more consideration and information is available on this subject. This is the ultimate viewpoint of this paper; patients suffering from mental disorders are worth the research and time investment. Canada also owes this patience to its medical practitioners who will be providing medical assistance in dying, as they will be liable under the Criminal Code of Canada, and to their own conscience. The orchestration of © 2023 LSLR Publishing 27 University of Leicester Student Law Review Abdo Table of Authorities Bergamin J and others, “Defining Autonomy in Psychiatry” (31 May 2022) Frontiers in Psychiatry Cases https://www.ncbi.nlm.nih.gov/pmc/articles/PMC91975853 Carter v Canada (Attorney General) (2015) SCC 5 Canada Dof Justice, “Statement by Ministers Lametti, Christian Medical and Dental Society of Canada v College Duclos and Bennett on Medical Assistance in Dying in of Physicians and Surgeons of Ontario (2019) ONCA 393 Canada” (15 December 2022) Canada.ca https://www.canada.ca/en/department-justice/news/2022/12/s Rodriguez v British Columbia (Attorney General) (1993) 3 tatement-by-ministers-lametti-duclos-and-bennett-on-medica SCR 519 l-assistance-in-dying-in-canada.html Truchon c. Procureur general du Canada (2019) QCCS 3792 “Committee Report No. 1 - Amad (44-1) - Parliament of Canada” (Committee Report No. 1 - AMAD (44-1) - Statutes Parliament of Canada) The Canadian Charter of Rights and Freedoms, Part 1 of the https://www.parl.ca/DocumentViewer/en/44-1/AMAD/report Constitution Act, 1982 -1/page-48#10 Bibliography Dellplain M and others, “The Right to Die: Should Maid Apply to Those Whose Sole Condition Is Mental Illness?” Journal Articles (15 May 2022) Healthy Debate https://healthydebate.ca/2022/05/topic/maid-mental-illness/ Rousseau S and others, “A National Survey of Canadian Psychiatrists' Attitudes toward Medical Assistance in Death” “Evidence - AMAD (44-1) - No. 9 - Parliament of Canada” Canadian journal of psychiatry/Revue canadienne de (26 May 2022) psychiatrie 62(11) (2017): 787-794 https://parl.ca/DocumentViewer/en/44-1/AMAD/meeting-9/e vidence&gt Singhal A and others, “Risk of Self-Harm and Suicide in People with Specific Psychiatric and Physical Disorders: “Medical Assistance in Dying (Maid) and Mental Illness – Comparisons between Disorders Using English National Faqs” (CAMH) Record Linkage” Journal of the Royal Society of Medicine <https://www.camh.ca/en/camh-news-and-stories/maid-and- 107(5) (2014): 194-204 mental-illness-faqs&gt> Webster P., “Worries Grow about Medically Assisted Dying Stergiopoulos V, Rajji T and Simpson A, “Mental Health and in Canada” The Lancet 400 (10 September 2022): 801-2 Criminal Justice Policy Framework - CAMH” (6 May 2022) Wertenbroch K and others, “Autonomy in Consumer Choice” <https://www.camh.ca/-/media/files/pdfs---public-policysub Nature Public Health Emergency Collection 31(4) (2020): missions/mh_criminal_justice_policy_framework-pdf.pdf&g 429-439 t> Internet Sources “Suicide” (National Institute of Mental Health) <https://www.nimh.nih.gov/health/statistics/suicide> © 2023 LSLR Publishing 28 University of Leicester Student Law Review Abdo van Veen S and others, “Physician Assisted Death for Psychiatric Suffering: Experiences in the Netherlands” (20 June 2022) Frontiers in Psychiatry <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9251055/> Videos Medical Assistance in Dying (MAiD) and Mental Health (Full) (Directed by CAMHTV YouTube 2017) <https://www.youtube.com/watch?v=rsNQomwa8WE&gt> 18:40-18:59 © 2023 LSLR Publishing 29 University of Leicester Student Law Review Issue 12 (2023) The Lack of Diversity in the Judiciary, and its Impact Aminah Chowdhury Department of Law, University of Leicester Leicester, United Kingdom Question for reference: ‘The ambition and talent required for a career leading to appointment as a judge is randomly distributed throughout the population. It is not the preserve of any one gender or ethnic group. It follows that selection on merit alone can be expected eventually to produce a diverse judiciary. But it will happen only over a considerable period of time. In the short term accelerated progress towards a diverse judiciary is not going to be achieved under a system of appointment on merit alone.’ Lord Sumption, ‘Home Truths About Judicial Diversity’ Bar Council Law Reform Lecture, 15 November 2012, p.9 Critically discuss the continuing validity of Lord Sumption’s comments. a continuing validity to Lord 2012 Judicial Diversity Statistics1 showed that only 22.6% of Sumption’s comments regarding the infrastructure of the women make up the judiciary, excluding tribunals, and only Judiciary and its diversity, as it fails to consider how key 4.2% of BAME representation (Black, Asian and Minority demographics have been omitted through discrimination and Ethnic), make up the judiciary. This means only 807 women a lack of accessibility. Lord Sumption does not appear to were part of the judiciary against 2,768 men, and for BAME, consider bias against religion, race, sexuality, class and trans they were represented by a microscopic group of 150 people identities as potential setbacks for judicial diversity. His against a 2,768-white majority. This suggests, even at the comments avoid the conversation of intersectionality, how time of Lord Sumption’s comments, his assertion that judges individuals may not just be discriminated against in one way, are appointed ‘on merit alone’ was pragmatic but unrealistic but in multiple ways for having dual or multiple given the farce of meritocracy and very apparent bias. This is identities. And even so, under the guise that only gender and further evident with the consideration of current statistics, ethnicity remain the only demographics underrepresented; which suggests only 34% of judges are made up of women. there still exists an alarming gap. This has shown to have risen by only 12% over 9 years, Data analysis in conjunction to Lord Sumption’s despite women making up 39% of barristers, 52% of There lacks comments To consider Lord Sumption’s comments in full, we 1 Courts and Tribunals Judiciary, ‘Judicial Diversity and must look at the data available to compare the level of Inclusion Strategy 2020 – 2025’ (2020) diversity within the judiciary in 2012 compared to now, or in <https://www.judiciary.uk/announcements/judicial-diversity- this case, government reports most recently available. The and-inclusion-strategy-2020-2025-launched/.> accessed 30 March 2022 © 2023 LSLR Publishing 30 University of Leicester Student Law Review Chowdhury solicitors, and 76% of Chartered Legal Executives, but are prejudice prevails in the appointment of judges. If many only represented by one-fifth of the judiciary. However, women and BAME are of a low socio-economic status, it is judicial appointment for BAME is considerably worse, only precedented that the potential talent lost results in a smaller having risen by 5% of the same 9-year course, despite pool of eligible applicants. Additionally, the struggle from BAME constituting at least 15% of barristers, 18% of current applicants may be a result of an inability to access the solicitors, and 14% of Chartered Legal Executives. same experiences to build their expertise and rapport. This is The judiciary through the lens of sociological concepts: to say, if there is no shift in women and BAME excelling at Of all points of discrimination, it is largely lower ranks, there can be no expectation for this to occur incomprehensible to discuss ‘merit’ in terms of meritocracy further in the hierarchy, and therefore, unlikely to be an without the acknowledgement of class barriers. The judiciary increase in a diverse range of eligible applicants for the cannot be diverse if professional degrees and experience are judiciary. restricted by socio-economic barriers. This is to suggest that, This because a considerable portion of BAME whilst all children who grow up in Britain may share lawyers will come from low socio-economic backgrounds, similarities in upbringing, it is their unique background and mainly having been born to immigrants or emigrating characteristics that will define their socialisation2 and future themselves, typically from a former colony; and will potential. If a child is brought up in working-class therefore lack the same established background and conditions, their cultural capital3 is significantly smaller and education that white upper-class children have, who will thus will receive less financial support for an education that eventually become judges. However, women from low would start their career. This is further exacerbated when socio-economic statuses do not inherently breed a generation potential working-class lawyers lack the social network, of working-class women, which suggests a cultural relevance usually afforded to middle-class and upper-class children in misogyny and the glass ceiling6 as a dual edge to classism. from the social capital of their parents, to open doors for Women who lack the financial resources and the social pupillages or training required to become a lawyer and later, capital can only be further deterred by a patriarchy that a recommendation for appointment. punishes women for striving to excel in their careers against The topic of class struggle is particularly important their presumed maternalistic disposition, and thus creates a because we must now consider why women and BAME are hostile workplace. Though it can be argued that women are amongst the lowest earners45, and how this same principle of 2 well represented, comprising 43% of applications and 44% Mansell et al ‘Chapter 2, ‘Law, order and reality’, in A Critical Introduction to Law (4th ed, 2015). Pg. 24. 3 Chris Barker, ‘Cultural capital’ in The Sage Dictionary of Cultural Studies (SAGE Publications, 2004) Pg. 37 4 Government, ‘Socio-economic groups by ethnicity’ (22 https://www.ethnicity-facts-figures.service.gov.uk/uk-populat August 2018) < ion-by-ethnicity/demographics/socioeconomic-status/latest#e https://www.ethnicity-facts-figures.service.gov.uk/uk-populat thnic-groups-by-socio-economic-status ion-by-ethnicity/demographics/socioeconomic-status/latest#e thnic-groups-by-socio-economic-status 6 5 phrase’’, BBC (13 December 2017) < Government, ‘Ethnic groups by socio-economic status of BBC, ‘100 Women: 'Why I invented the glass ceiling https://www.bbc.co.uk/news/world-42026266. women’ (22 August 2018) < © 2023 LSLR Publishing 31 University of Leicester Student Law Review Chowdhury of recommendations7, it is still rather dubious that they only her partner; in favour of avoiding policy making and creating make up 34% of the judiciary, this being further strained to points of contention. This case created controversy, as 8 29% for senior roles in the High Courts and above . These despite her plea for help and mention of both having been invisible barriers extend to BAME candidates where, ‘more assaulted and threatened with death, her call was than half of the judiciary are white men and a third are white downgraded from an immediate response to a one hour 9 women,’ and from the eligible pool, ‘recommendation rates response time. Despite the behaviour of the police, only one for Asian, Black and Other ethnic minorities candidate judge recognised the severity of the case, being Lady Hale groups were an estimated 36%, 73% and 44% lower who dissented: ‘It is difficult indeed to see how recognising 10 respectively compared to white candidates’ . the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, The impact of a non-diverse judiciary on the law: however, lead to some much-needed improvements in their response to threats of serious domestic abuse.’ It should come as no surprise when British society often defers violence and discrimination in the forms of Conclusion: misogyny, xenophobia and racism as a notion of the past. However there are cases1112 that show the maltreatment of To conclude, the lack of a diverse judiciary, victims and reinforce these ideologies as normal to their regardless of whether there will be a diverse judiciary, ‘over white male counterparts. Additionally, they teach women and a considerable period of time’, does not matter when the BAME collectively, that their efforts, their worth and current judiciary’s judgments and sentences have shown their existence alone are not measurable to a white man. One of deficiencies the cases that solidified this, in terms of the judgement made, considerably. However, the UK has started to acknowledge was the case of Michael13. According to the judgement, the these deficiencies, as per the Judicial Diversity and Inclusion police, who failed to respond to two phone calls from a Strategy 2020 – 202514 which sets to: create a more inclusive victim of domestic abuse in time, did not owe her a duty of and respectful culture and working environment within the care under omission, even after the victim had been killed by judiciary, ensuring greater responsibility in making and and have impacted the law reporting progress for diversity and inclusion and achieving 7 Ministry of Justice, ‘Diversity of the judiciary: Legal greater diversity in the pool of applicants for judicial roles. professions, new appointments and current post-holders – This suggests, despite Lord Sumption’s expertise, the validity 2021 Statistics’ Gov.uk (15 July 2021) < of his claims are no longer culturally relevant; Lord Chief https://www.gov.uk/government/statistics/diversity-of-the-ju Justice, with the support of the Crown, believes that judicial diciary-2021-statistics/diversity-of-the-judiciary-2021-statisti diversity cannot be achieved without action and recognises cs-report. that changes are needed to ensure that, “talented individuals, 8 Ibid, 1.1 Gender. whatever their personal or professional background, can 9 Ibid, 1.2 Ethnicity. thrive.”15 This recognises what was ‘formerly perceived as 10 Ibid. 14 11 R v Dobson and Norris [2012] 1 WLUK 5 12 Inclusion Strategy 2020 – 2025’ (5 November 2020) < R (on the application of Begum) v Secretary of State for https://www.judiciary.uk/announcements/judicial-diversity-a the Home Department [2020] UKSC 157; 13 Courts and Tribunals Judiciary, ‘Judicial Diversity and nd-inclusion-strategy-2020-2025-launched/. Michael v Chief Constable of South Wales [2015] UKSC 2 15 Ibid. © 2023 LSLR Publishing 32 University of Leicester Student Law Review Chowdhury #ethnic-groups-by-socio-economic-status > accessed 28 isolated and individual has also characterised the identity 16 politics’ March 2022 in which people are further systemically and socially divided, seeps into the judiciary and even its Government, ‘Socio-economic groups by ethnicity’ (2018) appointment, despite there being a Judicial Appointments <https://www.ethnicity-facts-figures.service.gov.uk/uk-popul Commission. But these characteristics have also built ation-by-ethnicity/demographics/socioeconomic-status/latest communities and should be no further excluded, especially #ethnic-groups-by-socio-economic-status > accessed 28 when different backgrounds and experiences can improve the March 2022 quality of justice found today. Table of Authorities Ministry of Justice, ‘Diversity of the judiciary: Legal Cases professions, new appointments and current post-holders – 2021 Statistics’ ( 2021) Michael v Chief Constable of South Wales [2015] UKSC 2 <https://www.gov.uk/government/statistics/diversity-of-the-j R v Dobson and Norris [2012] 1 WLUK 5 udiciary-2021-statistics/diversity-of-the-judiciary-2021-statis tics-report. > accessed 26 March 2022 > R (on the application of Begum) v Secretary of State for the Home Department [2020] UKSC 157; Books Bibliography Barker C, ‘Cultural capital’ in The Sage Dictionary of Cultural Studies ( 2nd edn SAGE, 2004) Official Publications Mansell, M, et al, 'A Critical Introduction to Law' (4th edn, Courts and Tribunals Judiciary, ‘Judicial Diversity and Routledge, 2015). Inclusion Strategy 2020 – 2025’ (2020) < https://www.judiciary.uk/announcements/judicial-diversity-a Journal Articles nd-inclusion-strategy-2020-2025-launched/.> accessed 30 Crenshaw K, ‘Mapping the Margins: Intersectionality, March 2022 Identity Politics, and Violence against Women of Color’ Courts and Tribunals Judiciary, ‘2012 Judicial statistics – (1991) SLR 43 Gender, Ethnicity, Profession and Age’ Judiciary.uk (2012) Internet sources <https://www.judiciary.uk/publications/diversity-statistics-an d-general-overview-2012/ > accessed 22 March 2022 BBC, ‘100 Women: 'Why I invented the glass ceiling Government, ‘Ethnic groups by socio-economic status of phrase’’, (2017) < women’ (2018) https://www.bbc.co.uk/news/world-42026266. > accessed 30 <https://www.ethnicity-facts-figures.service.gov.uk/uk-popul March 2022 ation-by-ethnicity/demographics/socioeconomic-status/latest 16 Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’, (1991) SLR 43. © 2023 LSLR Publishing 33 University of Leicester Student Law Review Issue 12 (2023) The Failings of the Criminal Justice System and Proposed Solutions Marta Baluczynska Department of Law, University of Leicester Leicester, United Kingdom While the definition of justice is the ‘upholding of Race and its Manifestations: Police Stop and Search 1 rights, and the punishment of wrongs, by the law’ , the Prejudice is manifested by the police due to a criminal justice system may be said to be quite far from it. stereotyped link between crime and race which can be seen Where the punishment of wrongs is not proportional to the in comparing the number of stop and searches concluded on act in question and where the rights of individuals are white and Black people.2 Section 1 of the Police and quashed by the criminal prosecution system, how can there Criminal Evidence Act 1984 allows police to ‘stop and be justice? search’ a person only on ‘reasonable grounds’ as to keep the This paper will discuss the failings of the criminal general population safe; reasonable grounds include justice system and will propose ways in which it could suspicion of carrying weapons, stolen property, illegal drugs become more just. First, it will consider the role that racial and if there is suspicion that serious violence could take stereotyping plays on crime related statistics, and how a place and/or you’re in a specific location. Lord Scarman’s police force which is better representative of the population statement in 1981 that Met Police policies are not ‘racist’ but would create a justice system which effectively treats all ‘racial prejudice… occasionally’ presenting itself supports individuals equal. Second, it will consider how prison continuity of these harmful attitudes. The continuity is seen populations are affected by party politics, and its consequent clearly in the 21st century for example in the need for the failings in the prioritisation of sentencing aims; no positive George Floyd protests in May 2020.3 A study concluded in impact can be reached unless focus is placed on deterrence in June 2020 indicated that 41% of police officers admitted they the form of rehabilitation and release day as shown in are more likely to believe stereotypes to be true such as the Norway. It will then look into the success of rehabilitation in the form of education to make prisons more just by providing 2 opportunities for personal growth, which would ultimately Vikram Dodd, ‘Black People Nine Times More Likely to Face Stop and Search than White People’ (The Guardian, 27 amount to a reduction in recidivism. October 2020) This paper will then conclude by proposing solutions to the <https://www.theguardian.com/uk-news/2020/oct/27/black-p aforementioned failings. eople-nine-times-more-likely-to-face-stop-and-search-than-w hite-people> accessed 14 December 2022. 1 Percy George, in Mick Woodley (ed) Osborn’s Concise Law 3 th Dictionary (12 edn, Sweet & Maxwell 2013). Leslie Scarman, ‘The Scarman Report’ (UK Government 1981) vol 425. © 2023 LSLR Publishing 34 University of Leicester Student Law Review Baluczynska link between racial minorities and crime.4 These systemic treat all individuals equal before the law due to the assumed issues have been noted over the decades, as seen in the 1999 link with crime. Police Journal which confirms that ‘predominantly white Broader Social Factors and Prejudice [police staff]’ will develop ‘negative racial stereotypes’ due to having negative experiences with minority groups.5 Thus, The targeting of racial minorities in the UK leads to it may be effective to call for a police force representative of their over-representation in prison thus supporting the link the UK's general population so that what is argued will be between crime and prejudice. Another way to look at this is regarded in light of whether non-white police officers hold in the light of broader social factors. A look into employment the same opinions. between April 2020 and March 2021 shows that white staff are more likely to receive a paid bonus with the figure being Between April 2019 and March 2020 there were 6 46.3% while only 35.1% of Black, Asian and Minority stop and searches for every 1,000 white people and 54 for Ethnic (BAME) staff achieved the same bonus8. The every 1,000 Black people. 6 These numbers indicate that the McGregor-Smith Review of 2017 concludes that there is a stereotyped link between Black people and crime plays a gap of 12.8% in the employment rate between BAME significant role in contemporary police stop and searches. workers and white workers9. On these facts it can be drawn This is due to the number of stop and searches made for Black that there are social inequalities between the white workers people being disproportionate to their white and BAME workers. These figures call for greater counterparts. Between April 2018 and March 2019 there representation of BAME staff and fairer playing fields. were 32 arrests for every 1,000 Black people while only 10 Having a police force more representative of the general arrests were made for every 1,000 white people showing that population will enable inequalities to be looked at in the light Black people are 3 times more likely to be arrested.7 This of social factors that impact upon racial disproportion in shows how the criminal justice system is unjust by failing to 4 statistics. Proposed Solution: BAME representation in the Police Beth Mann, ‘ More Britons Now Unconfident than Force Confident in the Police to Deal with Crime Locally’ (YouGov, 6 October 2021) The Ministry of Justice’s aim in tackling prejudice <https://yougov.co.uk/topics/politics/articles-reports/2021/10 is to have a more diverse police force to better represent /06/more-britons-now-unconfident-confident-police-deal> communities10. By 2020, BAME officers represented 7% of accessed 24 April 2022. police service in England and Wales while the total BAME 5 Robin Oakley, ‘Institutional Racism and the Police Service’ (1999) 72(4) The Police Journal 285-295, 286 8 <https://journals.sagepub.com/doi/abs/10.1177/0032258X99 ‘Ethnicity Pay Gap Report: April 2020 to March 2021’ 07200402> (MHRA 2021). 6 9 Home Office, ‘Stop and Search’ (UK Government, 22 Medicines & Healthcare Products Regulatory Agency, The Chartered Institute of Personnel and Development, February ‘Race Inclusion in the Workplace’ (CIPD) 2021)<https://www.ethnicity-facts-figures.service.gov.uk/cri <https://www.cipd.co.uk/news-views/viewpoint/race-inclusio me-justice-and-the-law/policing/stop-and-search/latest> n-workplace#gref> accessed 12 November 2022. accessed 24 April 2022. 10 7 System: Strategy and Action Plan’ (MOJ 2014) 7. Ibid. Ministry of Justice, ‘Transforming the Criminal Justice © 2023 LSLR Publishing 35 University of Leicester Student Law Review Baluczynska population is 14%.11 In October 2021, there has been an 8% 15 drop in ethnic minority Britons trusting the police, indicating major institutions such as UCL, with its main objective being that the current BAME police force underrepresents the to promote equality across all aspects of the institution. 16 The Race Equality Steering Group has been established in general BAME population. This is a failing of the criminal Commitment to these propositions would mean that justice system to be representative of all individuals and thus the confidence gap that exists concerning the trust of such treat them equal.12 workforce by the BAME community would be effectively Although the Metropolitan Police Service aims for reduced. In workforce diversity being increased and 40% of its new recruits to represent racial minorities, if this examined, a true trust in police may develop due to justified continues at the current rate, it is predicted it will take 90 assumptions being made without prejudice in order to protect years for the police service to be representative of the 2050 the population which would effectively lead to more equal BAME population. 13 To combat this, it is proposed that the treatment of individuals and lower the over-representation of government should agree targets for BAME worker racial minorities in prisons. recruitment in each constabulary to reflect local population Overpopulation in Prisons composition14. Along with this, it is proposed for the Home Secretary to establish a Race Equality Steering Group that Prison population is constantly increasing with no would effectively oversee the recruitment of BAME officers. significant effects on lowering recidivism, which is a significant failing of the criminal justice system. The UK 11 prison population has increased from 44,000 in 1993 to over Home Affairs Committee, ‘Urgent Action Needed to 80,000 today. Tackle Deep Rooted and Persistent Racial Disparities in This is likely the result of political party policies, such as former Prime Minister Boris Johnson’s Policing’ (committees.parliament.uk, 30 July 2021) promise of longer sentences and more funding to increase <https://committees.parliament.uk/work/347/the-macpherson prison space. The policy is supported by the general public, -report-twentytwo-years-on/news/157006/urgent-action-need as 65% believe that courts are not harsh enough on ed-to-tackle-deep-rooted-and-persistent-racial-disparities-in- offenders.18 The policy and its effects can be seen in the policing> accessed 12 November 2022. 12 17 average sentence for more serious offences being 57.7 Tanya Abraham, ‘Trust in the Police had Fallen Amongst months, which is over 2 years longer than in 2007.19 In 2019, Ethnic Minority Britons’ (YouGov, 15 December 2021) 56,000 people were sent to prison in England and Wales, of <https://yougov.co.uk/topics/politics/articles-reports/2021/12 which 67% committed non-violent offences and 46% served /15/trust-police-has-fallen-amongst-ethnic-minority-br> accessed 24 April 2022. 13 15 Home Affairs Committee (n11). Service is to look like the Society it Serves’ (The Police 16 UCL Human Resources, ‘Race Equality Steering Group’ Foundation) (London, 19 February 2021) < (UCL) https://www.police-foundation.org.uk/2021/02/radical-reform <https://www.ucl.ac.uk/human-resources/race-equality-steeri -is-required-if-the-police-service-is-to-look-like-the-society-i ng-group> accessed 12 November 2022. t-serves/#:~:text=As%20of%20December%202020%2C%20 17 7.5,projected%20at%2017.2%20per%20cent.> accessed 24 on Trial (Bloomsbury Publishing Plc 2020) 18. April 2022. 18 Ibid. 14 19 Ibid 19. Stephen Walcott, ‘Radical Reform is Required if the Police Home Affairs Committee (n11). Chris Daw ‘Why We Should Close All Prisons’ in, Justice © 2023 LSLR Publishing 36 University of Leicester Student Law Review Baluczynska half a year or less. 20 This makes evident of a society focused the one in Norway suggesting that a focus on punishment and on locking up citizens without prospects for a positive deterrence is not enough to lower reoffending as prisoners outcome, as the recidivism rate is at 57.5% for offenders continue to be released in the same position as the one in released from custodial sentences of less than 12 months and which they were sentenced without any positive growth. 59.3% of those released from sentences of less than or equal Upon release, many prisoners may notice lack of protection to 6 months respectively. 21 Therefore, incarceration for in the community such as employment, relationships and non-violent offences often leads to increased recidivism and housing.25 By shifting the main focus onto the release day, therefore a negative reintegration into society.22 These figures the sentence proves to be an opportunity for prisoners to showcase a justice system which fails at its aim to deter and reform with the goal of successfully reintegrating into ultimately reduce crime. society. This is to be achieved by successful rehabilitation in prison which would ultimately lower the chance of Although the Prison Rules 1999 and Sentencing Act reoffending and give ex-inmates a better start upon release. 2020 make it a legal obligation to promote rehabilitation in This would make the criminal justice system more just in order to achieve aims of crime reduction and deterrence, it is terms of creating a visible and positive outcome however clear that the main focus is on punishment, even though the there need be an improvement to rehabilitation with focus on high recidivism rate suggests that punishment on its own education as to achieve this. does not positively affect deterrence. This focus on punishment leads to a justified estimate by the government Further Proposed Solution: Desistance through Skills that in the next four years, the prison population will rise by Development and Prison Education 23 more than 20,000 from the current level. Desistance is the process of ending a period of offending behaviour. 26 Desistance can be achieved within the Proposed Solution: Prison Reform prison27 by involving a third party influence in the form of Comparatively, Norway’s prison model places focus tertiary desistance (sense of belonging and recognition by on the release day rather than deterrence and the others that one has changed28) as well as prison education, incarceration period. It is proven to be successful due to the recidivism rate being barely 20% of the incarceration rate.24 25 The recidivism rate in the UK is over 2.5 times higher than Dr Melissa Hamilton, Dr. Jay Gormley, Dr. Ian Belton, ‘The Effectiveness of Sentencing Options’ (Sentencing 20 Ibid 18. Academy 2021) 21 Ministry of Justice, ‘Proven Reoffending Statistics: <https://www.sentencingcouncil.org.uk/wp-content/uploads/ January to March 2020’ (GOV.UK, 27 January 2022) Effectiveness-of-Sentencing-Options-Review-FINAL.pdf> <https://www.gov.uk/government/statistics/proven-reoffendi accessed January 7th 2022. ng-statistics-january-to-march-2020/proven-reoffending-stati 26 stics-january-to-march-2020#:~:text=The%20overall%20pro Desistance from Crime: Emerging Theoretical Directions in ven%20reoffending%20rate,the%20impact%20of%20the%2 Resettlement and Rehabilitation (OUP 2006) 1. 0pandemic> accessed 24 April 2022. 27 22 Daw (n17) 30. Reoffending: Discovering Desistance (IRISS 2012) 6. 23 Prison Reform Trust, ‘Prison: the Facts, Bromley Briefings 28 Stephen Farrall and Adam Calverley, Understanding Fergus McNeill and others, How and Why People Stop HM Inspectorate of Probation, ‘Desistance- General Summer 2022’ (PRT 2022) 6. Practice Principles’ (GOV.UK, 18 December 2020) 24 <https://www.justiceinspectorates.gov.uk/hmiprobation/resea Daw (n17) 31. © 2023 LSLR Publishing 37 University of Leicester Student Law Review allowing prisoners delinquent peers. providing 29 to disassociate Baluczynska themselves from positively impacts recidivism, it is not going far enough to effect a major positive change.35 The process amounts to rehabilitation by prisoners with opportunities for a better Prison Rules 1999 Section 32(1) states that ‘every prisoner’ participation in society and a life disassociated from crime. 30 is to be ‘able to profit from education facilities at prison’ and ‘shall be encouraged to do so’. Despite this, in 2020 only Dame Sally Coates’ Review of Prison Education in 2016 found that positive learning spaces promote 42% of prisons obtained a positive rating for including or rehabilitation. The review contained recommendations to, making a reasonable attempt at purposeful activity, which amongst other goals, raise prisoners’ aspirations, encourage shows that neither legal obligations nor reviews have any educational journey and enable employment opportunities significant impact.36 Three-fifths of adult prisoners continue upon release. 31 These goals are imperative, as 42% of adult to leave prison without identified employment or education prisoners have reported being permanently excluded from outcome showing that the system is failing to focus on school, which leaves them with limited opportunities for rehabilitation as to achieve its goal of deterrence.37 The lack success.32 Prison education can ‘break the cycle of of opportunities for prisoners became highlighted even more reoffending’ by ‘providing qualifications and skills’,33 which in the light of Covid-19 and budget cuts. By April 2021, is supported by recidivism reduction of between 2 and 8% national lockdowns meant that prisoners on average were when enrolled onto an Open University course by the use of isolated in their cells for 22.5 hours per day as to reduce risk Prisoners Education Trust grant.34 Even though research of infection38. The time spent in their cells meant that no supports that prison education is linked with desistance and rehabilitative opportunities could take place. The Departmental Expenditure Limits budget for prison resources fell by 13% between 2010-11 and 2018-1939 which supports the fact that many prisons lack adequate learning spaces to provide prisoners with skills. In prioritising education, more rch/the-evidence-base-probation/models-and-principles/desis 35 tance/> accessed 12 November 2022. 29 McNeill and others (n27). 30 Nina Champion and James Nobel, What is Prison Education: Reducing Risk and Recidivism’ [2016] Journal of the International Corrections and Prisons Association 1. 36 Education for? A Theory of Change Exploring the Value of Dame Sally Coates, Unlocking Potential: A Review of Education in Prison (Ministry of Justice 2016) 4. 32 Ibid iii. 33 Anne Pike and Anne Adams, ‘Digital Exclusion or 37 Coates (n31) iii. 38 Dr Chantal Edge and others, ‘Covid-19 and the Prison Population’ (The Health Foundation Working Paper, November 2021) < accessed January 7th 2022 https://www.health.org.uk/publications/covid-19-and-the-pris Learning Exclusion? An ethnographic study of adult male on-population > accessed 12 November 2022 3. distance learners in English Prisons’ (2012) 20(4) Research 39 in Learning Technology 363. 34 HM Chief Inspector of Prisons for England and Wales, Annual Report 2019-20 (HMIP 2020) 19. Learning in Prison (NPC 2016) 2. 31 Helen Farley and Anne Pike, ‘Engaging Prisoners in Labour Shadow Treasury Team, ‘The State of Justice in the United Kingdom in 2020’ (Labour, March 2020) 2. Justice Data Lab, Re-Offending Analysis: Prisoners Education Trust Open University Grants (Ministry of Justice 2013) 1. © 2023 LSLR Publishing 38 University of Leicester Student Law Review Baluczynska prisoners will be able to leave prison with developed skills 7.5,projected%20at%2017.2%20per%20cent.> accessed 24 and knowledge essential for further positive opportunities April 2022 such as employment which will be an effective deterrent Books from their continued engagement in criminal activity. Daw C, Justice on Trial (Bloomsbury Publishing Plc 2020) Conclusion Daw C, ‘Why We Should Close All Prisons,’ in, Justice on In conclusion, this paper provided an insight into the failings of the criminal justice system in the Trial (Bloomsbury Publishing Plc 2020) UK; under-representation of BAME population in the police force Farrall S and Calverley A, Understanding Desistance from as well as overpopulation in prisons which leads to no Crime: Emerging Theoretical Directions in Resettlement and positive outcomes. The proposed solutions, which included Rehabilitation (OUP 2006) creating a better representative police force so as to lower Fryer P, Staying Power: The History of Black People in prejudice being manifested and prison reform with close Britain (Pluto Press 2018) regard to sentencing guidelines and a push for effective prison education and rehabilitation, aim to make the criminal Percy O, in Mick Woodley (ed) Osborn’s Concise Law justice system more just. While it is unlikely that a police Dictionary (12th edn, Sweet & Maxwell 2013) force wholly representative of the general population will Journals emerge any time soon and that sentencing will be strictly looked at in the light of deterrence and rehabilitation through Farley H and Pike A, ‘Engaging Prisoners in Education: the lens of education, it is essential to make a start and call Reducing Risk and Recidivism’ [2016] Journal of the for changes to be made in order to rightfully call the system International Corrections and Prisons Association one of justice. Oakley R, ‘Institutional Racism and the Police Service’ Table of Authorities (1999) 72(4) The Police Journal 285-295 Legislation Pike A and Adams A, ‘Digital Exclusion or Learning Exclusion? An ethnographic study of adult male distance Police and Criminal Evidence Act 1985 learners in English Prisons’ (2012) 20(4) Research in Prison Rules 1999 Learning Technology Sentencing Act 2020 Reports Bibliography Champion N and Nobel J, ‘What is Prison Education for? A Theory of Change Exploring the Value of Learning in Prison’ Articles (NPC 2016) Walcott S, ‘Radical Reform is Required if the Police Service Dame Coates S, ‘Unlocking Potential: A Review of is to look like the Society it Serves’ The Police Foundation Education in Prison’ (MOJ 2016) (London, 19 February 2021) < https://www.police-foundation.org.uk/2021/02/radical-reform HM Chief Inspector of Prisons for England and Wales, -is-required-if-the-police-service-is-to-look-like-the-society-i ‘Annual Report 2019-20’ (HMIP 2020) t-serves/#:~:text=As%20of%20December%202020%2C%20 © 2023 LSLR Publishing 39 University of Leicester Student Law Review Baluczynska Justice Data Lab, ‘Re-Offending Analysis: Prisoners Ministry of Justice, ‘Proven Reoffending Statistics: January Education Trust Open University Grants’ (MOJ 2013) to March 2020’ (GOV.UK, 27 January 2022) <https://www.gov.uk/government/statistics/proven-reoffendi McNeill F and others, ‘How and Why People Stop ng-statistics-january-to-march-2020/proven-reoffending-stati Reoffending: Discovering Desistance’ (IRISS 2012) stics-january-to-march-2020#:~:text=The%20overall%20pro Ministry of Justice, ‘Transforming the Criminal Justice ven%20reoffending%20rate,the%20impact%20of%20the%2 System: Strategy and Action Plan’ (MOJ 2014) 0pandemic> accessed 24 April 2022 Scarman L, ‘The Scarman Report’ (UK Government 1981) Ministry of Justice, ‘Reoffending Ethnicity Facts and vol 425 Figures’ (GOV.UK, 19 April 2021) <https://www.ethnicity-facts-figures.service.gov.uk/crime-jus Prison Reform Trust, ‘Prison: the Facts, Bromley Briefings tice-and-the-law/crime-and-reoffending/proven-reoffending/l Summer 2022’ (PRT 2022) atest> accessed 24 April 2022 Dr Hamilton M and others, ‘The Effectiveness of Sentencing HM Inspectorate of Probation, ‘Desistance- General Practice Options’ (Sentencing Academy 2021) Principles’ (GOV.UK, 18 December 2020) < Labour Shadow Treasury Team, ‘The State of Justice in the https://www.justiceinspectorates.gov.uk/hmiprobation/researc United Kingdom in 2020’ (Labour 2020) h/the-evidence-base-probation/models-and-principles/desista nce/> accessed 12 November 2022 Medicines & Healthcare Products Regulatory Agency, ‘Ethnicity Pay Gap Report: April 2020 to March 2021’ The Chartered Institute of Personnel and Development, (MHRA 2021) ‘Race Inclusion in the Workplace’ (CIPD) <https://www.cipd.co.uk/news-views/viewpoint/race-inclusio Websites n-workplace#gref> accessed 12 November 2022 Abraham T, ‘Trust in the Police had Fallen Amongst Ethnic Home Affairs Committee, ‘Urgent Action Needed to Tackle Minority Britons’ (YouGov, 15 December 2021) Deep Rooted and Persistent Racial Disparities in Policing’ <https://yougov.co.uk/topics/politics/articles-reports/2021/12 (UK Parliament, 30 July 2021) /15/trust-police-has-fallen-amongst-ethnic-minority-br> https://committees.parliament.uk/work/347/the-macpherson-r accessed 24 April 2022 eport-twentytwo-years-on/news/157006/urgent-action-neede Home Office, ‘Stop and Search Ethnicity Facts and Figures’ d-to-tackle-deep-rooted-and-persistent-racial-disparities-in-p (GOV.UK, 22 February 2021) olicing> accessed 12 November 2022 <https://www.ethnicity-facts-figures.service.gov.uk/crime-jus UCL Human Resources, ‘Race Equality Steering Group’ tice-and-the-law/policing/stop-and-search/5.0> accessed 24 (UCL) April 2022 <https://www.ucl.ac.uk/human-resources/race-equality-steeri Mann B, ‘ More Britons Now Unconfident than Confident in ng-group> accessed 12 November 2022 the Police to Deal with Crime Locally’ (YouGov, 6 October Dodd V, ‘Black People Nine Times More Likely to Face Stop 2021) and Search than White People’ (The Guardian, 27 October <https://yougov.co.uk/topics/politics/articles-reports/2021/10 2020) < /06/more-britons-now-unconfident-confident-police-deal> https://www.theguardian.com/uk-news/2020/oct/27/black-pe accessed 24 April 2022 © 2023 LSLR Publishing 40 University of Leicester Student Law Review Baluczynska ople-nine-times-more-likely-to-face-stop-and-search-than-wh ite-people> accessed 14 December 2022 Working Papers Dr Edge C and others, ‘Covid-19 and the Prison Population’ (The Health Foundation Working Paper, November 2021) < https://www.health.org.uk/publications/covid-19-and-the-pris on-population > accessed 12 November 2022 © 2023 LSLR Publishing 41 University of Leicester Student Law Review Issue 12 (2023) An Analysis of the European Parliament Voter Turnout Marta Baluczynska Department of Law, University of Leicester Leicester, United Kingdom Within the European Union (EU), a democratic This paper will consider whether the EU is too deficit refers to the perceived lack of accessibility and remote from its citizens by engaging with the lens of general 1 representation of its over 400 million citizens. It could also engagement in elections, both national and Union-level, the be argued that the effect that citizens have on their extent to which citizens feel they are represented, along with parliamentary democracy is not the same as the effect they factors influencing voter turnout. Examples will be drawn 2 have on EU institutions. from Member States closest to, and furthest away from the EU (European Parliament in Strasbourg, France and official The European Parliament is a core democratic headquarters in Brussels, Belgium). Furthermore, this paper institution of the EU aiming to provide democratic will discuss propositions for change and concludes with a legitimacy to EU decision-making due to being its only brief discussion of its findings. directly elected body.3 The elections are therefore a means for citizens to provide input every five years and have their Distance, Engagement and Satisfaction 4 interests represented at a Union level. Voter turnout in European Parliament elections is at an all-time high with 50.66% in 2019; it is over 5% higher than in 2004 and over 8% higher than in 2014. Despite the 1 evident increased interest, half of the potential voters don’t Eur-Lex, ‘Democratic Deficit’ (eur-lex.europa.eu) <https://eur-lex.europa.eu/EN/legal-content/glossary/democr provide input.5 The elections have long been described as atic-deficit.html> accessed 2 January 2023. ‘second order’ elections whereby they are viewed as less 2 important than national ‘first order’ elections.6 Elspeth Berry and others, ‘The Official Institutions of the European Union’ in Complete EU Law: Text, Cases, and 5 Materials (OUP 2022) 30. 3 European Parliament, ‘European Results’ (europarl.europa.eu, 22 October 2019) Madeline O Hosli and others, ‘Turnout in European <https://www.europarl.europa.eu/election-results-2019/en/tur Parliament Elections 1979-2019’ [2022] European Politics nout/> accessed 2 January 2023. and Society <https://www.tandfonline.com/doi/full/10.1080/23745118.20 6 22.2137918> accessed 2 January 2023. ‘Participation In European Parliament Elections: Is It All 4 Francois Briatte, Camille Kelbel and Julien Navarro, About Timing?’ (Reconnect, 21 May 2021) ibid. <https://reconnect-europe.eu/blog/participation-in-european© 2023 LSLR Publishing 42 University of Leicester Student Law Review EU institutions Baluczynska being geographically distant, can be an indicator of low interest in European matters. ultimately leads to citizens feeling as though the EU is However, States furthest away express more dissatisfaction, distant from them and their concerns. This plays a core role as compared to closer States, implying the feeling of inability in the argument to support the existence of democratic deficit to contribute which in turn might explain low turnout. in the EU.7 National election voter turnout is significantly Factors Influencing Voter Turnout higher than Union-level turnout. In Member States closest to the EU's core democratic institution, national elections’ There are several factors, other than distance, turnout is on average higher by 10-25% in France, 30% in influencing European Parliament election turnout. The most the Netherlands and 20-40% in Germany. In Member States prominent include the novelty of the experience and rise of furthest away, national elections’ turnout is on average higher Euroscepticism. by 30% in Finland, 20-30% in Estonia, 5-15% in Malta and ‘First time boost’ is where Member States taking 10-40% in Cyprus. This does not necessarily constitute the part in elections for the first time experience an increased basis to argue that remoteness impacts engagement as both turnout compared to later elections due to it being a novel types of States engage similarly in elections; viewing experience.9 The first elections of 1979 saw a first time boost national elections as more important. in all the then-integrated States; France’s turnout being Subsequently, when asked the question of whether 60.71% as compared to 2019 where it decreased by roughly the citizens consider their voice to be of importance within 10%.10 The 2019 turnout in the Netherlands was 17% lower the EU, results prove supportive of the presence of than in 1979 and Malta’s first elections following integration remoteness. Greece disagrees by 85% and both Estonia and in 2004 showed a 10% decrease in 2019 from 82.39%.11 Cyprus by 75%. Although States like Germany, France and Cyprus’ decrease is the most significant with 2019 elections the Netherlands are divided almost equally on the issue, being 28% lower than in 2004.12 Estonia is a notable results which are close to or above 45% showcase a much exception where voter turnout has increased since its smaller disagreement degree which validates the argument integration in 2004 by 11% nevertheless the dominant trend of the EU being remote from its citizens. is one of decrease.13 8 Thus, it may be argued that a democratic deficit is Euroscepticism exists in ‘soft’ and ‘hard’ contexts. present in the form of remoteness. Both types of States ‘Hard Euroscepticism’ refers to principled opposition to the attribute ‘second order’ status to Union-level elections which EU, while ‘soft Euroscepticism’ refers to the opposition to specific EU policy and national interest being at odds with parliament-elections-is-it-all-about-timing/> accessed 2 January 2023. 7 Charles Grant, ‘How to Reduce the EU’s Democratic 9 Deficit’ (cer.org.uk, 10 June 2013) O Hosli and others (n 3). 10 European Parliament (n 5). 11 ibid. 12 ibid. 13 ibid. <https://www.cer.org.uk/in-the-press/how-reduce-eus-democr atic-deficit> accessed 2 January 2023. 8 Directorate General for Communication, ‘Future of Europe Report Special Eurobarometer 394’ (European Commission 2012) 29. 43 University of Leicester Student Law Review Baluczynska the EU's trajectory.14 Even though it is generally expected for and bring the EU closer to its citizens, changes are needed. Members of the European Parliament (MEP’s) to be For this to happen, the timing of elections, mandatory supportive of the Union, there are Eurosceptic members. A elections, and increased links between the national and EU prominent example is UK’s Nigel Farage, MEP since 1999 Parliament must be established. and the prime mover behind the 2016 Referendum on EU European Parliament elections are mandatory, membership, who now heads the Brexit Party.15 Between although there are no consequences for non-engagement, in 1979 and 2009 a fifth of MEP’s were hard or soft five EU Member States including Belgium, Cyprus and Eurosceptics. However, in 2014 this increased to 29% and Greece. Belgium is the only Member State in which national now 30% showcasing a political gravity shift.16 Since 1979, elections are mandatory. Drawing on the example of Belgium left-wing to a far-left presence in the European Parliament and making voting compulsory, it is estimated that turnout decreased by 5% whereas right-wing to far-right presence would increase by 11.6%.19 On the other hand, turnout in the increased by 13% which is a factor influencing the Member States with mandatory European Parliament Voting, dissatisfaction with the Union.17 Due to MEP’s being isn’t significantly higher than in the States without (drawing organised by political affiliation rather than nationality,18 upon turnout comparison of EU and national elections); national politics are the driving mechanism behind the shift however, there are less fluctuations in sequential elections in due to EU elections in a sense being reflective of national States with mandatory voting.20 This leads to more obvious political affiliations. predictions; in the last two elections, 2014 and 2019, the Proposed Solutions difference in Greece was 1.28% and Cyprus 1.01% while Germany’s difference was 13.28% and the Netherland’s In order to increase engagement, combat the second 4.61%.21 order status of Union-level elections as well as increase trust It is also expected that by adjusting the electoral 14 Drew Desilver, ‘Euroskeptics are a Bigger Presence in the calendar, the same turnout increase of 11.6% is expected as European Parliament than in the Past’ (pewresearch.org, 22 when making elections mandatory.22 European Parliament May 2019) election timing with the national election cycle plays a role in <https://www.pewresearch.org/fact-tank/2019/05/22/euroske voter turnout.23 If the Union-level elections occur shortly ptics-are-a-bigger-presence-in-the-european-parliament-than- after the national election, the voter’s attention to the former in-past/> accessed 2 January 2023. will be lower than if it would have taken place just before.24 15 ibid. 16 ibid. 17 ibid. 18 European Parliament, ‘The Political Groups of the This is the likely result of domestic politicians placing greater emphasis on EU issues to increase their potential European Parliament’ (europarl.europa.eu) 19 Briatte, Kelbel and Navarro (n 6). 20 European Parliament (n 5). 21 ibid. 22 Briatte, Kelbel and Navarro (n 6). 23 O Hosli and others (n 3). 24 ibid. <https://www.europarl.europa.eu/about-parliament/en/organi sation-and-rules/organisation/political-groups> accessed 2 January 2023. 44 University of Leicester Student Law Review Baluczynska Bibliography electorate as well as the role of media surrounding national 25 elections. Articles National parties should establish closer links with Hosli O M and others, ‘Turnout in European Parliament the European Parliament. An ideal plan of action would be Elections 1979-2019’ [2022] European Politics and appointing leading national party figures as European Society Secretaries which would increase national party input in <https://www.tandfonline.com/doi/full/10.1080/23745118 European Parliament caucuses but also ensure national .2022.2137918> accessed 2 January 2023 elections deal with European issues.26 This could increase trust in the EU and combat second order status of elections, Blogs thus increasing voter turnout, due to clearer involvement Briatte F, Kelbel C and Navarro J, ‘Participation In between national and European Parliaments. European Parliament Elections: Is It All About Timing?’ Conclusion (Reconnect, 21 May 2021) <https://reconnect-europe.eu/blog/participation-in-europe In conclusion, this paper provides an insight into the an-parliament-elections-is-it-all-about-timing/> accessed European Parliament voter turnout; impact of distance, first 2 January 2023 time boost concept and rise of Euroscepticism. Although all Member States view Union-level elections in a dimmer light Books than national elections, remoteness is seen in cases where Berry E and others, ‘The Official Institutions of the states further away do not feel they provide adequate input. European Union’ in Complete EU Law: Text, Cases, and Due to the European Parliament being the only directly Materials (OUP 2022) elected institution, it is necessary for citizens to provide input, yet nearly half don’t seize the opportunity which can Reports be attributable to the rise in Eurocentrism when the election Directorate General for Communication, ‘Future of is not conducted for the first time. To increase turnout, Europe Report Special Eurobarometer 394’ (European mandatory voting would provide clearer predictions in Commission 2012) consequent elections, shifting the timing of elections would Websites result in greater focus placed on EU issues and appointment of national figures as European Secretaries would establish Desilver D, ‘Euroskeptics are a Bigger Presence in the closer links between the European and national parliaments. European Parliament than in the Past’ (pewresearch.org, 25 ibid. 22 May 2019) 26 Corrado Pirzio-Biroli, ‘Five Ways to Fix the EU’s <https://www.pewresearch.org/fact-tank/2019/05/22/euro skeptics-are-a-bigger-presence-in-the-european-parliamen Democratic Deficit’ (friendsofeurope.org, 28 March 2018) t-than-in-past/> accessed 2 January 2023 <https://www.friendsofeurope.org/insights/five-ways-to-fix-t European Parliament, ‘European Results’ he-eus-democratic-deficit/> accessed 7 January 2023. 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