Gender Inequality in Pay

Rhonda Hammond-Sharlot LLB LLM Sols

Gender pay inequality is well recognised, and it certainly is not going away. Despite commitment at National and International levels, the gap has dropped very little since it became a main stream debate in the 1950s. There are a raft of theories as to why it exists, what can be done to address it, and why it is not working. Despite it being such a hot topic for research and legislation around the world, it seems to be a problem without a solution.
The first International commitment to ensuring gender pay equality is driven by the International Labour Organisation (ILO). Over more than half a decade they have been committed to addressing this issue, which is one of their eight fundamental convention issues.
“The primary goal of the ILO is to promote opportunity for women and men to obtain decent work in conditions of freedom, equity, security and human dignity. Gender inequality is a key element in reaching this goal and is a cross-cutting policy driver for all ILP policy outcomes.”
The ILO have enshrined their commitment to creating equality in pay regardless of gender in a series of Convention. The first of these, C100 , was introduced on 29th June 1951, and Member States around the world signed up to the principles over the following decades. Ghana ratified the Convention on 14th March 1968. The UK took a lot longer, but eventually ratified the treaty on 15th June 1971.
The Issue of Gender Equality of Remuneration has been adopted as one of eight ‘fundamentals’ for the ILO , and has been addressed in more recent Conventions .
Convention C111, like C100, is one of the eight fundamental conventions of the ILO , showing their strong commitment to this issue. These two conventions were carried forward into the ILO declaration of fundamental Principles and Rights at Work in 1998 which designated the eight fundamental issues for the ILO.
In the UK, the ratification of the ILO C100 Equal Remuneration Convention 1951 was not the only international driver to implement Equal Pay for men and women. In 1973 the UK joined the European Union (then called the European Economic Community) and in doing so agreed to abide by the principles in the Treaty of Rome . Article 119 of that Treaty was concerned with ‘the principle of Equal Pay.’ It required that
“for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration .”
Despite all this treaty signing to show commitment, in 1982 the UK was found to be fall short of implementing the European requirements . The issue the UK was failing to implement was also a commitment in the ILO convention the UK had ratified in 1971, so clearly there was also a failure to comply with that too, although no formal action was taken by the ILO. The EU on the other hand did take formal action.
The issue related to Work of Equal Value. The Equal Pay legislation introduced in the UK in the 1970s had allowed for claims where people were doing ‘Like Work’ or ‘Work Rated Equivalent.’ For work to be rated equivalent a formal job evaluation scheme had to be in existence, and claims could be brought if that evaluation had identified a different role as being of an equivalent value. A leading example of this system is the ‘Hay Job Evaluation Method .’
The issue was that employers had to voluntarily agree to using an evaluation system. If they did not do so, they avoided claims of ‘Work of Equal Value’ as potential claimants had no means of forcing an employer to introduce such evaluation methods, and without that evidence could not bring a claim.
The matter was examined by the European union in 1982 , and the EC court declared
“….that, by failing to introduce into its national legal system in implementation of the provisions of Council Directive 75/117/EEC of 10 February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists to obtain recognition of such equivalence, the United Kingdom has failed to fulfil its obligations under the Treaty;”

This declaration lead to new UK legislation that no longer required Equal Pay claimants to have a formal job evaluation in order to show that their work was of equal value.
An excellent documentary on the Case is available on line , and is well worth viewing. It is 37 minutes long, but details the chronology of the case, and the legal issues it raised.
If the UK were failing to implement the EC Treaty requirements correctly, it follows that they could not have been implementing the ILO requirements either. C100 clearly states in Article 1 (b)
‘(b) the term equal remuneration for men and women workers for work of equal value refers to rates of remuneration established without discrimination based on sex.’
Despite amending the legislation to accommodate the Work of Equal Value claims, the situation in the UK has not improved much. A global report following up the ILO declaration in 2011 found that women still continued to earn just 70-90% of equivalent male wages. That same report details a significant of possible causes, and a sizeable amount of initiatives, legislation and other measures tried around the world, with little significant success.
The UK legislation relating to Discrimination generally has been reviewed significantly and is since 2010 has been all incorporated in one overarching Act . This Act introduced a Gender Equality Duty requiring public bodies to take action to promote gender equality of pay. It also introduces requirement to report on gender inequality of pay on certain employers.
The debate on why the gap exists and what can be done about it continues, but no clarity has been achieved. The ILO in 2011 stated
“a significant proportion of this is explained by occupational and sectoral segregation’
The European Union developed a strategy to address the problem. That strategy was implemented between 2010 and 2015, and the final evaluation is awaited.
The International Trade Union Council in 2009 also tried to evaluate the problem in 2009, looking at Global Trends and drawing robust but worrying conclusions that, despite a lot of effort and commitment, the gap was simply not reducing and showed no sign of closing.
Despite these positive steps, a recent study by the UK Institute of Fiscal Studies, reported that the gap was still 18%, but despite the initial hope at seeing the lower figure, it went on to find that the gap rose as high as 30% where women had children. This report, which is quantitate rather than qualitative in nature, reviews the effect different employment and home situations has on the gap, but does not try to offer solutions. Maybe so many possible solutions have come to nothing, all that is known is that we do not truly understand the reason for the gap, and until that is understood, solutions that work may be still a long way away.



1998 Declaration on Fundamental Principles and Rights at Work
C100 Equal Remuneration Convention 1951
2008 ILO Declaration on Social Justice for a Fair Globalisation
C111 Discrimination Convention (Employment and Occupation) 1955
C150 Workers with family responsibilities Convention 1998
C183 Maternity protection Convention 2000
2008 ILO Declaration on Social Justice for a Fair Globalisation
European Communities Act 1972
Treaty of Rome 1957
Article 119, Treaty of Rome 1957
Council Directive 75/117/EEC
Article 1 C100 ILO Equal remuneration convention 1951
Case 61/81 European Commission v United Kingdom
Equal Pay (Amendment) Regulations 1981 (SI 1983 No 1749)
REPORT OF THE DIRECTOR-GENERAL Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2011 International Labour Convention 100th Session Geneva available on ILO Website
Equality Act 2010
REPORT OF THE DIRECTOR-GENERAL Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2011 International Labour Convention 100th Session Geneva available on ILO Website page 86
EU Strategy for Equality between women and men 2010-2015 (Sept 2010)
UC: Gender in(equality) in the labour market: An overview of global trends and developments (Brussels, Mar. 2009), p. 38.
Institute of Fiscal Studies Briefing Note 186 August 2016 The gender pay gap Elming, Joyce and Costa Dias available at
1998 Declaration on Fundamental Principles and Rights at Work
C100 Equal Remuneration Convention 1951
2008 ILO Declaration on Social Justice for a Fair Globalisation
C111 Discrimination Convention (Employment and Occupation) 1955
C150 Workers with family responsibilities Convention 1998
C183 Maternity protection Convention 2000
2008 ILO Declaration on Social Justice for a Fair Globalisation
European Communities Act 1972
Treaty of Rome 1957
Article 119, Treaty of Rome 1957
Council Directive 75/117/EEC
Article 1 C100 ILO Equal remuneration convention 1951
Case 61/81 European Commission v United Kingdom
Equal Pay (Amendment) Regulations 1981 (SI 1983 No 1749)
REPORT OF THE DIRECTOR-GENERAL Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2011 International Labour Convention 100th Session Geneva available on ILO Website
Equality Act 2010
REPORT OF THE DIRECTOR-GENERAL Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2011 International Labour Convention 100th Session Geneva available on ILO Website page 86
EU Strategy for Equality between women and men 2010-2015 (Sept 2010)
UC: Gender in(equality) in the labour market: An overview of global trends and developments (Brussels, Mar. 2009), p. 38.
Institute of Fiscal Studies Briefing Note 186 August 2016 The gender pay gap Elming, Joyce and Costa Dias available at

Rhonda Hammond-Sharlot
Sept 2016

Making Miller: four fortunate features


Aidan Flynn


In January the Supreme Court gave judgment in R(Miller and another) v Secretary of State for Exiting the European Union.  The fact that this important case came about is due to four particular features of the process adopted to exit the European Union.  Taken together these four features took us along the road that led to Miller.


The first feature relates to the European Union Referendum Act 2015.  This is the Act passed to authorise a referendum on European Union membership.  The Act did not stipulate what should happen in response to the referendum result.  This contrasts with the Parliamentary Voting System and Constituencies Act 2011, which authorised a referendum on the voting system for general elections.  The 2011 Act had a provision requiring the alternative vote system to be adopted in Parliamentary elections, but by section 8 stated that the relevant minister should bring this provision into force if it was approved in a referendum, but, if it was not, he should repeal it.  The House of Commons Library Briefing Paper on the European Referendum Bill stated that “it does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented.”  There is no convention, of the UK constitution, that obliges Parliament to take steps to implement the result of a referendum.  When the ‘Leave’ side won the referendum, held on 23rd of June 2016, it meant that a majority of those who voted were of the opposite view to a substantial majority of parliamentarians, who had supported ‘Remain.’  This gave rise to what Nat le Roux calls “the problem of competing legitimacies.” 


The second feature relates to the position adopted by the Government following the referendum.  A new UK Government took office in July 2016 and shortly afterwards the new Prime Minister travelled to Edinburgh for a meeting with the First Minister of Scotland.  At the conclusion of this meeting, the Prime Minister said “I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50”.  The key word is ‘I’, it captures the Government’s mindset that the Prime Minister, as head of government, possessed the power to trigger Article 50.  The story would have unfolded differently had the Government made a decision in summer 2016 to put a European Union (Notification of Withdrawal) Bill before Parliament at that point.  The Government took the view that it could trigger Article 50 without authorisation to do so in the form of legislation passed by the legislature (the two Houses of Parliament).


The third feature relates to the Government’s response to Ms Miller’s claim that UK constitutional law stood in the way of the Government triggering Article 50.  In September 2016, the Government announced that it was not accepting Miller’s view and would defend her challenge in the High Court.  Detailed grounds filed with the court by the Secretary of State made the following assertion:  “The Government intends to give effect to the outcome of the referendum by bringing about the exit of the UK from the EU.  That is a proper constitutional and lawful step to take in light of the referendum result.”  The Attorney General, in reference to Miller’s claim, made this comment “we do not believe this case has legal merit.”  He was wrong.


The fourth feature relates to the Government’s response, in November 2016, to the decision of the Divisional court in Miller.   It had lost the case, that court rejecting the arguments advanced by lawyers for the Secretary of State for Exiting the European Union.   On 7th of November the Secretary of State told Parliament “The Government disagree with the Court’s judgment.  The country voted to leave the European Union in a referendum approved by an Act of Parliament.  Our position remains that the only means of leaving is through the procedure set out in article 50, and that triggering article 50 is properly a matter for the Government using their prerogative powers.  As a result, we will appeal the High Court’s judgment at the Supreme Court.”  The Government could have decided to accept the judgment of the Divisional Court and not appeal to the Supreme Court.  The Prime Minister attended a meeting of the European Council in Brussels in December.  The Irish Prime Minister told reporters that Mrs. May informed the other Member State leaders that the Government had “good grounds” to appeal in the Supreme Court.  They may have been ‘good’ but they were certainly not very good.


Why are these fortunate features of the process?  They are fortunate features because had any one of them been absent we would never have had Miller as a judgment of the Supreme Court.  That the matter did end up in the Supreme Court means that the process of exiting the EU has bequeathed to UK constitutional law a very important judgment.  By a majority, eight to three, the court held that “ministers cannot give Notice [under Article 50] by the exercise of prerogative powers, only legislation which is embodied in a statute will do.” (para. 123)  The judgment prevented the executive (the Government), one of the three principal organs of the state, embarking on a course of action which it believed it could lawfully adopt but which was actually unlawful.  It was unlawful under UK constitutional law based on ‘separation of powers’, one of the most fundamental concepts in the constitution.  This concept embodies a separation of powers between the executive, the legislature and the judiciary (the judges).  The majority judgment stated “Parliamentary sovereignty is a fundamental principle of the UK constitution ……  The legislative power of the Crown is today exercisable only through Parliament.  This power is initiated by the laying of a Bill containing a proposed law before Parliament, and the Bill can only become a statute if it is passed (often with amendments) by Parliament (which normally but not always means both Houses of Parliament) and is then formally assented to by HM The Queen.  Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes – or primary legislation as it is also known – and not in any other way.” (para. 43)  Parliament has since passed an Act, the European Union (Notification of Withdrawal) Act 2017, which received Royal Assent on 16th of MarchFollowing the Supreme Court judgment, the Department for Exiting the European Union issued a Statement on the process for triggering Article 50.  This Statement referred to the Supreme Court decision “that prerogative power alone is insufficient to give notice under Article 50.”  This is a peculiar way of putting it.  The power was not ‘insufficient’, rather, in the particular circumstances of the relevant treaties together with the European Communities Act 1972, the prerogative power did not exist.


The Supreme Court said of the referendum that “unless and until acted on by Parliament, its force is political rather than legal.” (para. 124)  It is because of this political force that we now have the 2017 Act.  The notion of moral force may also have been in play.  The Government (the executive) was under no legal obligation to put a Bill, implementing the result of the referendum, before Parliament (the legislature).  Parliament, having had a Bill put before it by the Government, was under no legal obligation to pass a ‘withdrawal’ Act.  As Edmund Burke, speaking on the role of an MP, put it in 1774 “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”  One MP who refused to sacrifice his judgment to the opinion, on EU membership, of his constituents said “I am not disrespecting the opinion of the majority; I just think, on this occasion, that it is wrong.”


The Bill passed Third Reading by 494 to 122.  The figures reflect the fact that the Conservative Party manifesto for the 2015 General Election stated “we will honour the result of the referendum, whatever the outcome.”  On the day of the referendum The Guardian published an article which captured the essence of the ‘political force’ that the Supreme Court would identify just over six months later: “The wrangling reflects the fact that there is no binding legal process to force Cameron to invoke article 50.  In theory, he could ignore the public and disregard a Brexit vote.  In practice he has repeatedly promised that the result will stick – and there may be no going back on that line now.”  From July 2016 onwards, the language employed by Cabinet members in the new Government fitted very well with the content of the 2015 manifesto, a ‘political’ document.  Speaking in September, the Secretary of State for Exiting the European Union said “Our instructions from the British people are clear.  Britain is leaving the European Union.  The mandate for that course is overwhelming: the referendum of June 23 delivered a bigger popular vote for Brexit than that won by any UK government in history.”  The comparison with voting figures for parties winning UK general elections is interesting.  The description of the mandate as “overwhelming” is startling.  It may have been ‘clear’ but 51.9% to 48.1%, on a turnout of 72.2%, is hardly “overwhelming”, particularly in circumstances where only two of the four parts of the UK voted in favour of withdrawal.  Last June many sixteen and seventeen year olds across the UK may have preferred the term “underwhelming.”  A final point on the ‘political’ force of the referendum result is that it has been fascinating to witness the seamless way in which many MPs, from various parties, who supported ‘Remain’ have subsequently managed to promptly come full circle to a ‘Leave’ standpoint.  A particularly potent example is Robin Walker MP.  On the afternoon of referendum day, Mr Walker was on High Street in Worcester city centre, wearing a ‘Remain’ t-shirt, and energetically distributing flyers for that cause.  On 17th of July he accepted the job of Parliamentary Under Secretary of State in the Department for Exiting the European Union.


It seems likely that the political force discussed above will ensure that the UK’s withdrawal from the EU will become a reality.  The act of exiting the EU will do severe self-inflicted damage to the national interest.  One crumb of consolation is the enhancement of our constitutional law landscape in the form of the Miller Supreme Court judgment.  The majority in our highest court stood by the proper operation of the separation of powers.  “We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognizes, namely by Parliamentary legislation.  This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law to the present issue.” (para. 82)  Basic concepts they may be but their proper application is always of huge importance.  We should all be grateful for these four fortunate features of the exiting the EU story.  Together they made Miller.





ECJ Headscarf ruling

Sue Jenkinson

Last week the newspapers were full of misleading headlines about a European Court of Justice (ECJ) ruling. No surprise there then, it is often the case the ECJ rulings are misconstrued in the British press in order to meet the newspapers agenda or political view point. However this latest misinformation is very misleading. There were two cases considered with different outcomes. Last week the court held that in some circumstances it is legal for a work place to ban the wearing of a headscarf. These cases highlight the difficult balancing that the court has to consider between freedom of religion and non-discrimination. The ECJ held that a ban on wearing the Islamic headscarf would not automatically constitute direct discrimination. For the ban to be legal and not constitute discrimination it must be based on an individual company’s internal rules which must require all employees to dress ‘neutrally’. It cannot be based on the wishes of a customer, because this would be a subjective consideration and therefor illegal.
The cases concerned Samira Achbita who was sacked by G4S Belgium when she started to wear a headscarf to work, after working for the firm for three years. G4S originally had an unwritten rule that was subsequently incorporated into its workplace regulations banning the wearing of ‘overt religious symbols’. Ms Achbita unsuccessfully argued that she was being directly discriminated against. However the court held that there was no discrimination because the prohibition was blanket and prohibited ‘any manifestation of such beliefs without distinction’. The court held that G4S were perusing the policy in a ‘consistent and systematic manor’. This contrasted with another judgment given at the same time where a French company sacked Asma Bougnaoui after a customer complained about her Islamic headscarf, the company Micropole had no such policy of neutrality in place and therefore had discriminated against their employee. Ms Bougnaoui had been professionally competent and she had been sacked only because of her refusal to remove her headscarf which was requested as the result of a customer complaint not company policy.
These judgments have had a very mixed reception with, Amnesty commenting that the decisions gave ‘greater leeway to employers to discriminate against women and men on the grounds of religious belief’ whilst in contrast Andrew Copson for the British Humanist Association comments ‘we need to take an approach that balances everyone’s rights fairly and we are pleased that the ECJ has today appeared to reinforce that principle’.

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Home Education

Sue Jenkinson

This has been a controversial and topical subject recently and this blog looks at the legal implications for those who choose to home educate their children, this is outside of the current discussion on unregistered schools which will be the subject of a further post later in the year.
While the government has identified that it is a ‘fundamental right of every child to be educated’, how this is provided is virtually unregulated in the UK. (Elective Home Education Guidelines for Local Authorities) s7 of the Education Act 1996 gives every parent of a school age child a duty to educate their children ‘either by regular attendance at school or otherwise’. On the 18th of January the government produced a briefing paper on the subject, to inform both the public and MPs about the present position. It is worth noting that home education while perfectly legal in this country, is not legal in many other jurisdictions i.e. Germany where state or state sanctioned education is a legal requirement for all children of school age. Exceptions are very rare and only really exist in cases of ill health. School is regarded as a training ground for social tolerance and therefore home schooling is not an option. In Greece school attendance is even more tightly regulated and is mandatory with no exceptions. This contrasts with countries such as the USA where home education is much more prevalent than in the UK for a variety of reasons. In the USA over two and half million children are educated at home. (Home School Legal Defence Association)
The present position in the UK allows parent to decide to teach their children at home for the entire statutory education period or only certain parts of it. Parent who chose this option have a duty to ensure that
The education provided is efficient, full time and suitable for the child’s age, ability, aptitude and any special education needs they may have. (Education Act 1996) They do not have to follow the national curriculum. The parents of home educated children must be prepared to assume the full financial responsibility, including the cost of public examinations (House of Commons Briefing Paper No 5108)
Local authorities do not have statutory duties to monitor this education or its quality, however they do have to monitor whether children are receiving a suitable education which seems to be a significant contradiction. There appears to be a gap here, as local authorities, as part of their general safeguarding role can insist on seeing children but not seeing them to identify if the education they’re receiving is suitable. Local authorities provide guidance and advise they should acknowledge that learning takes place in a variety of settings, not just classrooms, but where there are concerns they will need to gather information in order to reach a ‘properly informed judgment’ about the suitability of the education provided. However, parents have no duty to attend a meeting or supply information, which suggests the local authority is really hampered in its supervisory role. So under the Education Act 1996 Local Authorities do not a have duty in relation to monitoring the home education of children in their area but they do have a duty to intervene if the education that a child is receiving is inadequate. Surely that cannot be done in a meaningful way if they are not able to monitor the education?
Numbers are very difficult to come by but it is estimated by the government that there are approximately 27,000 registered home educated children in the UK. However, the BBC, using Freedom of Information requests showed 36,609 children are being home educated in 2015 showing a 65% increase over the previous three years. There is no requirement for parents to notify the local authority that their child is home educated. This may account for the lack of reliable data. Differing from where a child is removed from a school they are registered at, then parents must notify. This means there is an unknown number of children that have never been in the education system and there may be no external supervision of their education at all. The NSPCC have raised concerns about these ‘invisible’ children
There is no mechanism to ensure that they continue to receive a ‘suitable education or adequate care without the express consent of the parents/carers. This highlights a major safeguarding flaw with in the home educating legislation which focuses on the parental choice and rights at the expense of the children’s rights, wishes, welfare and protection (NSPPC)
See the very tragic case of Dylan Seabridge, a home educated boy of 8 years old who had no contact with any authorities for the previous seven years and died of scurvy, an easily preventable disease in 2011. (
The recent Casey Review, looked at the wider issues of general integration in the UK and identified some risks and difficulties of social cohesion and integration, specifically related to home education including
• The current definition of ‘suitable education’ was not specific enough to meet the governments efforts to build cohesive communities and encourage the adoption of British values
• There is a danger that the right to home educate may be being used to allow parents to place their children in unregistered schools
• Local Authorities may be missing important child protection issues and be completely unaware of a child who is receiving an inadequate and inappropriate education.
Prior to the Casey Report, the Badman Review of home education in 2009 recommended a central register of children who are being home educated and this initially was part of the Children and Families Bill 2014, but this section was subsequently dropped. The suggestion had received a very hostile reception from home educators including comments such as ‘a register would be an unprecedented intrusion into family life’ (Guardian June 6th 2009 Get tough of home tuition to weed out abuse) this seems to support the NSPCC’s view about the focus of legislation in this area supporting the rights of the home educating parents, sometimes to the detriment of their children.
In 2012 The Education Committee identified the inconsistent support offered to home educated children by Local Authorities and indeed referred to it as a post code lottery, with the best performing local authorities monitoring and supporting children in the home education environment, and in the worst performing local authorities the children were almost invisible with little or no external support. While parents assume the full financial liability of home education the best performing local authorities do proved support ‘where resources permit’. In times of austerity, these resources are becoming ever more difficult to find.
Parents can choose to educate at home for a wide range of reasons, parents do not have to give a local authority a reason to home educate but reasons include
• Difficulty accessing schools (3.4%)
• Religious or cultural beliefs (6.2%)
• Philosophical or ideological views (13 % the most common reason in Gloucestershire accounting for 235 of the 641 children)
• Dissatisfaction with the schools available (9.3% In Herefordshire this accounted for 240 children out of a total of 724)
• Bullying (4.8%)
• Short term intervention
• Childs refusal to attend school
• Special educational needs
• Parents desire for a closer relationship with their child
(Department for Children and Families Elective Home Education Guidelines for Local Authorities Nov 2007, paras2.1 – 2.3)
And there are many different pros and cons to the choice, including some of the advantages
• Children receive tailored individual attention
• Working at their own pace
• Following their own particular interests
• There is a removal of peer pressure and bulling
Against the practice considerations include
• Cost, it can be very expensive
• Children are not able to develop friendships and learning to cope with others as easily as a child at school
• It’s very demanding for the parents
• It can be disapproved of by wider family and society
• It can create difficulties when applying to university and further education
It would seem that in the UK the wish to home educate is very much alive and well and it is suggested numbers continue to grow. However, the inconsistent resources provided to these families means that while allowed, home education is not supported. The most worrying issue is the lack of supervision which means that there will inevitably be children who are receiving little or no education and may indeed be invisible victims of abuse and intolerance that would be identified if they attended main stream school, or the local authority had a register of home schooled children and monitored their education in a meaningful way.
Government guidance for Local Authorities on home schooling
Home School Legal Defence Association
National Society for the Prevention of Cruelty to Children
The Casey Review: a review into integration and opportunity…/The_Casey_Review_Report.pdf
Badamn Review into Elective Home Education in England…/PDF%20FINAL%20HOME%20ED.pd.

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Aristotle, Aquinas or Gina Miller; Who is ‘right’ about Brexit?

Dave Simmonds

Gina Miller is our most popular law teacher at the moment. In several of our law modules we have been considering the legal challenges to aspects of Brexit in the High Court and the Supreme Court. Level 5 students of Administrative Law have been looking at it as an example of the process of judicial review, a common law way for citizens to challenge decisions and actions of the government or public officials. Level 4 English Legal System students have been analysing the case to understand the independence of the judiciary, judicial reasoning, and to identify the legal issues at stake and the ratio decidendi, or reason for the judgment made. Our Foundation Year students, studying the concept of jurisprudence, also gained some insights from the case.
Coverage of the decisions and commentary by politicians, the public and the press has often been couched in terms of right and wrong, and some of it in extreme and inflammatory language. Many of the people assessing the judgments as right or wrong seem to be using those words in a moral rather than legal sense. For example, can it be right to ignore the will of the people expressed in a referendum? This hints at one of the great debates in legal theory.
In the 3rd Century BCE Aristotle, writing about the philosophy of law, made a distinction between ‘natural justice’ and ‘conventional (or legal) justice.’ That is, some of the laws made by legislators reflect universally held principles of morality whilst others are just a matter of preference for practical or cultural reasons. In the 13th Century CE Thomas Aquinas, in his project to harmonise the philosophy of the ‘pagan,’ Aristotle, with Catholic Christian teaching, developed the concept of natural law. He held that it could be discovered by human reason, not just by divine revelation and morality should underpin the making and implementation of law. Therefore, laws that are contrary to human good are “more like acts of violence than laws.” As such they do not necessarily oblige one to obey them.
As judicial reasoning and legal studies developed the tension between these ideas continued to crop up over the next 750 years. In the mid 20th Century the dispute was exemplified in some famous debates. HLA Hart, holding a position, by now known as legal positivism, argued that law and morality are completely separate, with any correlation entirely coincidental. Judicial reasoning is simply about the existing legal rules and how to apply them. The study of the law is analytical and not normative. In famous debates and correspondence his view was challenged by natural law thinkers like Lon Fuller and Ronald Dworkin. They believed that there is a necessary connection between law and morality if laws are to command respect and obedience, and cases are judged with reference to moral principles, not just analysis of legal rules.
The current dominant view is legal positivism. Laws properly made according to the constitution, have full authority and do not require reference to natural law or morality to command compliance. This means that judges should not be concerned with the moral considerations of a case but precisely apply the legal rules that pertain to those facts. However, in our legal tradition we can probably see two manifestations of natural law. The first is equity law, which can shield citizens, in some cases, from harshness or unfairness caused by strict application of legal rules. The second is the safety net of the European Convention on Human Rights, which constrains legislators, administrators and judges in what they can impose upon citizens, recognising their inherent dignity and worth, a natural law concept.
Returning to R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 we may be able to see why the intense feelings about the supposed rights and wrongs of the case will have had little impact upon the judges. Lord Neuberger made it very clear that the majority judgment was not about the political considerations of Brexit, but a specific application of the law. Even the dissenting judges, who would have allowed the appeal, made it clear their grounds were a strict interpretation of the European Communities Act 1972 and established law regarding the royal prerogative. However, dissenting judge, Lord Carnwath, did make this curious statement, which perhaps hints at something else;
‘Those problems, [caused by leaving the EU] and the need for Parliament to address them, will remain precisely the same with or without statutory authorisation for the article 50 notice. If that is what the law requires, so be it. But some may regard it as an exercise in pure legal formalism.”
So, big thanks to the legal teams of Ms Miller and Ms May for bringing such an important case study at exactly the right time for us to learn from and to discuss in such an interested and animated way in many different modules. We are now learning about the legislative process as we see the Brexit Bill through parliament.
The legal challenges to Donald Trump’s executive orders are the subject of our Constitutional Law workshops this week, but that is another blog altogether!

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Brexit and family law

Sue Jenkinson


Brexit and all that is flowing from it is likely to cause considerable issues for the legal system and the family law system in particular. The Justice Committee has been looking at these issues across the entire UK legal landscape, a huge task. Just before Christmas the Justice Committee started to look at the possible implications for family law specifically, of Brexit and the committee started to ask questions as to how these problems could be mitigated. There was a consensus amongst the academics and legal professionals who gave oral evidence that the effects will be far reaching and create some difficulties for international families in the UK and expat British family’s living in the EU in particular.

It was noted that in 2015 27.5% of children born in England and Wales had a foreign mother, so any legal issues that relate to these children could be very significantly complicated by Brexit unless early steps are taken to create reciprocal agreements with the EU. There are also a great many expat families who live in the EU and who’s jurisdiction and legal arrangements will need to be reconsidered. The leading organisation of family lawyers, Resolution highlighted some of the most significant areas of difficulty in their evidence. These include

  • Complications around the appropriate jurisdiction to hear divorce petitions in the future.
  • There may not be any guarantee that orders of the UK courts will recognised in EU states, possibly resulting in conflicting decisions, thus creating legal headaches and expense for litigants who are increasingly not legally represented in the family courts in this country.


The Committee has concluded that there is an urgent need for the Government to negotiate new agreements with the EU, on such matters as reciprocity of child support and maintenance orders, divorce recognition and the recognition of domestic violence orders. While much of the Brexit focus is on the huge and complicated trade issues, there are a great many family issues that will potentially create legal headaches for families unless they are considered and mitigated before the UK finally leaves the EU, whenever that might be.


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The Proceeds of Crime Act 2002

Sue Jenkinson

The Proceeds of Crime Act (POCA) 2002 introduced wide powers for the recovery of assets that have been acquired as the result of criminal activity, including
Section 327
An offence is committed if a person conceals, disguises, converts, transfers or removes from the jurisdiction property which is, or represents, the proceeds of crime which the person knows or suspects represents the proceeds of crime.
Section 328
An offence is committed when a person enters into or becomes concerned in an arrangement which he knows or suspects will facilitate another person to acquire, retain, use or control criminal property and the person knows or suspects that the property is criminal property.
Section 329
An offence is committed when a person acquires, uses or has possession of property which he knows or suspects represents the proceeds of crime.
In addition, Sections 330 and 331 create an obligation on those persons in the regulated sector to report their suspicion or knowledge of another person’s money laundering to the National Crime Agency (NCA). Failure to report is a criminal offence. (

The Home Office are very clear as to the purpose of this legislation
The aim of the asset recovery scheme in POCA is to deny criminals the use of their assets, recover the proceeds of crime, and deter and disrupt criminality (POC0019 in evidence to Proceeds of Crime House of Commons report)
A seizure order can be applied to any offence that results in financial gain. The prosecution can ask the court to seize and dispose of a wide range of assets including property, cars, jewellery etc. Controversially this power of seizure depends on proving that the defendant was living a ‘criminal life style’. If a criminal life style is established, it is assumed that the assets have been acquired through criminal activity. The difficulty arises when an individual is only living a ‘partial criminal life style’ and has a legitimate income stream or no assets in his or her name. The POCA has been a source of constant criticism in parliament and the media and concern as to it’s under performance since its inception. The law in this area has been further refined by the Policing and Crime Act 2009 and the Serious Crime Act 2015, but the recovery of criminally acquired assets remains woefully poor.
The National Audit Office in 2013 investigated the effectiveness and value for money of the regime identifying significant criticisms, and making suggestions to improve the system and confiscation results. It was on the basis of the failure to implement most of these suggested improvements that the latest report is now released,
In July 2016 the Home Affairs Committee of the House of Commons under the chairmanship of Keith Vaz (prior to recent scandals) who commented at the time ‘London lays out the welcome mat for money launders and organised crime’
Produced a report
raising considerable concerns as to the working of the legislation. It highlighted the fact that Government strategies to crack down on money laundering were failing and amongst other failures at least 100 billion pounds was being laundered through the London property market every year. While 640,000 offenders were convicted in the UK between 2014 and 2015 there were only 5,924 confiscation orders. Worse, the overall enforcement of confiscation orders was only 45% meaning that few orders were made, and less than half were successfully implemented. Of the successful orders 96% of orders of less than 1,000 pounds were enforced while only 22% ware the orders were above one million pounds. This suggests that the more lucrative the crime the less likely a convicted criminal is to forfeit any of their ill-gotten gains. The Home Affairs Committee was also concerned about the increasing amount of outstanding debt that was continuing to accrue, 1.61 billion as of September 2015. There are further concerns about the heavy cost of enforcement and recovery in the 2014 – 2015 period 155 million was collected but the administration of the collection was over a 100 million.
The committee concluded that the present system was simply not working, many convicted criminals preferred to extend their prison sentence rather than pay the court ordered recompense. The committee made wide ranging recommendations including, and most significantly, that non-payment of a confiscation order would become a crime in its self and it should become possible for a court to impose unlimited prison sentences ensuring that individuals remain incarcerated until all debts are paid.
To enforce this we recommend that no criminal be allowed to leave prison without either paying their confiscation order in full or engaging with the courts to convince a judge that their debt to society is squared.
Further recommendations included, early restraint and seizure, as criminals become increasingly sophisticated at concealment, the committee recommends that assets should be frozen at the very beginning of the investigation, because waiting for a conviction is far too late, and gives a criminal the opportunity to develop sophisticated money laundering and concealment structures. There should be increased police training on financial crime and specialist investigators should be used at an early stage in the investigation. There should be specialist confiscation courts and enforcement and collection should take a much higher priority in the criminal justice system.
This canter through the POCA and its recent commentary raises some very significant Human Rights issues. The statistics at the beginning of this post suggest the legislation is not working, but it is also important to protect those caught up in financial crimes that are entirely innocent. While early freezing of assets would be likely to increase the amounts that are available for seizure there will inevitably be casualty’s, and any changes need to be carefully drafted to ensure these are kept to a minimum, without creating another series of loopholes for criminals to retain their criminally acquired assets.
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Robert Curtis

Yes, you’ve probably never heard of it, and that is something of a deliberate strategy as we will see, but as someone with an interest in the law you need to at least know something about what it could mean. Let’s go through some questions and try and answer them.

What is TTIP?
The Transatlantic Trade and Investment Partnership. The title says it all – well more or less, but it also leaves a lot out. It is a partnership between the EU and the USA on breaking down trade barriers and improving investment opportunities. A free-trade deal, if you like. The European Commission sums up the rationale on its website (link below) as follows: ‘Customs duties, red tape and restrictions on investment on each side of the Atlantic can make it difficult to buy and sell goods and services on the other. Getting rid of these barriers to trade between the EU and the US would boost our economy, create jobs and widen choice and lower prices for consumers.’ Supporters claim that it will improve the economies of every European country and of the USA by 0.5% per annum. That may not sound much, but the size of the UK economy is currently around £2 trillion, so 0.5% is roughly £10 billion every year – that is far from insignificant and can build a lot of hospitals, schools, rail track, motorways, roads etc…

Isn’t that a good thing?
Yes, it certainly is, but only if it comes about, and only if the disadvantages don’t outweigh the advantages. Not everything can be measured in monetary terms, and if there is a loss of control, or a significant cultural shift which populations don’t agree with, then TTIP could do more harm than good. We’ll look at the problems a bit later.

I thought it was dead anyway?
Well, yes and no. It’s been in the process of negotiation since 2013 and it is only in the last year or so that some of the problems have started to surface, causing both governments and various pressure groups to bring these issues to attention, and therefore to pause the negotiations somewhat.

What about the new players – Theresa May and Donald Trump?
Interesting question. May is definitely a free-trade advocate, though she would want to see some of the more extreme measures watered down. Trump professes to be more of an isolationist and does not agree that free trade helps every country. His view is that free trade has effectively exported American jobs overseas and caused high unemployment in the US, particularly in more traditional sectors such as automotive, steel, ship-building and mining.
However, we must wait and see which way he turns. America could certainly ‘go it alone’ far more comfortably than any other nation, but the price would be high. Jobs would be created and immigration curbed, but we could then be headed back to the 1930’s with a depression as a result of nationalistic, isolationist policies.
Some commentators have suggested that TTIP, for all its benefits, is too risky to introduce, and a slimmed down version, especially with a compatible country such as the UK (newly released from Europe) would be a much better, far simpler and far less controversial approach.

So what are the problems with TTIP?
Really it is all to do with the extent of the partnership and the potential effects on certain sectors. Unlike a more traditional trade deal, where the parties agree to lower, or eliminate, tariffs and trade barriers, this one goes a lot further. The link to the Europa website above is well worth accessing, but it does give a somewhat one-sided picture. Although it puts some concerns forward and answers them, those answers, according to those who oppose TTIP, really don’t address the fundamental issues.
Let’s have a look at the affected sectors and the differences between TTIP and other trade deals:
1. Public bodies

Concerns have been expressed that large parts of the public sector in Europe will be open to competition from the USA and will, in time, effectively be privatised. Whether that is seen as positive or negative it is certainly a big change. In the UK, lawyers have argued that TTIP will undermine the National Health Service by imposing a new and very different modus operandi.

2. Environmental standards

It is claimed, though not really proven, that Europe has higher environmental and food safety standards than the USA, and that TTIP dumbs those standards down. The main example quoted is the use of GM foods or GM ingredients in foods, though there is no evidence to suggest that America’s food standards are lower than those of Romania or Bulgaria.

3. Finance and Banking
This is a bit of an anomaly, as American regulation is actually tighter than in Europe, and Europe, led by the City of London, is seeking to remove some of the restrictions put into place by the US after the financial crisis. So on the one hand we are arguing that we want tighter environmental standards but on the other looser financial regulation…..

4. Employment opportunities
Here is where President Elect Trump (I still can’t quite believe I actually wrote those three words together…) has voiced a powerful message to Americans during the campaigning prior to November 8th. His argument is that internationalisation and globalisation have shifted jobs away from high wage countries to ones where labour is a lot cheaper. Relatively unskilled Americans lapped up this message in the recent hustings, and see isolationism as essentially the answer, keeping jobs in America. TTIP, according to the European detractors will actually move jobs back to America anyway – so on the one hand Americans are arguing that TTIP is bad (as it opens up trade), but on the other hand, if TTIP gets signed, jobs will flow back to America anyway.

5. Dispute settlement
If you have read this far you might be wondering where the law comes in – well it is interwoven throughout all the foregoing paragraphs but is especially apparent in this one. The Independent (see link below) suggests that ‘TTIP’s biggest threat to society is its inherent assault on democracy. One of the main aims of TTIP is the introduction of Investor-State Dispute Settlements (ISDS), which allow companies to sue governments if those governments’ policies cause a loss of profits. In effect it means unelected transnational corporations can dictate the policies of democratically elected governments.’
Whether this is true or not is debatable, but it could be a very powerful shift in the balance between governments and multinational organisations. If you read the links in this article you will see a common thread running through – that of relative secrecy of the negotiations. My very first sentence ‘You’ve probably never heard of it’ sums up the fears of many detractors. Why is such a major piece of legislation and trade liberalisation so little known? It is because (according to many European sources at least) it changes the power balance and effectively allows huge and anonymous international corporations to dictate terms (and therefore legislation) to governments. The negotiators feel there are checks and balances built in, others do not agree. I leave you to come to your own conclusions on that one.

Will it ever be signed?
My opinion is ‘no’ not in its current format. There are too many opponents on too many different issues. It remains to be seen how keen Donald Trump will be to reach a free-trade agreement with Europe, and of course Brexit brings in a new dimension – where many of the UK’s values are similar to those of the US, but more divergent from those of more protectionist EU countries.

The links below are a bit emotive but worth reading. They will also point you to many other ideas you can explore on this subject.

‘the Calais jungle’

The Calais “Jungle”

Robert Curtis


Many illegal immigrants into the EU have congregated around Calais in an endeavour to get to the UK (or “England” as everyone conveniently calls it). This has caused great distress to the people of Calais – some 8,000 people living in unsanitary conditions right on their doorstep. It also causes real problems to those trading between France and the UK, and of course to holidaymakers who do not want to run the gauntlet in order to get to their destinations. Many businesses in Calais have closed or re-located, and visitors now use other ports to get to either France or through to the UK.

The French and British agreed a protocol called the Le Touquet Treaty in 2003. This was completely independent of the EU. It allows UK border officials to be located in Calais in order to carry out border checks more conveniently – this arrangement suits both countries as it eases trade and provides a small relief for genuine refugees.


The decision of the UK to leave the EU has no effect on this arrangement – though of course it has been used as a bargaining chip by vociferous French politicians who have recently claimed that if the UK is leaving the EU, then the border will effectively have to move to Dover and the Jungle residents would set up camp here in the UK. This is, of course, both completely spurious and impractical as France would have to “encourage” or “allow” the Jungle residents to come here, and the UK would, as they are illegal immigrants, be perfectly entitled to send them straight back for processing.

France often states that the immigrants are trying to get to the UK so essentially they are the UK’s problem. This is not a true reflection of the legal position but it is a powerful emotive argument to use for French consumption.

The new Home Secretary, Amber Rudd, and her counterpart in France, Bernard Cazeneuve, have ordered a fresh review of security in Calais and confirmed they will continue with the treaty under which British border checks are carried out on French soil, confirming the position that the treaty is not affected by Brexit.

The Law

If we go back to the two main principles which cover this type of situation as set out by the UNHCR and the Dublin Regulation within the EU, the legal position is quite clear. Refugees are defined under the Refugee Convention – and I will leave it to you to decide whether the majority of the residents of the Jungle are in fact fleeing a country where they are in danger of their lives, or merely looking for a better life elsewhere. Either way they are currently illegal immigrants and under the Dublin Regulation, adopted in 2003 by the EU, their asylum application should be examined by the state where the asylum seeker first entered the EU. This may be France (many of the residents are of North African origin so may have entered through southern France) or another country such as Greece or Italy. What is very clear is that they have not entered through the UK, so are not the responsibility of the UK authorities.

Current Situation

The French authorities have been under enormous pressure from the residents of Calais town, and the local council, to find a definitive solution to the problem, and they recognise that to try to offload the residents of the Jungle to the UK is not only against the law but would also encourage thousands of new migrants to come to Calais for the final leg of their intended journey to England. This would exacerbate, not ease, the problem. So the French have decided to bulldoze the camp and transport the residents to other parts of France (though not in that order….). These are the scenes we are seeing today with buses taking the residents away from the jungle.

Moral Obligations

Let us not forget the moral obligations of developed and rich countries in respect of migrants (either genuine refugees or economic migrants) to house at least some of them. This is the basis of the argument currently raging in the UK whereby we have agreed to take a number of unaccompanied children but their ages are suspect and many are considered to be well over 20. Many commentators are also suggesting that the “unaccompanied children” label will only encourage families to send their children on a dangerous journey across Europe in the hope of the UK taking them and then the rest of the family joining later on.

Has bull-dozing resolved the issue?

Not really. EU migration policy is a real mess, as we saw a little while ago. There is no security of the border, and no agreement as to what to do with the people already here and continuing to arrive. The Schengen Agreement is not being followed (with birders going up and checks being made), nor the Dublin Regulation (migrants are being transited through countries, not processed), and talk of quotas runs completely contrary to the idea of free movement. Policy (if it can be said to be that) is in disarray, and is essentially being adopted differently by different countries in mainland Europe to suit their own circumstances and demands of their populations.

I may be very cynical here, but I am asking the question “why has France chosen to act so decisively and so soon after the Brexit vote?”. The country has adopted a very different stance for the last 10 years, yet now chooses to send the residents of the Jungle to other parts of the country. Could it possibly be that they will quietly be given French citizenship away from the glare of publicity, i.e. in small rural areas of France rather than in Calais, which would allow them to come to the UK as EU citizens? The speed of the French reaction gives them about 2 years to bestow citizenship on the Jungle residents which is ample time, and it won’t be done with anyone watching, or in large numbers. It would effectively solve the problem from the French point of view, and the residents would simply “disappear” in the UK when they arrived so there is no chance of them returning to French soil. I hope I’m wrong…..

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Should Civil Partnership’s be made available to heterosexual couples?

Sue Jenkinson


This has recently been a hot topic in family law as two recent events have drawn headlines. As the law stands at the moment, there are different ways of regulating a family partnership depending on the gender of those seeking legal recognition of their relationship. Those that do not wish their relationship to have legal consequences continue to be able to live together without legal interference, which in its self raises some complex legal and human rights issues that will be considered in a later post.

At the moment heterosexual couples can marry, which carries considerable legal consequences should the relationship end, or cohabit which does not. Gay couples have a third choice, they can now marry since the Marriage (Same Sex Couples) Act 2014, but they also retain the option to enter a Civil Partnership as the result of the Civil Partnership Act 2004, and of course they can cohabit in the same way that heterosexual couples can, without legal consequences.

It is often difficult to distinguish between marriage and a civil partnership as in both cases most legal obligations are the same, and civil partnership has often been called marriage in all but name. Originally the introduction of civil partnerships was seen as an alternative to offering marriage to same sex couples, by providing legal and financial protections, and therefore alleviating the worst discrimination that existed prior to its introduction. It avoided the perceived conflict that same sex marriage could have sparked. The Case of Wilkinson v Kitzinger [2006] EWHC2022(Fam) spells out that having a civil partnership was sufficient in the eyes of the law. This case concerned a female couple who had married in Canada (where same sex marriage was legal) and on their return to the UK they sought a declaration that their marriage was recognised in English law. Sir Mark Potter was clear in his judgment that this was not the case. Wilkinson and Kitzinger argued that a civil partnership was a lesser form of relationship and did not afford them the ‘intangibles of marriage’. Fast forward to 2013 and the debate had radically changed with the recognition that same sex couples should be able to marry and of course, this is now the preferred form of formal relationship, outside of cohabitation, for both same sex and heterosexual partnerships. (

In the light of the Marriage (Same Sex Couples) Act the numbers of Civil Partnerships have now declined to just a few hundred a year since 2014 and in 2015 here have only been 861 is fewer than the numbers of Civil Partnership dissolutions for the same period 1,211. ( Since 2014 there have been 15,098 same sex marriages, whilst about half of these were new relationships, the remaining half were conversions from civil partnerships, which became available in December 2014. (…/marriagessamesexcouples…/sty-for-samesex…)

So things have moved relatively fast in legal terms for same sex couples, but the fact that the civil partnership option is not available to opposite sex couples is increasingly coming to public notice and raising concerns. One argument that was raised at the time of the debates on same sex marriage was that civil partnerships would simply wither on the vine so Parliament did not need to do anything about them, and certainly the decline in numbers suggests that it is not the preferred option for couples, however there are still significant numbers opting for a civil partnership and it is hard to argue against the discriminatory nature of the present law. There are heterosexual couples who would like the legal protections that come with marriage in English law but do not wish to marry with all the historical and patriarchal conations that come with marriage.

Over the last few weeks there have been two significant developments in this area, firstly and interestingly there has actually been the first a heterosexual civil partnership in the UK, on the Isle of Man last week. Adeline Cossen and Kieron Hodgson became civil partners on the 14th of October, commenting that they would marry one day but not yet, for now they wanted to ‘keep things simple’. The Equal Civil Partnership campaign ( were quick to congratulate the couple and comment that this option should be available to all because the present system perpetuates ‘inequality and segregation’.

The second development in this area is the imminent case that Rebecca Steinfeld and Charles Keidan are bringing to the Court of Appeal next month, they are arguing that their human rights are compromised by not having the civil partnership option, they comment that marriage has a ‘problematic history from the point of view of male – female relations’ so for them marriage is not an option and without a civil partnership they are not able to regulate their family life in the same way a gay couple would be able to. This case is about to be heard and the outcome is awaited with bated breath by family lawyers and many couples. As is so often the case in family law, the conclusion to this complex question may yet not lie in the Appeal Court but the decision when it comes will certainly be interesting!



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