CEDAW enquiry: holding the UK accountable
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Louise Heath
Cris McCurley reports back from the 72nd session of the UN Committee on the Elimination of Discrimination against Women (CEDAW), which took place in February, and pulled no punches in its assessment of the UK government’s continued failure to adequately protect women’s rights.
The UK has always had an excellent reputation on human rights … Well, you used to have.
CEDAW monitors the implementation of the UN Convention on the Elimination of All Forms of Discrimination against Women (the convention). Every five years or so, each signatory state (of which the UK is one) has to prepare a report about what it is doing to demonstrate compliance with the articles of the convention. This report is taken apart by interested NGOs and lawyers, who then write the shadow report, which tells the real story. Appendix A of the UK shadow report goes into detail about articles 15 (equality before the law) and 16 (equality in family life). There is then a lot of to-ing and fro-ing in the months leading up to the enquiry itself, with questions asked and clarification of points provided. The most recent UK examination took place at the Palace of Nations, Geneva, on 25 and 26 February 2019.
2013 enquiry and its impact
The previous enquiry in 2013 immediately followed commencement of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and access to justice issues were a focal point. The determination against the UK government in 2013 was harsh on LASPO and on protection for victims of domestic abuse, and it was handily utilised in many challenges to LASPO, particularly in the successful case of R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, which challenged LASPO regulations and access to justice for victims of domestic abuse. This in turn led to the Ministry of Justice (MoJ) establishing a working party that included The Law Society, Resolution and Rights of Women, and over two years of negotiation, evidence-taking and research, which resulted in a widening of the regulations to allow victims to more easily access legal aid.
Halfway through the negotiation process, the government had to provide an interim report on these two issues (the review of legal aid for domestic violence victims and the review of LASPO), which in turn was countered by an interim shadow report, and a further determination by CEDAW directing the government to make urgent improvements to these areas of non-compliance. This landed in the inboxes of the working party during one of the meetings, and was thus a timely reminder to the government that it was under UN scrutiny, helping with the negotiations. Further improvements to the regulations are expected in the first half of this year. Properly used, the convention is very impactful in our domestic jurisdiction, as Lady Hale demonstrated in Yemshaw v Hounslow LBC [2011] UKSC 3. In her judgment, she adopted the convention’s definition of domestic abuse, which was pivotal in widening its definition in LASPO.
2019 enquiry: start as you mean to go on
At the outset of the 2019 enquiry, one of the committee members said privately to a UK shadow report writer: ‘Six years on, and no UK state progress: we’re still really very concerned about domestic abuse and access to justice – what has changed?’ She went on to comment that the government’s policy of austerity, causing harsh deprivation, poverty, homelessness and benefits sanctions, is untenable when it sits alongside its spending on Brexit. It was a terrifically encouraging start, and a portent of the cross-examination that the government was going to face on 26 February when it appeared before the committee.
The first day was set aside for the NGOs and interested parties who contributed to the shadow report. This enquiry saw an attending UK delegation that was far bigger than in recent memory, with at least 40 NGOs spread across the four nations attending; serving to emphasise to the committee, if it were necessary, that things are bad in the UK for women, equality and access to rights when taken away by the state.
Nominated delegates addressed the CEDAW members on access to justice, austerity, intersex rights, LGBT rights, BME women’s rights, Northern Ireland and abortion rights, child care, the UK care crisis, immigration detention of women and the hostile environment, prostitution, rights for sex workers, and women in prison and the criminal justice system. What was immediately clear from the questions put by the committee members was that they were extremely well read and knowledgeable about the situation in the UK, and very concerned about state compliance with human rights law.
The NGO part of the enquiry was chaired by Louise Kennedy of the Northern Ireland Women’s European Platform, who also spoke eloquently about the situation in Northern Ireland that has arisen from having no devolved government at Stormont, and no governance on issues such as abortion rights. This was an issue that clearly gave the committee members serious cause for concern and the government was subjected to tough questioning on this issue when it gave its evidence the following day. The CEDAW members did not hold back and were scathing in their criticism of the Westminster government for not acting on this issue, reminding it that the Optional Protocol to the convention had also addressed this issue, finding the UK government seriously wanting as it repeatedly said that this was a devolved issue for the Stormont assembly. Committee members challenged the government as to why, in the absence of relief for these unmet rights, it did not use special measures to address them from Westminster. No answer was given by the government delegates.
The first to speak for the NGOs was Daniela Truffer, a rapporteur from IntersexUK, who passionately addressed the committee about the medical model of genital mutilation of intersex children in the UK. This was immediately picked up by the committee members, and the state representatives were seriously on the back foot when questioned about the numbers and circumstances of intersex genital mutilation in the UK. This will no doubt feature in the committee’s closing determination, and is something we will hear more about as a human rights abuse.
Description: Harriet Wistrich and Cris McCurley at UK CEDAW report presentation 2019
Legal contributors included Harriet Wistrich from the Centre for Women’s Justice (pictured left with me), and Keina Yoshida, a barrister at Doughty Street Chambers, who contributed an excellent paper on women in the criminal justice system, with Dr Yoshida contributing a further paper on fracking in response to an additional question, as well as addressing the committee and answering questions on these issues. Lisa Gormley, policy fellow at the Centre for Women, Peace and Security at the LSE, spoke on women in prison and detention. Access to justice, the Domestic Abuse Bill and the crisis in the child care system were also addressed by Jane Gordon, a human rights barrister at Sisters For Change, and myself.
A further paper was prepared following a question from CEDAW about the proposed UK divorce reforms, which included a demand from the committee members to the state that no decree absolute should be pronounced without any linked religious marriage also being dissolved to protect those women left in limbo by spouses seeking to continue to control their ability to move on with their lives following civil divorces. This was put to the UK state as a demand for action, and welcomed by all of the attending NGOs.
Tough questions, evasive response
The government delegation of 16 attended the enquiry on 26 February, and included delegation lead, Elysia McCaffrey, of the Government Equalities Office (GEO), Charles Ramsden of the GEO, and Fiona Rutherford, deputy legal aid director at the MoJ, for England; Carol McCabe (head of gender, sexual orientation and equality, Department for Communities, Northern Ireland); Lesley Cunningham (gender equality lead, Scottish government); and Rhian Thompson (equalities legislation manager, Welsh government).
The state delegates were immediately under the cosh, with tough questions put to them about austerity versus tax allowance as government policy. They had no answer. Special committee member for the UK, Nicole Ameline (France), opened with her view that the UK report was very surprising and disappointing because ‘the UK has always had an excellent reputation on human rights’. She then qualified the comment with: ‘Well, you used to have.’ She went on to demand ‘that there be no regression on human rights and that the [European Convention on Human Rights (ECHR)] must be integrated into UK law, as must CEDAW’. There was a marked contrast in the strength and depth of interrogation faced by the state this year, compared with 2013. Also notable was that the government delegation attended by video link in 2013, but were there in person in 2019.
The UK government opened by focusing on what it had done well, explaining why it believes the UK is compliant, but the delegates looked defensive: they prevaricated, they repeated things, and then invited a colleague to repeat the same comments just made and, at times, the NGO benches were reduced to laughter, as when someone tweeted on the #CEDAW19: ‘Do you think the Govt really believe all this shit they are spouting?’ In more measured terms, their evasiveness and filibustering did no credit to any of the four nations.
Bandana Rana, the committee member from Nepal, went in hard on fiscal policies, asking how the state could justify cuts to legal aid, domestic violence services, specialist services for BME disabled women, and all other inter-sectionally disadvantaged groups of women, when it could easily fund essential provision, but for its policy of allowing tax avoidance for the very rich. As with every question, the delegation lead sounded defensive and evasive when thanking the committee for ‘that excellent question’, then failing to answer it. The government lead mentioned the Domestic Abuse Bill and the financial injection to be added back into domestic violence services across the board as a result, only to be confronted with the government’s own figures showing that domestic abuse costs the UK economy £66bn a year; the money it was proposing to put back in was ‘negligible’ and nowhere near enough to meet the desperate needs of women trying to save themselves and their children from abuse. At times, it was hard not to cheer. The state response that the new bill would bring stronger law and other benefits only garnered the reply that ‘your aims are not anchored in reality’.
Ms Rana then turned to the anti-trafficking legislation, pointing out that the definition of trafficking in UK legislation falls way short, as does legal aid and protection. She asked why victims are criminalised – again, the state offered no sufficient answers.
Nahla Haidar, the committee member from Lebanon, was similarly aggressive in her questioning about immigration detention and, in particular, the detention of pregnant women, stating that detention of women is only supposed to be used in emergency situations, which, as she pointed out, cannot be true of all of the large number of women detained in the UK. She was met with a ‘broken record approach’ by the government delegates, who kept repeating that the UK had a right to defend its borders, even when countered with, ‘I’ll have to ask the question again, as you have – again – failed to answer it.’
The state representatives were also incisively questioned about the case of Shamima Begum. Ms Haidar said that she was aware that the UK action in making Shamima Begum stateless was under appeal in the UK, but this didn’t stop her from reminding the UK government that making someone stateless is illegal and a fundamental breach of human rights.
Many more issues were put to the government, such as its failure to meet gender equality in public life, the law/judiciary and in the workplace. The UK was on the ropes on austerity and poverty, Brexit, health, education, BME and Gypsy, Roma and Traveller women’s rights and, rather wonderfully, on the arms trade and UK sales to states involved in conflict zones.
The demands of the CEDAW members included adequate funding for women’s services and access to justice, the ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the integration of the ECHR and CEDAW convention into UK legislation. The state party lead reiterated the government’s commitment to the Human Rights Act …
Those contributing on the lawyers and NGO side largely did the pre-enquiry work and attended on a pro bono basis and did so because the resulting UN determination (judgment if you like) from the CEDAW will be an essential tool going forward in holding the state to account on women’s rights and, more broadly, on human rights.
Concluding observations on the eighth periodic report of the United Kingdom of Great Britain and Northern Ireland
On 14 March 2019, CEDAW released the advance unedited version of its report on UK compliance with the convention (Concluding observations on the eighth periodic report of United Kingdom of Great Britain and Northern Ireland, CEDAW/C/GBR/CO/8). As expected, the report concludes that the UK is still not compliant and that more must be done to ensure access to justice and legal aid, with previous concerns being reiterated about LASPO’s ‘negative impact on women’s ability to access justice and effective remedies in areas such as family, housing, immigration and welfare benefits law’ (para 22).
Brexit, austerity measures and a lack of adequate tax collection are recorded as causing poverty and women’s inability to access their rights. The document urges the state to adopt the convention into UK law (para 7) and also includes numerous recommendations for action to be taken by the state to bring the UK into compliance. These include ensuring eligibility for legal aid and effective access to justice (para 23), eliminating stereotyping in the media (para 27), improving the inclusion of women in public life/office (para 37), ratifying the Istanbul Convention (para 29(a)), fully implementing FGM legislation (para 31), improving access to employment rights and opportunities (para 43), and strengthening efforts to ensure greater inclusion of girls in ‘non-traditional’ subjects in education (para 41(a)). Special mention is made of divorce reform, with a strong recommendation about legislative change to make civil registration of religious marriage mandatory (para 59(a)), although disappointingly left out is the request for a mandatory requirement of religious divorce before decree absolute.
Further, it is recommended that the state ensure that universal credit is available to women independently from their partners, that the two-child tax credit limit is repealed, and that effective measures are in place to avert the impact of the increase in women’s state pension age from 60 to 66 so that women born in the 1950s are not disadvantaged (para 51). Paragraph 17 calls for a review of the impact of austerity measures on women’s rights, without delay.
BME and migrant women are the subjects of several specific recommendations directing improved treatment to trafficked women and women in immigration detention centres. The state is required to introduce a general time limit on immigration detention (para 55(a)), and to take immediate action to end the detention of pregnant and nursing women (para 55(b)).
Highlighted for special and urgent attention (which, under UN timescales, means within the next two years) are a resolution to the abortion inequality in Northern Ireland (para 47), a thorough impact assessment of the impact of the UK’s withdrawal from the EU on the rights of women (para 21(a)), the establishment of an oversight mechanism to monitor compliance with human rights (para 25(b)), and ensuring that loss of EU funding doesn’t lead to gaps in women’s services by securing alternative funding (para 21(e)).
These concluding recommendations can now be used in lobbying and litigation on all relevant areas of non-compliance.
Cris McCurley is a CEDAW shadow report writer and presenter.

About the author(s)

Description: Cris McCurley
Cris McCurley is a partner at Ben Hoare Bell.