openJustice https://www.opendemocracy.net/taxonomy/term/22783/all cached version 17/01/2019 11:08:07 en Will post-Brexit Britain see the breaking apart of even more families? https://www.opendemocracy.net/openjustice/tom-shelton/will-post-brexit-britain-see-breaking-apart-of-even-more-families <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>As many families unite for the Christmas season, those torn apart by the UK government's 'mimumum income requirement' feel their separation more acutely. This is one family's story.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/sad-child-portrait.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/sad-child-portrait.jpg" alt="" title="" width="460" height="304" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Tens of thousands more families are expected to be separated in proposals contained in the White Paper this week. Image: George Hodan/www.publicdomainpictures.net. Some rights reserved/CC0.</span></span></span></p><p>As a white British man, I never expected to find myself at the wrong end of the UK government’s immigration policies. But then I fell in love - with somebody from outside the EU. I didn’t know before then that love had a price, let alone that it would be so high; £18,600 a year to be precise.</p> <p>Since 2012, British citizens have been required to demonstrate an income of at least that amount in order to live in the UK with a partner from outside the EU. That figure rises by £3,800 if you have a child and by £2,400 for every additional child.&nbsp;The income of a foreign spouse is not considered, even if the spouse carries a firm offer of employment in the UK. Support from parents or relatives is not recognised.</p> <p>Anyone who earns less is condemned to a life of lonely Christmases, birthdays and wedding anniversaries as their families are denied entry to the UK. To say that this is a travesty would be an understatement.</p> <p>And now, as Britain leaves the EU, the government has promised to level the playing field between people from inside and outside Europe. The long-awaited White Paper – the first in over a decade – will set out the government’s policy on immigration once we leave the EU. After months of backroom squabbles, it is finally expected to be published this week – and may extend the income requirement to British citizens with partners from the EU.</p> <p>My family’s experience shows just how harsh the current rules are.</p> <p>Knowing that they could not come and live in the UK, we applied three times for visit visas. Although we met all the requirements, each time our application was rejected. The Home Office made the presumption that my wife intended to overstay her visa.</p> <p>So, based on a caseworker’s unproven (and incorrect) suspicion that my wife might be thinking of not complying with the rules, she and my son have been denied the opportunity to come and meet the rest of their family, not just once, but three times. And with no right of appeal, we lost six months, thousands of pounds – and were nearly broken apart by the stress of it all.</p> <p>When we found how hostile the UK was to a family like mine, I made the difficult decision to relocate to my wife’s country. I invested all my savings in building a business there – something I would have been happy to do in the UK had we had the chance. But our fledgling business attracted the attentions of a criminal gang. They hijacked our truck, nearly killing my wife’s father and another employee, and defrauded us. They have since been jailed. As if that wasn’t enough, as my father-in-law lay recovering from his injuries in hospital a huge typhoon flooded our house, destroyed our belongings and made us homeless. We had literally lost everything – home, business, savings, and any chance of starting again in the UK.</p> <p>The only thing I could do to support my family was to return to the UK to work, alone, and send money to them. I knew that I wouldn’t be able to apply for us to be together here, because I wouldn’t be able to earn £18,600. We were separated for a year - the worst year of my life. I missed my sons 6th birthday and my 4-year wedding anniversary.</p> <p>Knowing that my son was crying himself to sleep each night because he missed me and was scared that I wouldn’t come back, or be able to protect him from the "bad men" tore me apart. But how do you explain the UK’s ‘Hostile Environment’ immigration policies to a child? Unable to be without them any longer, I have now moved back to their country in the hope that things will change.</p> <p>We all know that the Conservative Party, the architects of the 'minimum income requirement' policy, have traditionally positioned themselves as the guardians of family life, which they see as the very fabric of our society – so why is this policy that splits up those same families allowed to continue?</p> <p>The justification is Theresa May’s net migration target - a number conjured from thin air in an attempt to appease the far-right voters. The government has embarked on an ideological war against migrants. It doesn’t just affect the migrants themselves but, as families are split apart, it affects our communities. As parents, grandparents, husbands, wives, uncles and aunts are prevented from seeing and living alongside one another, the family unit breaks down.</p> <p>So, this Christmas please <a href="https://www.jcwi.org.uk/take-action" target="_blank">TAKE ACTION</a> to help families that have been ripped apart by these rules. There is still time to influence the government's post-Brexit immigration system. Don’t stay quiet.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/satbir-singh/another-lonely-skype-christmas-thanks-to-minimum-income-guarantee">Another lonely Skype Christmas, thanks to the ‘minimum income requirement’?</a> </div> <div class="field-item even"> <a href="/uk/nathan-akehurst/price-of-love-that-nearly-half-of-us-cannot-pay">The price of love that nearly half of us cannot pay</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> openJustice uk openJustice Tom Shelton Mon, 17 Dec 2018 11:16:59 +0000 Tom Shelton 121020 at https://www.opendemocracy.net Why grieving families need legal representation at an inquest https://www.opendemocracy.net/openjustice/merry-varney/why-grieving-families-need-legal-representation-at-inquest <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Contrary to what the UK government say, many bereaved families need legal representation at an inquest to ensure a full and fearless investigation into the death of their loved one.</p> </div> </div> </div> <p><iframe allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" frameborder="0" src="https://www.youtube.com/embed/shTHT8_DBCA" height="259" width="460"></iframe></p> <p dir="ltr">In 2013 Nicholas Harry's baby boy Sam, was killed. The police stated that either Sam’s mother Deanne, or her then partner Ryan were responsible. But they both denied it and blamed the other one. There was no other evidence so the criminal investigation came to a halt. </p><p dir="ltr">Because Sam’s death was ‘unnatural’, in the absence of any criminal prosecution, the Coroner was obliged to hold an inquest into Sam’s death to establish how he died. In Nicholas’ words, “<em>the inquest was my final chance of any sort of justice….this was my only chance to get answers</em>”.</p><p dir="ltr">Despite this, and although bereaved families are supposed to be at the heart of inquest proceedings, legal aid is not routinely available so, unless they have the funds to pay for a lawyer, they will often not be legally represented.&nbsp;</p><p dir="ltr">After much <a target="_blank" href="https://www.gov.uk/government/publications/hillsborough-stadium-disaster-lessons-that-must-be-learnt">pressure</a>, the UK government have now agreed to <a target="_blank" href="https://consult.justice.gov.uk/digital-communications/review-of-legal-aid-for-inquests/">review</a> whether legal aid should be more available for certain types of inquest proceedings. The findings are due to be published at the end of the year, at the same time as the review on the civil legal aid cuts made in 2013.</p><p dir="ltr">The government has maintained that legal aid does not need to be available to bereaved families because an inquest is supposed to be a non-adversarial process. But in reality, this is far from the case. Although there are certainly no winners, people often have strong and opposing views about how a death occurred and are therefore seeking different outcomes.&nbsp;</p><p dir="ltr">It is not unusual for a public body facing allegations about their standard of care to instruct lawyers to try and limit the scope of a Coroner’s investigation. </p><p dir="ltr">Southern Health NHS Foundation Trust attempted to do this in the inquest of <a target="_blank" href="https://www.theguardian.com/society/2016/apr/02/never-thought-he-wouldnt-come-home-why-son-connor-sparrowhawk-die">Connor Sparrowhawk</a> after he died a completely preventable death, contributed to by serious failings and neglect in their care. Not long after Connor’s death, Southern Health NHS Foundation Trust published board minutes referring to his death being due to natural causes and that everything had been done absolutely properly. It took far too long for the Trust to finally say “<i>Connor needed our support. We did not keep him safe and his death was preventable</i>.”</p><p dir="ltr">A bereaved family with the benefit of legal representation may be able to respond to attempts to limit the scope of an inquest and ensure a full and fearless investigation, but many are told lawyers are unnecessary and find themselves ambushed in the first hearing.</p><p dir="ltr">When public bodies are involved, they will usually be legally represented by a solicitor and a barrister while a bereaved family might have no representation at all. This creates a stark inequality of arms. As Dame Angiolini <a target="_blank" href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655401/Report_of_Angiolini_Review_ISBN_Accessible.pdf">observed</a> in her 2017 Review into deaths in police custody “<i>all of the various branches of the state will attend inquests bristling with senior barristers and solicitors to represent them and ultimately, all paid for by the taxpayer.</i>”</p><p dir="ltr">Also controversies can arise over how the inquest is conducted. Coroners are given exceptionally wide-ranging discretion in how they conduct an investigation and inquest, and bereaved families are often powerless to challenge questionable decisions. The family of Colette McCulloch&nbsp;<a target="_blank" href="https://www.theguardian.com/uk-news/2018/may/29/colette-mcculloch-parents-win-legal-battle-over-coroner-inquest-daughter-death">spent around 18 months fighting</a>&nbsp;with HM Assistant Coroner Pears as they tried to secure a full and fair inquest, using crowdfunding to pay for legal fees before finally he agreed to step down.</p><p dir="ltr">So although lawyers are not necessary at every inquest, in some situations it is clearly in the interests of justice for the families to be represented. At the INQUEST Lawyers Group, we are calling on the government to make legal aid available to all bereaved families (irrespective of their financial situation) for state related deaths.</p><p dir="ltr">Legal aid should also be available to families when, without legal representation, they are unable to effectively participate in the inquest. This applies to the inquest of Nicholas Harry’s son. It would have been inappropriate – if not inhumane – to require Nicholas to review detailed medical evidence, including graphic and distressing post mortem evidence about his son and to question witnesses personally, including the very people who may have caused his son’s death who themselves have the right to refuse to answer questions which may incriminate them. With no criminal proceedings, this was Nicholas’s only opportunity for it to be recognised that his son was unlawfully killed and it can’t be right to expect a grieving father to act alone.</p><p dir="ltr">There is currently limited legal aid available for some bereaved families, but the application process is long and intrusive, requiring detailed financial information to be provided, and it is only if the Legal Aid Agency thinks the narrow criteria are met, that the family will be granted legal aid. It is possible for the financial eligibility limits to be waived, but sadly many bereaved families are not told this so think legal aid would never be an option. </p><p dir="ltr">The reality for many bereaved families is that their only option is to pay for lawyers themselves - even if, like Nicholas, it means going into debt. &nbsp;</p><p dir="ltr">Many these days turn to crowdfunding and other forms of fundraising to meet the costs and many lawyers strive to offer affordable options for their clients. In some circumstances where a bereaved family have grounds to, and want to, bring a claim for compensation arising from the circumstances of the death and that claim is likely to have a significant financial value, they may be offered a no win no fee agreement which covers representation in an inquest, but this is rarely available if the loved one who died did not have financial dependents or was not the family breadwinner. </p><p dir="ltr">As Nicholas says, the last thing bereaved families need to be thinking about is how to afford lawyers for a process they are going through at no fault of their own, while grieving and often having had to fund an unexpected funeral. That is why&nbsp;<a target="_blank" href="https://www.inquest.org.uk/access-to-justice-for-families">many</a>, including me, are currently calling for the Government to extend the legal aid available.</p><p dir="ltr"><strong>The government are reviewing the legal aid cuts. This is the last chance to tell them you care.&nbsp;</strong><strong>Please&nbsp;</strong><strong>take three minutes to write to the&nbsp;</strong><strong><a target="_blank" href="https://lawsociety.e-activist.com/page/26570/action/1">Lord&nbsp;Chancellor</a></strong><strong>,</strong><strong>&nbsp;sign&nbsp;</strong><strong><a target="_blank" href="https://www.change.org/p/ministry-of-justice-make-legal-aid-available-for-people-who-cannot-afford-a-lawyer-f6e31469-fdef-4138-8985-3902321948f1?recruiter=602087660&amp;utm_source=share_petition&amp;utm_medium=email&amp;utm_campaign=undefined">this petition</a></strong><strong>&nbsp;and&nbsp;</strong><strong><a target="_blank" href="https://www.moreunited.uk/legal_aid2?rel=campaignHub">write to your MP</a></strong><strong>.</strong></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/mitchell-woolf/austerity-disability-and-access-to-justice">Legal aid cuts, disability and the silent storm hitting our community </a> </div> <div class="field-item even"> <a href="/openjustice/satbir-singh-charlotte-threipland/windrush-toxic-combination">Windrush: the inevitable result of a hostile environment and no legal recourse</a> </div> <div class="field-item odd"> <a href="/oliver-carter-and-charlotte-threipland/why-legal-aid-matters-and-what-you-can-do-about-it">Why legal aid matters and what you can do about it</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> openJustice uk Voices for Justice openJustice Merry Varney Thu, 06 Dec 2018 09:49:35 +0000 Merry Varney 120873 at https://www.opendemocracy.net Legal aid cuts, disability and the silent storm hitting our community https://www.opendemocracy.net/uk/mitchell-woolf/austerity-disability-and-access-to-justice <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>This week the UN found the UK’s austerity measures to have been “punitive”.&nbsp; To understand their true impact on disabled people, we must also look at what’s happened to our justice system.</p> </div> </div> </div> <p><iframe width="460" height="259" src="https://www.youtube.com/embed/yHxrF71fDIk" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture"></iframe></p> <p dir="ltr">Twenty years ago Mary-Ellen was fulfilling her vocation working as a nurse. She had recently bought a property, in what was then an unfashionable part of London, without knowing how quickly her body would succumb to a rare, cruel and debilitating health condition. Her illness has meant that while her mind and her sense of compassion for those around her has not diminished, she has been left with significant and at times crippling disabilities that have robbed her of her independence and will only worsen.</p><p dir="ltr">Prior to the changes to legal aid in 2013 resulting from the <a href="http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">Legal Aid, Sentencing and Punishment of Offenders Act 2012 </a>(LASPO), Mary-Ellen would have been financially eligible for legal aid. Since her disability forced her to give up work, her only income is her DWP benefits which would have made her automatically eligible. However, post-2013, the value of her home now puts her over the financial threshold.</p><p dir="ltr">Therefore, during a period in which Mary-Ellen has faced three attempts by her Local Authority to make significant and unlawful cuts to her care package, she has found herself unable to pay for legal support or be eligible to receive legal aid. Her property, highly adapted to meet her needs – a cost she had to bear herself – has become a legal millstone around her neck when faced with an immediate cut to her care provision.</p><p dir="ltr">Unable to release any equity in the knowledge that falling behind with repayments would result in losing her home, the repeated attempts to reduce her care package without going through a lawful assessment process have heaped immense distress and anxiety on the undeserved pain that is part of her everyday existence.</p><p dir="ltr">This is why the Law Society <a href="https://www.lawsociety.org.uk/news/press-releases/struggling-families-disqualified-from-justice/">are campaigning</a> that, as part of their review of the legal aid cuts, the government should change the financial eligibility rules so that people do not have to forgo a reasonable standard of living (like selling their home) in order to access justice.</p><p dir="ltr">It is only when one sees the cumulative effect of the cuts to legal aid together with other austerity measures and the rhetoric that has accompanied the culture of cuts, that we get a clearer view of the crisis faced by many of the most vulnerable in our society.</p><p dir="ltr">The government has removed many areas of law from the scope of legal aid. This includes most cases in housing, benefits, family and child welfare law. This means that many thousands of people have life-changing problems for which they cannot seek legal support.</p><p dir="ltr">A UK Supreme Court Judge&nbsp;<a href="https://www.supremecourt.uk/docs/speech-180925.pdf">recently lamented</a> that even where legal aid is provided, the low remuneration rates for legal aid lawyers mean that it can be a challenge to find lawyers prepared to take on challenging cases. Despite tabloid <a href="https://www.dailymail.co.uk/news/article-2306630/Legal-aid-payouts-fat-cat-lawyers-slashed-says-Justice-Secretary.html">claims</a> that ‘fat cat lawyers’ cream off legal aid, for legal aid lawyers working in community care law, the hourly rate for attending a judicial review hearing, for example, remained at £36.40 (a fraction of commercial rates) for nearly twenty years. With the ushering in of the 2013 legal aid changes, this rate was reduced by approximately 10% to £33.30.</p><p dir="ltr">Lawyers are responding to legal aid cuts by moving away from financially unviable areas of work into areas that are economically sustainable. So, while many lawyers are able to side-step the impact of these legal aid cuts, the real impact is felt by the huge number of vulnerable people trying to find legal aid representation to challenge decisions that are having a fundamental impact on their health and wellbeing. One consequence is a significant rise in the number of people who have to represent themselves in Court facing experienced and skilled lawyers on the other side.</p><p dir="ltr">Many firms are moving away from taking legal aid cases for reasons that most would regard as financially prudent. Law Centres are reducing services or closing due to the significant cuts in their funding. The UK is now home to various legal aid deserts – regions of the country where no legal advice is available at all.</p><p dir="ltr">The adverse consequences are not just geographical they are also generational. With fewer opportunities to gain experience and with many saddled with the significant student debt, there are now limited opportunities or incentives for fresh and otherwise enthusiastic young lawyers to commit themselves to legal aid work. This will mean that the knowledge and experience that is so important to people learning specialist areas of law will not be passed down.</p><p dir="ltr">Given the importance that some legal aid cases have had domestically and internationally, we can see another long-term detriment arising from the cuts. For example, <a href="https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&amp;oth-1.htm">the Belmarsh case</a>&nbsp;was a landmark legal aid case, which led to the House of Lords ruling that&nbsp;national security considerations cannot always override civil liberties.</p><p dir="ltr">It is easier to justify cuts to services that disproportionately affect the most vulnerable when much of the narrative fed to the public (especially at the start of the austerity period) equates the receipt of benefits as a badge of dishonour. This was bolstered by widespread messages <a href="https://www.turn2us.org.uk/About-Us/Media-Centre/Research-and-Insights/Benefits-Stigma-in-Britain">over-estimating</a> the amount of benefits people receive and assertions about the level of benefit fraud that are <a href="http://sticerd.lse.ac.uk/dps/case/cp/casepaper199.pdf">significantly exaggerated</a> from the estimates found in more empirical studies.</p><p dir="ltr">The austerity policies assume that vulnerable people will find other (unidentified) ways to ‘make do’ if the State cuts fundamental services and support. This carelessly ignores the harsh ramifications cuts will have – both on the lives of those affected and on the wider economic wellbeing of the community.</p><p dir="ltr">The economic costs borne by taxpayers in supporting people in hospitals, mental health provision and in the criminal justice system is always likely to be significantly greater than the cost that would have been incurred if adequate social care provision had been forthcoming in the first place. A <a href="https://www.nao.org.uk/wp-content/uploads/2018/07/The-health-and-social-care-interface.pdf">National Audit Office Report</a> into the effect of cuts to social care across the NHS led to the Head of Strategy at NHS Providers to comment that “years of cuts to local authority budgets have led to a significant squeeze on adult social care. The knock-on effect has been felt across the NHS including hospital, community, mental health and ambulance services.”</p><p dir="ltr">Then there is the human cost.</p><p dir="ltr">The cost to the children and adults in the criminal justice system, often with undiagnosed disabilities, whose files <a href="https://www.centreforsocialjustice.org.uk/library/enough-enough-report-child-protection-mental-health-services-children-young-people">regularly throw up a litany of ‘lost opportunity moments’</a> where appropriate support might well have changed the direction of their lives.</p><p dir="ltr">The cost to the health and wellbeing of disabled and vulnerable people who find themselves isolated, depressed and unable to cope without key support.</p><p dir="ltr">A <a href="https://bmjopen.bmj.com/content/7/11/e017722">recent report </a>estimated that there were around 120,000 excess deaths due to spending constraints in the austerity period (2010-2017) than would have been the case if pre-austerity spending (2001-2010) had continued. Restrictions on health and social care spending was found to be a possible explanation for this. An <a href="https://www.thebureauinvestigates.com/stories/2018-10-08/homelessness-a-national-scandal">investigation</a> revealed that 449 people had died on the streets or in temporary accommodation in the UK in the year following October 2017. With the availability of legal advice to challenge life-threatening situations, perhaps these figures would not have been so dramatic.</p><p dir="ltr">During a time of austerity, it is extremely concerning when a government uses its power to compromise the right of access to justice and further disadvantage the most vulnerable in our society. Where the State withholds support vital to a person’s life, that person should be able to challenge the decision.</p><p dir="ltr">The brutal combination of cuts to services and legal aid has been compounded by demonising language that has seen those people most severely affected treated with indifference and even hostility. The devastation that this causes on numerous levels is unlikely to be understood by someone until it happens to their child, parent, partner or grandparent.</p><p dir="ltr">Without meaningful, and in all likelihood radical, steps to confront the issues that face our community, we will persist with a system that costs us far more than it saves both economically and in terms of the cost to the health and wellbeing of children and adults unlucky enough to be in need of vital State support.</p><p dir="ltr"><strong>The government are reviewing the legal aid cuts. This is the last chance to tell them you care.&nbsp;</strong><strong>Please&nbsp;</strong><strong>take three minutes to write to the&nbsp;</strong><strong><a href="https://lawsociety.e-activist.com/page/26570/action/1" target="_blank">Lord&nbsp;Chancellor</a></strong><strong>,</strong><strong>&nbsp;sign&nbsp;</strong><strong><a href="https://www.change.org/p/ministry-of-justice-make-legal-aid-available-for-people-who-cannot-afford-a-lawyer-f6e31469-fdef-4138-8985-3902321948f1?recruiter=602087660&amp;utm_source=share_petition&amp;utm_medium=email&amp;utm_campaign=undefined" target="_blank">this petition</a></strong><strong>&nbsp;and&nbsp;</strong><strong><a href="https://www.moreunited.uk/legal_aid2?rel=campaignHub" target="_blank">write to your MP</a></strong><strong>.</strong></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/oliver-carter-and-charlotte-threipland/why-legal-aid-matters-and-what-you-can-do-about-it">Why legal aid matters and what you can do about it</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> uk uk Voices for Justice openJustice Mitchell Woolf Fri, 23 Nov 2018 11:53:02 +0000 Mitchell Woolf 120691 at https://www.opendemocracy.net Windrush: the inevitable result of a hostile environment and no legal recourse https://www.opendemocracy.net/openjustice/satbir-singh-charlotte-threipland/windrush-toxic-combination <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>As the UK government designs the compensation scheme for victims of the Windrush scandal, we look at the toxic combination of factors that caused the scandal in the first place.</p> </div> </div> </div> <p><iframe width="460" height="259" src="https://www.youtube.com/embed/WOj9GJ77S3w" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture"></iframe></p> <p>The plight of the Windrush generation is rightly viewed as the most shocking&nbsp;scandal to emerge from the UK immigration system for a generation.</p> <p>As a result of deliberate UK government policy, long-term British residents were ensnared by a Hostile Environment&nbsp;dragnet. This approach to immigration renders people who look or sound ‘a bit foreign’ as undesirable or unlawful until they show their papers to their landlords, their&nbsp;employers and their doctors. And it essentially turns basic public service providers,&nbsp;and our fellow citizens, into Border police.</p> <p>This is what happened to Eleanor Peterson (featured in the film above). After living and working in the UK for her&nbsp;entire adult life, “<i>everything imploded</i>” in 2015 when she tried to apply for a new&nbsp;job. Having&nbsp;lost her residency papers in a flood at her home, she was unable to prove her status. Upon contacting the Home Office, she was informed that no records were held. This triggered a stressful and lengthy process to prove she was entitled to live and work in the UK.</p> <p>Such hostile environment measures were rolled out despite the government&nbsp;being repeatedly <a target="_blank" href="http://jcwi.org.uk/sites/default/files/MAX%20IB%20Briefing.pdf">warned</a> that the risks of discrimination were too high. Tens of&nbsp;thousands of people who migrated from former British colonies after the war, at the British government’s request, do&nbsp;not have the right type or volume of papers that the Home Office’s&nbsp;notorious bureaucracy now demands.&nbsp;</p> <p>Although the system should be simple enough for people to&nbsp;navigate the rules and access the relevant documentation and processes that apply to them, it is notoriously&nbsp;complex and opaque. As one immigration solicitor said, the Home Office gives&nbsp;little guidance and “<i>you can be refused for failing to produce a document you&nbsp;were never asked for in the first place</i>”.</p> <p>The legal profession's<a target="_blank" href="https://www.lag.org.uk/about-us/policy/campaigns/chasing-status"> recommendations </a>to the government, made in a 2014 report published by the Legal Action Group, were to create a&nbsp;specialist task force to deal with the fallout from the Hostile Environment policies. They were ignored.</p> <p>The harsh measures taken by the government and the absurd&nbsp;decisions taken by the Home Office would not have had such a devastating&nbsp;impact if the people affected had enjoyed the ability to legally challenge decisions&nbsp;that they knew to be completely wrong. However, due to the cuts to legal aid in 2013,&nbsp;when the government removed legal aid for almost all&nbsp;immigration cases,&nbsp;this was impossible for many of those affected. Given that 50% of Home Office decisions that are legally&nbsp;challenged are then reversed, the unfairness of this is being felt by many.</p> <p>In full knowledge that the Home Office fails us so frequently and&nbsp;knowing that its own Hostile Environment measures would likely be used&nbsp;discriminatorily, the government withdrew the means to seek justice.</p> <p>As a result, people were detained and deported<strong> </strong>and some tragically died. The&nbsp;Home Office recently&nbsp;<a target="_blank" href="https://www.theguardian.com/uk-news/2018/nov/15/windrush-victims-classed-as-criminals-in-government-blunder?CMP=share_btn_tw">admitted</a>&nbsp;that the number of people wrongly detained or&nbsp;deported will likely rise from their initial estimate of 164 after they wrongly&nbsp;classified certain people as having criminal convictions, excluding them from&nbsp;the count.&nbsp;</p> <p>People have lost their jobs, their homes and their right to access bank accounts,&nbsp;healthcare and public funds. Eleanor felt “<i>criminalized</i>” and was prevented from&nbsp;seeking employment or applying for benefits.</p> <p>Eleanor was lucky to have eventually found a lawyer at the Islington Law Centre&nbsp;who was able confirm her Indefinite Leave to Remain with the Home Office.&nbsp;Law Centres do not solely rely on legal aid funding but their reach and&nbsp;recourses are limited. Since 2013, Law Centres have been gradually&nbsp;<a target="_blank" href="https://www.lag.org.uk/article/201574/law-centre-closures">closing</a> as&nbsp;a result of the legal aid cuts and cuts to other funding. Many people caught up&nbsp;in the Windrush scandal were not as lucky as Eleanor.</p> <p>The&nbsp;<a href="https://www.bbc.co.uk/news/uk-politics-22936684">annual savings</a> of the legal aid cuts were forecast at £350m per year. For&nbsp;context, this is less than one tenth of one percent of annual government&nbsp;spending and is dwarfed by <a href="https://www.theguardian.com/uk-news/2018/oct/10/private-contractors-paid-millions-uk-detention-centres-some-firms-making-30-percent-profit">the £500m contract</a>&nbsp;for immigration detention&nbsp;awarded by the government in a single year to a single company.</p> <p>Now it is very possible that the UK government will end up paying more in <a href="https://www.gov.uk/government/news/windrush-compensation-scheme-consultation-extends" target="_blank">compensation to the Windrush victims</a> (given that their problems were allowed to escalate) than they would have paid in legal aid at the start of the issue. </p> <p><strong>The government are reviewing the legal aid cuts. This is the last chance to tell them you care. </strong><strong>Please </strong><strong>take three minutes to write to the&nbsp;</strong><strong><a target="_blank" href="https://lawsociety.e-activist.com/page/26570/action/1">Lord&nbsp;Chancellor</a></strong><strong>,</strong><strong>&nbsp;sign&nbsp;</strong><strong><a target="_blank" href="https://www.change.org/p/ministry-of-justice-make-legal-aid-available-for-people-who-cannot-afford-a-lawyer-f6e31469-fdef-4138-8985-3902321948f1?recruiter=602087660&amp;utm_source=share_petition&amp;utm_medium=email&amp;utm_campaign=undefined">this petition</a></strong><strong>&nbsp;and&nbsp;</strong><strong><a target="_blank" href="https://www.moreunited.uk/legal_aid2?rel=campaignHub">write to your MP</a></strong><strong>.</strong></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/nando-sigona/hostile-environment-border-guard-and-border-guardee">Hostile environment: border guards and border guardees</a> </div> <div class="field-item even"> <a href="/daniel-trilling/inside-theresa-mays-hostile-environment">Inside Theresa May&#039;s &quot;hostile environment&quot;</a> </div> <div class="field-item odd"> <a href="/rebecca-murray/reject-exclusion-of-forced-migrants-from-higher-education">Reject the exclusion of forced migrants from higher education</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> openJustice uk Voices for Justice openJustice Charlotte Threipland Satbir Singh Fri, 16 Nov 2018 11:29:38 +0000 Satbir Singh and Charlotte Threipland 120589 at https://www.opendemocracy.net Why legal aid matters and what you can do about it 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UnhideWhenUsed="false" QFormat="true" Name="Subtle Reference" ></w> <w:LsdException Locked="false" Priority="32" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Intense Reference" ></w> <w:LsdException Locked="false" Priority="33" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Book Title" ></w> <w:LsdException Locked="false" Priority="37" Name="Bibliography" ></w> <w:LsdException Locked="false" Priority="39" QFormat="true" Name="TOC Heading" ></w> </w:LatentStyles> </xml><![endif]--> </p><p>Cuts to legal aid are causing widespread injustice and likely costing the taxpayer more. The government are reviewing the cuts. We have a final chance to tell them we care.</p> </div> </div> </div> <p><iframe allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" frameborder="0" src="https://www.youtube.com/embed/WOj9GJ77S3w" height="259" width="460"></iframe></p> <p dir="ltr">Between 2010 and 2016, the Coalition government reduced the budget of the Ministry of Justice by 34%. <a target="_blank" href="http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">The Legal Aid, Sentencing and Punishment of Offenders Act 2012 </a>(LASPO) brought swingeing cuts to legal aid, ending financial support for those who rely on vast areas of social welfare law – including most debt, benefits, housing, employment and immigration advice.</p><p dir="ltr">The result was an 84% reduction in the number of civil (non-criminal) cases funded by legal aid. Hundreds of thousands of people each year are now denied access to justice as a result of the cuts to legal aid.</p><p dir="ltr">As well as partially or wholly removing significant areas of the law from scope, LASPO also increased the financial eligibility thresholds. This means that even when a case is theoretically covered by legal aid – indicating that a person’s situation must be serious – they may not be eligible, <a target="_blank" href="https://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/legal-aid-means-test-report/">even if they are living</a> well below the poverty line. If someone has equity in their home this now counts towards what is considered to be disposable capital.</p><p dir="ltr">Our society is in a sorry state if a person must sell their home or sacrifice their ability to maintain a reasonable standard of living in order to enforce their basic rights. </p><p>To document the impact that this change has had on people’s lives, <a target="_blank" href="https://opendemocracy.net/openjustice">openJustice</a> is marking this year’s Justice Week with the launch of Voices for Justice, a new series of short films and articles demonstrating the impact of the legal aid cuts.</p><p dir="ltr">The government are currently reviewing the cuts. This might be our last chance to <a target="_blank" href="https://www.change.org/p/ministry-of-justice-make-legal-aid-available-for-people-who-cannot-afford-a-lawyer-f6e31469-fdef-4138-8985-3902321948f1?recruiter=602087660&amp;utm_source=share_petition&amp;utm_medium=email&amp;utm_campaign=undefined">tell them that legal aid matters</a>.</p><p dir="ltr">Voices for Justice begins with the story of <a target="_blank" href="https://www.youtube.com/watch?v=5jekgcm0xwo">Eleanor Peterson</a> who fell victim to the toxic combination of Theresa May’s ‘hostile environment’ measures and the dramatic legal aid cuts. Eleanor’s case was part of the Windrush scandal, which involved the Home Office wrongfully withholding legal rights from long-term UK residents. The lack of legal aid contributed to the Windrush scandal by making it difficult for the people involved to assert their rights or protect themselves from wrongdoing.</p><p dir="ltr">There are thousands of others, whose stories are not high profile but are as compelling and shocking as those in Windrush. They are suffering in silence, struggling to get justice. </p><h2>Impact</h2><p>Research from the <a target="_blank" href="https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31102.htm">Justice Select Committee</a>, <a target="_blank" href="https://www.amnesty.org/en/documents/eur45/4936/2016/en/">Amnesty International</a>, the <a target="_blank" href="https://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/">Law Society</a> and the <a target="_blank" href="http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf">Bach Commission</a> has shone a light on the impact that the legal aid cuts are having on individuals. These reports show that the cuts are compromising the life, health and liberty of many people in England and Wales. Amnesty concluded that “<i>in human rights terms, the cuts to legal aid constitute a retrogressive measure</i>”.</p><p dir="ltr">Many senior lawyers, judges, politicians and researchers believe that our justice system is in crisis. The Bach Commission on Access to Justice, set up by Labour, concluded that LASPO has “<i>seriously damaged the functioning of the justice system, especially for those most in need</i>”.</p><p dir="ltr">There appears to be a growing recognition within the Conservative party that the cuts have been harmful and, in some areas, actively counterproductive by creating additional costs to the courts and other parts of the state. Bob Neill, the chair of the Justice Select Committee, recently said that LASPO "went too far".</p><h2>A false economy</h2><p dir="ltr">The Public Accounts Committee <a target="_blank" href="https://publications.parliament.uk/pa/cm201415/cmselect/cmpubacc/808/80802.htm">report</a> on reforms to civil legal aid was heavily critical of the government. It observed that the Ministry of Justice “<i>does not know whether the reduction in spending on civil legal aid is outweighed by additional costs in other parts of the public sector as a result of the reforms</i>”. Adding that perhaps this is because the MoJ “<i>gathered little evidence before implementation and did not make good use of the information that it did have</i>”. </p><p>Without a lawyer’s support, many situations escalate until they end up costing the government more than the previous legal aid provision would have. For example, simple housing health and safety claims, when unaddressed by people who cannot afford legal advice, often now turn into healthcare situations, costing the NHS and the government far more than the original legal aid.</p><p dir="ltr">The Grenfell tragedy is a chilling example of what can happen when free legal advice is not given before a housing repair issue poses a serious risk to health and safety. This is why the Law Society and others <a target="_blank" href="https://www.lawsociety.org.uk/policy-campaigns/campaigns/early-advice/">are calling</a> for the government to reinstate legal aid for early advice. This might be the area where the government are most likely to relent.</p><h2>Advice deserts</h2><p dir="ltr">Even when people are entitled and financially eligible for publicly funded advice, they are having problems finding it.</p><p dir="ltr">A lawyer recently said “<em>when you throw a lawyer in the air, they will land on their feet</em>”. Although the legal aid cuts have affected the livelihoods of lawyers, they have the skills and know-how to shift their focus and find other ways to earn a living. As lawyers transition, entire regions of the country are being left with no free legal advice at all, even for cases that are still in scope. Access to justice should not be a postcode lottery or depend on whether you have a car to travel long distances to an area with legal aid advice.</p><p dir="ltr">Some areas now do not have a single lawyer providing advice on matters such as housing and immigration. John Nicholson of Greater Manchester Law Centre told us: "<i>at the last count, there is no legal aid provider for immigration or asylum in Lancashire, a county to which the home office is increasingly dispersing applicants because much of the housing is poor (and therefore cheap)</i>". People in these areas simply have nowhere to go to resolve their problems. This means doctors, mental health services, local authorities and other public services will be taking up the slack.</p><p dir="ltr">These cuts are having a dramatic impact on our constitution as democracy and the rule of law are undermined. As the Supreme Court <a target="_blank" href="https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf">recently pointed out</a>, without unimpeded access to the courts:</p><p dir="ltr" class="blockquote-new">"<em>laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade</em>."</p><p>You might be thinking that all of this begs the question: Who benefits? It’s not the hardworking families of Britain, the squeezed middle or the just-about-managing. First, it’s the state. The state – including local authorities, the police and government departments – becomes less accountable to its citizens when their ability to challenge the lawfulness of its conduct is reduced. And second, it’s the landlords, the employers, the men who trap women in abusive relationships: those who abuse positions of power, against whom the law is supposed to protect us.</p><p dir="ltr">The cumulative impact of these measures, as well as curtailing access to justice and weakening human rights, is to make it more difficult to hold the powerful to account. Concern about this should unite us all.</p><p dir="ltr">Over the coming months we will be publishing more films featuring the stories of individuals who have suffered under these cuts. If you have a story that you would like to share please email&nbsp;charlotte.threipland@opendemocracy.net.</p><p><strong>Now is the time to tell the government that we care. Please take three minutes to write to the <a href="https://lawsociety.e-activist.com/page/26570/action/1">Lord Chancellor</a>, sign <a href="https://www.change.org/p/ministry-of-justice-make-legal-aid-available-for-people-who-cannot-afford-a-lawyer-f6e31469-fdef-4138-8985-3902321948f1?recruiter=602087660&amp;utm_source=share_petition&amp;utm_medium=email&amp;utm_campaign=undefined">this petition</a> and <a href="https://www.moreunited.uk/legal_aid2?rel=campaignHub">write to your MP</a>. &nbsp;</strong></p><div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> openJustice uk UK Voices for Justice access to justice openJustice Justice for the rich alone? (openJustice) Charlotte Threipland Oliver Carter Thu, 01 Nov 2018 10:29:26 +0000 Oliver Carter and Charlotte Threipland 120396 at https://www.opendemocracy.net The 'Big Four' and the UK government: too close for comfort https://www.opendemocracy.net/stephen-hornsby/big-four-accountancy-investigations-can-independent-regulators-really-bite-hand-on-w <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>In the 'Big Four' accountancy investigations, can independent regulators bite the hand on which central government feeds?&nbsp;</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/20431913459_08c0853d86_k.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/20431913459_08c0853d86_k.jpg" alt="" title="" width="460" height="307" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>KPMG, and the other big 4 accountancy firms are accused of contributing to the Carillion and BHS scandals. Image: KPMG London office. Håkan Dahlström Photography via Flikr. Some rights reserved/CC0.</span></span></span></p><p>The ‘Big Four’ accountants - an oligopoly if ever there was one as Bill Michael of KPMG has freely admitted - are charged with lowballing statutory audit services to major companies in the UK in order to gain much more lucrative advisory work. As a result (it is said) the audit work is done poorly and this has contributed to the series of scandals such as <a href="https://www.theguardian.com/business/2018/jan/15/jobs-carillion-liquidation-construction-hs2">Carillion</a> and <a href="https://www.bbc.com/news/business-36175250">BHS</a>. What is more, it is also said that the 'Big Four'&nbsp;have little incentive to give the sometimes necessary bad news to their client (and therefore the market) for fear of losing the tasty advisory work for which the statutory audit has provided such an unappetising entrée. &nbsp;</p> <p>So unattractive is it to be a player in the statutory audit market for FTSE 350 companies &nbsp;that a fringe competitor to &nbsp;the 'Big Four' (Grant Thornton) has actually pulled out of it recently citing the impossibility of making it pay. Unsurprisingly in these circumstances the government has now taken action and the Competition and Markets Authority (CMA) will revisit this classic case of market failure for which it failed to come up with any effective remedies but five years ago. With the much criticised Financial Conduct Authority (FCA) also carrying out a separate investigation on the regulatory side, it is fair to say the 'Big Four' are getting serious attention from regulatory authorities. </p> <p>Clearly, there is a genuine public interest in making sure that audit work is done well and results in good advice to shareholders (and the market). But lurking beneath the surface is the concern that the relationship between central government and the 'Big 4' is too close to be healthy as government spends millions on their non audit services annually. So what chance is there of any serious structural remedies emanating from the CMA? Can independent regulators really bite the hand on which the government feeds?</p> <p>At least the chances of serious remedies being proposed have increased because in its new consultation document, the CMA is going to look at the issues holistically by turning the spotlight on what they call “non audit services” – basically the advisory services that are the 'Big Four’s' main course. So far as it goes, this focus is well overdue. Lawyers, on the face of it have every interest in the non–audit services enquiry being searching. For many years the profession has watched whole areas of work disappear as a result (it is said) of accountants leveraging their monopoly in audit services to enter and dominate more lucrative advisory markets. For example, one would have thought that VAT advice - a highly technical legal area where EU law, badly draft Statutes, inaccurate HMRC Guidance and decisions of the Tribunals and courts interact uneasily - would be a fertile ground for lawyers. But one would be wrong; for it is a minefield which accountants - and particularly the 'Big Four' - dominate. &nbsp;The legal profession for one would be very happy if the playing field were to be levelled a bit. </p> <p>This might actually happen one day because the CMA is considering prohibiting audit firms offering non-audit services not only to their audit clients but also to any other large company. Even more radically, the CMA is (somewhat nervously) considering splitting the UK arms of major accounting firms into audit only and non-audit services practices. </p> <p>In identifying these remedies as potential cures for the conflict of interest arising from the provision of non-audit services to audit clients by the ‘Big 4’, there is an implicit recognition that the European Court of Justice’s bald pronouncement (in other contexts) that conflicts of interest are "<em>inherently anti competitive</em>” is correct. This is strong stuff. Unfortunately, the UK competition authorities have not really recovered from their rather unsuccessful re–structuring of the beer industry a couple of decades ago. They talk the talk about the need for structural remedies in their published material but action may prove difficult.</p> <p>For one thing, serious remedies can have unintended consequences and the CMA is alive to this and itemises a number of downsides to its proposals. One consequence that they do not mention is that unless and until restrained by new entry, audit costs charged by the 'Big Four' may rise as the cross subsidy from non-audit serve revenues are squeezed. Something comparable happened in banking where regulatory action to reduce extortionate overdraft fees is exerting pressure on banks to reduce 'free' banking. Rising audit costs will not be popular with FTSE 350 corporate customers – though they could always sponsor new entry or try to get Grant Thornton back. </p> <p>For the legal profession there may be other consequences. Any comfort that a level playing field might assist them to re-conquer advisory markets that they have lost to accountants is likely to be short lived. For the 'Big Four' are unlikely to take any loss of advisory service revenues lying down and may enter the legal market in a really serious and determined way.</p> <p>For the regulators, the consequences of appearing weak yet again will be worrying and for the FCA potentially catastrophic. PWC’s much criticised role in assisting OFWAT in its 5 year review of water industry pricing, whilst at the same time advising water companies, is of course not being replicated by the CMA and the FCA in their current enquiries but the unacceptable face of corporatism is on show for all to see whilst the government continues to spend so heavily with the 'Big Four'.</p><div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> </div> </div> <div class="field field-topics"> <div class="field-label">Topics:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Democracy and government </div> <div class="field-item even"> Economics </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> uk UK Democracy and government Economics openJustice Stephen Hornsby Tue, 30 Oct 2018 10:24:46 +0000 Stephen Hornsby 120348 at https://www.opendemocracy.net What can Better Call Saul tell us about the state of the UK criminal records system? https://www.opendemocracy.net/alex-temple/what-can-better-call-saul-tell-us-about-state-of-uk-criminal-records-system <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>An exploration of the harsh reality of UK criminal records disclosure.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/handcuffs-2102488_1280.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/handcuffs-2102488_1280.jpg" alt="" title="" width="460" height="259" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Critics say that the UK requires an individual to disclose their criminal records history too readily without taking into account mitigating circumstances such as age at the time of offence, risk of reoffending and seriousness of the offence. Image: Pixabay/Creative Commons CC0.</span></span></span></p><p>The finale of the fourth season of the AMC drama <em>Better Call Saul</em> aired last week. For those not in the know, <em>Better Call Saul</em> is the prequel series to the massively popular drama, <em>Breaking Bad</em>. It tells the origin story of Saul Goodman, then known as Jimmy McGill, a morally conflicted lawyer with a history of criminal offending and a complex relationship with his upstanding brother, Chuck.</p> <p>Simmering beneath the surface of this story, for nearly 40 hours of programming, has been a debate about offending, rehabilitation and our perception of people who have offended. For a brief moment in last week’s finale this boiled over into full view as we met Kristy Esposito, a high school student who applies for a scholarship funded by Hamlin Hamlin McGill, the prestigious law firm where Jimmy’s brother practiced. Jimmy, for reasons that aren’t relevant here, is a panellist for the scholarship interviews.</p> <p>We don’t see any of the interviews, but it is revealed after the fact that Kristy scored lowest, getting only one vote. Three other candidates are therefore picked to receive the scholarship. The chair of the meeting asks if there’s anything else before wrapping up and Jimmy clears his throat, purposefully, looking visibly uncomfortable. He reveals that Kristy’s single vote was from him and “for what it’s worth I think we should give her another look.”</p> <p>“<em>Esposito</em>”, says another panellist, flicking through her notes. “<em>that was the…. shoplifter</em>” she states, matter-of-factly. Jimmy pauses for a moment, looking disappointed.</p> <p>“<em>The shoplifter? … yea, that’s right. I mean, her grades are good. […] And her recommendations are solid. And yea, she’s had some trouble, but she was new in town and she made some bad choices and that was sophomore year. She’s had two really strong years since then. […] And my point is that maybe someone who’s been in trouble, someone who doesn’t have a perfect record, you know, who’s made mistakes and faced the consequences, maybe she’d bring something that the others don’t. I think that deserves real consideration</em>.”</p> <p>For a moment, there is a sense that Jimmy’s intervention may have got through to the panellists, as the chair calls a revote. But in the next shot, we see Jimmy catch up to Kristy outside the office, telling her the bad news: she didn’t get the scholarship. He then delivers an impassioned speech explaining that she was destined to be turned down, that she was invited to interview as tokenism and that she will always be “the shoplifter” to the people on the panel.</p> <p>I’m not going to pretend to know anything about the criminal records system in New Mexico, where the show is set, but I do know something about the system here. Jimmy’s disagreement with the interview panel is mirrored in a debate that’s been raging in the UK for a long time.</p><p class="mag-quote-center">"A YouGov survey completed in 2018 found that 50% of employers “would not consider” employing an ex-offender".</p> <p>In the UK we have a pretty harsh system of criminal records disclosure. The courts, some charities and politicians have called for reform. These critics, much like Jimmy, say that the current system fails to take account of the person’s age at the time of the offence (“<em>she was in sophomore year</em>”), whether or not there’s evidence they are still a risk of offending (“<em>she’s had two good years since then</em>”), the seriousness of the original offence (“<em>the shoplifter</em>”), and any contextualising circumstances, (“<em>she was new in town</em>”).</p> <p>In theory, we have a great system for allowing people the opportunity to move on from their past. The Rehabilitation of Offenders Act says that people must only declare or disclose their convictions for a period of time known as a “rehabilitation period”. After this, the logic goes, if they’ve not reoffended, then the rehabilitation period comes to an end and they’re no longer considered an offender – the conviction is considered to be “spent”. However, a huge number of jobs and even courses of education are exempt from this system. Every job that requires either a standard or enhanced criminal records check, known as a DBS Check, is exempt. More than 4,250,000 such checks were completed in the 12 months ending October 2017, according to the government. </p> <p>If you need such a check for a job application, and you have a conviction, then whether or not it is spent becomes irrelevant. In standard and enhanced checks, the only time that your convictions will not be disclosed is if they’ve become “protected” under the government’s Filtering Rules. However, by the government’s account, only 12% of childhood convictions are protected in this way. The vast majority will never qualify and will therefore be disclosed until the applicant’s 100th birthday.</p> <p>And here’s the real problem. Jimmy’s exasperation at his co-panellist dismissively labelling a talented, educated young applicant with strong support from her referees as “<em>the shoplifter</em>” gets to the heart of this issue. The government has argued that it’s for employers to look at a person’s history and decide whether or not their convictions are relevant and should disqualify them from the post. Thus justifying the tendency towards disclosure. But, as Jimmy’s panel so eloquently showed, this is unlikely to ever really work. Employers are risk averse by their nature, and if there’s one thing we can learn from millennials’ apparent constant complaining, it’s how hard it is to find meaningful work due to an abundance of qualified applicants. The point is that employers may talk the talk on employing people fairly, but it is impossible to separate tokenism from genuine consideration. The stats highlight this point. A YouGov survey completed in 2018 found that 50% of employers “would not consider” employing an ex-offender.</p><p class="mag-quote-center">"Many people with convictions will experience tokenistic consideration or dismissal, in spite of their young age, successful rehabilitation, mitigating circumstances or otherwise strong candidacy for the position."</p> <p>The DBS have issued guidance to employers, in an attempt to prevent outright dismissal of people with convictions. However, in July this year the Supreme Court stressed their concern at the lack of oversight the DBS has of employers. They noted a National Audit Office report that stated that:</p> <p><em>"There is no check on what employers have done with the information provided by DBS. Government does not know how many people this information prevented from working with children or vulnerable adults."</em></p> <p>The result, inevitably, is that Jimmy’s scholarship panel is a constant reality in the UK. Many people with convictions will experience tokenistic consideration or dismissal, in spite of their young age, successful rehabilitation, mitigating circumstances or otherwise strong candidacy for the position. <em></em></p> <p>Fortunately, there are signs that change is on the horizon. Theresa Villiers MP last week raised the issue in Parliament and secured a second reading of her private member’s bill to reform the system. In addition, judgement is awaited from the Supreme Court in a landmark case that may well lead to meaningful reform.</p> <p>In the meantime, it’s up to practitioners in this area to do what they can to navigate the system and help people struggling to overcome their convictions to move on with their lives. This is why Just for Kids Law has produced <a href="https://www.justforkidslaw.org/news/new-handbook-gives-practitioners-clarity-on-criminal-records/" target="_blank">a comprehensive guide for professionals</a> on the criminal records system<strong>,</strong> in the hope that until the system is improved, we can mitigate the unnecessary damage it is doing.</p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> uk openJustice Alex Temple Tue, 23 Oct 2018 08:00:00 +0000 Alex Temple 120156 at https://www.opendemocracy.net The UK just sent three men to prison for peaceful civil opposition https://www.opendemocracy.net/charlotte-threipland/uk-just-sent-four-men-to-prison-for-peaceful-civil-opposition <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>A closer look at the case that gave fracking protesters an excessive jail sentence.</p> </div> </div> </div> <p dir="ltr"><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/EcoFlight - Jonah May06.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/EcoFlight - Jonah May06.jpg" alt="" title="" width="460" height="332" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>A fracking site in Wyoming, USA. So far, the USA is the only country in which fracking is happening at scale. Photo credit: Bruce Gordon via EcoFlight / Simon Fraser University via Flikr. CC BY 2.0.</span></span></span></p><p dir="ltr">What does it mean for our country when citizens are jailed for peaceful activism? Last week Preston Crown Court jailed three men for protesting against the activity of controversial fracking giant Cuadrilla. The three men - a piano restorer, teacher and soil scientist - were given hefty sentences of 15-16 months in prison for causing a ‘public nuisance’.</p><p dir="ltr">Their actions were motivated by a concern for the widespread impact of hydraulic fracturing (fracking). As well as contributing to climate change and harming local countryside, fracking releases toxic chemicals into the air and water. The exact health effects of these chemicals remains to be seen but they include carcinogens. A recent study found that women who lived near fracking wells had low birth weight babies. Fracking has been halted or banned in Scotland, Wales, the Netherlands and New York State because of the potential damage it causes.</p><p dir="ltr">Against this background, were these men justified when they obstructed a fleet of Cuadrilla lorries carrying drilling equipment?</p><p>Although the jury found them guilty, they were not given the whole picture. By law they were unable to even consider the mens' motivations because the offence for which they were being tried (the antiquated charge of ‘public nuisance’) is narrow and only allows for consideration of the disruption caused.&nbsp;</p><p>When it came to sentencing, the court found their political convictions to be an aggravating factor: “<em>each of them remains motivated by an unswerving confidence that they are right</em>”.&nbsp;</p><p dir="ltr">The court did not attach importance to the fact that these men were exercising their fundamental rights. A barrister for one of the protesters, Kirsty Brimelow QC said that “<em>the points I made to Preston Crown Court were focused upon the importance of people’s rights to peaceful protest and the long history that this country has of accommodating civil disobedience. It sets us apart from countries with poor human rights records such as China, Turkey, Bahrain and many other countries</em>.”</p><p dir="ltr">These were the first protesters to be imprisoned following a criminal trial since 1932. Protesters have been imprisoned for breaching court orders (for example, in 1993 seven people were sentenced to 28 days imprisonment for breaking an injunction which prevented them disrupting the construction of the M3 at Twyford Down). But these will normally result in prison as it is similar to a contempt of court. It is a significant difference to imposing imprisonment for the offence itself (whether it is aggravated trespass or public nuisance).&nbsp;</p><p>The length of the sentences are also significant. The law is clear that custodial sentences should be reserved for the most serious of crimes, and, when they are deemed appropriate, should be as short as possible (see sections 152 and 153 of the <a href="https://www.google.pt/search?q=criminal+justice+act+2003&amp;oq=Criminal+Justice+Act+2003&amp;aqs=chrome.0.0j69i60l2j0l3.376j0j4&amp;sourceid=chrome&amp;ie=UTF-8" target="_blank">Criminal Justice Act 2003</a>). The sentences in this case are clearly excessive.</p><p dir="ltr">By imposing such draconian sentences, which seem to have been influenced by the political motivations of the protesters, the court is sending out a strong and unsettling message. Business as usual will not be disrupted, especially by conscientious, concerned and peaceful citizens exercising their civil rights.</p><p>Given the grave negative ecological impacts that human activity is having on our planet we should surely admire and applaud the few who have the courage to take action. Instead we are putting them behind bars.</p><p>This verdict sets a worrying precedent for other protesters. Fifteen activists who secured themselves to a Home Office deportation flight to Nigeria, Ghana and Sierra Leone are currently on trial for terrorism offences. In labeling these peaceful activists as terrorists, the CPS is sending out an equally worrying message.</p><p dir="ltr">Our fundamental rights of freedom of expression and assembly are under threat and the space for civil opposition is shrinking. If anything, this should serve as encouragement to take action.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p><strong>More than 200&nbsp;academics signed an&nbsp;<a href="https://docs.google.com/forms/d/e/1FAIpQLScmXGgV93AycjcfbWmWBQ_7eYxbI69n5PIQhM_0B9kF1qMSaA/viewform">open letter</a>&nbsp;calling for a judicial review of these “absurdly harsh” prison&nbsp;sentences&nbsp;handed.</strong></p> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> uk openJustice Charlotte Threipland Fri, 05 Oct 2018 10:36:20 +0000 Charlotte Threipland 119933 at https://www.opendemocracy.net Fairness, respect and community should be the driving forces behind immigration policy https://www.opendemocracy.net/charlotte-threipland/fairness-respect-and-community-should-be-driving-forces-behind-immigration-poli <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Leading immigration campaigners call on UK government to take values-based approach to immigration post-Brexit</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/PA-38252265.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/PA-38252265.jpg" alt="" title="" width="460" height="307" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Workers on a production line. Photo credit: Dan Law/Press Association. All rights reserved. </span></span></span></p><p><strong>The full text and list of signatories to an opinion piece from leading campaign groups:</strong></p><p>The publication of the <a href="https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-eea-migration" target="_blank">Migration Advisory Committee’s (MAC) final report</a>, establishing the UK’s immigration labour needs after Brexit, is welcome. For Britain to have a successful immigration and asylum system, we need a clearly defined objective.</p> <p>However, economic&nbsp;labour needs are only half the picture. If we are to take the opportunity to create a new immigration system which works for everyone we must base our approach on values which reflect who we are as a country and why we run things as we do. Values like fairness, respect and community.</p> <p>There is a consensus that immigration policy needs to be reformed. Our current system results in people&nbsp;who've come to live here from abroad facing confusion and hardship, and the public losing faith. This is no way for Britain to run an immigration system. It is lacking in strategy, but it is also out of kilter with the values which Britain usually prides itself in embodying.</p> <p>That is why, as leading organisations pushing for immigration reform in the UK, we are today calling for&nbsp;the government to take a new, values-based approach to immigration after Brexit. We believe that, by taking these values as a starting point, we can build an immigration system which enables people who come to Britain from abroad and those born here to live well together as a strong and thriving country.</p> <p>We therefore call for an immigration system which is:</p> <p><strong>Optimistic</strong>: We believe immigration, properly managed, can make Britain a better place for people to live. It supports a stronger economy, vibrant communities and a rich culture. We want an immigration system which works towards this end – not one which views managing immigration as an exercise in damage limitation.</p> <p><strong>Humane</strong>: Britain is a compassionate country. We should treat everyone who comes here, whether looking for work or safety, with humanity – whether their application to come into the UK is successful or not. Needless cruelty serves no-one and degrades Britain in the eyes of the world.</p> <p><strong>Evidence-led</strong>: Immigration policy should be based on the best available evidence of what works, what Britain needs, and what impact immigration policies have on people and communities. Relying on undeliverable goals only damages public trust and encourages policies which harm people.</p> <p><strong>Based on the&nbsp;rule of law</strong>: the idea that everyone is subject to the law and that the law should be fairly applied is a defining characteristic of Britain’s unwritten constitution. We believe immigration should be no exception. Immigration law should be accessible and easy to navigate. Immigration decisions should be made according to legal judgement – not in the pursuit of politically-driven refusal targets.</p> <p><strong>Supportive of&nbsp;strong communities</strong>: people who come to Britain should be given the tools and support they need to start contributing and participating in their new communities. They should be supported to learn English and find employment, making their community stronger – and communities themselves should be supported with the infrastructure they need.</p> <p>Our proposal is not radical. It is common sense and based on principles which people widely believe in. It is a different approach. But with some political leadership, we believe a better Britain, with a better immigration system, is possible.</p><h2>Full list of signatories:</h2><p>Harriet Ballance &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Acting Director&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Association of Visitors to Immigration Detainees (AVID)<span></span><span></span></p><p>Sunder Katwala &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Director&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;British Future<span></span><span></span></p><p>Toni Soni&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Centre Director &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Coventry Refugee and Migrant Centre<span></span><span></span></p><p>Eiri Ohtani&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Project Director &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Detention Forum<span></span><span></span></p><p>Emma Harrison&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Director&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;IMiX<span></span><span></span></p><p>Satbir Singh&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Chief Executive &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Joint Council for the Welfare of Immigrants (JCWI)<span></span><span></span></p><p>Rosario Guimba-Stewart&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Chief Executive &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Lewisham Refugee and Migrant Network<span></span><span></span></p><p>Aderonke Apata&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Director&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Manchester Migrant Solidarity<span></span><span></span></p><p>Wayne Myslik&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Chief Executive&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Migrants Resource Centre<span></span><span></span></p><p>Rita Chadha&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Interim Director&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Migrants' Rights Network<span></span><span></span></p><p>Hazel Williams&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; National Director&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; NACCOM (No Accommodation Network)<span></span><span></span></p><p>Sally Daghlian&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Chief Executive&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Praxis Community Projects<span></span><span></span></p><p>Stephen Hale&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Chief Executive&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Refugee Action<span></span><span></span></p><p>Charlie Fraser&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Director&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; TERN (The Entrepreneurial Refugee Network)<span></span><span></span></p><p>Nicolas Hatton&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Founding Co-chair&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the3million<span></span><span></span></p><p>Leila Zadeh&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Executive Director&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; UK Lesbian and Gay Immigration Group</p><p>Maurice Wren&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Chief Executive&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Refugee Council</p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by 4.0 </div> </div> </div> uk openJustice Charlotte Threipland Tue, 18 Sep 2018 18:58:40 +0000 Charlotte Threipland 119711 at https://www.opendemocracy.net The BBC and Cliff Richard: in terms of press freedom, this is a sideshow https://www.opendemocracy.net/uk/david-elstein/bbc-and-cliff-richard-in-terms-of-press-freedom-this-is-sideshow <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>The BBC has dropped the idea of appealing against the award of damages to Cliff Richard for invasion of privacy, but continues to muddy the waters with fake legal arguments.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/cliff richard.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/cliff richard.jpg" alt="" title="" width="460" height="306" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: Sir Cliff Richard speaking last month after being awarded damages against the BBC. Credit: Victoria Jones/PA Images</em></p><p>On August 15th&nbsp;the BBC finally threw in the towel. On the last day before it had to decide whether to seek permission from a Court of Appeal judge to take the Cliff Richard case to appeal, it announced it would not challenge the judgement. The BBC now faces rulings by Mr Justice Mann, the trial judge, on how much of Cliff Richard’s costs it will need to pay, which will inevitably take its total bill well above the current £1.9 million. The amount could rise perhaps to £2.25 million, making the decision to name the entertainer as the subject of a police investigation easily the most expensive editorial error in the BBC’s history.</p> <p>Yet whilst admitting defeat the BBC continued to churn out false claims about the significance of the case, and continued to be supported by outside journalists who seem not to have read the original judgement.</p> <p>The BBC claims that Mr Justice Mann’s ruling makes it illegal to report the fact of a police investigation into an individual, which is wholly untrue. As the judge went to great lengths to explain, all he did was exercise the dual elements in the 1998 Human Rights Act, balancing freedom of speech (article 10 of the Act) against the right to privacy (article 8).</p> <h2>No new legal precedent</h2> <p>Under the Act, there is no absolute right to freedom of speech, nor to privacy. What the judge said was that the presumption of privacy in principle extends to those being investigated by the police, unless a public interest argument trumps that presumption. He did <em>not</em> say anything to the effect that it would normally be illegal to name the subject of an investigation, as the BBC’s legal correspondent claimed on its own news programmes on Wednesday. The judge emphasised that he was just looking at this particular case, and was not creating any precedent.</p> <p>An obvious example of public interest would be – as the judge put it – a desire to “shake the tree”: encouraging other possible victims of a criminal to come forward (as had happened in a number of cases where men accused of sex abuse faced additional allegations once the first allegation was publicised). But that has almost always happened only after the accused has been arrested, or charged: something that never happened in Cliff Richard’s case. Indeed, in this case, the police deliberately chose <em>not </em>to “shake the tree” by naming Cliff Richard. But the BBC took that decision out of the hands of the police (and pragmatically declined to advance that argument as a public interest defence when the case came to court).</p> <p>The judge could find no public interest element in the BBC’s decision to name Cliff Richard.<em> It was therefore inevitable that the BBC would be found to have invaded his privacy. </em>If it had simply named him once, in a late night bulletin, the damages would have been minimal: indeed, it is highly unlikely that Cliff Richard would then have spent even £4,000 pursuing an action against the BBC, let alone £4 million.</p> <p>That anyone – journalists, lawyers, the BBC – could have drawn from Mr Justice Mann’s ruling the idea that a new legal principle had been established is astonishing. There were two more journalists from outside the BBC, plus the BBC’s own Director of Editorial Policy and Standards, David Jordan, spouting this nonsense on Wednesday’s Radio 4 “The Media Show” yesterday. The judge had simply done what many judges had done before: implement the provisions of the 1998 Act.</p> <p>Of course, the BBC’s overwhelmingly bad behaviour in the way it reported the story has led to it being ordered to pay significant damages, which in practice will be dwarfed by its contribution towards Cliff Richard’s costs, and by its own legal costs, when a simple apology two years ago could have saved all those millions.</p> <p>Mr Jordan raised a point today that the BBC’s lawyers had argued in court: that Mr Justice Mann had allowed a claim for damages to include damage to reputation, which was a new development. Yet as the judge very reasonably pointed out, if the invasion of privacy led to reputational damage that could be demonstrated and measured, why should the plaintiff not be compensated? And even this does not change the law: any future claim for such damages will be assessed by some other judge, looking at the particular facts, and the issue may at some point end up in the Court of Appeal. In terms of the main question of press freedom, it is a sideshow.</p> <h2>The BBC is now mis-reporting the case</h2> <p>Meanwhile, the BBC continues to publish comment that is simply incorrect, not least in a statement from its Director-General, Lord Hall, who said, “we believe that the judge erred in law in finding that broadcasters and journalists, when reporting on matters in the public interest, normally have no right to publish the name of a person who is the subject of a criminal investigation”. </p> <p>The judge said no such thing. He simply said that the broadcaster or journalist had to specify the public interest involved in order to override the right to privacy. In this case, the BBC’s attempt to do so was so feeble that he had no hesitation in dismissing it. However many times the BBC reiterates its false claim – and other journalists recycle it in the belief that they have an absolute right to name suspects, irrespective of the requirement for a public interest to be established, and of the 1998 Act – it remains false.</p> <p>I have a further concern: the way the BBC has reported this issue on its own broadcast outlets. Today on The Media Show, host Amol Rajan gave David Jordan a good going over, but the other two guests on the programme were both firm believers in the big lie about the threat to free expression, citing the possibility of flushing out further allegations by naming a suspect – a line of “public interest” defence the BBC did not offer in court, for the simple reason that the police themselves had expressly chosen not to name Cliff Richard. Indeed, Rajan even re-broadcast the same, mistaken, opinion from an earlier show, expressed by former BBC Director-General Mark Thompson (who seemed not to have read Mr Justice Mann’s judgement).</p> <h2>Critical voices</h2> <p>Three times in the last month I have been approached by the Today programme on this topic, most recently to see if I would support the BBC in seeking to appeal. When I replied that I thought an appeal would be a big mistake, no invitation to appear materialised. Former BBC chairman Lord Patten has used an appearance on Newsnight to lambast the BBC’s behaviour, and Lord Grade, another former chairman, has done the same in a brief article in The Times (which itself persistently misreports the case in its leader columns). Anna Soubry (a former journalist and lawyer) occasionally appears on the BBC correcting some of the mis-statements, but still they keep on being repeated.</p> <p>Even Ian Murray, executive director of the Society of Editors, has opined that “Parliament should now urgently consider whether such a step towards individual privacy against the protection of society’s overall liberties is acceptable” – a bizarre interpretation of the judge’s ruling. </p> <p>No doubt following the same logic, Lord Hall yesterday wrote to the Attorney General, asking for his office to review the law over naming suspects. He was immediately rebuffed in a curt response saying this was not a matter for the Attorney General’s office, and that the letter needed to be “re-directed” (without a suggestion as to where).</p> <p>It will take a great deal of accurate reporting to dislodge the impression that Mr Justice Mann has “changed the law around the naming of suspects”. That reporting will clearly not come from the BBC, or, indeed, the great bulk of what used to be called Fleet Street, with their vested interest in limiting the right to privacy.</p> <p>There is, of course, another reason why the BBC continues to obfuscate and mislead on this matter: to avoid having to deal with the utterly indefensible behaviour of its most senior news executives, and, consequently, its deep resistance to settling with Cliff Richard. Lord Hall effectively acknowledges that he supported this refusal to admit fault, in an email to BBC staff today saying: “we tried hard to explore a settlement before this came to court, but it would only have been possible to do so if we had conceded that it was unlawful to identify Sir Cliff in our reports. We couldn’t do that.”</p> <p>Yet Mr Justice Mann decided it <em>was </em>unlawful, and it is hard to find anything in his careful judgement as grounds for disagreeing. The BBC should have realised this four years ago when it reported the story with minimal concern for Cliff Richard’s legal right to privacy, and certainly two years ago when it had a chance to settle. </p> <p>Instead it chose to expose itself to public humiliation in a court hearing, and to spending over £2 million on defending the indefensible. But by continuing to argue that black is white and that the judge “erred in law” (maybe he will sue for libel if the BBC carries on saying that), resignations and disciplinary action can be avoided: so, no change there, then.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/ourbeeb/david-elstein/bbc-and-cliff-richard-what-threat-to-press-liberty">The BBC and Cliff Richard: what threat to press liberty?</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> OurBeeb OurBeeb uk openJustice David Elstein Thu, 16 Aug 2018 10:02:11 +0000 David Elstein 119297 at https://www.opendemocracy.net We should bridge the earnings gulf between legal aid and commercial lawyers https://www.opendemocracy.net/geoffrey-bindman/rich-and-poor-in-law <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Much of the income of City law firms comes directly from the public purse at many times legal aid rates. How can this be justified?</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/1024px-1,_rue_d&#039;Astorg,_75008_Paris.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/1024px-1,_rue_d&#039;Astorg,_75008_Paris.jpg" alt="lead " title="" width="460" height="307" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Clifford Chance, Paris office. 1 Rue d'Astorg. Wikicommons/ Antonin garric. Some rights reserved.</span></span></span></p><p>Lord Thomas of Cwmgiedd, the former Lord Chief Justice, has called on the Government to act over the widening gulf between huge earnings at City law firms and the funding of public sector legal advice. (<em>The Times</em>, 25 June 2018). In 2012 and 2016, Lord Justice Rupert Jackson, who recently retired at the age of 70, &nbsp;produced his blockbuster reports on litigation costs running to over 1200 pages. Yet his Herculean labours barely touched on the problem highlighted by Lord Thomas. </p> <p>It would be unfair to blame Sir Rupert. His task was not to examine disparities in lawyers’ pay but to &nbsp;review the system which enables one party (usually the successful one) to recover from another some or all of the costs of litigation. </p> <p>His brief was limited to “recoverable” costs. “Actual costs” – the amount the client owes his lawyer – were outside it. His remit did not include the fundamental question: why are some lawyers paid so much more than others? </p> <h2><strong>Loser pays</strong></h2> <p>The principle that the loser pays the winner’s costs is deeply embedded in our system and it is important that the calculation of those costs – which are often less than the actual costs – should be fairly conducted and supervised. This is the main function of an army of costs specialists – costs judges, draftsmen, costs counsel and solicitors. Yet the bulk of legal work in the commercial field at least is&nbsp; “non-contentious”. There is no losing party involved, so the full costs are the responsibility of the client alone. The solicitor and the client agree the terms of their arrangement (“retainer”), which includes hourly rates or other forms of charging and an estimate of how long the work will take. When the job has been done, the solicitors submit their bill and the client is expected to pay up. Actual costs can still be charged even when offset by recoverable costs (if recovered). <span class="mag-quote-center">”You can challenge your solicitor’s bill if you think you have been charged too much.”</span></p> <p>Part III of the Solicitors Act 1974 provides for ultimate judicial supervision of charges for both contentious and non-contentious business. The Government website GOV.UK states categorically: ”You can challenge your solicitor’s bill if you think you have been charged too much. Ask the Senior Courts Costs Office to make a detailed assessment of your bill. They can reduce your bill if they think it’s too expensive.”</p> <h2><strong>What criteria?</strong></h2> <p>What criteria do they apply? Efforts have been made in recent years to establish meaningful rates for recoverable costs. The Costs Committee of the Civil Justice Council in 1999 drew up detailed “Guideline Hourly Rates”, calibrated according to the experience of the fee earner and the locality of the practice for use by judges required to make summary assessments. These were endorsed by the Master of the Rolls and have been updated several times. &nbsp;</p> <p>In 2014, however, the then MR, Lord Dyson, decided not to change the rates fixed in 2010 and they have not been changed since. The highest hourly rate for the most experienced solicitors based in the City of London is £409. However, Guideline Hourly Rates were not meant to determine what&nbsp; solicitors could charge their own client. As Jackson said in his final report: ”it is not feasible to preordain how much clients must pay to their lawyers in every individual case. Also, that would be an unacceptable interference with freedom of contract. The best we can do is to restrict the recoverable costs.”</p> <p>Ultimately, the only determinant of actual costs is “market forces”. It is true that the client must be given full details of the terms of business, including the persons who will carry out the work, their charging rates, and the projected cost. This information must be updated regularly as the work progresses. Costs budgeting in advance is also now routine since the Jackson reforms. But once this&nbsp; has been done, the client has little choice but to pay up.</p> <h2><strong>Legal Aid</strong></h2> <p>Legal Aid is a different world. The Government guarantees to pay the lawyers but the Government (through legislation) determines rates of pay. The client has no say in the matter except when a contribution is called for. The lawyer’s choice is: take it or leave it.<span class="mag-quote-center"> The lawyer’s choice is: take it or leave it. </span></p> <p>We are still some way from explaining the huge disparities between the earnings of &nbsp;solicitors in different areas of law, especially between those in the commercial sector and those serving the public at large. Allen &amp; Overy’s highest paid partner last year received £3.5 million. The Financial Times reported average profit per equity partner of “magic circle” firms last year: Allen &amp; Overy £1.51 million; Linklaters £1.56 million; Clifford Chance £1.375 million excluding “annuities”, the amount of which is not disclosed); and Freshfields £1.547 million. Increases are already being reported for the current year. In such firms newly qualified solicitors can expect starting salaries upwards of £80,000 (even as much as £140,00). By contrast, the Young Legal Aid Lawyers have recently surveyed their 3500 members, all qualified solicitors for up to 10 years. More than half reported salaries of less than £25,000 and one-third below £20,000. Note that their work demands no less knowledge, skill or stress than commercial law. I know because I have done both.</p> <p>What Lord Thomas describes as the huge earnings of City law firms must largely depend on high hourly rates. In February 2016, the Independent highlighted a report on the cost of law by Jim Diamond, a costs lawyer with 30 years experience in City firms who has been reporting annually on charging rates. Diamond claimed that partners in Magic Circle firms were charging “an average of £850 to £1100 an hour”. He described this as “an epidemic of over-charging”. Even outside the magic circle, it was recently reported by Legal Business that Lord Justice Leggatt in the High Court described costs claimed by the firm Weil Gotshal as “obviously unsustainable “. The top hourly rate demanded was £946 per hour. A trainee was charged at £282 per hour. The Court ordered a substantial reduction.</p> <p>By contrast legal aid rates are specified in great detail by the Civil Legal Aid (Remuneration) Regulations. Many of the rates laid down are for a complete task, regardless of the time taken. Here are some random examples. Legal representation in care or supervision proceedings under the Children Act 1989 is paid for at a maximum of £63.06 per hour in London (£59.26 outside London). In other cases rates for preparation, attendance and advocacy vary between £55 and £70 per hour. In public law cases generally, advocacy fees range from £75.83 for hearings up to an hour long to £612.90 for a full day. These are the fee levels which have led to the recent industrial action taken by junior barristers. <span class="mag-quote-center">These are the fee levels which have led to the recent industrial action taken by junior barristers. </span></p> <h2><strong>Oligopoly</strong></h2> <p>Why then do commercial clients continue to pay exorbitant fees? While undoubtedly” magic circle “ and other City firms are in competition for substantial corporate clients, price competition seems to be avoided. Is it entirely coincidental the partner profits mentioned earlier are so similar to each other?&nbsp; Do we have here an example of oligopoly, when firms in the same business tacitly avoid price competition to keep up the level for all? Those who make the decisions within client firms are not usually spending their own money. However inflated, the total legal fees are often dwarfed by the sums involved in the transactions advised upon. And earnings may not seem excessive when compared with the earnings of the moguls and financial wizards who lead the big commercial clients. <span class="mag-quote-center">Earnings may not seem excessive when compared with the earnings of the moguls and financial wizards who lead the big commercial clients.</span></p> <p>Underlying the dramatic gulf in earnings described by Lord Thomas is the gulf in the self-image of commercial lawyers and those who serve what Lord Thomas calls the public sector. The former have become businesses, seeking to maximise profit. The latter, serving the impoverished and the disadvantaged, are performing a public service. Lord Thomas is referring to the latter. </p> <p>Ironically the public sector, in the form of Government and public authorities, frequently finds itself paying high fees to City solicitors. A recent example is Carillion. The joint parliamentary committee investigating it discovered that Slaughter &amp; May delivered bills for over £8 million for legal advice in the 8 months before its collapse. How many hours were charged at what rates by what fee earners? This has not been reported. What we do know is that much or all of this bill was paid by the public because &nbsp;Carillion was mainly engaged in outsourced public projects.</p> <h2><strong>The public purse</strong></h2> <p>Indeed much of the income of City law firms comes directly from the public purse at many times &nbsp;legal aid rates. How can this be justified? And of course, indirectly, much other income comes from corporations whose own income derives from the public.</p> <p>Lord Thomas poses a real dilemma which echoes the growing global polarisation of rich and poor examined by economists such as Thomas Piketty. British justice has become a saleable commodity on the international market. Senior judges are despatched overseas to drum up business. (One of them told me so himself). The financial success of City firms boosts our economy. Cutting their fees would damage it. </p> <p>So it is argued. But if we are to restore legal aid and redress the imbalance in access to justice, where will the money come from to pay for it? Would it not be fair to recoup from the commercial sector some of the profit they have received from the public purse? During his brief tenure as Lord Chancellor and Minister of Justice, Michael Gove favoured a levy on the highest earners in the big law firms but was turned down flat by them. Lord Thomas could add the weight of his authority to the revival of this proposal.</p> <p><em>This article first appeared in the <a href="https://www.newlawjournal.co.uk/content/rich-poor-law">New Law Journal</a> on July 20, 2018.</em></p><div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> </div> </div> <div class="field field-topics"> <div class="field-label">Topics:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Culture </div> <div class="field-item even"> Democracy and government </div> <div class="field-item odd"> Economics </div> <div class="field-item even"> Equality </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk UK Culture Democracy and government Economics Equality openJustice Geoffrey Bindman Mon, 30 Jul 2018 10:16:36 +0000 Geoffrey Bindman 119060 at https://www.opendemocracy.net The BBC and Cliff Richard: what threat to press liberty? https://www.opendemocracy.net/ourbeeb/david-elstein/bbc-and-cliff-richard-what-threat-to-press-liberty <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Asking the Court of Appeal directly for leave to appeal could result in another opportunity to expose the dubious behaviour of the BBC news division, and at a higher judicial level.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/PA-24021049.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/PA-24021049.jpg" alt="" title="" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" width="460" /></a> <span class='image_meta'><span class='image_title'>Director general Lord Hall unveils proposals for future of BBC, 2016. Anthony Devlin/Press Association. All rights reserved.</span></span></span></p><p>On July 18, Mr Justice Mann handed down his judgment in the case brought by Sir Cliff Richard against the BBC for invasion of privacy. Eight days later, the BBC applied to him for permission to appeal, which he rejected. The BBC may yet approach the Court of Appeal directly, egged on by columnists in certain newspapers who have misread the judgement, and believe it to be a threat to press freedom.</p> <p>On Thursday, August 14, 2014, nearly four years ago, the BBC had led its lunchtime television news bulletin with helicopter footage of a search carried out by South Yorkshire Police (SYP) of an apartment in Sunningdale owned by Sir Cliff. The search followed an anonymous complaint made by a man about an alleged sexual assault 30 years previously, when the complainant was 13 years old. </p> <p>The SYP did not name the target of the search, but the BBC did, in nearly sixty news reports on television that day and the next (as well as countless radio ones): broadcasts, in the judge’s view, “presented with a significant degree of breathless sensationalism”. In awarding the entertainer record damages, the judge made scathing comments about the BBC’s behaviour, and was dismissive of much of the evidence offered by BBC witnesses under oath.</p> <p>Immediately afterwards, standing outside the court, the BBC’s Director of News, Fran Unsworth, who had been Acting Director at the time, and had authorised the use of Cliff Richard’s name, said she needed to absorb the full “200-page” judgement (actually 122 pages, well worth reading) before deciding whether to launch an appeal, claiming – so she said – that freedom of the press was endangered by a judge ruling that factual coverage of a police operation could be unlawful. This was an argument taken up by a number of commentators, including some legal experts; perhaps because they had not read what the judge actually said.</p> <p>The judge’s findings were admirably lucid. “The fact is that there is legislative authority restraining the press in the form of the Human Rights Act [of 1998], and that is what the courts apply in this area. The exercise I have carried out in this case is the same exercise as has to be carried out in other, albeit less dramatic, cases”. </p> <p>The balancing act in each such case – and each case is individual, binding no future judge – is between articles 8 and 10 of the Act, protecting the right to privacy on the one hand and the right to free expression (exemplified by the press) on the other. Mr Justice Mann emphasised that neither right was unfettered, and worked his way through all the arguments on both sides in this particular instance.</p> <p>His first analysis was whether there was a right to privacy when an individual was being investigated by the police, and of that he had no doubt. Even the issue of a search warrant (a low-level escalation of such an investigation) would very rarely justify identification of the target, and it would be a police decision as to whether to make such identification. The judge cited the Leveson Report in support of his ruling, and it is hard to believe that the Appeal Court, or the Supreme Court, would disagree with him. </p> <p>Even then, his ruling leaves it to media outlets to decide for themselves in future situations whether to identify the target of an investigation or search (assuming they know the identity), and whether there is a public interest they could point to that would over-ride any right to privacy. If they were then sued, they could take their chances in court, just as the BBC has done in this case. Unfortunately for the BBC, Mr Justice Mann could see no public interest that required Cliff Richard to be named. The notion – much touted by national newspapers across the political spectrum – that this ruling inhibits press coverage of police activities is simply misconceived. The BBC, in the judge’s opinion, obtained Cliff Richard’s name, and its subsequent confirmation by the SYP, by improper means, and then effectively ignored his privacy rights enshrined in the 1998 Act. It is hard to see how “press freedom” is thereby brought into play. &nbsp;</p> <p>There may well be a public interest in disclosure where someone has been charged (though even that is not a universal rule), and such might also sometimes be the case when a person has been arrested. Even so, it is quite normal for the media to follow whatever formula is adopted by the police: for instance, “a 40-year-old man from Brentford has been arrested”. But the judge was clear that there were no such circumstances in this case, and that the BBC’s decision to name Cliff Richard at all – never mind the helicopter hired to film the search of his flat, and the huge prominence given to the story – was “an invasion of Sir Cliff’s privacy rights in a big way”, made despite the BBC knowing well in advance that the police had decided not to publicise a name.</p> <h2><strong>The leak</strong></h2> <p>The BBC argued in court that, although Cliff Richard had a right of privacy against SYP (public authorities being specifically mentioned in the act as not being allowed to interfere with the right to privacy except in particular circumstances, such as where there a danger to public safety), he did not have one against the BBC, which had learned of his identity separately from the SYP (though the SYP had then confirmed it). </p> <p>Mr Justice Mann might have been willing to consider that argument, if the BBC had obtained the name legitimately. But the BBC’s own evidence was that it had come from a source that had clearly breached police confidentiality, such that, in internal email exchanges, news executives acknowledged that they could not have published Cliff Richard’s name as a target of a police investigation simply on the basis of the leak.</p> <p>Nor did the judge accept that the BBC could ignore Cliff Richard’s right to privacy once it had received confirmation from SYP that he was under investigation, and that his UK home would be subject to a search warrant. This was because he believed the BBC had obtained that confirmation by illegitimate methods. Indeed, it is hard to see how someone’s right to privacy could be ignored by a media outlet just because it had gained unauthorised or questionable access to confidential police information. </p> <p>The BBC tried to argue that investigations of historic sex offences were a subject of significant public interest which ought to be reported: and the judge agreed that the <em>fact </em>of an investigation might be a matter of public interest; but naming the target required a much higher level of significance, and in this case amounted to no more, in his view, than the BBC encouraging gossip-mongers in its pursuit of scoops and headlines. </p> <h2><strong>Negative publicity</strong></h2> <p>As a result, he concluded that all the negative publicity about Cliff Richard that followed the BBC’s extensive and exclusive coverage of the search, and identification of its target, was primarily the BBC’s fault: which is why he awarded such high damages. When comparing the £190,000 awarded to Cliff Richard to the £60,000 awarded to Max Mosley a decade earlier (which he re-valued to £76,000 in today’s money), he concluded that this invasion of privacy was at least “twice as bad”, not least because of the world-wide publicity resulting from the dozens of news reports the BBC had broadcast, with great fanfare and huge prominence for the story on its bulletins. </p> <p>The judge said: “I regard the present case as much more, not less, serious than <em>Mosley</em>, and worthy of a much greater sum, not a lesser sum, than <em>Mosley.</em>” He did not think the award likely to “chill” press activity: “it is not an excessive figures; there is no punitive element; it is a genuine compensatory figure”.</p> <p>He awarded a further £20,000 in aggravated damages with regard to the BBC’s submission of its story for the Royal Television Society’s “scoop of the year” award (though he noted it failed to win): a clear case, in his view, of adding insult to injury.</p> <p>He assigned to the SYP sole liability for £5,000 of the damage, for its role in the affair, and also decreed that 35% of the rest of the final damages bill was attributable to the SYP. The police force had settled with Cliff Richard in May 2017, apologising to him, and paying him £400,000 compensation and £300,000 as an advance contribution to his costs, which it had also agreed to pay. In court, the SYP argued that the BBC should make a proportionate contribution to that settlement, and on July 26 the BBC proposed paying the SYP £315,000 and Cliff Richard £850,000 as contributions to their costs.</p> <p>The judge made clear that much of the expense incurred by Cliff Richard in legal and public relations fees that he had incurred defending himself during the two years between the BBC broadcast and the closing of the SYP investigation (he was never arrested or charged) should be recoverable from the BBC and SYP; and possibly lost earnings, too.</p> <h2><strong>Privacy</strong></h2> <p>If the parties do not settle the issue of costs, along with other claims of aggravated damages, Mr Justice Mann will decide the matter. It seems inescapable that the BBC will be required to pay a large additional six-figure amount over and above the £2 million already imposed or offered: the debacle is far more costly than Newsnight’s libelling of Lord McAlpine six years ago (he received £185,000 in damages, and a swift apology, after being wrongly identified as a child abuser). That huge error indirectly led to the departure from office of Director-General George Entwistle after a mere 54 days in post.</p> <p>It is reported that Entwistle’s successor, Lord Hall, who is also a former BBC Director of News and Current Affairs, was personally involved in the decision two years ago to reject an offer from Cliff Richard to withdraw his litigation in exchange for a public apology: that would have saved the BBC over £600,000 in legal costs fighting the case, plus the damages, special damages and additional damages now awarded, and its share of Cliff Richard’s costs. </p> <p>The BBC argues that, in the case of McAlpine, it made a regrettable factual error: with Cliff Richard, the facts broadcast were true. But that misses the point – the evidence in this case is that the BBC barely considered Cliff Richard’s right to privacy (it did worry about defamation), and therefore failed to ask itself whether there actually was any public interest in naming him, with the attendant risk of damage to him (and in due course to itself) in pressing on.</p> <p>The BBC’s editorial guidelines offer seven possible reasons for over-riding a person’s right to privacy on public interest grounds: none fits this case, though Fran Unsworth, giving evidence, cited “exposing or detecting crime” and “protecting people’s health and safety” as being relevant. The judge struggled to see how that was. Fortunately for her, he concluded that what<em> he </em>thought relevant was rather more important than what <em>she</em> thought.</p> <p>She also said she was concerned about possible future criticism if the BBC did not report what it knew (no doubt thinking back to its long silence on Jimmy Savile): but again, the judge rejected her concern. “There was no obligation on the BBC to report [what it knew]: future criticism of the nature feared by Ms Unsworth does not matter”. </p> <h2><strong>The “huddle”</strong></h2> <p>Fran Unsworth was asked in court what legal advice she had taken, but – apart from saying that she had indeed sought advice before naming Cliff Richard – she failed to specify whether that advice had covered the issue of privacy and the balance between articles 8 and 10, as opposed to defamation. What the BBC witnesses said was that there had been a 15-minute management “huddle” on the newsroom floor on the day of the search, with Fran Unsworth at the heart of it, and that at 12.30 she authorised the naming of Cliff Richard in the 13.00 news bulletin. </p> <p>The judge refrained from pointing out that by this stage the BBC had committed to tens of thousands of pounds of expenditure, not just in deploying a helicopter to overfly the Sunningdale apartment block, but despatching news teams to Portugal and Barbados to seek responses from Cliff Richard at his respective homes there. The BBC’s contract with ITN (they shared the costs of the helicopter on the basis of also mutually declaring breaking news stories to each other when using it) had been carefully sidestepped (something of which the judge took a dim view). </p> <p>The news division was far too committed by 12.30 that day to pull back. Indeed, even if cold feet had prevailed at the last minute, the sheer scale of investment, impossible to conceal from a wider circle than those who had been included in the planning group (a limitation designed to protect the scoop, not Cliff Richard), would have almost certainly have led to the name becoming public. <span class="mag-quote-center">That Lord Hall... chose to go to the court rather than settle is yet further evidence of how the privilege of having public money to spend on one’s mistakes leads to abuse.</span></p> <p>That Lord Hall, even after having time to reflect on this failure to weigh the issue of privacy properly, chose to go to the court rather than settle is yet further evidence of how the privilege of having public money to spend on one’s mistakes leads to abuse. If the BBC decides to appeal the judgment – as it is still contemplating, despite an initial rebuff of the idea from the trial judge – the strong likelihood is that even more hundreds of thousands of pounds will be spent.</p> <h2><strong>“right to reply”</strong></h2> <p>The judge acknowledged that the BBC had sought out spokesmen for Cliff Richard, on the day of the search, ostensibly in the pursuit of a “right to reply”, according to BBC editorial guidelines. Yet this effort could not commence until after the search had started (otherwise it might in theory have impeded the search, though, as it turns out, as soon as the management agents at the apartment block contacted Cliff Richard to let him know of the arrival of the police, he authorised their entry to the apartment). </p> <p>With Cliff Richard’s public relations advisor, Phil Hall, abroad on holiday, and Cliff Richard himself travelling in Portugal, it took some time to get a message through that the BBC wanted urgently to talk to him about a story. The judge felt that the closing off of the “right to reply” opportunity by 1pm (in his view, in order to protect the scoop) meant that “the BBC did not quite comply with what it itself saw as the ethical requirements of its journalism”.</p> <p>Phil Hall took a different view of the “right to reply”: he saw the carefully framed offer, lacking full detail of what he was expected to respond to, as an effort to get his client to corroborate whatever story the BBC may have had, and so get it off the hook on invasion of privacy – more subterfuge than ethical journalism. It is reasonable to surmise that the BBC’s lack of frankness with Phil Hall was designed to avoid the danger of an injunction, which the judge thought would most likely have been granted.</p> <p>Certainly, by 12.30 that morning, with or without a response from Cliff Richard, the BBC was determined to name him. Phil Hall was only emailed a paraphrase of the SYP statement at 12.24, which he passed on to his client’s lawyers. At 12.45, he pointed out to the BBC researcher who had sent it that the police had not named the owner of the property being searched. She told him that the BBC knew it was Cliff Richard. That did not reduce his concerns. Only when, a few minutes later, the BBC 13.00 news bulletin led with the story did he realise what was going on. </p> <p>At one point in the bulletin, Dan Johnson, the reporter who had obtained the original “leak”, said to camera: “despite our efforts this morning we have not been able get any response from Cliff Richard or his representatives” – a comment the Judge termed “hardly fair”. Within the hour, a statement describing the allegation as entirely false was issued by Phil Hall: but by then, the damage had been done – immense damage, as it turned out. &nbsp;</p> <h2>SYP&nbsp; &nbsp;</h2> <p>What led SYP to settle with Sir Cliff was not the the search of his property, but its improper co-operation with the BBC over the search, which came about as a result of Dan Johnson calling SYP’s head of corporate communications, Carrie Goodwin, on July 9, 2014, and surprising her with the extent of his knowledge of the Cliff Richard investigation, as well as by saying he was ready to go public with his information. </p> <p>This knowledge was based – so he said – on a tip-off he had received a month earlier (he never explained why he had sat on it for so long). She immediately notified the Chief Constable of this breach of confidentiality and the danger of pre-emptive coverage of the case by Johnson, which might jeopardize the investigation. </p> <p>Johnson was invited to a meeting with Detective Superintendent Matthew Fenwick, to whose overall supervision the case had been assigned, after its transfer from a broader investigation into historic sex abuse, entitled Operation Yewtree, run by the Metropolitan Police Service (MPS).</p> <p>Fenwick and Goodwin met Johnson on July 15, 2014, and it was this meeting – and the conflicting accounts of it – which proved the nub of the case in court. According to Fenwick and Goodwin, Johnson told them what he knew (which, as Fenwick admitted, was pretty much what the SYP file contained). That, at least, is what the judge believed, accepting the evidence of the SYP witnesses rather than of Johnson, who claimed in court that he knew very little (other than the identity of the target) till the South Yorkshire Police put him in the picture. </p> <p>The judge rejected that evidence as implausible (why would SYP go into panic mode if he knew nothing more than that?) and as being in direct conflict with all the available written evidence (emails, and notes of meetings and conversations).</p> <p>The judge did not subject Johnson’s story of the tip to much scrutiny, as it did not really bear on the matters in dispute. Johnson claimed that someone with knowledge of Operation Yewtree told him (why?) that “another celebrity” was being investigated, and he “guessed” it was Cliff Richard, which his source then confirmed, having previously declined to provide the name. This is deeply implausible, other than as an advance attempt to protect that source, should the identity of the person involved ever become known to the Metropolitan Police: but it was not central to the issues the judge had to decide. </p> <p>Goodwin and Fenwick felt they were dealing with damage control as a result of a leak from – or near – Operation Yewtree, almost certainly by a serving MPS officer. Johnson’s threat to publish what he had (which could have de-railed the investigation, by naming Cliff Richard, and making any search of a home fairly pointless), led them to offer co-operation in the shape of giving advance notice of when a search of Cliff Richard’s UK residence would take place (that Cliff Richard lived mostly in Portugal and Barbados left the police with few alternatives if they were going to search anywhere).</p> <p>The SYP have been much criticised for the size of the eventual search operation (a month after the meeting with Johnson), at a location not owned by Cliff Richard at the time of the alleged offence, and 30 years after the victim claimed to have been assaulted. What possible incriminating evidence could they expect to find there which would require 8 officers, 5 vehicles and a search lasting 5 hours?</p> <p>It is hard to resist the conclusion that the scale of the search was therefore a product of this negotiation: having committed to an agreement that the BBC would be warned in advance, SYP could scarcely have turned up with one vehicle and three officers, and stayed the bare hour that in reality is all it could have entailed in normal circumstances. SYP had no doubt they were being blackmailed, which is the word they used in internal correspondence and in court: a terminology which the judge broadly endorsed.</p> <h2><strong>Blackmail</strong></h2> <p>BBC managers knew all about Johnson’s behaviour, and were filled with glee that the SYP were “over a barrel”, and that “Dan the man” had “nailed them to the wall” (according to internal emails produced in court). Senior executives told themselves that, of course, Johnson was not empowered to publish anything without their approval, but declined to inform the SYP of this, eager as they were to enjoy the fruits of his journalistically enterprising approach. Indeed, given that Johnson’s tip-off was most likely an illegal breach of police confidentiality, he and the BBC would have been most unwise to publish Cliff Richard’s name before it was confirmed by the SYP. &nbsp;</p> <p>The judge described the SYP witnesses as honest, careful, reliable, clear, credible and materially correct. The best he could say for Johnson was that he was “not fundamentally dishonest”, but could “twist matters in order to pursue his story” and twice left the SYP under a false impression because “his enthusiasm for his story got the better of his complete regard for truth”. </p> <p>Other BBC witnesses fared no better: of Declan Wilson, Johnson’s boss as North of England Bureau Manager, the judge said “various aspects of his evidence were unsatisfactory, some particularly unsatisfactory: the totality of his evidence needs to be approached with caution”; as for Gary Smith, the UK News Editor, he was “obsessed with the merits of scooping news rivals”, could not always be regarded “as a reliable witness”, and was “defensive and evasive”, especially with regard to email traffic after the July 15 meeting with the SYP, which was “significantly inconsistent with the BBC’s case”. </p> <p>Likewise, Jonathan Munro, Head of Newsgathering, who had little involvement with the affair but had signed the “statement of truth” with regard to the BBC’s case, and then “wilfully failed to acknowledge inconsistencies” in that case: he “refused to acknowledge the plain effect of some of the internal emails”. As for his boss, Director (no longer acting) of News, Fran Unsworth, she was honest in her testimony, but there was “one respect in which I do not accept her evidence” because it was “tinged with wishful thinking”.&nbsp;&nbsp;&nbsp; </p> <p>The cusp of the argument in court was the BBC’s claim that Fenwick and Goodwin had fabricated the notes of their July 15 meeting with Johnson so as to conceal the “fact” that they had volunteered most of the information about Cliff Richard to Johnson – a libel that would have cost the BBC yet more hundreds of thousands if it had been made outside the privileged sanctuary of court proceedings. The judge not only dismissed this allegation but demonstrated from the available evidence that it could not possibly be true. </p> <p>Internal BBC emails confirmed that Johnson had made the threat of early publication, and there was undisguised glee within the news department at this prospective scoop. “Sit Down When You Read This” was the heading of one internal email. “Congratulations. And Jubilation. I want the world to know I’m happy as can be,” came one reply. On August 17, Munro emailed Unsworth to alert her to the fact that Johnson may have “given the impression” that he would have “compromised the enquiry”: but that does not seem to have given either of them pause, or deter them from subsequently spending 13 days in court defending his behaviour.</p> <p>There was speculation that Cliff Richard might be arrested – “gripped” – at Wimbledon: an editorial fantasy, given that the Wimbledon tennis tournament was already over. Indeed, Fenwick told Johnson that no arrest – let alone charge – was likely, as the complainant’s story was too weak to put to prosecutors (he was apparently confused as to which Sheffield football ground was the location of the alleged offence). Johnson seems not to have passed on this rather important information, though his notes confirm he was given it.</p> <p>Indeed, he appears to have told his bosses that Superintendent Fenwick would go on camera naming Cliff Richard: “Dan’s source is the SIO” – the senior investigating officer (which was not quite true: Fenwick was not the case’s SIO) – his work is “bloody cracking”). Fenwick did indeed agree to do a statement to camera, on the day of the search, but without naming the target – somewhat frustratingly, as far as the BBC was concerned, as Fran Unsworth would now have the invidious task of deciding whether to name the search target.</p> <p>Johnson had further misled the SYP, in the judge’s opinion, lulling them into a false sense of security by telling them that he “hadn’t said anything yet” to his bosses, at a time when those bosses were rubbing their hands with glee at how he was “nailing them to the wall”: but that only bore on his general reliability rather than the merits of the case. </p> <h2><strong>BBC and SYP</strong></h2> <p>The cordial – if wary – relationship between the BBC and the SYP almost came unstuck on the day of the search, when a BBC crime correspondent, Danny Shaw, recorded a piece to camera – which he then placed on the BBC website – saying that the tip off to the BBC from SYP “appears to be a deliberate attempt by the police to ensure maximum coverage – this is not illegal but the force may have to justify its approach in the months to come”.</p> <p>Perhaps prompted by this, a reporter on Channel Four News an hour later stated that the name of the target “should not have been publicized save in exceptional circumstances”. SYP immediately complained to the BBC, and Johnson tried – in vain – to persuade Shaw to withdraw his mistaken claim. The next day, senior executives eventually mollified the SYP team by tweeting that Shaw’s piece had been wrong, and that the source for the BBC’s naming of Cliff Richard had not been the SYP. </p> <p>Yet, in court, the BBC’s QC tried to re-run a version of the Danny Shaw line: that the SYP had encouraged the naming of the target, not – to use the judge’s expression – to “shake the tree” in case other complainants might come forward (that was evidently not the case, as SYP so carefully avoided naming Cliff Richard), but so as to enhance their reputation. </p> <p>The judge took a dim view of this line of defence: why would the SYP want to draw so much attention to one of their weakest cases, which they did not expect ever to come to court? To that, the BBC had no answer, and Mr Justice Mann gave short shrift to the entire conspiracy theory. If the board of the BBC gets round to reading his dissection of the defence case, they will surely ask some serious questions about the Corporation’s strategy and tactics.</p> <p>The BBC tried to argue that, once it had its tip-off, it was entitled, even duty-bound, to publish Cliff Richard’s name. The judge was having none of this: article 10 enshrined certain rights in relation to freedom of expression, but these were not absolute, and certainly did not amount to a duty. In any case, “Mr Johnson wrongfully exploited previously acquired confidential information to manoeuvre SYP into its further disclosures”.</p> <p>The BBC claimed that a privacy suit could not include compensation for reputational damage (which was the province of defamation law): but again Mr Justice Mann demurred. “I think the exact opposite is the case. The facts of this case vividly demonstrate why damages <em>should</em> be available for an invasion of privacy resulting (inter alia) in damage to reputation.”</p> <h2><strong>“Get the BBC out of jail”</strong></h2> <p>The BBC had one last throw of the dice. Because the SYP are a public authority, they should not be allowed to seek from the BBC a contribution to the settlement they had agreed with Cliff Richard. The ingenious argument rested on the fact that public authorities cannot claim rights of free expression under article 10, and so have no “balancing” process available in judging liability. Indeed, by extension, said the BBC’s QC, the SYP should be entirely responsible for the damages awarded against the BBC.</p> <p>The judge described this as a “get the BBC out of jail free” argument, and was “not displeased to find” that “such a strange result” could not actually flow from the Human Rights Convention. Where there are two wrong-doers, he said, “I cannot understand why the non-state perpetrator should get off scot-free. Nor am I troubled by the absence of any authority which supports this position. That could well be because it is obviously right.”</p> <p>The BBC is still mulling over whether Mr Justice Mann was “obviously right” in finding for Sir Cliff, and making the award he did. When Gavin Millar QC, for the BBC, tried to argue to the judge on July 26, in seeking leave to appeal, that he had been wrong on the law and wrong in his analysis of the facts, Mr Justice Mann was dismissive to the point of rudeness: it was the BBC, not he, that had failed to understand the law and the significance of its actions.</p> <p>An appeal would be costly, and is unlikely to succeed. Even asking the Court of Appeal directly for leave to appeal (the only step remaining other than settling its bill) could result in an embarrassing rebuff for the BBC, or, perhaps worse still, another opportunity to expose the dubious behaviour of the BBC news division, and the unimpressive performance of its witnesses at trial, to yet more scrutiny, and at a higher judicial level. A failed appeal might well be the mistake that costs Lord Hall his job, just as the McAlpine affair cost George Entwistle his. </p><div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> </div> </div> <div class="field field-topics"> <div class="field-label">Topics:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Culture </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> OurBeeb OurBeeb uk UK Culture openJustice David Elstein Fri, 27 Jul 2018 10:32:42 +0000 David Elstein 119044 at https://www.opendemocracy.net Fat cats or poor hacks? Why criminal barristers are refusing to work – and why you should care https://www.opendemocracy.net/faraz-shibli/fat-cats-or-poor-hacks-why-criminal-barristers-are-refusing-to-work-and-why-you-should- <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Busting the myths about the criminal bar.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/barrister legal aid 2014 protest.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/barrister legal aid 2014 protest.jpg" alt="" title="" width="460" height="329" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: 2014 walk-outs by criminal barristers over legal aid cuts - action has now escalated. Credit: Stefan Rousseau/PA Images, all rights reserved.</em></p><p>Since 1 April, criminal barristers in England and Wales have been refusing to go to court.</p> <p>What has incensed our learned friends so much as to leave defendants unrepresented in the dock? The latest wave of cuts to legal aid that would bring an already creaking criminal justice system to its knees.</p> <p>Social media comments suggest, however, that many members of the public are unmoved:</p> <p>‘Will they now have to drive Porches instead of Lamborghinis?’</p> <p>‘One phone call to [my] lawyer and two letters written by [my] lawyer. Bill was over £500. Difficult to justify how much they charge!’</p> <p>Sadly, many people like the commenters above confuse legal aid work, which is publicly funded, with private work. They’re therefore probably unaware that some barristers earn as little as £12,000 per year.</p> <p>Here’s how—and why you should care.</p> <p>Legal aid work involves barristers representing people who can’t afford to pay privately. Those barristers aren’t paid by the people they represent, but by the state. The vast majority of criminal cases are publicly funded, and many involve representing some of the most vulnerable people in society—including children, the mentally ill and the homeless.</p> <p>Many barristers take on exclusively (or almost exclusively) legal aid work—I was one of them. In criminal cases,&nbsp;<a href="https://youngbarhub.com/2017/09/18/young-barristers-fees-in-the-magistrates-court/" target="_blank">it’s common for barristers early on in their career to represent someone at court for under £100—and sometimes as little as £50</a>.</p> <p>That includes all case preparation, travel time (often to another part of the country), time spent in conference with the client, time spent waiting to get called on, time spent in court, time spent advising the client and their solicitor on the result (potentially including the prospect of an appeal) and time spent writing up a record of all of the above afterwards.</p> <p>From that figure, the barrister (who’s typically self-employed) will take off their travel costs; their clerks’ fees (typically 10–20 per cent of the barrister’s fee); their practising certificate, professional membership and annual training fees; the cost of their legal reference books (hundreds of pounds); and the cost of their wig, gown and other required items of court dress (hundreds of pounds).</p> <p>That’s before tax.</p> <p>It’s not difficult to see how many barristers can earn well below the minimum wage—or even end up paying to go to court. In my first year as a barrister living in London in 2008, I was in court five or six days a week (including some Saturdays) and preparing cases at home on Sundays.</p> <p>For my efforts I earned the princely sum of £10,000.</p> <p>Since then, repeated cuts to legal aid have meant&nbsp;<a href="https://www.ft.com/content/4f3adfac-358e-11e8-8b98-2f31af407cc8" target="_blank">barristers’ fees have plummeted more than 40 per cent in real terms</a>.</p> <p>Can you think of any other profession that has faced anywhere near this level of swingeing cuts?</p> <p>But this isn’t about legal aid barristers whinging about how little they’re paid—no one does this job for the money. It’s about protecting access to justice.</p> <p>Fewer people are now eligible for legal aid, meaning many are left to represent themselves in the criminal, family and civil courts in cases that can have life-changing consequences for them.</p> <p>I can’t count the number of elderly and mentally ill defendants I’ve seen arguing their case alone in front of a judge, fighting for their liberty. It’s shameful.</p> <p>It’s also crucial for justice that the criminal bar attracts the best and the brightest from a wide range of backgrounds. It has become nigh on impossible for students who aren’t from privileged, middle-class families, backed up by the bank of mum and dad, to thrive—or even survive—as criminal barristers.&nbsp;<a href="https://www.criminalbar.com/resources/news/cba-monday-message-21-05-18/" target="_blank">Some have spoken out about being even unable to afford their train ticket to court or relying on their Boots Advantage Card to be able to afford lunch</a>.</p> <p>These situations aren’t uncommon, and they show how little successive governments have valued our criminal justice system.&nbsp;</p> <p>Yes, the most experienced criminal barristers—QCs and the like, who’ve been working for decades and deal with complicated and high-profile murder and terrorism trials—are paid very well. But they’re absolutely not representative of the criminal bar, despite the fat-cat stereotype the tabloids love to peddle.</p> <p>The question is: why on earth would someone want to become a criminal barrister nowadays—to rack up huge amounts of debt in university fees and the necessary further years of training to earn a pittance for what is extremely hard work, with no minimum wage, no maternity leave, no paid holidays and no pension?</p> <p>I applaud the criminal barristers now refusing to work in protest. And I’d be joining them, if I hadn’t already thrown in the towel and left the bar two years ago.</p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk openJustice Justice for the rich alone? (openJustice) Faraz Shibli Tue, 05 Jun 2018 10:45:54 +0000 Faraz Shibli 118247 at https://www.opendemocracy.net Windrush and Legal Aid: how free legal representation could have avoided a national scandal https://www.opendemocracy.net/uk/caterina-franchi/windrush-and-legal-aid-how-free-legal-representation-could-have-avoided-national <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> Many migration decisions are wrong - but since legal aid for such cases was scrapped by the LASPO Act 2012, few migrants have the money to challenge them. Meanwhile, an ongoing review drags on. </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/winrush photocall.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/winrush photocall.jpg" alt="" title="" width="460" height="326" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: Windrush generation members with David Lammy, 1 May. Credit: Yui Mok/PA Images, all rights reserved.</em></p><p>In parliament this week, the newly appointed Home Secretary Sajid Javid, vowed to “do right” by the Windrush generation. His colleagues – including his predecessor Amber Rudd – have in recent weeks reassured us that the Home Office can and must change its spots, and act with compassion and administrative flexibility.</p> <p>Rudd also repeatedly <a href="https://hansard.parliament.uk/Commons/2018-04-16/debates/7234878F-ACEE-48DD-A94C-9013B38FA465/WindrushChildren(ImmigrationStatus)">told Parliament</a> in recent days that the Windrush children did not need access to lawyers or independent legal advice to regularise their status, saying the system “[does] not require people to go to their lawyers […] it will be sufficiently constructive, sympathetic and helpful that it will not require people […] to have lawyers”.</p> <p>But before the Guardian exposed Windrush as a national scandal, ultimately leading to Rudd’s resignation on Sunday night, any immigration lawyer would tell you that although winnable, Windrush cases were difficult to prepare, and generally required firm correspondence with the Home Office and, in some instances, a Court challenge. Dealings with the Home Office in Windrush cases pre-scandal certainly did not suggest the department was capable of compassion and administrative flexibility.</p> <p>When legal aid was abolished for immigration cases in 2013, those same lawyers would tell you that it became virtually impossible for Windrush children to succeed in obtaining confirmation of their legal status and that too many vulnerable people were left to their own devices to deal with a targets-obsessed Government organisation that took no prisoners (<a href="https://www.theguardian.com/uk-news/2017/nov/28/i-cant-eat-or-sleep-the-grandmother-threatened-with-deportation-after-50-years-in-britain">except when they did</a>).&nbsp; </p> <p><strong>The chaos before the storm</strong></p> <p>Even before the 2013 cuts to legal aid, applications for even the most basic way Windrush children could obtain confirmation of their legal status in the UK - No Time Limit (NTL) status – were notoriously complicated. They required official documents and records of someone's life in the UK spanning over as many as four decades.</p> <p>The Home Office showed no flexibility for such applications. They rarely accepted alternative forms of evidence from applicants, such as personal testimonies, when official records were unavailable or <a href="https://www.theguardian.com/uk-news/2018/apr/17/home-office-destroyed-windrush-landing-cards-says-ex-staffer">recklessly destroyed</a> by the Home Office itself. It also rarely made contact with people to obtain further evidence when documents were missing from an application and it irrationally refused to liaise with other Government agencies to obtain confirmation of someone's continuous residence in the country by, for example, requesting evidence of uninterrupted payment of National Insurance contributions from HMRC. </p> <p><a href="http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/windrush-children/oral/82003.html">Giving evidence</a> to the Home Affairs Committee on Wednesday, Adrian Berry, the head of the Immigration Law Practitioners’ Association, perfectly summarised the problems: “the cogency of the evidence and the level of the quality of the evidence that is required [by the Home Office] […] is the problem. […] there is a very good case for saying perhaps the burden ought to be shared [between the applicant and the Home Office], because the primary way of corroborating a person’s narrative account of their life in the UK is through things like National Insurance contributions and pension contribution records”.</p> <p>The Home Office hostile approach, together with target-obsessed poor decision-making (see reports <a href="https://www.thetimesbrief.co.uk/users/39175-the-brief-team/posts/24973-immigrants-held-indefinitely-due-to-poor-home-office-decisions">here</a>, <a href="https://www.ein.org.uk/news/parliamentary-ombudsman-criticises-home-office-delay-and-poor-decisions-immigration-cases">here</a> and <a href="https://www.theguardian.com/commentisfree/2018/apr/13/home-office-asylum-system-suicide-uk-mental-health">here</a>) meant that Windrush generation children needed legal representation to navigate the complicated and chaotic framework that is the UK immigration system. Most importantly, they required initial advice from a lawyer to understand what their rights were and how to enforce them. Members of the Windrush generation arrived in the UK as children and spent decades in the UK confident of their legal status in the Country. When wrongly told otherwise, initial legal advice became fundamental to challenge that assertion.&nbsp; </p> <p><strong>From difficult to impossible&nbsp; </strong></p> <p>Legal aid for immigration cases was abolished in 2013. When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in April 2013, the Windrush generation were automatically excluded from the benefit of free legal advice and effectively from any form of meaningful access to justice that could help them obtain confirmation of their legal status in the UK.&nbsp; </p> <p>For extreme cases where the denial of legal aid would breach human rights, LASPO introduced a “safety net”, known as the Exceptional Case Funding (ECF) scheme. But this safety net does not cover initial legal advice, and in the first year only 1% of applications for ECF were granted. So the only way that Windrush children could realistically access legal advice post-LASPO was by having enough money to pay for a lawyer. That’s on top of Home Office application fees of up to £2,389 for Indefinite Leave to remain. And that’s amidst financial struggles for the Windrush children, many of whom had been <a href="https://www.theguardian.com/uk-news/2018/apr/20/its-inhumane-the-windrush-victims-who-have-lost-jobs-homes-and-loved-ones">sacked or refused the right to work</a>.</p> <p>The situation was worsened when the Immigration Act 2014, in addition to the introduction of more stringent “hostile environment” policies, removed the right of Windrush children to appeal to an independent Tribunal against negative Home Office decisions.</p> <p>So not only did initial legal advice suddenly became unavailable to Windrush children, but poorly made decisions remained effectively unchallenged as the great majority of people found themselves unable to pay for legal representation in Court. </p> <p>As Jeremy Corbyn pointed out on Wednesday during <a href="https://www.youtube.com/watch?v=-p3bGPebr_E">Prime Minister’s question time</a> “the dismantling of legal aid provisions in 2012 made the impact of the 2014 Immigration Act harder to challenge. These policies swept up British citizens and legal migrants causing them immense suffering”. </p> <p>In an increasingly hostile environment, with no access to free independent advice, good decision making and impartial Tribunals, it’s no surprise that Windrush children were left unable to navigate an overly complicated system and that proving their legal status in the UK became an impossible endeavour. </p> <p><strong>Any change in sight?</strong></p> <p>The Windrush scandal seems to be the obvious opportunity for the Government to review the cuts to legal aid and the disastrous impact that they have had on so many people’s access to justice. However, before being forced to resign, Rudd went out of her way to <a href="http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/windrush-children/oral/82003.html">explain</a> that she was “<em>not looking at changing legal aid</em>”. Whether that is also the will of Sajid Javid remains uncertain. On his first day in the job, Home Affairs Committee chair Yvette Cooper MP asked him if he would “look again at reinstating independent appeals and legal aid to prevent injustice in future”. Javid ignored the question, but pressed by Karen Buck MP on the same point, he merely referred her to the Justice Department’s <a href="https://www.gov.uk/government/publications/post-implementation-review-of-laspo">review of the LASPO act already underway</a> (and already delayed, with fresh <a href="https://www.lawgazette.co.uk/law/laspo-review-government-to-revisit-ambitious-summer-deadline-/5065132.article">doubts over the revised summer deadline</a>).</p> <p>What is obvious, however, is that the current system makes the access to justice gap worryingly wide for too many vulnerable people such as the Windrush children. As Katharine Viner wrote in <a href="https://www.theguardian.com/membership/2018/apr/30/how-the-windrush-scandal-showed-the-guardian-holding-power-to-account-katharine-viner">the Guardian</a> this week, the Windrush scandal shows the need for a system to hold power to account. Sadly, the removal of legal aid for the great majority of immigration cases did just the opposite. It created a system where people at their most vulnerable are unable to access basic legal representations to assert a right that has been theirs all along. It created a system where bad-decision making remains unchallenged and where people find themselves alone dealing with an unfriendly and unsympathetic institution. That system is plainly unsustainable and it can no longer be tolerated.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/rachel-logan/amnesty-concludes-that-legal-aid-cuts-are-major-human-rights-issue">Legal aid cuts are a major human rights issue</a> </div> <div class="field-item even"> <a href="/openjustice/alison-picku/how-safe-is-legal-aid-safety-net">How safe is the legal aid &#039;safety net&#039;?</a> </div> <div class="field-item odd"> <a href="/openjustice/oliver-carter/do-we-have-right-to-justice">Do we have a right to justice?</a> </div> <div class="field-item even"> <a href="/openjustice/ronagh-craddock/asylum-seekers-are-left-destitute-and-homeless-due-to-lack-of-legal-aid">Asylum seekers are left destitute and homeless due to a lack of legal aid </a> </div> <div class="field-item odd"> <a href="/openjustice/clare-jennings/hungry-homeless-and-in-need-of-legal-aid-lawyer">Hungry, homeless and in need of a legal aid lawyer</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk openJustice Justice for the rich alone? (openJustice) Caterina Franchi Thu, 03 May 2018 08:51:01 +0000 Caterina Franchi 117657 at https://www.opendemocracy.net Consumer is King? Of class actions and who matters in EU law https://www.opendemocracy.net/openjustice/christopher-patz/consumer-is-king-of-class-actions-and-who-matters-in-eu-law <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>The European Commission proposes that consumers should be able to take class actions in future, in the wake of the VW Dieselgate scandal. But it has forgotten other victims of corporate harm.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/11477716354_85a9169b8e_z.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/11477716354_85a9169b8e_z.jpg" alt="" title="" width="460" height="259" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: <a href="https://www.flickr.com/photos/104013316@N06/11477716354/in/photolist-iufich-bBut1F-c1dJRQ-osJE6J-esvM2E-gq7GiJ-Y6foav-Y6foC4-9jKRgG-9jKRgY-iu2biA-5vX7Wp-9hSHPx-rdDms2-9jKRgS-21Vxj16-eqWaED-o8noMp-srMAfF-21inGyZ-erSukq-du2X44-hYZapN-nYiGH5-7k6jnW-mEkRU7-T7iLbT-gq835j-5P3mHt-ezZRC9-cJMRZ5-aoEU9G-5773fW-d2bapN-eR1AnH-5YYdFT-r7iT6A-pZeKbB-63c8i2-fNpx7D-eH8oyZ-YmK8Bu-8KLbKc-831gf1-r71Non-iu1MpY-dr11dT-dr1dv3-a5zuW2-qLvjE8">Keita Kuroki/Flickr</a>, Creative Commons license.<br /></em></p><p>A fire in a textile factory in Pakistan killed over 260 workers on 11 September 2012. The workers were producing directly for the German clothes retailer KiK! (“Kunde ist König!” or <em>Consumer is King!)</em> in a building without fire alarms, emergency exits, or fire extinguishers. Of the roughly four hundred relatives and injured survivors, only four were able to afford to bring<a href="https://www.ecchr.eu/en/our_work/business-and-human-rights/working-conditions-in-south-asia/pakistan-kik.html"> claims for compensation</a> against the clothes brand in Germany, financed by German NGOs. These four separate claims all argue the same thing: the brand broke its duty to ensure the factory had fire safety measures in place. In August 2016, <a href="http://www.sueddeutsche.de/wirtschaft/textilindustrie-kik-muss-wegen-brand-in-pakistanischer-fabrik-vor-gericht-1.3141509">German judges</a> accepted jurisdiction over the cases and granted the four individuals legal aid.</p> <p>Now, at the end of 2017, the roughly 400 remaining survivors and relatives are time-barred from bringing more cases, as they were unable to raise the necessary funds in time. </p> <p>Collective redress (also known as “class action”) is a procedure allowing many individuals to bring their judicial claims together in a single proceeding against a common defendant. It economises the proceedings for claimants by enabling them to run the one same case for many, at roughly the same financial cost and risk. It economises the functioning of the judiciary, as numerous identical claims are dealt with together, thereby saving the courts time and resources.</p> <p>Had collective redress been available in Germany, all fire survivors and relatives of the deceased workers could have brought one combined claim against <em>Consumer is King!</em>. However it isn’t, and its availability across EU Member States is a disharmonised patchwork. The <em>Consumer is King!</em> case is just one current example from an EU Member State where the lack of collective address has resulted in the denial of access to justice for hundreds of people having suffered grievous harm.</p><p>In October 2017 the European Commission announced plans for EU-wide legislation for collective redress. But unlike previous,<a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013H0396"> non-binding efforts</a> from the Commission that applied to all victims of corporate harm, the current binding proposal is only for consumers. So if people who bought jeans from <em>Consumer is King!</em> somehow suffered harm as a result (say, the jeans didn’t perform the way they were advertised), they could join together and claim their rights against the company as the consumers of its products. But those who made the jeans, or any others suffering harm as a result of the company’s malpractice (hypothetically say, a factory waste spill, or discriminatory hiring practices), are not afforded the right. </p> <p>Whilst it is very clear the Commission’s proposal comes in response to the VW Dieselgate scandal (where consumers in the US were able to obtain <a href="https://www.reuters.com/article/us-volkswagen-emissions/u-s-judge-approves-14-7-billion-deal-in-vw-diesel-scandal-idUSKCN12P22F">billions</a> in compensation, whilst those in the EU struggle to obtain anything), it is far from clear why others harmed by gross business misconduct are excluded from the proposal.</p> <p>One<a href="http://www.corporatejustice.org/documents/ahrri_report_final-2.pdf"> study</a> has found that over half of the companies listed on the UK FTSE 100, France’s CAC 40 and the German DAX 30 have been identified in allegations or concerns regarding adverse human rights impacts. Without question, not all these allegations or concerns would meet the requisite standard of proof required by a court in order to order compensation. Nonetheless the numbers are alarming, and testify to the reality that whilst globalisation has granted corporations much freedom of operation, rules for their accountability and the protection of the people they harm lag behind. </p> <p>Harm caused by large corporate entities seriously affects all manner of people. When a mine barrage breaks and 100,000 square meters of cyanide laced water spills into the Danube river system, huge numbers of people suffer as a result. In 2000, collective redress was not available for the Romanian and Hungarian victims of the worst<a href="https://en.wikipedia.org/wiki/2000_Baia_Mare_cyanide_spill"> environmental disaster</a> in Europe since Chernobyl. It isn’t today, and indeed it still wouldn’t be under the Commission’s current proposed legislation. </p> <p>Similar situations persist in cases of discrimination, labour abuse, violations of anti-trust law as well as data protection. The disharmonised patchwork of collective redress across the EU also has a negative impact on fair competition, as varied corporate exposure to deterrent (injunctive) and corrective (compensatory) action across Member States means some companies are more easily subjected to class-action litigation than others, depending on where they operate within the single market. This is creating an unfair playing field for companies. </p><p>Compared to consumer cases, the barriers to justice in corporate environmental harm and human rights cases are typically even more extreme. To begin with, such cases require masses of expert evidence, testimony, and studies in order to prove causation of harm; they involve prolonged legal fees, not to mention the intimidating prospect of financial ruin in the event of loss (the loser-pays principle standard to EU legal systems means a claimant must pay the defendant’s legal costs if the claimant loses). For a corporate defendant on the other hand, the decision to litigate is often hardly even a matter for consideration.<a href="https://blogs.worldbank.org/publicsphere/world-s-top-100-economies-31-countries-69-corporations"> 69 of the world’s 100</a> largest economies are corporations, not nation-states. Such a disempowering set of circumstances often leaves individuals with claims against large corporate entities with a convenient and oft-proclaimed right to access justice and remedy on paper, but not in practice.</p> <p>The worldwide deficit concerning access to remedy in cases of harm occasioned by corporations is real and significant. It has been acknowledged by the international community and is the subject of one of the tree pillars of the United Nations Guiding Principles on Business &amp; Human Rights (UNGPs), a breakthrough, yet non-binding international instrument agreed by the UN Human Rights Council in 2011 and endorsed by all major European countries as well as the EU itself. The UNGPs confirm that States have a duty to ensure the effective functioning of their judicial systems for victims of business harm. This means addressing the clear and blatant power imbalances between individual claimants and large, well-resourced corporations.</p> <p>Allowing individual claimants the right to bring their cases together is a concrete and effective way to fulfil this state duty, and gives tangible practical effect to the right to effective remedy for victims.&nbsp;<span>Indeed, it is a plea being made by international and European human rights bodies and public agencies including the </span><span><a href="https://wcd.coe.int/ViewDoc.jsp?p=&amp;Ref=CM/Rec(2016)3&amp;Language=lanEnglish&amp;Ver=original&amp;BackColorInternet=DBDCF2&amp;BackColorIntranet=FDC864&amp;BackColorLogged=FDC864&amp;direct=true"><span>Council of Europe</span></a><span>, the </span><a href="http://fra.europa.eu/en/opinion/2017/business-human-rights"><span>EU Fundamental Rights Agency</span></a><span>, the </span><a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2014.170.01.0068.01.ENG">European Economic and Social Committee</a><span> as well as a diverse cross-section of civil society and various MEPs.</span></span></p><p><span><span></span></span>By crowning the consumer king, the EU commission ignores the legitimate right to remedy for all other people suffering serious harm occasioned by irresponsible corporate conduct. Europe can still seize the opportunity to make equal the right to effective remedy for all those harmed by business malpractice.&nbsp;</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/christine-berry/next-vw-scandal">The next VW scandal</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice Can Europe make it? uk openJustice Christopher Patz Wed, 20 Dec 2017 06:00:04 +0000 Christopher Patz 115394 at https://www.opendemocracy.net Why you've never heard of a Charter that's as important as the Magna Carta https://www.opendemocracy.net/uk/guy-standing/why-youve-never-heard-of-charter-thats-as-important-as-magna-carta <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>The Charter of the Forest was sealed 800 years ago today. Its defence of the property-less and of ‘the commons’, means the Right would prefer to ignore it - and progressives need to celebrate and renew it.</p> </div> </div> </div> <p>&nbsp;<span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/ampthill.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/ampthill.jpg" alt="" title="" width="460" height="345" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: Ampthill Forest, Bedfordshire. <a href="https://www.flickr.com/photos/ukgardenphotos/6521037921">Flickr/UK Garden Photos</a>, Some rights reserved.</em></p> <p>Eight hundred years ago this month, after the death of a detested king and the defeat of a French invasion in the Battle of Lincoln, one of the foundation stones of the British constitution was laid down. It was the Charter of the Forest, sealed in St Paul’s on November 6, 1217, alongside a shortened Charter of Liberties from 2 years earlier (which became the Magna Carta).</p> <p>The Charter of the Forest was the first environmental charter forced on any government. It was the first to assert the rights of the property-less, of the commoners, and of the commons. It also made a modest advance for feminism, as it coincided with recognition of the rights of widows to have access to means of subsistence and to refuse to be remarried.</p> <p>The Charter has the distinction of having been on the statute books for longer than any other piece of legislation. It was repealed 754 years later, in 1971, by a Tory government. </p> <p>In 2015, while spending lavishly on celebrating the Magna Carta anniversary, the government was asked in a written question in the House of Lords whether it would be celebrating the Charter this year. A Minister of Justice, Lord Faulks, airily dismissed the idea, stating that it was unimportant, without international significance. </p> <p>Yet earlier this year the <a href="https://www.americanbar.org/groups/public_services/law_library_congress/charter_of_the_forest.html">American Bar Association</a> suggested the Charter of the Forest had been a foundation of the American Constitution and that it was more important now than ever before. They were right.</p> <p>It is scarcely surprising that the political Right want to ignore the Charter. It is about the economic rights of the property-less, limiting private property rights and rolling back the enclosure of land, returning vast expanses to the commons. It was remarkably subversive. Sadly, whereas every school child is taught about the Magna Carta, few hear of the Charter. </p> <p>Yet for hundreds of years the Charter led the Magna Carta. It had to be read out in every church in England four times a year. It inspired struggles against enclosure and the plunder of the commons by the monarchy, aristocracy and emerging capitalist class, famously influencing the Diggers and Levellers in the 17th century, and protests against enclosure in the 18th and 19th. </p> <p>At the heart of the Charter, which is hard to understand unless words that have faded from use are interpreted, is the concept of the <em>commons</em> and the need to protect them and to compensate commoners for their loss. It is scarcely surprising that a government that is privatising and commercialising the remaining commons should wish to ignore it.</p> <p>In 1066, William the Conqueror not only distributed parts of the commons to his bandits but also turned large tracts of them into ‘royal forests’ – ie, his own hunting grounds. By the time of the Domesday Book in 1086, there were 25 such forests. William’s successors expanded and turned them into revenue-raising zones to help pay for their wars. By 1217, there were 143 royal forests. </p> <p>The Charter achieved a reversal, and forced the monarchy to recognise the right of free men and women to pursue their livelihoods in forests. The notion of forest was much broader than it is today, and included villages and areas with few trees, such as Dartmoor and Exmoor. The forest was where commoners lived and worked collaboratively. </p> <p>The Charter has 17 articles, which assert the eternal right of free men and women to work on their own volition in ways that would yield all elements of subsistence on the commons, including such basics as the right to pick fruit, the right to gather wood for buildings and other purposes, the right to dig and use clay for utensils and housing, the right to pasture animals, the right to fish, the right to take peat for fuel, the right to water, and even the right to take honey.</p> <p>The Charter should be regarded as one of the most radical in our history, since it asserted the right of commoners to obtain raw materials and the means of production, and gave specific meaning to the right to work.</p> <p>It also set in train the development of local councils and judiciary, notably through the system of Verderers, which paved the way for magistrate courts. In modern parlance, it extended agency freedom, giving commoners voice in managing the commons, as well as system freedom, by opposing enclosure. </p> <p>The Charter set the foundation for what is now called the <em>communal stewardship</em> of pooled assets and resources. Its ethos is the antithesis of the Government’s pretentious Natural Capital Committee, which is trying to capitalise the natural commons, to make them ‘profitable’. The commons exist for a way of living, not profits.</p> <p>Over the centuries, the ethos of the Charter has been under constant attack. The Tudors were the most egregious, with Henry VIII confiscating ten million acres and disbursing them to favourites, the descendants of whom still possess hundreds of thousands of acres. The enclosure act of 1845 was another mass landgrab, mocking the pretensions of private property rights. <a href="http://www.thelandmagazine.org.uk/articles/short-history-enclosure-britain">Between 1760 and 1870, over 4,000 acts of Parliament, instituted by a landowning elite, confiscated seven million acres of commons</a>. It is no exaggeration to say that <a href="http://www.labourland.org/downloads/papers/WhoOwnsPaper.pdf">the land ownership structure of Britain today is the result of organised theft</a>.</p> <p>Despite having endured centuries of abuse, the ethos of the Charter is still alive. But one feature of the neo-liberal economic paradigm that has shaped recent governments is a <a href="https://opendemocracy.net/ourkingdom/stuart-weir/britain-is-not-just-%E2%80%98undergoing-privatisation%E2%80%99-this-is-modern-enclosure-movem">disregard for the commons, which the current British government has turned into a plunder under cover of the ‘austerity’ terminology</a>. In the USA, the Trump administration has <a href="https://www.nbcnews.com/politics/white-house/trump-order-review-protected-federal-lands-n751021">quietly prepared for the giveaway of millions of acres of federal commons</a>. </p> <p>For neo-liberals, the commons have no price, and therefore no value. So, they can be sold for windfall gains, or given away to their backers. By asserting the right to subsistence on the commons, the Charter recognised an alternative principle, something our ancestors defended with courage. We must do so now. We must resist the plunder of the commons and revive them.</p> <p>A group is organising a series of events to do so. Everybody is free to join. Developing national and localised Charters of the Commons should go alongside the worthy Charter of Trees, Woods and People that will be issued on the anniversary day. Our modest efforts will not only emphasise environmental principles enshrined in the Charter, but also its subversive commitment to the right to subsistence that underpins the basic income movement of today.</p> <p>The campaign began with an event laden with symbolism, a barge trip on the Thames from Windsor to Runnymede on September 17, where a public event highlighting the need for a Charter of the Commons was held under the awesome 2,500 year old Ankerwycke yew. The Runnymede meadow symbolises the commons. An earlier Tory government tried to privatise it, but an occupy movement organised by Britain’s first woman barrister succeeded in blocking the auction. </p> <p>The barge trip’s symbolism does not stop there. Margaret Thatcher privatised our water in 1989. She gave nine corporations regional monopolies and gave them over 400,000 acres from the commons. Today, those corporations, mostly foreign owned, are among the country’s largest 50 landowners. They mock the principles of the Charter of the Forest. Thames Water, while paying its foreign shareholders £1.6 billion, has been convicted and had its hands slapped for pouring <a href="https://www.standard.co.uk/news/crime/thames-water-faces-record-fine-over-pumping-1-billion-litres-of-sewage-into-thames-a3492811.html">1.4 billion tonnes of untreated sewage into the Thames</a>, and is also <a href="https://www.ft.com/content/65e8979e-af3d-11e7-beba-5521c713abf4">doing too little to fix leaks</a>. The Charter asserted that the commoners had the right to water. It should be a public good, and be renationalised as a matter of high priority.</p> <p>As well as an event in Sherwood Forest emphasising fracking, there is an event in Durham, where one of the two originals of the Charter is preserved. </p> <p>And on November 7, a meeting in the House of Commons will discuss a draft Charter of the Commons. In Lincoln, where the other original Charter is held, the Labour Party is organising an event on November 11. </p> <p>Further information can be obtained from<strong> </strong><a href="http://www.charteroftheforest800.org/">www.charteroftheforest800.org</a><strong> </strong>. If any organisation feels their agenda is relevant and that has not been contacted, let us know. We want all voices to be heard, all commoners to stand up and all of us to remember that reviving the commons is about recovering the future.</p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk openJustice Guy Standing Mon, 06 Nov 2017 10:02:05 +0000 Guy Standing 114473 at https://www.opendemocracy.net Upholding the Rule of Law in the European Union https://www.opendemocracy.net/can-europe-make-it/barbara-spinelli-et-al/upholding-rule-of-law-in-european-union <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>An open letter concerning the upholding of the Rule of Law in the European Union, co-signed by 188 scholars, politicians, public intellectuals and members of the European Parliament and sent on November 3, 2017. <a href="https://opendemocracy.net/can-europe-make-it/albena-azmanova-barbara-spinelli-co-signatories/la-defensa-del-estado-de-derecho-">Español.</a>&nbsp;<a href="https://opendemocracy.net/albena-azmanova-barbara-spinelli-co-signatories/la-defensa-de-lestat-de-dret-la-uni-europea">Catalan</a>.&nbsp;</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/PA-33359136.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/PA-33359136.jpg" alt="lead " title="" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" width="460" /></a> <span class='image_meta'><span class='image_title'>European Council President Donald Tusk and President of the European Commission Jean-Claude Juncker attend a press conference in Brussels, Belgium, on Oct. 19, 2017. Ye Pingfan/ Press Association. All rights reserved.</span></span></span>OPEN LETTER TO COMMISSION PRESIDENT JUNCKER AND EUROPEAN COUNCIL PRESIDENT TUSK cc. First Vice-President Frans Timmermans on upholding the rule of law in the European Union.</p><p>3 November 2017</p> <p>Dear President Juncker, dear President Tusk:</p> <p>We are scholars, politicians, public intellectuals and members of the European Parliament writing to you with the following concern:</p> <p>The European Union has proclaimed the Rule of Law principle and respect for fundamental rights and freedoms to be binding on its Member States (Articles 2 and 6 of the Lisbon Treaty). The EU’s leadership has been a staunch protector of these fundamental norms, most recently in countering the Polish government’s attempts to undermine the independence of judges as well as the Hungarian government’s actions to limit civil society and media freedoms.<br /> <br />However, we are deeply concerned that the EU’s governing bodies are condoning the violation of the Rule of Law in Spain, in particular regarding the Spanish central authorities’ approach to the 1 October referendum on Catalan independence. We&nbsp;do not take political sides on the substance of the dispute on territorial sovereignty and we are cognizant of procedural deficiencies in the organisation of the referendum. Our concern is with the Rule of Law as practised by an EU Member State.</p> <p>The Spanish government has justified its actions on grounds of upholding or restoring the constitutional order. The Union has declared that this is an internal matter for Spain. Issues of national sovereignty are indeed a matter of domestic politics in liberal democracies. However, the <em>manner </em>in which the Spanish authorities have been handling the claims to independence expressed by a significant part of the population of Catalonia constitutes a violation of the Rule of Law, namely:<br /> <br />1/ The Spanish Constitutional Tribunal banned the referendum on Catalan independence scheduled for 1 October, as well as the Catalan Parliament session scheduled for 9 October, on grounds that these planned actions violate Article 2 of the Spanish Constitution stipulating the indissoluble unity of the Spanish nation, thus rendering secession illegal. However, in enforcing in this way Article 2, the Tribunal has violated Constitutional provisions on freedom of peaceful assembly and of speech – the two principles which are embodied by referendums and parliamentary deliberations irrespective of their subject matter. Without interfering in Spanish constitutional disputes or in Spain’s penal code, we note that it is a travesty of justice to enforce one constitutional provision by violating fundamental rights. Thus, the Tribunal’s judgments and the Spanish government’s actions for which these judgments provided a legal basis violate both the spirit and letter of the Rule of Law.<br /> <br />2/ In the days preceding the referendum, the Spanish authorities undertook a series of repressive actions against civil servants, MPS, mayors, media, companies and citizens. The shutdown of Internet and other telecom networks during and after the referendum campaign had severe consequences on exercising freedom of expression.<br /> <br />&nbsp;3/ On referendum day, the Spanish police engaged in excessive force and violence against peaceful voters and demonstrators – according to Human Rights Watch. Such disproportionate use of force is an undisputable abuse of power in the process of law enforcement.</p> <p>&nbsp;4/ The arrest and imprisonment on 16 October of the activists Jordi Cuixart and Jordi Sànchez (Presidents, respectively, of the Catalan National Assembly and Omnium Cultural) on charges of sedition is a miscarriage of justice. The facts resulting in this incrimination cannot possibly be qualified as sedition, but rather as the free exercise of the right to peaceful public manifestation, codified in article 21 of the Spanish Constitution.</p> <p>The Spanish government, in its efforts to safeguard the sovereignty of the state and indivisibility of the nation, has violated basic rights and freedoms guaranteed by the European Convention on Human Rights, the Universal Declaration of Human Rights, as well as by Articles 2 and 6 of the basic law of the EU (the Lisbon Treaty). <em>The violation of basic rights and freedoms protected by international and EU law cannot be an internal affair of any government. The silence of the EU and its rejection of inventive mediation is unjustifiable.</em> </p> <p>The actions of the Spanish government cannot be justified as protecting the Rule of Law, even if based on specific legal provisions. In contrast to rule-by-law (rule by means of norms enacted through a correct legal procedure or issued by a public authority), Rule of Law implies also the safeguarding of fundamental rights and freedoms – norms which render the law binding not simply because it is procedurally correct but enshrines justice. It is the Rule of Law, thus understood, that provides legitimacy to public authority in liberal democracies.</p> <p>We therefore call on the Commission to examine the situation in Spain under the Rule of Law framework, as it has done previously for other Member States.</p> <p>The EU leadership has reiterated that violence cannot be an instrument in politics, yet it has implicitly condoned the actions of the Spanish police and has deemed the actions of the Spanish government to be in line with the Rule of Law. Such a reductionist, maimed version of the Rule of Law should not become Europe’s new political common sense. It is dangerous and risks causing long-term damage to the Union. We therefore call on the European Council and Commission to do all that is necessary to restore the Rule of Law principle to its status as a foundation of liberal democracy in Europe by countering any form of abuse of power committed by Member States. Without this, and without a serious effort of political mediation, the EU risks losing its citizens’ trust and commitment.</p> <p>The crisis has in the meantime developed further&nbsp;(the Catalan government was detained, arrest warrant was issued against Mr Puigdemont). We follow closely the situation with the interests of democracy in Catalonia, Spain and Europe in mind, as they cannot be separated, and we insist all the more on the importance for the EU to monitor the respect of fundamental freedoms by all parties.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ***</p><p><em>On the initiative of Albena Azmanova (University of Kent) and Barbara Spinelli (writer, Member of the European Parliament)</em><span></span></p> <p><span>Co-signatories (in personal capacity): </span></p><p><em>Etienne Balibar, </em><em>université Paris Nanterre </em><em>and Kingston University London</em></p> <p><em>David Gow, editor, Social Europe </em></p> <p><em>Kalypso Nicolaidis, Oxford University, Director of the Center for International Studies </em></p> <p><em>Mark&nbsp;Davis, University of Leeds, Founding Director of the Bauman Institute</em></p> <p><em>Cristina Lafont, Northwestern University (Spanish citizen)</em></p> <p><em>Ash Amin, Cambridge University </em></p> <p><em>Yanis Varoufakis, DiEM25 co-founder</em></p> <p><em>Rosemary Bechler, editor, openDemocracy </em></p> <p><em>Gustavo Zagrebelsky professor of constitutional law, University of Turin</em></p> <p><em>Antonio Negri, Philosopher, Euronomade platform</em></p> <p><em>Costas Douzinas, Birkbeck, University of London </em></p> <p><em>Robert Menasse, writer, Austria </em></p> <p><em>Dimitrios Papadimoulis, Vice President of the European Parliament (GUE-NGL)</em></p> <p><em>Ulrike Guérot, </em><em>Danube University Krems, Austria &amp; Founder of the European Democracy Lab, Berlin</em><em>&nbsp;</em></p> <p><em>Judith Butler,&nbsp;University of California, Berkeley and European Graduate School, Switzerland</em></p> <p><em>Philip Pettit, University Center for Human Values,&nbsp;Princeton University (Irish citizen) </em></p> <p><em>Josep-Maria Terricabras, Member of European Parliament (Greens/EFA)</em></p> <p><em>Hauke Brunkhorst, University of Flensburg</em></p> <p><em>Judit Carrera, Centre for Contemporary Culture of Barcelona</em></p> <p><em>Gabriele Zimmer, Member of European Parliament (President, GUE/NGL)</em></p> <p><em>Philippe Schmitter, European University Institute, Florence</em></p> <p><em>Bart Staes, Member of European Parliament (Flemish Greens)</em></p> <p><em>Marie-Christine Vergiat, Member of European Parliament (GUE-NGL)</em></p> <p><em>Jón Baldvin Hannibalsson, former minister for foreign affairs and external trade of Iceland&nbsp; </em><em>&nbsp;</em></p> <p><em>Diana Wallis, former Vice President of the European Parliament </em></p> <p><em>Craig Calhoun, President, Berggruen Institute; Centennial Professor at the London School of Economics and Political Science (LSE)</em></p> <p><em>Jane Mansbridge, </em><em>Kennedy School of Government, Harvard University</em></p> <p><em>Josu Juaristi Abaunz, Member of European Parliament (GUE-NGL)</em></p> <p><em>Alyn Smith, Member of the European Parliament (Greens/EFA)</em></p> <p><em>Thor Gylfason, University of Iceland and Research Fellow at CESifo, Munich/former member Iceland Constitutional Council 2011 </em></p> <p><em>Jordi Solé, Member of European Parliament (Greens/EFA)</em></p> <p><em>Judith Revel, Université Paris Nanterre</em></p> <p><em>Seyla Benhabib, </em><em>Yale University; Catedra Ferrater Mora Distinguished Professor in Girona (2005)</em></p> <p><em>Arjun Appadurai, </em><em>Institute for European Ethnology, Humboldt University, Berlin</em><em>&nbsp;</em></p> <p><em>Susan Buck-Morss, CUNY Graduate Center and Cornell University</em></p> <p><em>Ramon Tremosa i Balcells, Member of European Parliament (Alde)</em></p> <p><em>Anastasia Nesvetailova, Director, City Political Economy Research Centre, City University of London</em></p> <p><em>Nancy Fraser, The New School for Social Research, New York (International Research Chair in Social Justice, Collège d’études mondiales, Paris, 2011-2016)</em></p> <p><em>Jill Evans, Member of the European Parliament (Greens/EFA)</em></p> <p><em>Regina Kreide, Justus Liebig University, Giessen </em></p> <p><em>Jodi Dean, Hobart and William Smith Colleges, Geneva NY</em></p> <p><em>Tatjana Zdnoka, Member of the European Parliament (Greens/EFA)</em></p> <p><em>Wendy Brown, University of California, Berkley</em></p> <p><em>Roberta De Monticelli, University San Raffaele, Milan.</em></p> <p><em>Sophie Wahnich, directrice de recherche CNRS, Paris</em></p> <p><em>Christoph Menke, University of Potsdam, Germany</em></p> <p><em>Tanja Fajon, Member of the European Parliament (S&amp;D)</em></p> <p><em>Robin Celikates, University of Amsterdam&nbsp;</em></p> <p><em>Eric Fassin, Université Paris-8 Vincennes - Saint-Denis</em></p> <p><em>Paul Molac, Member of the French Parliament (écologiste)</em></p> <p><em>Alexis Cukier, Université Paris Nanterre</em></p> <p><em>Diogo Sardinha, </em><em>university Paris/Lisbon</em></p> <p><em>Luke Ming Flanagan, Member of the European Parliament (GUE-NGL)</em></p> <p><em>Dario Castiglione, University of Exeter</em></p> <p><em>Hamit Bozarslan, EHESS, Paris &nbsp;</em></p> <p><em>Frieder Otto Wolf, Freie Universität Berlin</em></p> <p><em>Gerard Delanty, University of Sussex</em></p> <p><em>Boaventura de Sousa Santos, Coimbra University and University of Wisconsin-Madison</em></p> <p><em>Sandro Mezzadra, Università di Bologna </em></p> <p><em>Camille Louis, University of Paris 8 and Paris D</em></p> <p><em>Philippe Aigrain, writer and publisher</em></p> <p><em>Yann Moulier Boutang and Frederic Brun, Multitudes journal</em></p> <p><em>Anne Querrien and Yves Citton</em><em>, Multitudes journal</em></p> <p><em>Bruce Robbins, Columbia University</em></p> <p><em>Michèle Riot-Sarcey, université Paris-VIII-Saint-Denis</em></p> <p><em>Zeynep Gambetti, Bogazici University, Istanbul (French citizen)</em></p> <p><em>Andrea den Boer, University of Kent, Editor-in-Chief, Global Society: Journal of Interdisciplinary International Relations</em></p> <p><em>Moni Ovadia, writer and theatre performer</em></p> <p><em>Merja Kyllönen, Member of the European Parliament (GUE/NGL)</em></p> <p><em>Guillaume Sibertin-Blanc, Université Paris 8 Saint-Denis&nbsp;</em></p> <p><em>Peter Osborne, Centre for Research in Modern European Philosophy, Kingston University, London</em></p> <p><em>Ilaria Possenti, University of Verona</em></p> <p><em>Nicola Lampitelli, University of Tours, France</em></p> <p><em>Yutaka Arai, University of Kent</em></p> <p><em>Enzo Rossi, University of Amsterdam, Co-editor,&nbsp;European Journal of Political Theory</em></p> <p><em>Petko Azmanov, journalist, Bulgaria</em></p> <p><em>Etienne Tassin, Université Paris Diderot</em></p> <p><em>Lynne Segal, </em><em>Birkbeck College, University of London</em></p> <p><em>Danny Dorling, University of Oxford&nbsp; </em></p> <p><em>Maggie Mellon, social policy consultant, former executive member Women for Independence&nbsp; </em></p> <p><em>Vanessa Glynn, </em><em>Former UK diplomat at UKRep to EU</em><em>&nbsp;</em></p> <p><em>Alex Orr, exec mbr, Scottish National Party/European Movement in Scotland </em></p> <p><em>Bob Tait, philosopher, ex-chair Langstane Housing Association, Aberdeen&nbsp; </em></p> <p><em>Isobel Murray, Aberdeen University</em></p> <p><em>Grahame Smith, general secretary, Scottish Trades Union Congress </em></p> <p><em>Igor Šoltes, Member of the European Parliament (Greens/EFA)</em></p> <p><em>Pritam Singh, Oxford Brookes University </em></p> <p><em>John Weeks, SOAS, University of London&nbsp; </em></p> <p><em>Jordi Angusto, economist at Fundació Catalunya-Europa&nbsp; </em></p> <p><em>Leslie Huckfield, ex-Labour MP, Glasgow Caledonian University </em></p> <p><em>Ugo Marani, University of Naples Federico II and President of RESeT&nbsp; </em></p> <p><em>Gustav Horn, Scientific Director of the Macroeconomic Policy Institute of the Hans Böckler Stiftung&nbsp; </em></p> <p><em>Chris Silver, journalist/author&nbsp; </em></p> <p><em>François Alfonsi, President of EFA (European Free Alliance)</em></p> <p><em>James Mitchell, Edinburgh University </em></p> <p><em>Harry Marsh, retired charity CEO&nbsp; </em></p> <p><em>Desmond Cohen, former Dean, School of Social Sciences at Sussex University </em></p> <p><em>Yan Islam, Griffith Asia Institute </em></p> <p><em>David Whyte, University of Liverpool</em></p> <p><em>Katy Wright, University of Leeds</em></p> <p><em>Adam Formby, University of Leeds&nbsp;</em></p> <p><em>Nick Piper, University of Leeds</em></p> <p><em>Matilde Massó Lago, The University of A Coruña and University of Leeds</em></p> <p><em>Jim Phillips, University of Glasgow</em></p> <p><em>Rizwaan Sabir, Liverpool John Moores University</em></p> <p><em>Pablo Ciocchini, University of Liverpool</em></p> <p><em>Feyzi Ismail, SOAS, University of London</em></p> <p><em>Kirsteen Paton, University of Liverpool</em></p> <p><em>Stefanie Khoury, University of Liverpool&nbsp;</em></p> <p><em>Xavier Rubio-Campillo, University of Edinburgh</em></p> <p><em>Joe Sim, Liverpool John Moores University</em></p> <p><em>Paul Molac, Member of the French Parliament</em></p> <p><em>Hannah Wilkinson, University of Keele</em></p> <p><em>Gareth Dale, Brunel University</em></p> <p><em>Robbie Turner, University of St Andrews</em></p> <p><em>Will Jackson, Liverpool John Moores University</em></p> <p><em>Louise Kowalska, ILTUS Ruskin University </em></p> <p><em>Alexia Grosjean, Honorary member, School of History, University of St Andrews</em></p> <p><em>Takis Hadjigeorgiou, Member of the European Parliament (GUE-NGL)</em></p> <p><em>Paul&nbsp;McFadden, York University</em></p> <p><em>Matthias E. Storme, Catholic University of Leuven</em></p> <p><em>Phil Scraton, Queen's University Belfast</em></p> <p><em>Oscar Berglund, University of Bristol</em></p> <p><em>Michael Lavalette, Liverpool Hope University</em></p> <p><em>Owen Worth, University of Limerick</em></p> <p><em>Ronnie Lippens, Keele University</em></p> <p><em>Zoë Dingwall, political adviser EFA (European Free Alliance)</em></p> <p><em>Andrew Watterson, Stirling University</em></p> <p><em>Steve Tombs, The Open University</em></p> <p><em>Emily Luise Hart, University of&nbsp;Liverpool</em></p> <p><em>David Scott, The Open University</em></p> <p><em>Anders Eriksson, bureau EFA (European Free Alliance), European Parliament </em></p> <p><em>Bill Bowring, Birkbeck College, University of London</em></p> <p><em>Sofa Gradin, King’s College London</em></p> <p><em>Michael Harrison, University of South Wales</em></p> <p><em>Ana Manzano-Santaella, University of Leeds</em></p> <p><em>Noëlle McAfee, Emory University</em></p> <p><em>Peter J. Verovšek, University of Sheffield&nbsp;</em></p> <p><em>Peter Dews, University of Essex</em></p> <p><em>Martin Matuštík, Arizona State University </em></p> <p><em>Camil Ungureanu, Pompeu Fabra University, Barcelona&nbsp;</em></p> <p><em>Dafydd Huw Rees&nbsp;, Cardiff University</em></p> <p><em>Patrick Le Hyaric, Member of the European Parliament (GUE-NGL)</em></p> <p><em>Hans-Peter Krüger, University of Potsdam&nbsp;</em></p> <p><em>Loren Goldman,&nbsp;University of Pennsylvania</em></p> <p><em>Federica Gregoratto, University of St.Gallen</em></p> <p><em>Rurion Soares Melo, Universidade de São Paulo</em></p> <p><em>Pieter Duvenage, Cardiff University and editor, Journal for Contemporary History</em></p> <p><em>Chad Kautzer, Lehigh University</em></p> <p><em>Peter A. Kraus, University of Augsburg</em></p> <p><em>David Ingram, Loyola University &nbsp;of Chicago</em></p> <p><em>Alain-G. Gagnon, Université du Québec à Montréal</em></p> <p><em>Peter Bußjäger, </em><em>Institut für Föderalismus, </em><em>Innsbruck</em></p> <p><em>Nelly Maes, Former Member of the European Parliament, former President of European Free Alliance</em></p> <p><em>Helmut Scholz, Member of the European Parliament (GUE/NGL)</em></p> <p><em>Michel Seymour, Université de Montréal</em></p> <p><em>Simon Toubeau, University of Nottingham</em><em></em></p> <p><em>Georg Kremnitz, Universität Wien</em><em></em></p> <p><em>Keith Gerard Breen, Queen’s University Belfast</em></p> <p><em>Alan Price, Swansea University</em></p> <p><em>Fernando Ramallo, Universidade de Vigo</em></p> <p><em>Nicolas Levrat, University of Geneva, Director of the International Law Department</em></p> <p><em>Jordi Matas, Professor of Political Science, University of Barcelona</em></p> <p><em>Simon Toubeau, University of Nottingham</em></p> <p><em>María Pilar García Negro, University of Coruña</em></p> <p><em>María do Carme García Negro, University of Santiago de Compostela </em></p> <p><em>Francisco Rodríguez, writer</em></p> <p><em>Carme Fernández Pérez-Sanjulián, University of Coruña</em></p> <p><em>Patrice Poujade, Université de Perpignan</em></p> <p><em>Colin H Williams, Cardiff and Cambridge &nbsp;University</em></p> <p><em>Nicolas Berjoan, Université de Perpignan</em></p> <p><em>Joan Peitavi, Université de Perpignan</em></p> <p><em>Alà Baylac-Ferrer, Université de Perpignan</em></p> <p><em>Guglielmo Cevolin, University of Udine</em></p> <p><em>Robert Louvin, Professor of Comparatve Law, University of Calabria</em></p> <p><em>Günther Dauwen, Secretary General of the Centre Maurits Coppieters</em></p> <p><em>Bart Maddens, Catholic University of Leuven</em></p> <p><em>Alan Sandry, Swansea University </em></p> <p><em>Justo Serrano Zamora, Bavarian School of Public Policy</em></p> <p><em>Ivo Vajgl,&nbsp;Member of the European Parliament (Alde)</em></p> <p><em>Alberto Aziz Nassif, Centro de Investigaciones y Estudios Superiores en Antropología Social, México</em></p> <p><em>Sandrina Antunes, University of Minho, Portugal </em></p> <p><em>Pablo Beramendi, Duke University</em></p> <p><em>Nico Krisch, Graduate Institute of International and Development Studies, Geneva</em></p> <p><em>Miguel Urbán Crespo, Member of the European Parliament (GUE/NGL)</em></p><p><em>Yasha Maccanico, University of Bristol and "Statewatch" </em></p> <p><em>Thierry Dominic, l'Université de Bordeaux</em></p><p><em>Richard Norton-Taylor writer on defence and security, trustee of Liberty</em></p><p><em>Paola Pietrandrea, Université François Rabelais de Tours, and DiEM25<br /></em></p> <p><em>Josep Ramoneda, philosopher and writer, Catalonia/Spain</em></p><p><em>José Luís&nbsp;Rodrigues, DiEM25, Portugal</em></p><p><em>Marie Pierre Vieu, member of the European Parliament, (GUE/NGL)</em></p><p><em>Geneviève Fraisse, Centre national de la recherche scientifique, France (CNRS)</em></p><p><em>Sandra Halperin, Director, Centre for Islamic and West Asian Studies,&nbsp; Royal Holloway, University of London,</em></p><p><em>Mario&nbsp;Diani, University of&nbsp;<a href="https://maps.google.com/?q=Trento+Via+Verdi+26+38122+Trento+Italy&amp;entry=gmail&amp;source=g" target="_blank">Trento</a></em></p><p><em>Angelina Ilieva, Chicago University</em></p><p><em>Elettra Stimilli, la Sapienza Università di Roma</em></p><p><em>Yves Sintomer, Université de Paris 8</em></p><p><em></em></p><p><em>Donatella&nbsp;della&nbsp;Porta, Director of Centre of Social Movements Studies, Scuola Normale Superiore, Florence</em></p><p>If you would like to sign a version of this letter, please see the petition on <a href="https://www.change.org/p/carta-abierta-al-presidente-de-la-comisi%C3%B3n-juncker-y-al-presi-del-consejo-europeo-tusk-defender-el-estado-de-derecho-en-la-uni%C3%B3n-europea-open-letter-to-commission-president-juncker-and-european-council-president-tusk-upholding-the-rule-of-law-in-the-">Change.org</a>.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p>See the reply <a href="https://www.politico.eu/wp-content/uploads/2017/11/FinalLetter.pdf?utm_source=POLITICO.EU&amp;utm_campaign=7ca7b869da-EMAIL_CAMPAIGN_2017_11_22&amp;utm_medium=email&amp;utm_term=0_10959edeb5-7ca7b869da-189598089">open letter from 292 academics</a> in their personal capacity launched by Francesc de Carreras and Josu de Miguel, both professors at the Autonomous University of Barcelona.</p> </div> </div> </div> </fieldset> <div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Spain </div> <div class="field-item even"> EU </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> Can Europe make it? Can Europe make it? EU Spain Catalonia openJustice co-signatories Barbara Spinelli Albena Azmanova Sat, 04 Nov 2017 08:08:27 +0000 Albena Azmanova, Barbara Spinelli and co-signatories 114449 at https://www.opendemocracy.net Do we have a right to justice? https://www.opendemocracy.net/openjustice/oliver-carter/do-we-have-right-to-justice <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>As new research reveals the devastating impact of legal aid cuts, Labour is considering not only reversing some of those cuts but enshirining in law our right to justice.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/justice-2071539.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/justice-2071539.jpg" alt="" title="" width="460" height="345" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>From 2009/2010, there has been an 84% reduction in the number of civil cases funded by legal aid. Image: Edward Lich. Pixabay/Creative Commons CC0. </span></span></span></p><p>Do we have a right to justice? And, if we do, does it include the right to publicly funded legal representation to ensure that we have genuine <em>access</em> to justice?<br /> <br /> Labour might be about to answer these questions in the affirmative by endorsing a new Right to Justice Act, as proposed in a report launched at the party conference in Brighton this week by an independent commission chaired by Labour peer Lord Willy Bach (the report can be downloaded <a href="http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf" target="_blank">here</a>). The Bach Commission on Access to Justice was formed shortly after the election of Jeremy Corbyn as Labour leader in order to carry out a comprehensive review of legal aid, following drastic cuts made by the Coalition government.<br /> <br /> <em><strong>The right to justice</strong></em><br /> <br /> In its report, <em><a href="http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf" target="_blank">The Right to Justice</a></em>, the Commission recommends a Right to Justice Act to establish an enforceable right “<em>for individuals to receive reasonable legal assistance without costs they cannot afford</em>”. The report also calls for the creation of a Justice Commission to monitor and enforce the right to justice, and for reform of the financial eligibility and scope rules for legal aid to create a simpler, more generous system which enables many more people to access publicly funded legal help.</p><p><span class="mag-quote-center">The radical proposals are intended to "help lift the provision of justice above the political fray”.</span><br /> The Commission believes that its radical proposals would “<em>create a new legal framework that will, over time, transform access to justice</em>”. All of this is, according to Lord Bach, intended to “<em>help lift the provision of justice above the political fray</em>” and return to the consensus on access to justice that existed for decades after the modern legal aid system was introduced as part of the post-war welfare state.<br /> <br /> <em><strong>A crisis in our justice system</strong></em><br /> <br /> But why is a new right to justice necessary? As the report notes, “<em>an effective legal system in which all can access justice fairly is the cornerstone of a free society</em>”, and without access to justice, trust in institutions and the rule of law is at risk of breaking down. There is, however, a “<em>crisis in our justice system</em>”. <br /> <br /> As part of its post-financial crisis austerity agenda, the Coalition government reduced the budget of the Ministry of Justice by 34% between 2010-11 and 2015-16. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced to implement swingeing cuts to legal aid, removing vast areas of social welfare law – including most debt, benefits, housing, employment and immigration advice – from the scope of legal aid.<br /> <br /> The result of this was a devastating 84% reduction in the number of civil (i.e. non-criminal) cases funded by legal aid, from 933,815 cases in 2009-10 to just 146,618 in 2016-17. Hundreds of thousands of people each year are denied access to justice as a result of the Coalition’s cuts to legal aid. <br /> <br /> As damaging as LASPO was, it should be emphasised – as the Bach Commission itself acknowledges – that the crisis in access to justice did not begin with the Coalition government. <br /> <br /> When the Legal Aid and Advice Act 1949 was passed, it was intended to make legal aid “<em>more readily available for persons of small or moderate means</em>”. However, there has been a huge decrease in the proportion of people who are financially eligible for civil legal aid: in 1980, 80% of households were eligible, but by 2008 that figure had fallen to 29%. It is now likely to be even lower – perhaps as low as 20% – given that the financial means test is not updated to account for inflation.</p><p><span class="mag-quote-center">There is an urgent need to “ensure that justice is within the reach of the majority and not just the very wealthy and the very poor”.</span> <em><strong>Restoring legal aid: a blueprint for access to justice policy?</strong></em><br /> <br /> In order to address this ongoing decline in access to justice, <em>The Right to Justice </em>makes recommendations for both urgent and long-term reform. It calls on the government, which is currently in the process of conducting its own review of the cuts to legal aid (due to be completed by the fifth anniversary of LASPO in April 2018), to invest £400m per year on short-term measures including restoring early legal help for all social welfare law, extending financial eligibility for civil legal aid and bringing back into scope all matters concerning legal support for children.<br /> <br /> The Bach Commission accepts that while it “<em>may not be possible to immediately reverse</em>” the decline in legal aid eligibility since 1980, there is an urgent need to “<em>ensure that justice is within the reach of the majority and not just the very wealthy and the very poor</em>”. It therefore proposes that, for now, the aim of government could be to provide publicly funded legal assistance to everyone with a below median income, as was the case in the late 1990s when 53% of the population were eligible for civil legal aid.</p><p><span class="mag-quote-center">The Right to Justice Act would codify rights dating back to Magna Carta and include the right to a fair trial guaranteed by Article 6 of the ECHR.</span> In the longer-term, the Commission’s proposed Right to Justice Act would codify existing rights to justice, dating back to Magna Carta and include the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights, as well as introducing the right to justice, a new individual right to reasonable legal assistance without costs which people cannot afford. This right to justice would be enforceable in court and compliance with the right would be monitored by an independent Justice Commission.<br /> <br /> The bold recommendations in <em>The Right to Justice </em>have the potential to significantly improve access to justice and, as <a href="http://www.younglegalaidlawyers.org/YLALresponserighttojustice" target="_blank">Young Legal Aid Lawyers</a> has said, could form the blueprint for legal aid policy for decades to come. The report merits serious consideration by all political parties and anyone concerned with the future of access to justice. <br /> <br /> In particular, it is incumbent on the government to reflect on the recommendations in <em>The Right to Justice</em> as part of its own review of legal aid; indeed, even the Conservative chair of the Justice Select Committee, Bob Neill, has accepted that the Coalition government <a href="https://twitter.com/neill_bob/status/854731313185775616" target="_blank">“went too far”</a> in cutting legal aid.<br /> <br /> <strong><em>A vision of a fairer justi</em>ce <em>system</em> </strong><br /> <br /> Unfortunately (if unsurprisingly), the initial response by the minister responsible for legal aid, Dominic Raab, was dismissive: “<em>We will continue to focus legal aid on those who most need help, recognising the cost of this support is met by the taxpayer, even as Labour produce yet more unfunded proposals</em>.” <br /> <br /> By contrast – and also perhaps predictably, given that the independent Commission of legal experts was set up at the instigation of Jeremy Corbyn and led by a Labour peer – the response from Labour has been positive. The Shadow Lord Chancellor, Richard Burgon, <a href="https://www.theguardian.com/commentisfree/2017/sep/22/conservatives-legal-aid-desert-cuts-bach-commission-right-to-justice-fabian" target="_blank">welcomed</a> <em>The Right to Justice</em> and declared himself “<em>particularly excited by the idea in the report of a new, legally enforceable right to justice to match our rights to healthcare and education</em>”.<br /> <br /> Burgon wrote that the report “<em>will certainly play an important role in informing the debates around Labour’s next manifesto process and our vision of a fairer justice system</em>”. If Labour is now a “<em>government in waiting</em>”, as Jeremy Corbyn is fond of asserting since his party’s performance in the general election in June this year, then the right to justice could soon become a reality. <br /> <br /> <strong><em>Young Legal Aid Lawyers (YLAL) invites you to write to your MP to ask for their response to the recommendations by the Bach Commission on Access to Justice – you can find a template email on the YLAL website <a href="http://www.younglegalaidlawyers.org/YLALresponserighttojustice" target="_blank">here</a>.</em></strong><br /> <em></em></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/openjustice/geoffrey-bindman/rule-of-law-fights-back">The rule of law fights back</a> </div> <div class="field-item even"> <a href="/openjustice/laura-janes/draconian-cuts-to-legal-aid-for-prisoners-found-to-be-unlawful-by-court-of-a">Draconian cuts to legal aid for prisoners found to be unlawful by Court of Appeal </a> </div> <div class="field-item odd"> <a href="/openjustice/john-nicholson/hope-for-access-to-justice">Hope for access to justice?</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Justice for the rich alone? (openJustice) Oliver Carter Tue, 26 Sep 2017 08:10:34 +0000 Oliver Carter 113634 at https://www.opendemocracy.net Nowhere to call home: England's 'hidden homeless' https://www.opendemocracy.net/laurie-macfarlane/nowhere-to-call-home-englands-hidden-homeless <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> Work as a legal aid housing lawyer throws up all kinds of scenarios. Many of our clients have already been evicted and are homeless. The image of homelessness that most commonly springs to mind is ... </div> </div> </div> Work as a legal aid housing lawyer throws up all kinds of scenarios. Many of our clients have already been evicted and are homeless. The image of homelessness that most commonly springs to mind is rough sleeping, but we spend much time advising and representing the ‘hidden homeless’: meaning those not visible sleeping on the street, but who also have nowhere to call home. They are hidden behind closed doors sleeping on friends’ sofas, crowded into one room of a hostel, they occupy garden sheds, garages and family houses – with one family in each bedroom. They are squeezed into council temporary accommodation units and left in limbo, with no guarantee of when they will be able to move into a permanent home of their own. In July 2017, councils across England were providing temporary housing for around 120,540 children with their families, and this number is rising. Homelessness is triggered by many things. The loss of an assured shorthold tenancy is the number one cause, when private landlords give notice that they want their property back and are not required to give a particular reason. Relationship breakdown, sudden loss of a job, domestic violence, illness, financial difficulties and innumerable unexpected life events all contribute to people losing their home. <blockquote>"They are hidden behind closed doors sleeping on friends’ sofas, crowded into one room of a hostel, they occupy garden sheds, garages and family houses – with one family in each bedroom"</blockquote> It is not a simple matter to find a new home after a becoming homeless. Finding affordable private rented housing is becoming harder all the time as rents rise but housing benefit levels remain frozen. The waiting lists for council and social housing are enormous. Private landlords are increasingly unwilling to let their properties to those on low incomes or benefits, some specifically stating that they will not even consider tenants who will need to apply for housing benefit to help them pay their rent. Welfare reform has also contributed to the dysfunctional housing system – the new scheme of Universal Credit has dealt a devastating blow to renters, as new claims often take 8 weeks or more to process. So tenants are unable to pay their rent for at least 2-3 months, and what landlord will tolerate that? People who have searched in vain to rehouse themselves are often left with no alternative but to turn to their council offices to request urgent help. However, they are not always treated lawfully – or with respect. It is true that local authorities are under immense pressure with tightened budgets and reduced housing stock available to them. A recent BBC2 documentary ‘No Place to Call Home’ showed one housing officer in Barking &amp; Dagenham describing their department as ‘a housing options service without any options,’ as the demand for their services severely outweighed the supply. However, this lack of resources is often translated into scare tactics to deter people requesting housing help from their council. I have seen a range of different responses from authorities across the country. Applicants are often handed a long list of documents and informed that before any help will be provided, they must produce all the documents on the list. One homeless client I advised who was (very obviously) 9 months pregnant was initially not permitted to make an urgent homeless application, as the documents she had produced did not include a doctor’s note to confirm she was pregnant.  Another pregnant, 18 year old client was inexplicably informed that her application for urgent housing could not be processed because her father’s name was not on her birth certificate. Young people are frequently passed between housing and social services departments, or between different authorities when neither wants to take responsibility for giving assistance. <a href="http://www.lgo.org.uk/information-centre/news/2012/aug/kent-amp-dover-councils-criticised-for-inexcusable-failures-over-homeless-teenager">One 16 year old client</a> approached his council for help after he was forced to leave home. He spent 9 months sleeping rough in a tent whilst social services and housing argued about who should help him. A single mother came to me with two young children, bleary-eyed and covered in insect bites, having spent a few weeks living in a garden shed. The council had evicted them after my client had to spend some unexpected time out of the country to care for her sick mother. They had returned to the council to ask for assistance, but none was forthcoming and so the shed was their only option. When legally challenged, the council relented and reluctantly provided the family with accommodation that was far too small (no room for enough beds) and was 2 hours away from the client’s place of work and her children’s school. When the council was challenged again, the response was irritable – what on earth was the problem now?  We weren’t asking for the moon, just a decent home within a reasonable travelling distance from school and work. <blockquote>"Young people are frequently passed between housing and social services departments, or between different authorities when neither wants to take responsibility for giving assistance"</blockquote> Some homeless families are threatened with separation from their children, when they cannot get assistance from the local housing authority and are compelled to turn to social services. Families who present as homeless are frequently told that they cannot be housed together, but instead their children will be taken into care. It’s an effective way of scaring families away from the council offices. This often happens when families are not owed duties by the housing department (for example they may be deemed to be ‘intentionally homeless’ due to rent arrears and eviction). Social services have duties to assist children in need – which can include helping to house a homeless family together, perhaps by way of helping with a rent deposit.  There are often no child protection issues save for their homelessness, which can and should be resolved without the far more expensive and inappropriate threat of foster care. One client found herself homeless when she built up rent arrears in the midst of trying to resolve some difficult personal circumstances.  With a low wage cleaning job and a 9 year old autistic son to care for, social services were her safety net, as her homeless application failed and she could not find a landlord who would accept housing benefit. To heap further distress on the already humiliating experience of having to ask for help in the first place, she was told forcefully at her first interview that she could not be assisted, but her son would be taken into care. Her son was present and became understandably terrified.  Her fear of losing him resulted in them both sleeping in her car for several nights before she obtained legal advice. I have known ’hidden homeless’ clients, including lone teenagers and families with children, ask for help with housing, but end up resorting to sleeping on night buses, in hospital A &amp; E waiting rooms, in fast food restaurants, train stations and in cars.  They stay on friends’ sofas and move on when they outstay their welcome. Their lives are in a constant state of flux, living out of boxes and paying extortionate fees to storage companies. The children cannot sleep properly, they have nowhere to bring their friends to play, they have no space to do their homework and their school work suffers. Their experiences will impact them forever. Different organisations, community groups and individuals often help where they can. This help varies from homeless cold weather shelters to the offer of a spare bed for a few nights. It sometimes takes the form of a hot meal at a community centre, a foodbank voucher or an advocate to attend the council offices and provide support with navigating ‘the system.’  Housing lawyers will of course continue to step in and provide legal advice on a case by case basis to help resolve homelessness, but this must be accompanied by policy change on a wider scale, if the numbers of hidden homeless are to decrease and their experiences of statutory services improve. Legal aid law firms and charities like Shelter cannot and should not be relied on to keep picking up the pieces one by one when people fall through the gaps. <blockquote>"Different organisations, community groups and individuals often help where they can. This help varies from homeless cold weather shelters to the offer of a spare bed for a few nights."</blockquote> Housing benefit rates must increase in line with the level of rents and the government and housing sector must work to increase the supply of genuinely affordable housing.  The introduction of new legislation such as the imminent Homelessness Reduction Act is a welcome sea change in the direction of early intervention to ensure homelessness is prevented or relieved, but for the Act to have teeth and for prevention to truly take place, there must also be affordable homes for people to move into. In the aftermath of the terrible Grenfell fire, it is also starkly obvious that change is not just needed in policy and on paper, but in the way we manage our social housing system and treat social tenants and those in need of settled housing.  The sub text permeating through the authorities’ attitudes described in the cases outlined above is that those who need to ask for help with housing have no right to be heard, but should be grateful for what they are given – even if what they are eventually given is a substandard hostel in an unfamiliar area, miles away from jobs and support networks. Following the publication of the Grenfell fire Inquiry terms of reference, the Prime Minister promised that separate consideration would be given as to how best to address the broader issues of social housing raised by the fire – notably, the fact that tenants’ concerns were ignored or left unaddressed for so long and the lack of trust between tenants and the council, along with their Tenant Management Organisation. This is symptomatic of the treatment which is experienced in different ways across the country both by others living in social housing and by those approaching their local council offices for urgent housing help. We cannot allow the commitment to address these broader issues of social housing to be kicked into the long grass, or for the debate to only tinker around the edges. Now is the time to have a meaningful debate about what social housing means, including how those who need to request housing help from their council are treated. Amongst the myriad of housing issues that need to be addressed, action must be taken to ensure that hidden homelessness becomes a thing of the past.<div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk WP imported wagtail openJustice Jo Underwood Wed, 20 Sep 2017 09:27:55 +0000 Jo Underwood 113493 at https://www.opendemocracy.net Normalising torture https://www.opendemocracy.net/victoria-brittain/normalising-torture <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p class="Body">On impunity, and the erosion of ethics in International Human Rights Law - from Guantanamo to Yemen.</p> </div> </div> </div> <p class="Body"><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/Screen Shot 2017-09-04 at 17.04.54_0.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/Screen Shot 2017-09-04 at 17.04.54_0.png" alt="lead " title="" width="460" height="258" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Screen shot of Real News coverage of the Mitchell/Jessen confidential legal settlement.</span></span></span>Ten years ago Murat Kurnaz, a Turk from Bremen, wrote these words, in his book <em>Five Years of My Life, an innocent man in Guantanamo. </em>“We have to describe how the doctors came only to check whether we were dead or could stand to be tortured for a little longer.” The words shocked at the time, but since then the appalling details of US torture practices as part of the ”war on terror” and the involvement of the medical profession are well known – published by the US Senate as well as by several of the men who were subjected to them.</p> <p class="Body">Today everyone knows about US torture. Everyone knows it is unethical, illegal, unconstitutional. But the fight for accountability only inches forward. <span class="mag-quote-center">Today everyone knows about US torture. Everyone knows it is unethical, illegal, unconstitutional. But the fight for accountability only inches forward.</span></p> <p class="Body">Two weeks ago in a landmark case against impunity for torture, two US military psychologists reached a confidential settlement with tortured former prisoners rather than face a jury trial which would have begun this week. <em>(ie Sept.5) </em>For many months lawyers for the two men, Bruce Jessen and James Mitchell, had made multiple attempts to have the case dismissed. </p> <p class="Body">There are British precedents for such payoffs to prevent a trial. Six years ago the UK government came to a confidential agreement with former Guantanamo prisoners to keep MI5 and MI6 documents and personnel out of a court case concerning complicity in torture and rendition. Similarly they later paid a Libyan couple who had been victims of rendition rather than face them in court.</p> <p class="Body">The Mitchell/Jessen case is a sharper focus. The two men designed, oversaw, participated, and trained others to carry out the CIA’s torture programme of men which most notably marked the Bush administration’s attack on International Human Rights Law.&nbsp;</p> <p class="Body">The normalisation of torture, and the demonising of Muslim men are among the terrible legacies of the war on terror. Six Muslim countries – Afghanistan, Iraq, Syria, Libya, Somalia and Yemen – have been militarily devastated when in fact the terror acts of 9/11 should have had a police and legal response. </p> <p class="Body">Instead doctors, other medical personnel, lawyers, bureaucrats, the military and politicians created a lawless jungle as they flouted international law and their own countries’ laws. </p><p class="Body"><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/Kurnaz_odg.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/Kurnaz_odg.jpg" alt="" title="" width="460" height="306" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Murat Kurnaz, former Guantanamo Detainee from Bremen/Germany, 2011. Wikicommons/Oliver Das Gupta. Some rights reserved.</span></span></span></p><p><span class="mag-quote-center">The normalisation of torture, and the demonising of Muslim men are among the terrible legacies of the war on terror.</span>Today’s counterterrorism programmes across the world – used almost entirely against Muslims – build on the new norms created by the US and some of its allies. The deeply serious international legal enterprise of Nuremberg and the accompanying UN Conventions 70 years ago, in establishing individual responsibility and accountability for inhuman acts, was to guard us against a degraded world. The <a href="https://www.waterstones.com/book/east-west-street/philippe-sands/9781474601917">spell-binding new book</a> by lawyer Philippe Sands should be required reading for our times.<a href="#_ftn1">[1]</a></p> <h2 class="Body"><strong>Yemen today</strong> </h2> <p class="Body">Yemen today is an example of where we are. For more than two years a Saudi-led coalition, supported by the US, has been bombing and blockading this devastated impoverished country. The uncounted civilian casualties are also suffering from starvation and a rampant cholera epidemic. Thanks to the work of Human Rights Watch, Amnesty and Associated Press we know too that in the name of counterterrorism Yemen today has a network of secret prisons run by United Arab Emirates and Yemeni forces. Torture is routine and US advisers participate in interrogations of suspected Al Qaeda/ISIS prisoners. Some of these men and boys are reportedly interrogated on US ships while others are held in the UAE military base at Assab in Eritrea. </p> <p class="Body">So, we are still in the post-9/11 mode of Muslim men “disappeared” from many countries, held in secret sites across the world, ending up in Guantanamo Bay where some died in hidden CIA torture facilities on that US base. </p> <p class="Body">The Donald Rumsfeld/Dick Cheney/George Bush narrative of “the worst of the worst”….men who “hate our freedoms” ….set a dangerous anti-Muslim tone which has had lasting effects - not least in how the West treats refugees today. The majority of these men had committed no crime against America, as US academic and legal work established more than a decade ago. <span class="mag-quote-center">The majority of these men had committed no crime against America, as US academic and legal work established more than a decade ago.</span></p> <p class="Default">Later this month in a grim victory for the US government’s evolving new counterterrorism practices, a Washington court will hear a case where lawyers have argued unsuccessfully that US constitutional rights were violated. Ahmed Abu Khattala was kidnapped from his home in Libya in 2014 by a secret US Special Forces team and held on board ship for 13 days of interrogation before being charged with 18 counts, including murder in the 2012 attacks in Benghazi that killed US Ambassador Christopher Stevens.</p> <p class="Body">But the Mitchell/Jessen settlement is a landmark precedent. Torturers can be brought some way towards account in the US. The two were paid more than $81 million for their work as contractors to the CIA. They began it in a secret prison in Thailand with a wounded Palestinian, a Saudi citizen. Abu Zubeyda was water boarded 83 times in a month and suffered most of the brutal practices made public in the December 2014 summary of the US Senate report into torture in CIA secret prisons. The Senate report called the practices “brutal and ineffective.”</p> <p class="Body">Zubaydah’s treatment was the template of the “enhanced interrogation techniques” created by Dr Mitchell and Dr Jessen, according to John Rizzo, senior CIA lawyer at the time. Prisoners were kept in small boxes, thrown against walls with a towel round the neck held by the torturer, kept naked with icy water poured over them, forced to hold stress positions, held upright in shackles for days to prevent them sleeping, and worse. None of this was supposed ever to become public knowledge. John Kiriakou, former CIA chief of counterterrorism in Pakistan went to prison for being a whistleblower on waterboarding. Video tapes of the prisoners’ torture, including Abu Zubeydah’s, were ordered destroyed by the CIA’s head of counterterrorism Jose Rodriguez. The Senate report revealed that some of the intelligence officers watching these scenes cried, others left the programme. </p> <p class="Body">Zubeyda had already given important information to the FBI interrogators who stayed with him when he was first captured. The CIA, Mitchell and Jesson were sure there was more to be had, by torture. But Zubeyda had nothing more to tell.</p> <p class="Body">By the end of the year Zubeyda had been shipped to a secret CIA site in Poland. Only years later did the US quietly admit that every charge against Zubaydah was false – he had never been a member of Al Qaeda. FBI officials had known that all along. Astoundingly however today he remains at Guantanamo Bay. The Senate report revealed that Washington had accepted his torturers’ request that if he survived the torture he would never be freed.</p> <p class="Body">Declassified filmed depositions from Jessen and Mitchell, obtained by the NYT and made earlier this year in legal preparations for the case show the men justifying what they did, claiming the experiences in their programme were not painful but “distressing”, “uncomfortable”, “irritating”, “discombobulating”. They claimed too they acted under pressure from CIA counterterrorism boss Jose Rodriquez and others in calls from Washington to keep on pushing for the information which would “keep Americans safe from fresh threats.”&nbsp; The case forced Rodrigues and the CIA lawyer Rizzo also to testify in the depositions.</p> <p>Jessen says on film he was still&nbsp; “very convinced” the programme would cause “no lasting harm” to the subjects. In another video Rodrigues too says the same. Astounding judgments considering one of the men in the case had actually died. Nobody who has read the detail of the Senate summary report, or <em>Guantanamo Diary</em> by the wholly innocent former prisoner Mohamedou Slahi who was tortured to breaking point, could have anything but utter contempt for such assertions. <span class="mag-quote-center">“This twisted logic ­– saying that because i was kidnapped, tortured and held captive for so many years this is the reason to violate my civil rights some more – is just beyond the pale.” </span></p><p class="Body">Video depositions were also made by the two surviving former prisoners in the case, Suleiman Salim from Tanzania and Mohamed Ahmed Ben Soud, a Libyan. Here are stark pictures of quiet men whose lives have been destroyed. Neither can bear describing the pain they suffered - Mr Salim breaks down at the question. Their faces, body language and lives today show just how deep is the lasting harm. Mr Ben Soud speaks of nightmares that he is still in the prison shackled, and of deep anxiety, while Mr Salim reveals how post-prison he is isolated, cannot manage to be with people, keeps to himself and feels “so weak I can’t do anything.” </p><p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/Mohammedou_Ould_Salahi.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/Mohammedou_Ould_Salahi.jpg" alt="" title="" width="460" height="625" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Mohamedou Ould Slahi. Photograph taken by ICRC at the Guantanamo Bay detention camp. Wikicommons/ International Cttee. of the Red Cross. Some rights reserved.</span></span></span>Slahi’s book, written while still in Guantanamo, was a best seller, translated into many languages. His determined lack of bitterness, sense of humour and insight into the politics behind what had happened to him as the Americans shifted him from country to country for torture in a fruitless attempt to link him to the war on terror, has won him a world audience. But today he is stuck at home in Mauritania, denied a passport. A recent email gives a vivid picture of how this clever, curious man, an inveterate traveller and student, has had his life closed down. This is what he wrote to me recently: “To be honest with you i'm really sick and tired of having been punished for so many years because i was born in Africa. And tired of being afraid all the time. This twisted logic ­– saying that because i was kidnapped, tortured and held captive for so many years this is the reason to violate my civil rights some more - is just beyond the pale. At this very moment, my doctor told me that I have to seek medical treatment outside the country. But I have no passport to do so. This is not a game. I was operated on in Gitmo and i'm still suffering excruciating pain which my Mauritanian doctors couldn't figure out.” </p><p class="Default">Many other former Guantanamo prisoners are still denied passports, like Slahi, and thus deprived of family contact, in some cases job opportunities or, like Slahi health treatment.</p> <p class="Body">In these 15 years I have spent a good deal of time with the families of Guantanamo prisoners, and one thing I have heard many times from wives and children - and some of the men – is that noone released from Guantanamo is the same person who was taken there. Nor does the impact ever end – not just psychologically, as anyone can see in the faces of Salim and Ben Soud, but in how the world treats them – as Mohamedou Slahi’s note illustrates. </p> <p class="Body">Jesson and Mitchell were sued by Salim and Ben Soud who survived the psychologists’ “enhanced interrogation techniques” and by the family of the third man, Gul Rahman, who died in Afghanistan in CIA custody in November 2002. </p> <p class="Body">Rahman was interrogated by Jessen personally for 48 hours. Mitchell too participated in one session and also administered a mental health status exam and provided an assessment of interrogation measures. Later one lead CIA staff officer at the secret site codenamed Cobalt told investigators that “Rahman was the responsibility of Jessen.” The psychologist watched the prisoner subjected to a “hard takedown,” where he was “dragged from his cell.” He had his clothes cut off, his hands taped, and a hood was put on his head. He was run up and down a hallway and “sometimes stumbled and was dragged.” He was also “slapped and punched” in the stomach. When the two psychologists left Cobalt, Rahman was on an interrogation plan prepared by Jessen which included subjecting him to freezing temperatures. Six days later Rahman froze to death, shackled and naked from the waist down. The temperature in his cell was 2.2 degrees centigrade, or 36 degrees fahrenheit. His family were not told he had died.</p> <h2 class="Body"><strong>Not responsible</strong></h2> <p class="Body">The former prisoners’ suit was brought by the American Civil Liberties Union. The official ACLU statement on the settlement gives a flavour of the hard fight for accountability. It says, “ Drs Mitchell and Jessen assert that the abuses of Mr Salim and Mr Ben Soud occurred without their knowledge or consent and that they were not responsible for those actions. Drs Mitchell and and Jessen also assert that they were not responsible that they were unaware of the specific abuses that ultimately caused Mr Rahman’s death and are also not responsible for those actions.”</p> <p class="Body">The ACLU is one of the many US lawyers groups who have spent the last 15 years in dogged attempts – mostly unsuccessful – to uphold US laws and International Human Rights Law against successive US administrations. British and other European lawyers have also fought against our governments’ role in complicity in torture, kidnapping and denial of human rights law.</p><p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/dem15-mj-suleiman-mohammed-soud-bio-1160x864.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/dem15-mj-suleiman-mohammed-soud-bio-1160x864.jpg" alt="" title="" width="460" height="395" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Mohammed Ahmed Ben Soud. ACLU. All rights reserved.</span></span></span>As a result of these lawyers’ work Poland, Canada and the UK have, under pressure, paid damages to a fraction of the ‘war on terror’ prisoners. But none of the other countries which hosted CIA sites, like Afghanistan, Lithuania and Thailand, or which took over US prisoners for torture – Egypt, Morocco and Jordan – have acknowledged, paid compensation or apologised for what these prisoners of the US suffered at their hands. </p><p class="Body">And as for the US, Washington has regularly refused even visitor visas to men, like Murat Kurnaz, the Turkish citizen living in Germany, who was held for five years in Guantanamo, and who they had to admit to having wrongly imprisoned; or Mahar Arar, the Canadian/Syrian telecommunications engineer who the Americans arrested as he changed planes in New York after a holiday and sent to Syria where he spent a year of torture, much of it in a coffin-sized box. Mr Arar was one of the many victims of the Orwellian-sounding practice of “extraordinary rendition”, which was actually state kidnapping.</p><p class="Body"><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/View_of_judges_panel_during_testimony_Nuremberg_Trials_1945.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/View_of_judges_panel_during_testimony_Nuremberg_Trials_1945.jpg" alt="" title="" width="460" height="372" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>View of judges panel during testimony at the Nuremberg Trials, 1945.Wikicommons/ United States Army Signal Corps photographer. Some rights reserved.</span></span></span></p> <h2 class="Body"><strong>Nuremberg</strong></h2> <p class="Body">We need a truthful narrative of a dark dark period when America leaders opened a Pandora’s Box called counterterrorism.&nbsp; Many thousands of people were and are complicit in the massive web of deception, illegality, cruelty and Islamophobia touched on here. </p> <p class="Body">The CIA lawyer mentioned above, John Rizzo, is one of 12 Bush administration lawyers and other officials including former president Bush and vice president Cheney named in 2015 by HRW as among those who should be investigated for “conspiracy to torture and other crimes.” Mitchell and Jessen are named as part of the conspiracy.* <a href="#_ftn2">[2]</a></p> <p class="Body">The powerful lawyers and politicians who should be accountable to the world for normalising torture and deliberately dismantling human rights safeguards for us all have been embraced by the power of the establishment into top jobs in legal firms or academia or government and probably feel themselves protected in their impunity. The precedent of the Mitchell/Jessen case should prove them wrong.</p> <p class="Body">What is at stake now is preserving for our common civilisation the international architecture of human rights law – Nuremberg and the UN Declaration of Human Rights, set up in the idealistic chastened aftermath of World War 2 as the basis of a wholly different<strong> </strong>world from the barbarism of that war. The growing barbarism of today is more threatening because no powerful government admits their culpability in it.</p> <hr size="1" /> <p class="Footnote"><a href="#_ftnref1">[1]</a> East-West Street, On the origins of genocide and crimes against humanity, pub Weidenfeld and Nicholson</p> <p class="Footnote"><a href="#_ftnref2">[2]</a> <a href="https://www.hrw.org/report/2015/12/01/no-more-excuses/roadmap-justice-cia-torture#page">https://www.hrw.org/report/2015/12/01/no-more-excuses/roadmap-justice-cia-torture#page</a></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/victoria-brittain/murder-in-guantanamo">Murder in Guantanamo </a> </div> <div class="field-item even"> <a href="/victoria-brittain/dangerous-game-reply-to-gita-sahgal-and-her-supporters">Dangerous game: a reply to Gita Sahgal and her supporters</a> </div> <div class="field-item odd"> <a href="/openjustice/frances-webber/uk-government-will-be-held-accountable-for-complicity-in-torture-and-rend">UK government will be held accountable for complicity in torture and rendition </a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> Can Europe make it? North-Africa West-Asia uk openJustice Victoria Brittain Tue, 05 Sep 2017 08:15:42 +0000 Victoria Brittain 113175 at https://www.opendemocracy.net Prosecutors: human rights defenders or violators? https://www.opendemocracy.net/harry-hummel/prosecutors-human-rights-defenders-of-violators <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>A call for the International Association of Prosecutors Annual Conference in Beijing to make explicit efforts to promote adherence to their own standards.</p> </div> </div> </div> <p><em><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/lex.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/lex.jpg" alt="lead lead " title="" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" width="460" /></a> <span class='image_meta'><span class='image_title'>The Lex cartoon is created by Oleh Smal for the Netherlands Helsinki Committee. All rights reserved. </span></span></span>Public prosecutors in many countries are deeply involved in human rights abuse, in violation of their professional standards. Patterns of abusive practices by prosecutors are a stain on the profession. The global body of prosecutors, the International Association of Prosecutors, will be holding their Annual Conference in Beijing from 10 to 15 September. Their hosts are the Chinese prosecution service, who have taken on human rights lawyers particularly harshly and arbitrarily over recent years. </em></p> <p>When Margaret Sekaggya ended her term as UN Special Rapporteur on Human Rights Defenders at the end of 2013, <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/190/95/PDF/G1319095.pdf?OpenElement">she noted</a> she had “seen the space for civil society and defenders visibly shrink in certain regions of the world”, accompanied by “the consolidation of more sophisticated forms of silencing of their voices and impeding their work, including the application of legal and administrative provisions or the misuse of the judicial system to criminalise and stigmatise their activities.”</p> <p>The trend towards the limiting of space for civil society and the defense of human rights has since then only become more intense. Think of developments in Russia and neighbouring countries such as Azerbaijan, think of Turkey, think of Egypt and the Gulf countries, think of China. </p> <p>Prosecutors play a pivotal role in this negative trend. In Russia, right before hosting the prosecutors’ global Annual Conference in 2013, the Office of the Prosecutor General launched <a href="http://www.defendersorviolators.info/abuse-of-powers-by-prosecutors">a massive nationwide campaign</a> of extraordinary (and unannounced) inspections of NGOs that aimed at “forcing them to enter the register of foreign agents”. Hundreds of NGOs throughout the country were subjected to these inspections, which were highly invasive and seemed to have the purpose of intimidating these organizations. The campaign was unprecedented in its scale and scope – there has never been such a wide-scale inspection of any legal entities (including not only NGOs, but also commercial companies and state institutions) in the history of modern Russia. This campaign was based on the wide-ranging powers of the Prosecutor’s Office to supervise the observance and application of laws.</p> <p>In July 2015, <a href="https://www.hrw.org/news/2017/07/07/china-709-anniversary-legal-crackdown-continues">Chinese police rounded up</a> and interrogated about 300 rights lawyers, legal assistants and activists across the country, a campaign widely seen as a <a href="https://www.theguardian.com/world/2017/jan/23/china-must-respect-lawyers-human-rights">rupture in China’s rule of law development</a>. &nbsp;This repression of rule of law advocates is known as the “709 crackdown” for the July 9 date of the 2015 roundup. While most have been released, at least three are held while pending trial and another two are serving prison sentences; yet other were served suspended sentences. The UN Committee against Torture in <a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCHN%2fCO%2f5&amp;Lang=en">December 2016 noted</a> “consistent reports that human rights defenders and lawyers, petitioners, political dissidents and members of religious or ethnic minorities continue to be charged, or threatened to be charged, with broadly defined offences as a form of intimidation. Such offences reportedly include ‘picking quarrels and provoking trouble’, ‘gathering a crowd to disturb social order’ or more severe crimes against national security.” Severe <a href="http://www.scmp.com/news/china/policies-politics/article/2101819/chinas-human-rights-lawyers-continue-fight-victims-709">torture</a> has been reported, with no effective steps taken by prosecutors to investigate the allegations and eliminate use of information extracted under torture.</p> <p>Azerbaijan, whose authorities <a href="https://www.azernews.az/nation/65939.html">closely cooperate with the IAP</a>, is in the midst of a <a href="https://www.hrw.org/evropa-i-srednyaya-aziya/azerbaijan">major crackdown</a> on civil rights defenders, bloggers and journalists, imposing hefty sentences on fabricated and trumped-up charges in trials that make a mockery of justice. Torture is an issue here as well; earlier this year a <a href="https://www.hrw.org/news/2017/05/02/free-azerbaijani-journalist-mehman-huseynov">well-known blogger was sentenced to two years imprisonment</a> for complaining about torture, without his complaint being taken up in a meaningful way. </p> <p>The IAP <a href="http://www.iap-association.org/About/Vision-Objects">sees itself</a> as an “international Community of Prosecutors committed to setting and raising standards of professional conduct and ethics for Prosecutors worldwide; promoting the rule of law, fairness, impartiality and respect for human rights and improving international co-operation to combat crime.” International cooperation clearly is served by the IAP but professional and ethical conduct seems to need massively more attention. Despite a <a href="http://www.iap-association.org/Resources-Documentation/IAP-Constitution">Constitution</a> and a <a href="http://www.iap-association.org/Resources-Documentation/IAP-Standards">Professional Standards</a> document that explicitly refer to human rights, no procedure is in place to monitor compliance of members and follow up on problems identified. </p> <p>Over the last years, the IAP has been approached several times by NGOs with complaints about persons in leadership or senior positions; in 2013 about Ali bin Fadhel Al Buainain, the Attourney General of Bahrain and member of the IAP’s Executive Committee, and in 2015 about Yuri Chaika, the Russian Prosecutor General and member of the Senate (the body of past members of the Executive Committee). The <a href="http://humanrights.ie/uncategorized/guest-post-ceartas-complaint-to-international-association-of-prosecutors-regarding-bahraini-attorney-general/">2013 complaint</a>, submitted by Ceartas, Irish Lawyers for Human Rights,&nbsp; raised the reported involvement of Al-Buainain in unfair trials of protesters and in failing to follow up on indications of torture. The <a href="https://themoscowtimes.com/articles/international-prosecutors-rejects-navalny-complaint-on-russias-chaika-52310">complaint about Chaika</a> came from Navalny’s Anti-Corruption Foundation and submitted information about corruption schemes in which his sons are involved that are not tackled by the prosecution service. Both complaints were turned down without providing a substantive explanation to the complainants.</p> <p>A proper individual complaints mechanism should not be the only, and may be not the most important, procedure the IAP should put in place. A <a href="http://www.defendersorviolators.info/petition">2016 petition</a> signed by over 50 human rights NGOs working globally or in the Europe/ Eurasia region had a more generic request, that the IAP &nbsp;“urgently develop procedures to address the gap between professional ethics and practice”. The IAP has individual as well as organizational and institutional membership and compliance with the IAP’s own professional standards is <a href="http://www.defendersorviolators.info/petition-iap-2017">called for</a> again by over 120 international and national human rights and anti-corruption groups from across the world. </p> <p>The IAP does <a href="http://www.iap-association.org/News-from-the-President">take visible steps</a> with regard to the situation of members of the profession in particular countries – not surprisingly, these are situations in which their colleagues are under threat, from an overbearing or one-sided executive, from organized crime or from violent political groups. Clearly, these are issues of crucial importance to the profession. In particular prosecutors who dedicate themselves to fighting rights abuses and who stand for the integrity of the profession may fall victim to these threats. Yet, it is all too common that prosecutors are an instrument of oppression and become complicit in human rights abuse. The IAP has spoken out about the <a href="http://www.iap-association.org/News/The-International-Association-of-Prosecutors-follo">recent persecution without proper procedure</a> of prosecutors in Turkey, but other prosecutors are implementing this policy, and at the same time are engaged in <a href="https://www.frontlinedefenders.org/en/case/turkey-detention-ten-human-rights-defenders">arbitrary steps against human rights defenders</a>, journalists and lawyers. </p> <p>Prosecutors should be human rights defenders and in many instances they are.&nbsp; But systematically neglecting human rights abuse in the name of international cooperation and trustful collegial relationships will only undermine rather than strengthen the credibility of the profession. </p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p>See the <a href="http://www.defendersorviolators.info/petition-iap-2017">Petition to the International Association of Prosecutors</a>, The Hague, September, 2017.</p><p class="font_0">&nbsp;</p><p>&nbsp;</p> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice Harry Hummel Tue, 05 Sep 2017 08:00:49 +0000 Harry Hummel 113172 at https://www.opendemocracy.net “Blood on our hands” - the sorry state of UK mental health services https://www.opendemocracy.net/blood-on-their-hands-sorry-state-of-uk-mental-health-services <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p><span style="line-height: 1.5;">Nobody doubts there is a problem – so why isn’t more being done to protect survivors of abuse?</span></p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/boy-2205733_0.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/boy-2205733_0.jpg" alt="" title="" width="230" height="345" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>"I frequently speak to clients who feel that they have nowhere to turn and nobody to talk to". Image: Juraj Varga/Pixabay. CC0 Creative Commons. Some rights reserved.</span></span></span></p><p><span>It took Sir James Munby, President of the High Court’s Family Division, to issue a damning warning before an NHS bed was recently found for a suicidal teenager who was at significant risk of self-harm. This case (judgment can be seen in full <a href="https://www.judiciary.gov.uk/wp-content/uploads/2017/08/x-a-child-no-3-2017-ewhc-2036-fam-20170803.pdf" target="_blank">here</a>) has once again highlighted the sad state of affairs for mental health provision in the UK but, unfortunately, and tragically, it is difficult to be optimistic for change any time soon.</span></p> <p>During the recent election campaigns rival politicians decried that mental ill-health and/or associated support services was a “<em>burning injustice</em>” (Conservatives), “<em>the biggest unaddressed health challenge of our age</em>” (Labour) and “<em>stretched to breaking point</em>” (Liberal Democrats). With such cross-party consensus it seems ludicrous that we still find ourselves in an intolerable situation whereby some of the most vulnerable members of our society are left without the support which they require.</p><p class="mag-quote-center">The provision of mental health services is a postcode lottery.</p> <p><span>As somebody who represents survivors of abuse, many of whom have found themselves in situations of acute mental health crisis at one point or another in their lives, I frequently speak to clients who feel that they have nowhere to turn and nobody to talk to. The provision of mental health services is a postcode lottery, with some people being placed on excruciatingly long waiting lists for NHS therapeutic services which are ultimately limited in scope and time.</span></p> <p><span>Currently I am representing survivors that range in age from those barely older than toddlers to people almost into their 70’s; and yet almost all face a distinct lack of tailored support for their individual needs. &nbsp;</span></p> <p><span>The Independent Inquiry into Child Sexual Abuse (IICSA) recently released a </span><a href="https://www.iicsa.org.uk/key-documents/1534/view/IICSA%20Impacts%20of%20Child%20Sexual%20Abuse%20Rapid%20Evidence%20Assessment%20Full%20Report%20%28English%29.pdf" target="_blank">Rapid Evidence Assessment</a><span> of the impacts of child sexual abuse on survivors and those that are closest to them. It pulls together various studies and makes for stark reading. Notably 57% of young people subjected to abuse suffered with depression and survivors of child sexual abuse are six times more likely to make an attempt of suicide.</span></p> <p><span>The need for adequate mental health provision for those affected by abuse is clear, but this is not a new concern.</span></p><p><span class="mag-quote-center">84% of NHS staff felt that it had become more difficult for children to access support.</span></p> <p><span>The IICSA report notes that there has previously only been one study into the costs of child sexual abuse specifically, and that this was published by the NSPCC in 2014. Whilst the personal costs of abuse are clearly immeasurable, and the economic costs will never be accurately known for various reasons, the NSPCC report suggests that child abuse costs the economy approximately £3 billion a year. Of that £182 million is attributable to health provision, including child and adult mental health services, child suicide and self-harm and adult physical health concerns including alcohol and drug misuse.</span></p> <p><span>The cost and scale of the issue therefore cannot be understated. However in May this year, following a survey of 3,000 NHS staff undertaken by the Association of Child Psychotherapists, it was reported that 84% of those questioned felt that it had become more difficult for children to access support and 33% said that their workplace was either downsizing or being closed. It led to senior figures suggesting that children’s mental health services within the NHS were in crisis.</span></p> <p>Time and time again survivors of abuse tell us that the system is broken. When they reach the end of the lengthy waiting list and finally receive therapy most can expect a standard course of treatment, no more or no less than the person in front of them in the queue. For some this ‘one size fits all’ approach has had a detrimental impact upon them; effectively opening a can of worms and shortly thereafter leaving them without adequate support to go about their daily life. It is a desperate situation and, in my experience, one of the key motivators in survivors of abuse seeking legal advice for a claim for compensation.</p> <p><span>But this should not be read as a criticism of NHS staff, some of whom have empathetically explained why support services for survivors of abuse within the NHS are inadequate. Charities are often being left to pick up the slack, but with increasing demand and diminishing funds they cannot be expected to bridge such a huge gap.</span></p><p><span class="mag-quote-center">The&nbsp;‘one size fits all’ approach... is, in my experience, one of the key motivators in survivors of abuse seeking legal advice for a claim for compensation.</span></p> <p><span>In July 2016 the Government recognised the issue and announced a £550,000 grant funding for charities assisting survivors of sexual abuse; but with the NSPCC report highlighting how health services for survivors of abuse costs almost £500,000 a day, it isn’t difficult to see that this grant would diminish quickly in the overstretched and under-resourced third sector.</span></p> <p><span>The child at the centre of Sir Munby’s judgment required treatment specific to her needs, and without this support her life could potentially have been cut short. He was right to say that society would have “</span><em>blood on their hands</em><span>” if they failed a child who was known to pose a risk to herself.</span></p> <p>Without further funding it is inevitable that for some of those who do not have such a respected advocate to speak out on their behalf their mental health support will be inadequate for their needs and they will slip through the net. Even when suicidal ideations or thoughts of self-harm are not a concern the unmet support needs are likely to continue to have a detrimental impact, with many survivors of abuse describing how they are left to live a life they are not happy with, and how untreated issues can also impact upon their families and communities.</p> <p>It is therefore more important than ever to continue the conversation surrounding mental ill-health, and to continue to push for reform and further funding for mental health services so that no more people are failed.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/suzanne-white/fast-tracking-medical-justice-is-problematic-let-s-prevent-tragedies-in-first-place">Fast-tracking medical justice is problematic. Let’s prevent tragedies in the first place.</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Make your voice heard (openJustice) Andrew Lord Thu, 17 Aug 2017 12:23:11 +0000 Andrew Lord 112906 at https://www.opendemocracy.net The rule of law fights back https://www.opendemocracy.net/uk/openjustice/geoffrey-bindman/rule-of-law-fights-back <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>The recent Supreme Court decision on employment tribunal fees is a victory for our constitution. This is the rule of law, in action.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/PA-32190878.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/PA-32190878.jpg" alt="" title="" width="460" height="291" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Grayling's imposition of high, blanket fees for bringing a claim in the Employment Tribunal caused a reduction of approximately 70% of claims. Press Association/Nick Ansell. All rights reserved.</span></span></span></p><p>If, in the words of Abraham Lincoln, government is of the people, by the people and for the people, the independent role of the courts and the judiciary is crucial. The executive functions of government, exercised by the cabinet moderated only partially by elected members of Parliament, must be carried out lawfully, and it is the job of the judges to make sure they are.</p> <p>The Supreme Court has now <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf" target="_blank">ruled</a> in favour of a challenge by the trade union Unison to the imposition of fees (by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013) on those seeking justice in the employment tribunals. Their decision to declare charging fees for access to the tribunals illegal is of fundamental constitutional importance. Judges are no longer merely the interpreters of the law. Nor is their responsibility limited to seeing that it is enforced. The law, as the Supreme Court has now determined it to be, requires the judges to ensure that access to justice is available to all.</p> <p>The employment tribunals – at first called industrial tribunals – were established in 1964. Following the Donovan Report of 1968 their jurisdiction was extended to remedy the violation of nearly every kind of employment right, regardless of any financial value. Recognising the vulnerability and unequal economic power of workers the tribunals were designed to be informal and inexpensive. No fees were charged to claimants.</p><p class="mag-quote-center">We cannot know how many valid claims were not brought because of the cost of doing so but there must have been many, each one a denial of justice.</p> <p>Although the ideal of informality was never fully achieved – the employers used lawyers and the claimants could be at a disadvantage if they did not – the tribunals were popular and effective. The very existence of a potential remedy for bad behaviour by employers was a useful deterrent.</p> <p>The Fees Order was made under statutory powers by Christopher Grayling – possibly the least respected Lord Chancellor in the long history of that office. He argued that charging fees would discourage bogus and vexatious claims. There was no evidence that this was a problem but employers, who stood to benefit from the suppression of all claims, valid or not, naturally supported him. He also argued, perhaps more plausibly, that the users of the service should pay for it, rather than the taxpayer.</p> <p>The fees were high. For straightforward cases the figure was £390 – £160 on making the complaint and another £230 if there was a hearing. For more complex cases it was £1200 – an issue fee of £250 and a hearing fee of £950. Remission of fees could be granted, but only in strictly limited circumstances. Given the uncertainties of all litigation and the size of these figures, It must have been blindingly obvious, even to Mr. Grayling, that these fees would discourage many claimants, whatever the merits of their claims. So it proved. There was, to quote Lord Reed in the Supreme Court:</p><p class="blockquote-new">“<em>a dramatic and persistent fall in the number of claims brought in ETs. Comparing the figures preceding the introduction of fees with more recent periods, there has been a long-term reduction in claims accepted by ETs of the order of 66-70%.</em>”</p><p>We cannot know how many valid claims were not brought because of the cost of doing so but there must have been many, each one a denial of justice.</p> <p>Yet the question remains: was the Order imposing fees lawful? The governing statutory provision, section 42(1) of the Tribunals Courts and Enforcement Act 2007, empowers the Lord Chancellor to prescribe fees for any specified tribunal. That is what he did. But can that apparently clear cut statutory authority be overridden by a more fundamental principle? Is access to justice the trump card?</p><p class="mag-quote-center">The courts are not merely a public service but an essential feature of a society governed by the rule of law.&nbsp;</p> <p>Unison began its legal campaign in 2013 challenging the Fees Order as a breach of EU law requiring effective access to a tribunal and of the Public Sector Equality Duty imposed by the Equality Act 2010. These challenges failed in the Divisional Court and again in the Court of Appeal, which was (surprisingly) not satisfied that the fees charged were unaffordable. The appeal to the Supreme Court was argued on the basis that the making of the Fees Order was not a lawful exercise of the statutory powers because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. The right of access to justice, Unison claimed, is not just a matter of EU law but is a fundamental principle of the common law and – as Lord Reed says in the Supreme Court judgment “<em>has long been deeply embedded in our constitutional law</em>”.</p><p>Lord Reed’s masterly analysis (<a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf" target="_blank">you can read it in full here</a>)&nbsp;was endorsed by all the other judges. He pointed out that the courts are not merely a public service but an essential feature of a society governed by the rule of law. They cannot do their job of ensuring that the laws made by Parliament and the common law are applied and enforced unless people have unimpeded access to them:</p><p class="blockquote-new">“<em>Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade</em>.”</p> <p>Thus the law is not there just to provide a service to those who have a dispute:</p><p class="blockquote-new">“<em>People and businesses need to know that they will be able to enforce their rights if they have to do so and, on the other hand, that if they fail to meet their obligations there is likely to be a remedy against them.</em>”</p> <p>Lord Reed reviewed relevant legal history, including chapter 40 of Magna Carta: “<em>We will sell to no man, we will not deny or defer to any man either Justice or Right</em>”. Subsequent case law is consistent with the principle that “<em>a citizen’s right to unimpeded access to the courts can only be taken away by express enactment</em>.” In the case of the Fees Order the governing statutory provision did not authorise the prevention of access to the relevant tribunals. Yet he concluded that access was prevented and this was enough to make the Fees Order unlawful.</p> <p>Where do we go from here? The government immediately accepted the decision and fees have already been cancelled for employment tribunals. The government has promised to repay all fees paid since the Fees Order came into force. But what about access to the courts and to justice more generally?</p> <p>Fees are by no means the only barrier to access. Legal aid has been drastically restricted. Legal and advice centres have closed or reduced services through lack of funding. Many solicitors have given up legal aid. Court staff has been reduced and courts closed. All these cuts deny access to justice for many people who cannot afford to pay for legal advice and representation. Will the courts use their newly minted power to give them access? Some of us will be eager to put them to the test. The judgement in this case could mark the turning of the tide in favour of those who seek justice.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/charlotte-threipland/does-britain-still-uphold-rule-of-law">Does Britain still uphold the rule of law?</a> </div> <div class="field-item even"> <a href="/openjustice/laura-janes/draconian-cuts-to-legal-aid-for-prisoners-found-to-be-unlawful-by-court-of-a">Draconian cuts to legal aid for prisoners found to be unlawful by Court of Appeal </a> </div> <div class="field-item odd"> <a href="/openjustice/john-nicholson/hope-for-access-to-justice">Hope for access to justice?</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Justice for the rich alone? (openJustice) Geoffrey Bindman Fri, 04 Aug 2017 14:33:37 +0000 Geoffrey Bindman 112706 at https://www.opendemocracy.net London is cloaking environmental racism in respectability – but Zambian villagers are fighting back https://www.opendemocracy.net/uk/amy-hall/london-is-cloaking-environmental-racism-in-respectability-but-zambian-villagers-are-figh <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p dir="ltr">Zambian villagers await a landmark judgement that could help hold British companies to account for their actions abroad.</p> </div> </div> </div> <p class="MsoNormal"><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/vedanta_0.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/vedanta_0.png" alt="" title="" width="460" height="385" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: Foil Vedanta</em></p><p class="MsoNormal"><span>Over 1,800 people from farming and fishing communities near Chingola, Zambia are waiting to hear if they can make a claim for damages in the English courts against UK mining company Vedanta Resources and its subsidiary Konkola Copper Mines (KCM).</span></p><p class="MsoNormal"><span>A decision from London’s Court of Appeal is expected by the end of the summer. If the villagers are successful, it could become easier in future for multinational companies based in the UK to be held to account for alleged human rights and environmental abuses in other countries.</span></p><p class="MsoNormal"><span>Hundreds of people living near Chingola were hospitalised due to water contamination from sulphuric acid and other chemicals from a KCM-owned mine in 2006.</span><span>&nbsp;</span></p><p class="MsoNormal"><span><span class='wysiwyg_imageupload image imgupl_floating_right 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/Screen-shot-2016-02-17-at-12.26.58-300x226_1.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/Screen-shot-2016-02-17-at-12.26.58-300x226_1.png" alt="" title="" width="300" height="226" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span>“</span><span>We have no water source apart from the river and it’s totally polluted,” villager Leo Chikopela</span><span><a href="https://web.archive.org/web/20170204213118/http:/www.foilvedanta.org/articles/how-kcm-is-killing-the-zambian-copperbelt-part-1-water-pollution/%20"><span> </span><span>told campaign group Foil Vedanta</span></a></span><span>. “Most of us are very weak and have constant stomach pains. When we bathe using this water our skin itches.”</span><span>&nbsp;</span></p><p class="MsoNormal"><span>Local people have also</span><span><a href="https://www.youtube.com/watch?v=3isPdcR6Qe4&amp;feature=youtu.be"><span> </span><span>reported</span></a></span><span> deaths after their relatives drank from a local river.</span><span>&nbsp;</span></p><p class="MsoNormal"><span>The villagers were previously awarded compensation in the Zambian High Court, but KCM appealed. In 2015 the Supreme Court upheld the guilty verdict but removed the compensation. Vedanta argues that it does not have a duty of care to claimants potentially polluted by the activity of its subsidiary, KCM. Lawyers for the villagers</span><span><a href="https://www.leighday.co.uk/News/News-2017/June-2017/Court-of-Appeal-hearing-next-week-in-legal-claims"><span> </span><span>argue</span></a></span><span> that taking the case to the UK is the only way the villagers will get justice.</span><span>&nbsp;</span></p><p class="MsoNormal"><span>Vedanta's track record on the environment and human rights is questionable. It was</span><span><a href="https://thewire.in/117267/norway-wealth-fund-blacklists-vedanta-indian-firms/"><span> </span><span>excluded</span></a></span><span><span> </span></span><span>from Norwegian Pension Fund investments due to an “</span><span><a href="https://www.scribd.com/document/342449425/Letter-to-Vedanta-27-May-2016"><span>unacceptable risk</span></a></span><span>” that the company will “cause or contribute to severe environmental damage and serious or systematic human rights violations.”</span><span>&nbsp;</span></p><p class="MsoNormal"><span><span class='wysiwyg_imageupload image imgupl_floating_left 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/Screen-shot-2016-02-19-at-13.20.38_1.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/Screen-shot-2016-02-19-at-13.20.38_1.png" alt="" title="" width="272" height="254" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span>Mining companies control key mineral resources across the world, and have impacted on land based communities and indigenous peoples through associated forced evictions, pollution, and violence in or near mine areas. Often local people see little of the profits, despite the exploitation of their mineral rich land and the environmental and health consequences.</span><span></span></p><p class="MsoNormal"><span>“</span><span>The environmental racism of copper mining companies, and the impunity they enjoyed during Rhodes' British South African Company era is continuing to haunt Zambia through the colonial legacy issues of KCM/Vedanta,”</span><span><a href="http://www.adivasiresurgence.com/british-mining-firm-vedanta-deny-culpability-gross-pollution-zambia/"><span> </span><span>said</span></a></span><span> Samarendra Das from Foil Vedanta.</span><span></span></p><p class="MsoNormal"><span>London is a key investment hub for extractive/mining industries. Major lobbyists the International Council on Mining and Metals (ICMM) are based there, as is metals price fixing mechanism the London Metal Exchange, and precious metals trader, the London Bullion Market Association (LBMA). Many multinational mining companies also maintain links with London through trading on the London Stock Exchange which offers them a ‘</span><span><a href="http://www.foilvedanta.org/actions/global-day-of-action-against-vedantas-agm/"><span>cloak of respectability</span></a></span><span>’.</span><span></span></p><p class="MsoNormal"><span>“Being listed on the London Stock Exchange offers companies an explicit air of credibility, because the LSX presents itself as providing strict oversight around who gets a listing and who doesn't,” explains Liam Barrington-Bush, former Communications Worker at the </span><span><a href="http://londonminingnetwork.org/"><span>London Mining Network</span></a></span><span>. “In practice there is not a lot of scrutiny that these companies have to undergo, in terms of anything ethical, environmental or social, to get themselves listed.”</span><span></span></p><p class="MsoNormal"><span>While London-based and -listed companies are benefiting from the natural resources of far flung countries – at the expensive of local people – they are not always paying what they should for the privilege.</span><span></span></p><p class="MsoNormal"><span>A 2016 War on Want report titled</span><span><a href="http://media.waronwant.org/sites/default/files/TheNewColonialism.pdf?_ga=1.236301313.1006353339.1463138993%20"><span> </span><span>The New Colonialism</span></a></span><span><span> (pdf)</span></span><span>, showed that 101 London Stock Exchange listed companies had mining operations in 37 sub-Saharan African countries, collectively controlling over $1 trillion worth of Africa’s oil, gold, diamonds, coal and platinum. Of the 101 companies, 25 of them were incorporated in tax havens.</span><span></span></p><p class="MsoNormal"><span>While companies are making money from Africa's resources,</span><span><a href="https://www.healthpovertyaction.org/speaking-out/honest-accounts/"><span> </span><span>the continent is losing it.</span></a></span><span> In 2015 Africa received nearly $162 billion in aid, loans, foreign investment and remittances, but lost $203 billion thanks to multinational corporations, debt payments, tax dodging and the costs imposed by climate change. In other words, the rest of the world received over $41 billion a year from African countries – money that could have been spent on basic needs such as healthcare and education.</span><span></span></p><p class="MsoNormal"><span>Vedanta has been</span><span><a href="https://www.actionaid.org.uk/blog/campaigns/2014/07/11/new-evidence-piles-pressure-on-vedanta-over-tax-dodging-in-zambia%20"><span> </span><span>accused</span></a></span><span> of tax dodging in the past through under-pricing copper sold through KCM in order to pay less tax in Zambia.</span><span></span></p><p class="MsoNormal"><span>As the Vedanta AGM takes place in London on Monday 14 August, a </span><span><span>Global Day of Action</span></span><span> against will take place – with events in Zambia, India and the UK – putting further pressure on Vedanta over the Zambia case and other communities affected by pollution, human rights abuses and tax evasion around the world.</span><span></span></p><p><span>The next part of this article looks further at the links between the British state and multinational mining companies, including how colonialism is furthered under the guise of development.</span></p><p class="MsoNormal"><span></span></p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk openJustice Brexit Inc. Amy Hall Thu, 03 Aug 2017 13:07:34 +0000 Amy Hall 112680 at https://www.opendemocracy.net Shocking new evidence could overturn Northern Ireland ruling that became an international blueprint for torture https://www.opendemocracy.net/uk/tom-griffin/shocking-new-evidence-could-overturn-northern-ireland-ruling-that-became-internationa <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>I “felt like I was drowning or suffocating until I fell on the floor unconscious” - new testimony from survivors of torture in Nothern Ireland goes to the heart of British colonial myth-making.</p> </div> </div> </div> <p> </p><p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/Barbed Wire fence.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/Barbed Wire fence.jpg" alt="" title="" width="460" height="259" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span>British forces in Northern Ireland used waterboarding and electric shock treatment on detainees during the 1970s, newly uncovered files show. Witness statements and internal Whitehall correspondence released for the first time last month could have significant implications for international human rights law and British-Irish relations.</p> <p>One victim of waterboarding in Belfast spoke out publicly about his experience for the first time at following the recovery of his original testimony from 1972, which recounts that he ‘felt like I was drowning or suffocating until I fell on the floor unconscious’</p> <p>The documents were revealed at an event in London to mark the International Day in Support of Victims of Torture on 26 June, hosted by Matrix Chambers, along with the Pat Finucane Centre, the Committee on the Administration of Justice (CAJ) and Amnesty International.</p> <p>They add to growing evidence that interrogation practices in Northern Ireland went beyond those criticised by the European Court of Human Rights in the 1978 case of <em>Ireland v. the United Kingdom</em>. The so-called ‘five techniques’ examined in that judgement included deprivation of sleep, deprivation of food and drink, stress positions, hooding and subjection to ‘white noise’.</p> <p>Although the European Court condemned these practices as ‘inhuman and degrading’ it refused to describe them as torture. This paradoxically opened the way for the ruling to be used as a blueprint by interrogators, notably in the ‘torture memos’ drafted by the Deputy Assistant Attorney General of the US John Yoo to justify practices used during the earliest phase of the ‘War on Terror’.</p> <p>Previous revelations regarding the suppression of medical evidence in 2014 prompted the Irish Government to re-open the original case. The discovery that interrogation practices went beyond the five techniques, and included waterboarding and electric shock treatment, is likely to increase pressure on the European Court to alter its original verdict. In February this year, Channel 4 news covered allegations that British paratroopers had used waterboarding against two Irish men, <a href="http://www.itv.com/news/utv/2017-02-02/amnesty-calls-for-probe-into-ni-torture-allegations/">with the knowledge of then Prime Minister Edward Heath</a>. The latest revelations show the practice was not a one-off.</p> <p>The re-opened legal case – which still awaits a ruling from Strasbourg – has been the subject of significant tension in British-Irish relations, now under further pressure given negotiations over Brexit and reforming the Northern Ireland Executive. A stronger line from the European Court would also be embarrassing for a British Government who have just agreed a DUP demand that bodies examining the legacy of the conflict should not <a href="http://www.irishnews.com/news/2017/06/28/news/victims-group-hits-out-at-dup-tory-deal-on-legacy-amid-fears-of-side-deals-1068901/">'unfairly focus on former members of the armed forces or police.'</a></p> <p>At last month’s Matrix Chambers event, witness statements from the closed archive of the of the Association for Legal Justice at the Ó Fiaich Library in Armagh were revealed for the first time as well as newly uncovered material from the UK National Archives.</p> <p>An anonymous former detainee read an extract from his own newly recovered testimony given in 1972 when he was aged 17. He stated that in between beatings and other abusive techniques at Black Mountain Army Base “they wrapped a towel round my head and poured water all over it.” </p> <p>“As it filled with water, it felt like I was drowning or suffocating until I fell on the floor unconscious. Once I was conscious they would then beat me again with batons until I was on my feet and repeated the process again. I lost a stone in weight in seven hours and my clothes were ripped to shreds. Finally an army officer came in. I had met him before. He said he believed that I wasn’t involved, but he felt that I could give him information on the IRA, and he would give me one week to do so. He drove me back to the Springfield Road and threw me out.”</p> <p>A statement given by the same detainee’s mother to a Cork-based NGO in November 1972, described how, during his detention “he was brutally beaten and had a wet towel tied tightly round his head and face. </p> <p>“This was filled with water at intervals causing him great distress and suffocation. His body was doubled over causing him extreme pain. He was also forced to hold an armalite rifle and a .22 calibre pistol to have his fingerprints on them, and was told this was enough to get him 15 years.”</p> <p>“When my son arrived home I was so distressed by his appearance that I decided to send him away for his own safety. He was completely changed in his personality from a happy-go-lucky boy to a very frightened one.”</p> <p>Other accounts of a similar pattern of torture included a Downing Street memo from November 1972 recording the concerns of Taoiseach Jack Lynch, and a Ministry of Defence file recommending settlement of a case brought by a detainee subjected to electric shock treatment. Paul O’Connor of the Pat Finucane Centre said the file was clear evidence that the MOD was anxious to keep certain matters out of court, “particularly issues involving the use of water, and people’s heads being held under water, and electric shocks being administered.”</p> <p>O’Connor criticised the response of the Ministry of Defence and the Police Service of Northern Ireland to advance reports of the new evidence. “Both responses were that anybody that had allegations of serious criminal wrongdoing should approach the police, who are implicated in the wrongdoing. “</p> <p>Daniel Holder of the Committee on the Administration of Justice said that evidence interrogation methods that went beyond the five techniques was significant for the European Court case.</p> <p>He added that previous revelations had already shown that the original court decision was influenced by misleading information provided by the British Government: “It knew what the real long-term impact of these techniques were. It’s there in the archives. They had real medical reports as well as the misleading ones that were presented before the court.”</p> <p>Ann Hannah of Freedom from Torture argued that accountability for such practices was essential to the long-term rehabilitation of victims. “Time and time again we see the idea that you can rebuild after conflict and achieve some form of stability or you can have accountability. These things are so commonly played off against each other. In reality of course, stability is fragile without some form of accountability.</p> <p>“How can you expect survivors and their communities to trust state institutions like the police, the army, their politicians, if there’s been no attempt at accountability? Reconciliation is a buzzword in these situations but all too often survivors of torture and other abuses are just completely ignored in that process.” </p> <p>Guardian journalist Ian Cobain, author of <a href="https://opendemocracy.net/ourkingdom/nicholas-mercer/cruel-britannia-secret-history-of-torture"><em>Cruel Britannia: A Secret History of Torture</em></a> warned of a significant backlash from the Ministry of Defence against such legal challenges.</p> <p>“We British are not any more prone than other former colonial powers to resort to torture at times of emergency. We probably compare quite favourably to some other states in that respect, but what we are particularly good at is concealment. We are really good at using official secrecy, denial and obfuscation to keep it all really well hidden.”</p> <p>“The reason a lot of British people tell themselves that [we behaved better than other colonial powers] is because denial and official secrecy has cleared the space within which this very powerful myth flourishes. I suspect one of the reasons why the Ministry of Defence is so keen to shutdown post-conflict litigation is because it is challenging to this ideal that we Brits have about ourselves.”</p> <p>A recent YouGov poll, showing that 59 per cent of are proud of the British Empire, perhaps underlines Cobain’s point. One consequence of that narrative may be an international legal order that allows other powers to emulate the empire’s torture practices.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/julian-petley/human-rights-scrapping-terrorism-democracy">Scrapping human rights is as great a threat to democracy as terrorism</a> </div> <div class="field-item even"> <a href="/shinealight/at-williams/british-torture-in-iraq-and-state-s-corporate-memory-loss">British torture in Iraq and the state’s ‘corporate memory loss’</a> </div> <div class="field-item odd"> <a href="/ourkingdom/aisha-maniar/on-britains-use-of-torture">On Britain&#039;s use of torture</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk openJustice Tom Griffin Tue, 25 Jul 2017 11:06:53 +0000 Tom Griffin 112496 at https://www.opendemocracy.net Why the ICC examination into torture and other abuses by UK soldiers in Iraq must continue https://www.opendemocracy.net/uk/carla-ferstman/why-icc-examination-into-torture-and-other-abuses-by-uk-soldiers-in-iraq-must-cont <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p class="Default">The Office of the Prosecutor is under pressure to conclude the examination. It must remain open. The Prosecutor should be taking it to the next logical step – a full-blown investigation.&nbsp; </p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/1024px-1_RRF_engage_Iraqi_Army_positions_with_their_81mm_Mortars._Iraq._26-03-2003_MOD_45142764.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/1024px-1_RRF_engage_Iraqi_Army_positions_with_their_81mm_Mortars._Iraq._26-03-2003_MOD_45142764.jpg" alt="" title="" width="460" height="300" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Royal Regiment of Fusiliers preparing to engage enemy targets, south of Basra, March 2003. Wikicmmons/ Cpl Paul Jarvis/MOD. Some rights reserved.</span></span></span>The International Criminal Court has received numerous submissions of information about the UK military’s conduct in Iraq. An initial preliminary examination was opened and then later <a href="https://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf">closed in 2006</a>. Although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing, torture and inhumane and degrading treatment of prisoners and civilians, the Prosecutor’s view was that the gravity threshold was not met. The number of victims of alleged abused at that time was very limited, totalling in all less than 20 persons, so the ‘quantitative criteria’ was not fulfilled. </p> <p>Subsequently, more information on alleged crimes was supplied, and in May 2014 the ICC Prosecutor <a href="https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-iraq-13-05-2014">announced&nbsp;the re-opening of the previously terminated preliminary examination</a>. This preliminary examination is ongoing. <a href="https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf">According to her latest report</a>, the ICC Prosecutor is currently finalizing the assessment of whether the alleged crimes committed by UK nationals fall within the subject-matter jurisdiction of the Court. In other words, do the crimes fall within the definition of war crimes or crimes against humanity, and do they meet the Prosecutor’s gravity threshold? </p> <p class="Default">The Office of the Prosecutor is now under pressure to conclude the examination. &nbsp;But this examination must remain open. Instead, the Prosecutor should be taking it to the next logical step – a full-blown investigation.&nbsp; </p> <p class="xmsonormal">Under the ICC Statute, the Court can only pursue an investigation and prosecution if it can be shown that the country with competence over the said crimes (in this case the UK) is unable or unwilling genuinely to pursue the matters which the ICC is specifically investigating, domestically. The UK has one of the strongest and most highly renowned legal systems in the world. Thus, it would be difficult to say that the competent UK authorities are unable to pursue an investigation or prosecution. Certainly they are able to do so. The issue is one of willingness and this is now seriously in question. <span class="mag-quote-center">It would be difficult to say that the competent UK authorities are unable to pursue an investigation or prosecution. Certainly they are able to do so. The issue is one of willingness and this is now seriously in question.</span></p> <p>There have been numerous investigations, including criminal investigations but there have been no prosecutions of UK armed forces personnel since the creation of the Iraq Historical Allegations Team (IHAT), which was established to review and investigate the growing number of allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009. This in itself is extraordinary given that the MOD has spent about £60 million on IHAT, and paid out £20 million in compensation for abuse in over 300 “civil” cases (a process separate from IHAT).</p> <p>But IHAT’s focus was mainly the rank and file soldiers. There has never been a genuine attempt to prosecute the&nbsp;high-ranking&nbsp;military commanders or the senior officials who ordered and/or who were complicit in the&nbsp;commission of torture in Iraq. The IHAT may have been held up by the UK Government to the ICC Prosecutor and others as evidence that it was investigating, in order to stand up to the ICC’s ‘complementarity’ test. But has it all been an exercise in smoke and mirrors ?</p> <p>Most alarmingly, a clear picture of abuse during interrogation has emerged. In 2003, British interrogators were challenged for their use of the <a href="https://rightsinfo.org/stories/the-five-techniques/">outlawed ‘5 techniques’ - deprivation of sleep, food and drink, stress positions, hooding and subjection to ‘white noise’ (loud static)</a>, on up to 40 prisoners. Six months later, Baha Mousa was beaten to death during ‘tactical questioning’. In the <a href="http://www.bbc.co.uk/news/uk-14825889">Baha Mousa Inquiry</a> in 2010, the MOD admitted it had breached the Geneva Conventions during interrogations and this is likely to have taken place between 2003-2009. &nbsp;According to sources, the typical practice was that Iraqis were taken into armoured vehicles, beaten, then either taken for a few days to an undisclosed location to be ‘worked over’, or taken straight to detention where they would be kept for about a month, during which time they were subjected to sleep and food deprivation, stress positions, physical, sexual and religious abuse and restricted access to toilets. Many of the detainees were photographed naked. </p> <p>There are also allegations that special forces aided the rendition of Iraqi prisoners to and from secret detention facilities in the Western desert and that prisoners were not officially recorded in medical facilities, presumably so that their existence could be officially denied. Who was ultimately responsible for this?</p> <p class="xmsolistparagraph">Arguably, the UK Government has undermined the very investigative body they originally championed. They have painted a set of simple narratives: ‘Our brave troops’, ‘ambulance chasing lawyers’, ‘vexatious’, ‘spurious’ and ‘baseless’ claims. This painting of narratives was easy to do; one of the claimant lawyers was dramatically <a href="http://www.solicitorstribunal.org.uk/sites/default/files-sdt/11510.2016.Philip%20Joseph%20Shiner.pdf">struck off by the Solicitors’ Disciplinary Tribunal</a> for his improper actions, which helped to reinforce the Government’s narrative. On the other hand, <a href="http://www.solicitorstribunal.org.uk/sites/default/files-sdt/SDT%20Press%20Release%20-%209%20June%202017_0.pdf">another firm has been cleared of any wrongdoing</a>, but this has passed almost without mention. <span class="mag-quote-center">The ethics of a lawyer in a single case doesn’t say anything about the strength or weakness of the evidence itself, which should have been independently investigated and any underlying crimes prosecuted.</span></p> <p class="xmsolistparagraph">But the ethics of a lawyer in a single case doesn’t say anything about the strength or weakness of the evidence itself, which should have been independently investigated and any underlying crimes prosecuted. Indeed, IHAT never relied exclusively on claimant lawyers for its evidence; IHAT undertook its own investigations, and there were a number of ICRC reports of abuse along with service personnel witnesses, some of whom had sounded their alarm about mistreatment as early as 2003. </p> <p class="xmsolistparagraph">Over the last year, there has been a dramatic reduction in the number of allegations being investigated, with hundreds of ongoing investigations shut down prematurely, some because of the so-called taint of the providence of the allegations – the ‘ambulance-chasing lawyers’. But many credible investigations were not being pursued, including the death of Tariq Sabri al-Fahdawi on board an RAF helicopter in Iraq in April 2003, and the death of Ahmed Jabbar Kareem Ali, an Iraqi teenager who drowned after being forced into a river by British soldiers, or even <a href="https://www.youtube.com/watch?v=AhOYpy0iIz8">the beating of children captured on video by News of the World</a>. And there has been an entirely unacceptable delay in investigating and prosecuting crimes where there is clear evidence of abuse.</p><p class="xmsolistparagraph">There have been a number of deaths in custody and almost six years after a major public inquiry found that Baha Mousa, a hotel receptionist, had been beaten to death by British soldiers in Basra, no new prosecutions have yet been brought. The High Court judge overseeing the ongoing civil claims against the MOD, Mr Justice Leggatt, recently described this delay as ‘extraordinarily difficult to understand.’ Apparently, Ministry of Defence civil servants began to interfere in the conduct of investigations and the vetting of evidence. Months before the plans were put in place to close IHAT down, the MOD instructed investigators that it could no longer interview service personnel as part of its investigations.&nbsp; </p> <p class="xmsonormal">Some of these tactics are similar to what has recently been revealed in the <a href="https://www.thetimes.co.uk/article/rogue-sas-unit-accused-of-executing-civilians-in-afghanistan-f2bqlc897">Sunday Times’ exposé on the SAS in Afghanistan</a> – Operation Northmoor, where about 90% of the 600 allegations had been shelved. These Afghanistan allegations were generated in part by evidence supplied by soldiers and through ICRC reports.&nbsp; Operation Northmoor is being run by the SIB – the Army police investigating army alleged offences. It was determined that the Army police wasn’t sufficiently independent to carry out the investigations in Iraq; this begs the question why they are leading the investigations in Afghanistan. </p> <p>The MOD has confirmed to REDRESS that 752 of the IHAT cases concern interrogation and that the videos of some of the interrogations are held in the archives of Defence Intelligence and with IHAT. The MOD will know whether these allegations are true or not and to what extent they are to blame. It seems extraordinary that the MOD is now responsible for closing down an investigation which could legitimately question members of their own Ministry. </p> <p class="xmsolistparagraph">Now that the IHAT investigation has effectively closed, the few investigations that remain open will be transferred to a less independent process – reportedly, the Airforce police will be leading the investigations, overseen by the Provost Marshall of the RAF. This ignores the <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2011/1334.html">appellate ruling in respect of IHAT</a> which required that the investigators be hierarchically, institutionally and practically independent from those they were investigating. </p> <p class="xmsonormal">All that this shows is that the UK Government is unwilling to pay anything more than lip-service to its obligation to investigate and prosecute abuses allegedly perpetrated by service personnel and the higher echelons who ordered or condoned such acts. <span class="mag-quote-center">The UK Government is unwilling to pay anything more than lip-service to its obligation to investigate and prosecute abuses allegedly perpetrated by service personnel and the higher echelons who ordered or condoned such acts.</span></p> <p class="xmsonormal">This is why the ICC should maintain its preliminary examination and take it to the next logical step: a full blown investigation. The fact that the competent UK authorities are able to prosecute but have chosen not to do so, is a sad testament of the respect for the rule of law in this country. That the UK Government is unwilling to pursue these matters itself has now become clear. The numbers of allegations which have not been subject to independent scrutiny remains high and problematic. But furthermore, the assessment of the gravity of the alleged crimes should also take into account the abuse of power and the high prospects for impunity. </p><div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Iraq </div> <div class="field-item even"> Afghanistan </div> </div> </div> <div class="field field-topics"> <div class="field-label">Topics:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Conflict </div> <div class="field-item even"> Democracy and government </div> <div class="field-item odd"> International politics </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk Can Europe make it? North-Africa West-Asia uk Afghanistan Iraq Conflict Democracy and government International politics openJustice Carla Ferstman Sun, 16 Jul 2017 10:36:50 +0000 Carla Ferstman 112288 at https://www.opendemocracy.net Human rights protection at home and abroad: lessons to be learned from the Colombian peace process https://www.opendemocracy.net/openjustice/emily-soothill/human-rights-protection-at-home-and-abroad-lessons-to-be-learned-from-c-0 <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Human rights abuses in Colombia can serve as a stark reminder of what the UK has to lose.&nbsp;</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/aa_0.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/aa_0.jpg" alt="" title="" width="460" height="306" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Ensuring access to justice for victims of human rights abuses will be fundamental to the success of the Colombian peace process. Photo: U.S. Special Envoy for the Colombian Peace Process, Bernard Aronson, Addresses Conflict Victims. Wikimedia Commons/U.S. Department of State from United States. Some rights reserved.</span></span></span></p><p>Kofi Annan once said: "<em>We will not enjoy security without development, we will not enjoy development without security, and we will not enjoy either without respect for human rights</em>."&nbsp;</p><p>In the wake of rising hate crime and racist attacks following the Brexit referendum and the UN expressing “<a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/152/41/PDF/G1615241.pdf?OpenElement" target="_blank">serious concern</a>” regarding the disproportionate and adverse impacts that austerity is having on disadvantaged and marginalised groups in the UK, this is a sentiment which the UK Government must not forget.</p><p>The salience of Kofi Annan’s message was brought home to me during a recent visit which my colleague Elisabeth Andresen and I made to Colombia as part of the fifth biennial visit of the International Caravana of Jurists (the 'Colombia Caravana'). Along with 53 other lawyers and judges from 10 different countries around the world, we visited seven regions of the country and the capital, Bogotá, in order to record testimony from human rights defenders and victims of human rights abuses.&nbsp;</p><p>This was a historic time to visit the country as on 24 August 2016 a peace agreement was signed between the Colombian government and the guerrilla movement FARC, bringing to an end a 50 year conflict which has seen hundreds of thousands killed and millions displaced. The agreement intends to establish a transitional justice system to provide reparations to victims, and hold to account those who have committed crimes during the conflict.</p><p>Although the peace process is an extremely important step forward for Colombia, it was clear from our visit that significant challenges remain. Ensuring access to justice for victims of human rights abuses, protecting human rights defenders and addressing socio-economic inequality are going to be fundamental to its success. Despite the challenges facing the UK being different in their nature, there are a number of key lessons which I will take away from our visit regarding the importance of human rights protection, both at home (where we often take our development and security for granted) and abroad. &nbsp;&nbsp;</p><h2>Threats to human rights defenders&nbsp;</h2><p>One of the things that struck me most during our visit was the threats and stigmatisation faced by Colombian human rights lawyers and defenders.&nbsp;</p><p><span class='wysiwyg_imageupload image imgupl_floating_left caption-small'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/rights defender_1.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/rights defender_1.png" alt="" title="" class="imagecache wysiwyg_imageupload caption-small imagecache imagecache-article_xlarge" style="" width="160" /></a> <span class='image_meta'><span class='image_title'>Rommel Durán Castellanos. Melissa Tesler. All rights reserved.</span></span></span></p><p>As a lawyer in the UK, I am in the privileged position of not generally having to worry about risks to my life or being unlawfully detained as a result of the cases which I bring or the people I represent. My counterparts in Colombia, however, are not so lucky. Rommel Durán Castellanos, a human rights lawyer from the organisation <a href="http://derechodelpueblo.blogspot.co.uk/" target="_blank">Equipo Jurido Pueblos</a> in Bucaramanga, has faced arbitrary arrest and threats to his life as a result of the work that he undertakes on behalf of forcibly displaced communities and other victims of human rights abuses. &nbsp;</p><p>In the first three months of 2017 alone, the organisation <a href="https://www.somosdefensores.org/index.php/en/" target="_blank">Somos Defensores</a> estimates that 25 human rights defenders were killed in Colombia.&nbsp;</p><p>It is essential that adequate protections and guarantees are offered to these individuals who daily put their lives at risk in order to represent the most marginalised members of Colombian society.</p><p class="mag-quote-center">There are concerns that the transitional justice process will lead to a significant increase in the number of cases to be heard, and that the system will be overwhelmed</p><h2>Access to justice</h2><p><span class='wysiwyg_imageupload image imgupl_floating_left caption-small'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/Palogordo prison.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/Palogordo prison.png" alt="" title="" class="imagecache wysiwyg_imageupload caption-small imagecache imagecache-article_xlarge" style="" width="160" /></a> <span class='image_meta'><span class='image_title'>Palogordo prison. Melissa Tesler. All rights reserved.</span></span></span></p><p>Significant concerns were raised during our visit regarding the Colombian justice system being under-resourced and severely overstretched. This was particularly evident during a visit to Palogordo prison, in which we were given unprecedented access to the inner-workings of a prison where a large number of political prisoners are held.&nbsp;</p><p><span>Prison officials complained that they have insufficient resources to support the ever-expanding prison population, which is leading to severe overcrowding. A key problem is the inadequate provision of healthcare, which has led one prisoner to go on hunger strike in an attempt to persuade the prison to provide an operation he requires. &nbsp;&nbsp;</span></p><p>There were also worrying accounts of preventative detention being used. In a clear miscarriage of justice, one individual has been held on remand for five years without trial due to a lack of publicly funded lawyers and delays in the system.&nbsp;</p><p>There are legitimate concerns that the transitional justice process will lead to a significant increase in the number of cases to be heard, and that the criminal justice system will be overwhelmed. Investment in adequate resources at every level of the justice system will therefore be required in order for the peace process to succeed.</p><p class="mag-quote-center">I&nbsp;heard worrying testimony of paramilitary groups being used by multinational corporations to pursue their investment interests</p><h2>Holding multinational corporations to account</h2><p>It is anticipated that the peace process will lead to increased investment in Colombia by multinational corporations wishing to exploit the country’s mineral riches including gold, coal and oil. This offers important opportunities for the country in terms of economic development. However, it also carries significant risks.&nbsp;</p><p><span class='wysiwyg_imageupload image imgupl_floating_left caption-small'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/colombia_1.png" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/colombia_1.png" alt="" title="" class="imagecache wysiwyg_imageupload caption-small imagecache imagecache-article_xlarge" style="" width="160" /></a> <span class='image_meta'><span class='image_title'>Prisoner on hunger strike in the medical centre of Palogordo prison. Melissa Tesler. All rights reserved.</span></span></span>During our visit I heard worrying testimony of paramilitary groups being used by multinational corporations to pursue their investment interests; environmental damage being caused by investment projects; widespread land-grabbing, displacement and threats to local communities. It has also been <a href="http://colombiareports.com/coca-cola-facing-terrorism-support-charges-colombia/" target="_blank">reported</a> that over 50 companies may be charged with financing the largest paramilitary group in recent Colombian history, the AUC, as part of the transitional justice process.&nbsp;</p><p>Multinationals must ensure that they are not complicit in human rights abuses and that they comply with their obligations to respect human rights, as set out in international instruments such as the UN Guiding Principles on Business and Human Rights. The Colombian government and the international community as a whole will have a crucial role to play in this regard by holding multinational corporations to account and ensuring access to remedy.</p><p>It is also essential that the country’s social and economic development is sustainable and of benefit to all members of society. As one campesino (small-scale farmer) told me “con hambre no hay paz”: &nbsp;“with hunger, there is no peace”.&nbsp;</p><p class="mag-quote-center">In recent years there have been unrelenting attempts by the Conservative Government and right-wing press to redefine human rights...as mere political correctness.</p><h2>Threats to access to justice and human rights protection in the UK</h2><p>Although it may seem that the legal, economic and political situation here in the UK is far removed from that which I observed in Colombia, in reality there are very real threats to the protection of human rights here at home.&nbsp;</p><p>In recent years there have been unrelenting attempts by the Conservative Government and right-wing press to redefine human rights, including such fundamental rights and freedoms as the right to life, the right to be free from torture and the right to a fair trial, as mere "<em>political correctness</em>". The Conservative Party has pledged to replace the Human Rights Act with a "British Bill of Rights”. Theresa May has also suggested that the UK may withdraw from the European Convention of Human Rights, an international treaty drafted in response to the horrors of the Second World War to which every country in Europe is a party with the exception of the military dictatorship in Belarus.&nbsp;</p><p>Such actions would undermine the human rights protection that we currently enjoy in the UK and represent a significant step backwards at a time when progressive approaches to development and security are needed most. Over a <a href="https://www.barnardos.org.uk/what_we_do/our_work/child_poverty/child_poverty_what_is_poverty/child_poverty_statistics_facts.htm" target="_blank">quarter of children in the UK </a>are currently living in poverty and cuts to the benefits system have led to an unprecedented reliance on food banks. We have seen the dismantling of legal aid, particularly in the fields of asylum, family law and judicial review, which is significantly impeding access to justice. A recent report of the <a href="https://www.publications.parliament.uk/pa/jt201617/jtselect/jtrights/443/44302.htm" target="_blank">Joint Committee on Human Rights</a> into the UK’s compliance with international guidance on business and human rights also found that more must be done to ensure that victims of human rights abuses at the hands of UK companies have access to effective remedy. &nbsp;</p><p>Both Colombia and the UK are at important crossroads. While the peace process in Colombia offers a great deal of hope, significant challenges remain in establishing a stable and long-lasting peace. I would urge the UK while negotiating the post-Brexit landscape not to lose sight of the fundamental role which human rights play in this regard. &nbsp; &nbsp; &nbsp;</p><p><em>For more information regarding the Colombia Caravana and to read the report of the August 2016 delegation visit: <a href="http://www.colombiancaravana.org.uk " target="_blank">www.colombiancaravana.org.uk&nbsp;</a></em></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/kirsty-brimelow-qc-and-jennifer-robinson/tory-manifesto-promises-floating-hollow-on-huma">A poor track record and a worrying manifesto on civil rights</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Make your voice heard (openJustice) Emily Soothill Tue, 11 Jul 2017 14:57:31 +0000 Emily Soothill 111598 at https://www.opendemocracy.net Acid attacks are on the rise – the government must act now https://www.opendemocracy.net/uk/caroline-lucas/acid-attacks-are-on-rise-government-must-act-now <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p class="MsoNormal" style="margin-bottom: .0001pt; line-height: normal;"><span style="mso-ascii-font-family: Calibri; mso-fareast-font-family: &amp;amp;amp; mso-hansi-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-language: EN-GB;">Perpetrators of hate crime and gang violence are turning to easily available weapons. Muslim communities are frightened.</span></p> </div> </div> </div> <p> </p><p class="MsoNormal"><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/resham khan_1.jpeg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/resham khan_1.jpeg" alt="" title="" width="460" height="491" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span></p><p class="MsoNormal"><em>Image: Resham Khan, <a href="https://www.gofundme.com/21stbirthdayacidattack">Go Fund Me</a>.</em></p><p class="MsoNormal"><span>There is something particularly heinous about acid violence – it’s an act which is not only premeditated but which has the sole intent to cause lasting disfigurement.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>In East London on 21 June, Resham Khan and her cousin Jameel Mukhtar were subject to a horrific acid attack on Resham’s 21</span><span>st</span><span>&nbsp;birthday.&nbsp;<a href="https://emea01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fnews.met.police.uk%2Fnews%2Fman-sought-following-acid-attack-in-e16-248966&amp;data=02%7C01%7Cclucasmedia%40parliament.uk%7Cf7e9e527baeb42693a6a08d4c2f7db46%7C1ce6dd9eb3374088be5e8dbbec04b34a%7C0%7C0%7C636347817163284790&amp;sdata=%2B9BWr8Ex%2FLEGhPysBWYwyapgj%2F11roFip%2FzbBfXxxKs%3D&amp;reserved=0" target="_blank"><span>The perpetrator has not yet been caught</span></a>, and after a&nbsp;moving appeal by Jameel the attack was classified as a hate crime.&nbsp;</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>Since the attack took place, there have been several reports on social media of acid attacks on ethnic minorities. Whilst not all the attacks have been substantiated by the police, there is a growing fear amongst Muslims that their community is being targeted. These fears are <em>completely</em> understandable – especially when placed side by side with attacks on mosques and <a href="https://emea01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.independent.co.uk%2FNews%2Fuk%2Fcrime%2Flondon-bridge-attack-latest-rise-islamophobic-hate-crimes-borough-market-stabbing-terror-police-a7777451.html&amp;data=02%7C01%7Cclucasmedia%40parliament.uk%7Cf7e9e527baeb42693a6a08d4c2f7db46%7C1ce6dd9eb3374088be5e8dbbec04b34a%7C0%7C0%7C636347817163284790&amp;sdata=BHIlkajCpMxllciuNq1M7IoI0c2lnq%2BMXf640xtMjCo%3D&amp;reserved=0" target="_blank"><span>the rise in Islamaphobic hate crime</span></a>.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>A recent freedom of information request to the Metropolitan police found that acid attacks are on the rise in London – a total of 1490 acid attacks took place in London between 2011 and 2016 with 431 attacks in 2016, compared with 261 in the previous year. This is a trend that is being replicated nationally.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>Globally, acid attacks take the form of gender based violence with around 80% of attacks carried out by men on women. However, the UK seems to be bucking this trend and acid attack charities believe that corrosive substances are increasingly being used by gang members as an easily available weapon, with male-on-male attacks being more prevalent.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>Acid Survivors Trust International UK has also raised concerns that acid attacks in the UK may go underreported, particularly as victims do not pursue criminal charges against attackers for fear of reprisals.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>As one of the cruellest and most callous crimes, it’s time that the Government took serious action to not only understand the rise in its use as a method of violence in the UK but to ensure that preventive measures are put in place to end acid violence. A first step would be to collect and collate data on the number acid attacks and detail its use in relation to hate crime, gang-related crime and youth crime.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>There is currently no legislation which prevents or controls the sale of corrosive substances - currently, sulphuric acid can be purchased from as little as £1 both in stores and online. In the context of a crackdown on knife crime, the Government must not forget that those who wish to cause harm will seek to find new, easily available and cheap weapons.</span><span>&nbsp;</span></p> <p class="MsoNormal"><span>I’ve tabled a series of Parliamentary Questions, asking ministers what plans they have to start collecting information on attacks so that we can start looking at a national strategy to end acid violence. These horrific attacks cannot be ignored, and it's crucial that ministers act swiftly to protect people from this particularly cruel form of violence.</span><span>&nbsp;</span></p> <p>&nbsp;</p><div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk openJustice Caroline Lucas Wed, 05 Jul 2017 12:49:20 +0000 Caroline Lucas 112117 at https://www.opendemocracy.net The terrible consequences of deregulation and cutting corners https://www.opendemocracy.net/openjustice/roshan-croker/terrible-consequences-of-deregulation-and-cutting-corners <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>After Grenfell, it’s time for the government to urgently rethink its attitude to regulation.<strong></strong></p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/PA-31889586.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/PA-31889586.jpg" alt="" title="" width="460" height="292" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>In 2016, the department for Business, Innovation & Skills boasted that the UK had the lowest burden of regulation in the G7. Photo: David Mirzoeff/Press Association. All rights reserved.</span></span></span></p><p>At Prime Minister’s Questions on 28 June 2017, Jeremy Corbyn described the fire at Grenfell Tower as the “<em>terrible consequences of deregulation and cutting corners</em>”. He referred to a 40% cut in local authority budgets, leading to fewer inspectors and 11,000 fewer firefighters, and said that “this disaster must be a wakeup call” to the “disastrous effects of austerity.”</p><h2>Cutting the Red Tape</h2> <p>Since 2011, consecutive governments introduced a “one in, one out”, then “one in, two out” and now “one in, three out” rule for any new regulations. Regulations costing businesses one, two and now three times as much <a href="https://www.gov.uk/government/news/government-going-further-to-cut-red-tape-by-10-billion" target="_blank">must be removed</a> before any new regulation imposing costs can be introduced. Regulations have been seen as bad for business, characterised as constricting and stifling “red tape” which requires removal. </p> <p>On 3 March 2016 a press release from the then department for Business, Innovation &amp; Skills <a href="https://www.gov.uk/government/news/government-going-further-to-cut-red-tape-by-10-billion" target="_blank">boasted</a> that the UK already had the lowest burden of regulation in the G7. Now that Britain is leaving the European Union, many are demanding even more de-regulation. Leading Brexiteers and now key figures in the government, <a href="https://www.theguardian.com/politics/2016/dec/07/tory-mps-suggest-firms-draw-up-list-for-bonfire-of-eu-laws-after-brexit" target="_blank">Michael Gove</a> and <a href="https://www.theguardian.com/politics/2017/jan/04/andrea-leadsom-vows-to-scrap-eu-red-tape-for-farmers-after-brexit" target="_blank">Andrea Leadsom</a>, have called for Brexit to be used as an opportunity to slash regulation.</p><p class="mag-quote-center">Now that Britain is leaving the European Union, many are demanding even more de-regulation.&nbsp;</p> <p>At the time of writing, <a href="https://www.theguardian.com/politics/2017/jun/28/combustible-cladding-found-on-120-tower-blocks-so-far-says-pm-pmqs-grenfell-tower" target="_blank">flammable cladding has been found on every one of the 120 tower blocks</a> so far tested, it is clear that we require more and / or better regulations in order to provide adequate protection, not less. Regulations are not introduced simply to obstruct and encumber businesses. They are there to protect people, property and our environment. Many important regulations have been created following disasters in order to prevent them from occurring again. </p> <p>It is vital that we have smart regulations which are proven to provide protection in the most effective way possible. It is important that we revisit and reconsider our existing regulations. But taking a blanket approach that it is better to have less regulation can lead to governments removing vital protection, and failing to introduce regulations that could make us all safer. </p> <p>Clearly this was the case in relation to fire safety. Concerns about flammable cladding <a href="https://www.nytimes.com/2017/06/24/world/europe/grenfell-tower-london-fire.html" target="_blank">were raised following a fire</a> that quickly spread up Garnock Court tower block in Irvine, Scotland in 1999. After <a href="http://www.independent.co.uk/news/uk/politics/london-fire-grenfell-theresa-may-tories-accusations-fire-safety-warnings-ignored-tower-block-a7790501.html" target="_blank">six people died and more than 20 were hurt</a> in the 2009 blaze at Lakanal House in Camberwell, <a href="https://www.theguardian.com/uk-news/2017/jun/16/how-theresa-may-could-make-the-grenfell-tower-inquiry-more-credible" target="_blank">the inquest that followed highlighted</a> the fact that cladding could make a fire spread more quickly. Since the Coroner’s Report into the Lakanal House fire in 2013, the All-Party Parliamentary Fire Safety &amp; Rescue Group <a href="https://www.theguardian.com/uk-news/2017/jun/14/review-of-fire-safety-rules-pledged-by-minister-last-year-yet-to-be-published" target="_blank">has repeatedly called</a> for a review of safety regulation to prevent any future tragedies taking place. Despite the continuing risk of tower block fires, highlighted by the Shepherd’s Bush fire in 2016, the government failed to do so.</p><p class="mag-quote-center">Compounding the failure to create or maintain adequate regulations is the fact that they are often not properly enforced.</p> <p>In a debate in Parliament in 2014, the then Housing Minister Brandon Lewis <a href="https://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140206/halltext/140206h0002.htm" target="_blank">rejected calls</a> to force construction companies to fit sprinklers into any new homes, citing the need to reduce regulation and reduce obligations on housebuilders. Mr Lewis <a href="http://strongerunions.org/2017/06/21/grenfell-exposes-the-true-face-of-deregulation/" target="_blank">told MPs</a> that whilst he accepted that sprinkler systems could provide protection from fires, the government considered that instead of regulating for their use, the onus was on the fire industry to increase installation by marketing sprinkler systems more effectively.</p> <p>It is simply unacceptable that, following years of warnings, it may take a disaster on the scale of the Grenfell Tower fire to make the government reconsider improving fire safety regulations.</p> <h2>Enforcement of Regulations</h2> <p>Compounding the failure to create or maintain adequate regulations is the fact that they are often not properly enforced. The independence and importance of inspections has been reduced and government cuts have left regulators and authorities with less funding to check for regulatory compliance.</p> <p>Teresa May <a href="https://www.theguardian.com/politics/2017/jun/28/combustible-cladding-found-on-120-tower-blocks-so-far-says-pm-pmqs-grenfell-tower" target="_blank">has said</a> that flammable cladding such as that found on Grenfell Tower was not compliant with building regulations. If this is proven then it is staggering that every one of the 120 towers which have so far been tested has featured flammable cladding. We cannot accept a situation where regulations vital to protect public safety are simply ignored. The fact that nobody had even identified this until the tragedy at Grenfell Tower shows a shocking lack of oversight which is not compatible with a satisfactory fire regulation enforcement regime.</p><p class="mag-quote-center">It is no longer necessary to have a local authority inspector check for compliance.</p> <p>At Grenfell Tower <a href="https://www.theguardian.com/uk-news/2017/jun/15/long-builder-chain-for-grenfell-a-safety-and-accountability-issue" target="_blank">a large chain of companies was involved</a> in the refurbishment which led to the use of the cladding. In a situation where government cuts have contributed to the increasing growth of outsourcing, sufficient regulation and oversight should be in place in order to ensure that these private suppliers maintain the highest safety standards. </p> <p>However, it is no longer necessary to have a local authority inspector check for compliance. Companies are able to hire their own inspector to check that the construction meets the required standards. Under this system, in 2015 the <a href="https://cutting-red-tape.cabinetoffice.gov.uk/" target="_blank">Cabinet Office boasted</a> that some businesses had had their fire safety inspections reduced from 6 hours to 45 minutes.</p><p class="mag-quote-center">Serious attempts to regulate for safety often only seem to follow a disaster.&nbsp;</p> <p>In the absence of a central regulatory body, sector bodies such as the Building Control Alliance and the National House Builders’ Council <a href="http://www.bbc.co.uk/news/uk-40418266" target="_blank">have provided advice</a> outlining how to avoid meeting the standards established in the regulations.</p> <p>Clearly the attitude that regulations are an unnecessary hindrance to business is endemic and has spread from the top. </p> <h2>Moving Towards a Better Regulatory System</h2> <p>Serious attempts to regulate for safety often only seem to follow a disaster. Changes were made following the Kings Cross Fire, the sinking of the MS Herald of Free Enterprise and the Paddington Rail disaster. The events that led to these disasters were foreseeable, and you have to wonder if deaths could have been prevented if proper attempts to regulate for safety had been made prior to these disasters occurring.</p> <p>Arguably, in the aftermath of the disaster at Grenfell Tower, the human cost of austerity cuts and the 'cutting of red tape' is laid bare for all to see. &nbsp;</p> <p>We need a transformation in attitude that rejects <a href="http://www.independent.co.uk/news/uk/politics/david-cameron-i-will-kill-off-safety-culture-6285238.html" target="_blank">David Cameron’s call</a> for his government to “<em>kill off health and safety culture for good</em>”. Laurence Waterman OBE, head of Health and Safety for the London Olympics observed that “<em>we talk of red tape but never white or gold tape, or that good Health and Safety is good business</em>”. This must change.</p> <p>Without adequate regulation, along with the funding and the political will to ensure compliance, people are left exposed to unregulated and potentially dangerous products, unsure whether their homes or the items within them are safe. Failure to adequately operate a regulatory system has been shown to have damaging consequences and we should not allow an aversion to placing obligations on business trump real and justified concerns about public safety.</p> <p>We need to ensure that the regulations necessary to protect us all are created and enforced, not just to prevent another disaster like Grenfell Tower, but to ensure such disasters never happen in the first place.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/steve-tombs-and-david-whyte/on-grenfell-one-law-for-rich-one-poor">One law for the poor at Grenfell Tower</a> </div> <div class="field-item even"> <a href="/uk/ryan-osullivan-matilda-wnek/where-are-missing-how-tabloids-underplayed-deaths-at-grenfell-for-the">Where are the missing? How the tabloids underplayed deaths at Grenfell for their own gain</a> </div> <div class="field-item odd"> <a href="/uk/jake-stanning/grenfell-tower-lack-accountability-deliberate-residents-contempt">At Grenfell, a lack of accountability was deliberate – and residents were treated with contempt</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk Grenfell Tower fire openJustice Make your voice heard (openJustice) Grenfell Tower Fire Roshan Croker Wed, 05 Jul 2017 10:10:30 +0000 Roshan Croker 112103 at https://www.opendemocracy.net UK charity seeks funds to challenge use of painful restraints on children https://www.opendemocracy.net/shinealight/carolyne-willow/uk-charity-seeks-funds-to-challenge-use-of-painful-restraints-on-childre <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>How can it be wrong to hurt vulnerable children <em>inside</em> a secure children’s home, but all right to inflict pain in transit?</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/536680/**boy460.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/536680/**boy460.jpg" alt="" title="" width="460" height="295" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>image by @ReeceWykes</span></span></span></p><p>Some 200 of the most vulnerable children in England and Wales are held in secure children’s homes. The law prohibits staff from using pain-inducing restraint on children <em>inside</em> the <em>homes</em>. But <em>outside</em> the homes, on visits to court, hospital or a family funeral, pain-inducing restraint <em>is</em> permitted for those children who are remanded or sentenced. What’s more, children can be locked into a “waist restraint belt”. In relation to immigration deportation, the prisons inspectorate has warned the waist restraint belt can be used like a “body belt”,&nbsp; the most extreme form of restraint available in prison, and very rarely used.</p> <p>At the children’s rights charity Article 39, we aim to stop the authorisation of painful and unjustified restraint on vulnerable children. We’re <a href="https://www.crowdjustice.com/case/no-pain-restraint/">seeking funds to mount a legal challenge</a> against the Ministry of Justice. <span></span></p> <p>Secure children’s homes are not the same as child prisons. Of the 200 children in secure children’s homes, about half are placed there for their own welfare and half sent by criminal courts.</p><p> The needs and backgrounds of children sent by the two different routes are virtually identical.</p><p> <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/585991/key-characteristics-of-admissions-april-2014-to-march-2016.pdf">Youth Justice Board data</a> shows that 40 per cent of children sent from criminal courts to secure children’s homes in 2014-16 were children in care. Nearly half (47%) were believed to have a learning disability or difficulty. The same proportion were said by council staff to be at risk of suicide or self-harm. And 17 per cent of the children were the subject of a local authority child protection plan, meaning action was already being taken to protect them from harm.</p> <p class="p1">By anyone’s standards, children in secure children’s homes are extremely vulnerable.</p><p><a class="mag-quote-right" href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/463220/Guide_to_Children_s_Home_Standards_inc_quality_standards_Version__1.17_FINAL.pdf">“Restraint that deliberately inflicts pain cannot be proportionate and should never be used on children in children’s homes.”</a></p><p class="p1">The security company GeoAmey holds the Ministry of Justice contract to escort remanded and sentenced children to and from secure children’s homes. GeoAmey has, <a href="https://www.geoamey.co.uk/services/youth-justice-board">“a fleet of 30 vehicles designed specifically for the transportation of children and young people”,</a> according to the company’s website.</p><p class="p1"> Last year, the Youth Justice Board revealed in its annual report that the behaviour management system devised for child prisons is now used by its <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/539930/Youth_Justice_Board_Annual_Report_and_Accounts__2015_to_2016.pdf">“secure escort contractor” taking children to and from secure children’s homes</a>. This system includes techniques that deliberately inflict pain on children. A new form of restraint equipment — the “waist restraint belt” — has been added for the purposes of escorting.&nbsp;&nbsp; </p> <p>Inflicting pain during restraint is banned inside children’s homes. Statutory guidance states:&nbsp;<a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/463220/Guide_to_Children_s_Home_Standards_inc_quality_standards_Version__1.17_FINAL.pdf">“Restraint that deliberately inflicts pain cannot be proportionate and should never be used on children in children’s homes.”</a></p> <p>We wanted to know what the prison service’s independent medical advisor had told the government about the safety of restraint techniques used on detained children. </p> <p class="p1">The response to our freedom of information request last September explained that the medical advisor had graded use of the techniques in different scenarios for likelihood of harm, and for the level of seriousness of potential harm. </p> <p class="p1">Of 66 scenarios, 28 were rated as 2, on a scale of 1-5, for the risk of “death or permanent severe disability affecting everyday life”. If a child is subject to restraint with a “head hold”, the waist restraint belt carries this intolerable risk, we were told. Not surprisingly, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/543806/DSO_07-2016_Use_of_Restraints.pdf">the Home Office has banned the use of the waist restraint belt on pregnant detainees</a>.</p><p class="p1"> The Ministry of Justice told us at the same time that no child had suffered serious injury or breathing difficulties while under escort. But this doesn’t explain why the Ministry of Justice has authorised the use of pain during escort, when the Department for Education says such treatment can never be proportionate.</p><p class="p1"> There is also the question of when restraint can be lawfully used on vulnerable children. The law allows escort officers to restrain children for “good order and discipline”, even though similar statutory rules were <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2008/882.html">quashed by the Court of Appeal</a> in 2008 as a breach of article 3 of the European Convention on Human Rights, protection from inhuman and degrading treatment or punishment. Staff working in children’s homes are not permitted to restrain children to make them follow orders.</p><div><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/536680/ADAMRICKWOOD460.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title="Adam Rickwood"><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/536680/ADAMRICKWOOD460.jpg" alt="" title="Adam Rickwood" width="460" height="259" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Adam Rickwood</span></span></span></div><p>The infliction of pain on children during restraint has proved lethal.</p><p class="p1"> Fourteen year-old Adam Rickwood was remanded to a secure training centre run by Serco in Durham. There were no custodial places to begin with, so Adam was looked after in a children’s home where he settled well. Once imprisoned, his mental health severely deteriorated. He threatened to take his own life and wrote to the judge pleading for bail. </p> <p class="p1">One Sunday, around a month after Adam arrived at the secure training centre, he was instructed to go to his cell because he had passed a note between two other children. The officer who read the note disapproved of its contents. Adam asked what he had done wrong and refused to leave the communal area. The restraint procedure was activated and four officers came running into the unit, grabbed hold of Adam and carried him, face down, into his cell. One of these four officers later conceded that Adam had been calm and had even tried to defuse the situation. </p> <p class="p1">Adam struggled against the unlawful assault and was inflicted with a “nose distraction”, a restraint technique transferred from adult prisons. Officers would apply an “upward strike” to a child’s nose with the intention of causing severe pain. Adam’s nose bled for around an hour and his requests to go to hospital for an X-ray were ignored. </p> <p class="p1">Hours later, Adam was found hanging in his cell.</p> <p>Adam left behind a note for his lawyer explaining he had asked officers what gave them the right to hit a child in the nose, and they said it was restraint. </p> <p>Adam died 13 years ago. </p> <p>Since then authoritative experts and NGOs have expressed opposition to this form of restraint. They include the UN Committee Against Torture, the UN Committee on the Rights of the Child, the UN Human Rights Council, the parliamentary Joint Committee on Human Rights, Her Majesty’s Inspectorate of Prisons, the NSPCC and the UK’s four Children’s Commissioners.</p><p> Adam was not the only imprisoned child to die following restraint in 2004. <a href="https://www.opendemocracy.net/ourkingdom/clare-sambrook/g4s-guard-fatally-restrains-15-year-old-gets-promoted">Fifteen year-old Gareth Myatt</a> was in a secure training centre in Northamptonshire run by G4S. He refused to clean a sandwich toaster because other children had also used it.</p><p> Gareth was ordered to his cell. He complied. Officers followed him and started removing his few possessions, including a piece of paper that had his mother’s new mobile phone number on it. Gareth was said to have raised his fist at this point.</p> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/536680/GARETH_MYATT460.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title="Gareth Myatt"><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/536680/GARETH_MYATT460.jpg" alt="" title="Gareth Myatt" width="460" height="345" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Gareth Myatt</span></span></span></p> <p>An officer “enveloped” Gareth who weighed just 6½ stone and stood less than five feet tall. Three officers then forced Gareth into a sitting position and bent his upper body towards his thighs and knees. They ignored his cries that he couldn’t breathe.</p><p> The terrifying ordeal lasted for six or seven minutes before Gareth lost consciousness. </p> <p>This was his first time in custody. He had been sentenced on a Friday afternoon. By the following Monday evening he was dead.</p> <p>The inquests, litigation, reviews and investigations which followed the deaths of Gareth and Adam brought into public view the reality of widespread unlawful restraint. The prison service was contracted to come up with a new system of behaviour management and restraint, and this was launched in 2012. It is called “Minimising and Managing Physical Restraint” (MMPR).&nbsp;</p><p> One-third of the restraint techniques within the MMPR system rely on the deliberate infliction of pain. The “nose distraction” that devastated Adam was replaced by the “mandibular angle technique”. </p> <p>This involves officers applying pressure behind a child’s ear at the back of the jaw. We can try and piece together what is involved by reading the instructions to trainers that haven’t been redacted (crucial bits are blacked-out): </p> <p>The instructors are told: “Emphasise staff can use finger or knuckle dependent on length of finger nails.” And: “Apply pressure inward and forward at a 45 degree angle.” </p> <p>Last year BBC Panorama <a href="https://www.theguardian.com/uk-news/video/2016/jan/11/panorama-exposes-teenage-prison-abuse-video-extract">appeared to show a 14 year-old child, ‘Billy’, being subject to the mandibular angle technique</a> at Medway secure training centre, which was then run by G4S. (It was later transferred to the prison service). Billy tells the officer he can’t breathe. Panorama asked Dr Andrew McDonnell, a clinical psychologist with expertise in reducing the use of restraint, to view the video clip. He said what was done to Billy was “really dangerous”. </p> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/536680/fucking_door_G4S460_0.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title="Screenshot, BBC Panorama, &#039;Teenage prison abuse exposed&#039;, January 2016"><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/536680/fucking_door_G4S460_0.jpg" alt="" title="Screenshot, BBC Panorama, &#039;Teenage prison abuse exposed&#039;, January 2016" width="460" height="258" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Screenshot, BBC Panorama, 'Teenage prison abuse exposed', January 2016</span></span></span></p> <p>The mandibular angle technique features in the independent medical advisor’s assessment. When a child is standing (as Billy was) or being held down, this is also rated 2, on a scale of 1-5, for likelihood of causing death or permanent severe disability.</p><p> Adam and Gareth had both lived in children’s homes. Adam had hoped to move back to one. He kept his packed sports bag in the staff room so he could quickly leave the secure training centre once news of his bail arrived. He took his bag out of the staff room the day before he died, apparently resigned that a transfer to a children’s home was not going to happen.</p> <p>As well as prohibiting pain, children’s homes’ statutory guidance says: “Children in residential child care should be loved, happy, healthy, safe from harm and able to develop, thrive and fulfil their potential.” </p> <p>That statement is based upon centuries of learning about the needs of children, and conveys the respect we now give to children as human beings with dignity, feelings and rights. Our legal challenge seeks to uphold this commitment to children, from the moment they leave the court building. </p> <p>As a small charity, Article 39 does not have the funds to bring this vital case. We need at least £8,000 to cover our application for a costs-capping order and to pay for unavoidable court fees and charges. And so we’re asking for help. If you can, please back our CrowdJustice appeal <a href="https://www.crowdjustice.com/case/no-pain-restraint">here</a>, tell friends about our work, and share this link on social media. </p> <p>&nbsp;</p> <ul><li>Edited by Clare Sambrook for&nbsp;<a href="https://opendemocracy.net/uk/collections/shine-light">Shine A Light</a>&nbsp;at openDemocracy.</li><li>@CLARESAMBROOK</li><li>@SHINEreports</li></ul><p>&nbsp;</p><p>&nbsp;</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/shinealight/carolyne-willow/mothers-and-sons-on-children-who-have-died-in-uk-prisons">Mothers and sons. On children who have died in UK prisons</a> </div> <div class="field-item even"> <a href="/shinealight/clare-sambrook/g4s-guard-fatally-restrains-15-year-old-gets-promoted">G4S guard fatally restrains 15 year old - gets promoted</a> </div> <div class="field-item odd"> <a href="/shinealight/rob-preece/bullying-kids-g4s-abuse-of-child-prisoners-exposed">Bullying kids: G4S abuse of child prisoners exposed</a> </div> <div class="field-item even"> <a href="/shinealight/phil-miller/people-tied-up-like-animals-on-uk-deportation-flights">People tied up ‘like animals’ on UK deportation flights</a> </div> <div class="field-item odd"> <a href="/shinealight/carolyne-willow/how-many-children-are-sexually-abused-in-prison">How many children are sexually abused in prison?</a> </div> <div class="field-item even"> <a href="/shinealight/carolyne-willow/children-suffer-racist-abuse-and-degrading-treatment-by-guards-high-on-d">Children suffer racist abuse and ‘degrading treatment’ by guards high on drugs at G4S Rainsbrook prison</a> </div> <div class="field-item odd"> <a href="/shinealight/carolyne-willow/children-s-rights-and-uk-general-election-2017">Children’s rights and the UK General Election 2017</a> </div> <div class="field-item even"> <a href="/shinealight/carolyne-willow/five-more-arrests-and-another-critical-inspection-report-for">Five more arrests and another critical inspection report for G4S child prisons</a> </div> <div class="field-item odd"> <a href="/shinealight/carolyne-willow/safe-place-for-children-g4s-pays-for-independent-report-on-r">A safe place for children? G4S pays for “independent” report on Rainsbrook prison</a> </div> <div class="field-item even"> <a href="/shinealight/carolyne-willow/sex-abusers-guarding-britain-s-most-vulnerable-children">The sex abusers guarding Britain’s most vulnerable children</a> </div> <div class="field-item odd"> <a href="/shinealight/carolyne-willow/prison-treacherous-place-for-child">Prison, a treacherous place for a child</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> Shinealight uk ShineALight openJustice Prisons & child prisoners Shine A Light Carolyne Willow Tue, 04 Jul 2017 12:15:47 +0000 Carolyne Willow 112071 at https://www.opendemocracy.net The fight against torture should preoccupy us all https://www.opendemocracy.net/carla-ferstman/fight-against-torture-should-preoccupy-us-all <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Torture is a calculated act of cruelty and brutality that degrades us all and weakens the rule of law. On International Day in Support of Victims of Torture, let's eradicate complicity with torture.</p> </div> </div> </div> <p dir="ltr"><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/558532/SINGLE_MAN.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/558532/SINGLE_MAN.jpg" alt="" title="" width="460" height="425" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Single Man. Credit: Omar Daffalla Ahmed, 2016.</span></span></span>Today is the <a href="http://www.redress.org/current-campaigns/day-in-support-of-victims-of-torture-">United Nations International Day in Support of Victims of Torture</a>. It is a day that celebrates the coming into force of the UN Convention Against Torture, on 26 June 1987, now 31 years ago. It provides an opportunity to stand in solidarity with survivors of torture and to reflect upon the practical ways to help them and to end this horrific crime. It is also a chance to underscore what is well known: torture is a calculated act of cruelty and brutality that degrades us all and weakens the rule of law. No-one should be complacent about torture.</p><p dir="ltr">This reflection on the need to eradicate torture and support survivors should be happening here in the United Kingdom, just as it must be happening elsewhere.</p><p dir="ltr">A strong and consistent anti-torture stance in foreign policy is vital for the government’s work to promote respect for human rights around the world. This means that the government should not only voice its abhorrence to torture but actively engage its partners. It should <a href="https://www.theguardian.com/politics/2017/jan/26/mps-call-on-theresa-may-to-stand-up-to-trump-over-torture-remarks">voice its objections to torture</a> to those who laud its use, should refrain from providing material, selling specialist equipment or providing training or <a href="https://www.theguardian.com/law/2015/jul/15/sudanese-refugee-accuses-uk-complicity-rights-abuses">other assistance to foreign governments </a>that could be used to foster the practice of torture, and should distance itself from joint intelligence work with regimes that regularly resort to torture during interrogations.</p><p class="mag-quote-center" dir="ltr">The government should distance itself from joint intelligence work with regimes that regularly resort to torture during interrogations.</p><p dir="ltr">A strong anti-torture stance is also crucial to protect the <a href="http://www.redress.org/current-campaigns/uk-consular-assistance-campaign">numerous Britons who are arbitrarily detained in countries around the world</a>, many at risk of torture and other cruel treatment. It is estimated that over 5,000 British and dual nationals are arrested and detained abroad at any given time. Many are at risk of or actually suffer torture and other ill-treatment while in detention – these are people like <a href="https://youtu.be/Z7Aa_QzSgjU">Nazanin Zaghari Ratcliffe</a> in Iran, and <a href="https://www.theguardian.com/commentisfree/2016/aug/15/activist-andargachew-tsege-eprdf-death-row-ethiopia-kidnap">Andy Tsege</a> in Ethiopia.</p><p dir="ltr">In both cases, the UN Working Group on Arbitrary Detention has called publicly for their release. It is important for the UK government to do the same, and to impress upon those detaining countries that it will not tolerate such treatment of its nationals under any circumstances. The government should be looking to intensify its demarches. It should not be satisfied with the status quo: families separated from their loved ones, fearing the worst about their treatment. &nbsp;</p><p dir="ltr">Today, we are also reminded that support and assistance to victims of torture, and those at risk of torture is not a negotiable principle. But there is a tendency to treat this commitment as optional.</p><ul><li dir="ltr"><p class="blockquote-new" dir="ltr">Many women, men and children fleeing torture in their home countries have not received protection in the UK, and the Government has continued to resist calls to take more responsibility for hosting refugees. Some vulnerable torture survivors have been subjected to lengthy periods of immigration detention, despite rules which outlaw the practice. The Government has also signed agreements with countries that regularly resort to torture, like Morocco, Lebanon, Jordan and Ethiopia, to facilitate the transfer of undesirable persons to those countries, even though the persons would be in danger of being subjected to torture.</p></li><li class="blockquote-new">All survivors should have access to rehabilitation services and specialist medical care, but this is not uniformly in place, despite the huge needs survivors face.</li><li class="blockquote-new">Restrictions with access to legal aid and tightening of judicial review procedures have reduced access to courts which has impeded many survivors’ access to reparation for the harm they suffered, as have immunities and other procedural bars. &nbsp; &nbsp;</li></ul><p dir="ltr">All credible torture allegations should be investigated and prosecuted where the evidence so supports, including all those who encouraged, ordered, tolerated or perpetrated the acts. And, access to independent court should not be curtailed, regardless of who the alleged perpetrators or victims are. But certain criminal investigations into torture allegations have been disbanded, and accountability has been obfuscated further by inquiries that have stalled or ended prematurely, with the remnants of investigations passed on to much less independent internal investigatory processes.</p><p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/558532/20_0.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/558532/20_0.jpg" alt="" title="" width="460" height="650" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Piece no. 20, 2005, created as part of the group "Artists for Human Rights". Credit: Khartoum Center for Human Rights & Environmental Development. </span></span></span></p><ul><li dir="ltr"><p class="blockquote-new" dir="ltr">The <a href="https://www.gov.uk/government/groups/iraq-historic-allegations-team-ihat">Iraq Historical Allegations Team</a> (IHAT), established in 2010, has <a href="https://www.theguardian.com/world/2017/feb/10/iraq-war-claims-unit-to-be-shut-down-says-uk-defence-secretary">effectively closed</a>, with the remaining investigations, including that of <a href="http://www.bbc.com/news/uk-14698722">Baha Mousa</a>’s death following brutal torture in detention, to be taken over by the Royal Navy Police.</p></li><li dir="ltr"><p class="blockquote-new" dir="ltr">The judge-led Detention Inquiry (the Gibson Inquiry), set up in 2010 to look into whether UK security agencies were complicit in extraordinary rendition and torture, was <a href="https://www.theguardian.com/commentisfree/2015/jul/06/gibson-inquiry-rendition-david-cameron-uk-torture">prematurely terminated in 2012</a>, and later transferred the Intelligence and Security Committee (ISC). The ISC inquiry remains pending but <a href="https://www.theguardian.com/world/2016/jul/25/uk-failure-to-come-clean-over-rendition-is-scandalous-tory-mp-andrew-tyrie">with little publicly known progress</a>, hampering the public’s right to know what happened, and impeding the learning of lessons to avoid recurrence.</p></li><li dir="ltr"><p class="blockquote-new" dir="ltr">Similarly, independent inquiry processes for serious conflict-era crimes including torture in <a href="http://a">Northern Ireland</a> have been piecemeal.</p></li></ul><p dir="ltr">As the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence has noted in relation to Northern Ireland, but which could apply equally to other <a href="http://www.ohchr.org/Documents/Issues/Truth/A_HRC_34_62_Add_1_en.docx">inquiry processes</a>: “it is critical to direct attention to instruments that might capture the more “structural” dimension of violations and abuses, so that victims and society received answers on whether the violations were part of a pattern reflecting a policy under the responsibility of institutions with identifiable chains of command.”</p><p class="mag-quote-center" dir="ltr">The arrest of General Pinochet underscored the principle that torturers could not escape justice, no matter how hard they may try</p><p dir="ltr">The <a href="https://www.opendemocracy.net/article/the-arrest-of-augusto-pinochet-ten-years-on">arrest of former Chilean President Augusto Pinochet in London</a>, now almost 20 years ago, underscored the principle that torturers could not escape justice, no matter how hard they may try. There should be no safe havens for torture. But there have been only a few prosecutions in the intervening years – the trial of an <a href="http://news.bbc.co.uk/2/hi/uk_news/4695353.stm">Afghan warlord</a> and a <a href="http://www.redress.org/downloads/pressreleasekumarlama060916.pdf">Nepali military officer</a>. Special mission immunities have increasingly been used to protect officials from friendly governments such as <a href="https://www.theguardian.com/world/2015/nov/02/egyptian-opposition-legal-battle-uk-immunity-sisi-aide">Egypt</a> and <a href="http://www.aljazeera.com/indepth/opinion/2011/10/201110912402659549.html">Israel</a>, faced with the threat of arrests. &nbsp;</p><p dir="ltr">Eradicating torture and supporting survivors requires a series of interlinked measures, alongside long-term commitments. Work on only part of the picture can serve to impede progress as a whole. It is important for the government to stick firm to the principles underpinning the values it espouses.</p><p dir="ltr">The Brexit process, the plans for a new Bill of Human Rights and the stated intention to derogate in future from the European Court of Human Rights to restrict the application of human rights during conflict, these should not be allowed to erode the crucial protections that are now in place. We all have a role to see that rights are strengthened, not eroded.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/shinealight/at-williams/british-torture-in-iraq-and-state-s-corporate-memory-loss">British torture in Iraq and the state’s ‘corporate memory loss’</a> </div> <div class="field-item even"> <a href="/openglobalrights/steffen-jensen-tobias-kelly/missing-torture-amongst-poor">Missing torture amongst the poor</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice Carla Ferstman Mon, 26 Jun 2017 10:55:24 +0000 Carla Ferstman 111893 at https://www.opendemocracy.net One law for the poor at Grenfell Tower https://www.opendemocracy.net/uk/steve-tombs-and-david-whyte/on-grenfell-one-law-for-rich-one-poor <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>In austerity Britain, can justice and accountability be served for the victims of the Grenfell fire? Or are our laws already too much shaped to the needs of the business class?</p> </div> </div> </div> <p dir="ltr"><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/558532/35353492476_e6860be791_h.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/558532/35353492476_e6860be791_h.jpg" alt="" title="" width="460" height="259" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Devastation at Grenfell Tower. ChiralJon/Flickr. Some rights reserved.</span></span></span>Days after the Grenfell Tower disaster, London Mayor Sadiq Khan expressed the sentiments of many, not least the bereaved, the survivors and the local community at large, when he <a href="https://www.theguardian.com/commentisfree/2017/jun/18/sadiq-khan-grenfell-tower-tragedy-establish-full-truth">stated </a>that, “if negligence or other wrongdoing by individuals or companies played any role whatsoever, I will fight for the full force of the law to be brought to bear.” But what exactly is the full force of the law in this case?</p><p dir="ltr">One demand has been that those who had the knowledge and ability to prevent what has happened should be prosecuted for corporate manslaughter. And the fire at Grenfell seems exactly the kind of disaster which the Corporate Manslaughter and Homicide Act was introduced in 2007 to deal with. Yet in almost 10 years since it was introduced, the law has only been used successfully 21 times – and <a href="https://oucriminology.wordpress.com/icccr-online-series/corporate-killing-with-impunity/">in no cases has a large organization been convicted</a> following a multi-fatality disaster. In fact, following the deaths of six people at the Lakenal tower block in 2009, the CPS eventually decided against pursuing a case of corporate manslaughter against Southwark council despite the fact that the council “<a href="http://www.bbc.co.uk/news/uk-england-london-18280160">knew the building posed a fire risk but did not act and had not carried out a fire risk assessment</a>.”</p><p class="mag-quote-right" dir="ltr">Even the laws that appear to be holding the wealthy to account tend to do nothing of the sort.</p><p dir="ltr">In any case, the scope of this relatively new law was carefully shaped to the needs of the business class rather than ordinary people. Champagne and Pimms glasses would no doubt have been chinking in some parts of Kensington and Chelsea when the Blair government announced in 2006 that the new law would grant <a href="http://www.legislation.gov.uk/ukpga/2007/19/section/18">a blanket exemption</a> to directors and senior individuals in organizations. This means that the most likely result of any such prosecution is a fine against the organization (and in this case the costs of a fine against the Royal Borough of Kensington and Chelsea Council (RBKC) would ultimately fall on local taxpayers). It is a prime example of what happens so often in our legal system: even the laws that appear to be holding the wealthy to account tend to do nothing of the sort.</p><p dir="ltr">Some senior experts have noted that there may be evidence to support a different approach, a prosecution of individuals for the common law offence of manslaughter. We already know unequivocally from the testimonies of the Grenfell Tower Residents Association, that the RBKC was told about the fire risks, and were warned of specific risks on multiple occasions. Yet apparently there was no adequate fire safety assessment.</p><p dir="ltr">Here we confront a much deeper problem with the law designed to regulate organizations and businesses. Regulation has been on the back-foot in the UK for some 30 years. Successive governments have virtually mandated a withdrawal from law enforcement in health and safety and in local authority regulation.</p><p dir="ltr">When David Cameron <a href="http://www.independent.co.uk/news/uk/politics/david-cameron-i-will-kill-off-safety-culture-6285238.html">pledged </a>to kill off health and safety for good, he followed a long line of governments desperate to prove their <a href="https://www.crimeandjustice.org.uk/publications/better-regulation-better-whom">pro-business credentials</a> by cutting inspection and prosecution, and stripping back regulations. In most recent years, austerity cuts have taken us to the point that the average workplace can now expect an inspector to call once every 50 years.</p><p class="mag-quote-left" dir="ltr">The cuts to fire and rescue services have fallen hardest on the poorest.</p><p dir="ltr">Fire protection has been similarly compromised by the cuts. A <a href="https://www.nao.org.uk/wp-content/uploads/2015/11/Financial-sustainability-of-fire-and-rescue-services-summary-amended.pdf">report </a>by the National Audit Office shows that between 2010 and 2015 funding for stand-alone fire and rescue authorities fell by 28% on average in real terms. Savings came predominantly from reducing staff costs and reducing audits, inspections and fire risk checks. The result: fire safety checks in tower blocks <a href="http://www.mirror.co.uk/news/uk-news/tower-block-fire-safety-checks-10641046">fell </a>25% in the most recent 5 years. Perhaps most alarmingly in light of Grenfell, the report noted that the government had “reduced funding most to fire and rescue authorities with the highest levels of need….as defined by the social and demographic factors.” In other words, the cuts to fire and rescue services have fallen hardest on the poorest –&nbsp;<a href="https://www.opendemocracy.net/uk/vickie-cooper/government-austerity-demands-that-we-die-within-our-means">just like all austerity cuts</a>.</p><p dir="ltr">More generally, at local authority level, since the cuts began to bite, campaigns to enforce regulation against business have become almost extinct. This is because most councils, unlike RBKC, have <a href="https://www.theguardian.com/society/2014/aug/25/councils-poorest-areas-biggest-cuts-labour-says">reached rock bottom</a> in terms of their ability to maintain services. As an Environmental Health Officer in Merseyside <a href="https://oucriminology.wordpress.com/">put it </a>to one of us recently: “it’s going to come to the point where it’s going to affect the residents, the local population, in many ways we are at that point now, public health and protection is being eroded.” Even more galling is that RBKC, the richest borough in London and one of the few councils that remains cash-rich, is choosing law enforcement on behalf of the rich over enforcing the law in the general interest.</p><p dir="ltr">We know this by looking closely at what building enforcement officers in Kensington and Chelsea have been doing in recent years. In 2015 RBKC embarked on a major campaign to stop construction companies displaying unlawful and ugly advertisements and messages on the side of the buildings. At the time, RBKC planning policy head <a href="http://www.getwestlondon.co.uk/news/local-news/developers-warned-comply-strict-advertising-9945778">Cllr Timothy Coleridge said</a>:</p><p class="blockquote-new" dir="ltr">“Unfortunately, some developers ignore the rules and turn their hoardings and scaffolding covers into huge adverts, sometimes in the heart of historic and sensitive residential areas. This is unfair on our residents and it is unfair on those developers that follow the rules and we will prosecute when required.”</p><p dir="ltr">In other words, this was a law enforcement campaign aimed at enhancing the aesthetic appeal of the area, and maintaining the successful gentrification of the area, rather than ensuring high standards of building renovation for working class residents.</p><p dir="ltr">The public inquiry and inquests will seek to learn how we can prevent another Grenfell Tower happening again. If the police and the CPS are serious about using the full force of the law, it may well be possible to prosecute for corporate manslaughter and for common law manslaughter. Individuals in charge of key decisions can be held accountable for this latter offense if they have acted with gross negligence and have breached a particular duty of care. It is very possible those conditions will be met in the case of Grenfell Tower.</p><p dir="ltr">By contrast, a lack of prosecution will send a clear and powerful message: that <a href="https://www.youtube.com/watch?v=81IKostVXZk">justice and accountability cannot be served in austerity Britain</a>. But the solution to what happened at Grenfell will not be found in the courts. If there is one resounding lesson that must be learned, it is that any future government must reverse 30 years of attacks on regulation and law enforcement and cease this war against the poor.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/vickie-cooper/government-austerity-demands-that-we-die-within-our-means">Government austerity demands that we die within our means</a> </div> <div class="field-item even"> <a href="/uk/christine-berry/after-grenfell-ending-murderous-war-on-our-protections">After Grenfell: ending the murderous war on our protections</a> </div> <div class="field-item odd"> <a href="/uk/adam-ramsay/fire-in-worlds-laudromat">A fire in the world&#039;s laundromat</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk Grenfell Tower fire openJustice Grenfell Tower Fire David Whyte Steve Tombs Wed, 21 Jun 2017 10:17:19 +0000 Steve Tombs and David Whyte 111783 at https://www.opendemocracy.net A poor track record and a worrying manifesto on civil rights https://www.opendemocracy.net/openjustice/kirsty-brimelow-qc-and-jennifer-robinson/tory-manifesto-promises-floating-hollow-on-huma <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p> <!--[if gte mso 9]><xml> <o:DocumentProperties> <o:Revision>0</o:Revision> <o:TotalTime>0</o:TotalTime> <o:Pages>1</o:Pages> <o:Words>34</o:Words> <o:Characters>194</o:Characters> <o:Company>Symington</o:Company> <o:Lines>1</o:Lines> <o:Paragraphs>1</o:Paragraphs> <o:CharactersWithSpaces>227</o:CharactersWithSpaces> <o:Version>14.0</o:Version> </o:DocumentProperties> <o:OfficeDocumentSettings> <o:AllowPNG ></o> </o:OfficeDocumentSettings> 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SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Book Title" ></w> <w:LsdException Locked="false" Priority="37" Name="Bibliography" ></w> <w:LsdException Locked="false" Priority="39" QFormat="true" Name="TOC Heading" ></w> </w:LatentStyles> </xml><![endif]--> <!--[if gte mso 10]> <mce:style><! /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:Cambria; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-ansi-language:EN-US;} --> <!--[endif] --> <!--StartFragment--> <!--EndFragment--></p><p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph; mso-pagination: none; mso-layout-grid-align: none; text-autospace: none;">After the surpising 2017 general election, opposition parties have a golden opportunity to stand up for the rights of UK citizens.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/PA-31596422.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/PA-31596422.jpg" alt="" title="" width="460" height="307" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>May on a visit to Nishkam Primary School in Birmingham during a general election campaign visit to the West Midlands. Photo credit: Press Association/Stefan Rousseau. All rights reserved.</span></span></span><span>In an era of fake news and alternative facts, Theresa May’s attempt to portray her party as the party of workers is apposite in its audacity. From promises to put a stop to gender and racial discrimination at work, to promises to better protect vulnerable children and domestic violence victims, to digital rights, their manifesto for the 2017 election rings hollow and hypocritical when we consider successive Tory government legislative agendas.</span></p> <p>Promises to end gender and racial discrimination in the workplace can only be gossamer thin when the enforcement of those rights remain beyond the means of most workers. Employment tribunal fees of £1200&nbsp;<span>–&nbsp;</span><span>introduced under David Cameron&nbsp;</span><span>–&nbsp;</span><span>mean that many workers cannot afford to bring claims. Studies have shown this has reduced the number of claims by 67% – 60% in racial discrimination claims and 87% in sex discrimination claims, with women and low-paid workers hardest hit. Citizens Advice reports seven out of 10 successful claims are not taken and more than half of those interviewed said fees and costs deterred them. Legal protections against gender and racial discrimination are meaningless if people cannot enforce those rights. Without justice there is impunity and employers can get away with precisely the kinds of discrimination the Tory manifesto says May will stop. For this very reason,&nbsp;Labour have promised to scrap the fees. But May's manifesto says nothing about scrapping the fees – or rolling back the damage her party has inflicted upon workers' rights.</span></p> <p>The manifesto's references to "<em>work incentivisation</em>" are merely euphemisms for welfare reforms driving more people into poverty. One example is the "<em>benefit cap</em>" – an arbitrary cap on benefits tied to the minimum wage and divorced from actual need – which May says is encouraging more people into work and out of poverty, but in fact is forcing thousands, particularly single mothers with small children into homelessness. It is currently subject to legal challenge on the grounds it discriminates against women and the vulnerable children the Tory manifesto says they want to protect.</p><p class="mag-quote-center">As a result of austerity measures the U.K. has been found in breach of its international human rights obligations by the UN Committee on Social, Economic and Cultural Rights.</p> <p><span>Another example is the limit of universal tax credit to families with more than two children. Designed, in effect, to deter low-income families from having more children, the scheme includes the now infamous "<em>rape clause</em>" providing an exception for women whose child is the product of rape or others domestic violence or abuse where pregnancy is not a free choice. To obtain the tax credit, women must suffer the indignity of sharing this deeply personal and traumatic experience with tax authorities.</span></p> <p><span>As a result of these and other austerity measures, the U.K. has been found in breach of its international human rights obligations by the UN Committee on Social, Economic and Cultural Rights, which was&nbsp;“<em>seriously concerned</em>” about “<em>the disproportionate adverse impact that austerity measures</em>”&nbsp;are having on&nbsp;women, the disabled, and disadvantaged and marginalised groups.</span></p> <p>Yet despite this warning and the alarming rise in poverty, May has implemented a new, even lower benefit cap which experts say will put a further 50,000 households and an estimated 126,000 children in poverty. And the manifesto reaffirms its commitment to further cuts.</p><p class="mag-quote-center">Child poverty in Britain is already at a record high, with around 30% of children – 4 million children – living in poverty.</p> <p>The Institute for Financial Studies further warned that the plans and "<em>big cuts</em>" set out in the Tory manifesto would, if implemented, condemn Britain to five more years of austerity,&nbsp;causing serious damage to public services.<span>&nbsp;</span></p> <p>Imagine what another five years will do for the rights of vulnerable children? Child poverty in Britain is already at a record high, with around 30% of children – 4 million children – living in poverty. Britain has plummeted on the world rankings on provision for children's rights and services - dropping from 11th to 146th on the Tory government's watch. Continuing to pursue further cuts without a clear plan of how to redress the damage they have already done, doesn't sounds like a plan "<em>to protect vulnerable children</em>", as the Tory manifesto announced.</p> <p><span>Unaccompanied refugee children were left in the Calais Jungle at risk of being trafficked on May's watch. The Tory government bungled the consultation required by the Dubs Amendment to determine how many of these vulnerable children Britain could protect, grossly underestimating local authority capacity and community support to bring them to safety. Their failure has put those vulnerable children at risk of modern slavery and sex trafficking.</span></p> <p>How about children being held overnight in police cells? The practice is, as May herself admitted as Home Secretary, unlawful and widespread. Thousands of children, as young as 8, have been held in police cells overnight: a distressing and damaging experience as well as being in breach of domestic and international law. Prime Minister May failed to end the practice.</p><p class="mag-quote-center">If Theresa May succeeds in removing human rights protections in Britain, it will be&nbsp;the&nbsp;most repressive&nbsp;and persecutory states that cheer the loudest.</p> <p>The manifesto also purports to address "<em>digital rights</em>", but in fact is proposing a regime which controls what kind of information we can share and access online, which has been criticised by free speech and online rights groups as a new form of censorship. </p> <p><span>And what about the promise that the UK will not withdraw from the European Convention on Human Rights during the next Parliament? On 7&nbsp;</span><span>June 2017, the day before the 2017 General Election, that pledge appeared to be bent into an opaque and confused U-turn. May volunteered to rip up the Human Rights Act to purport to give her government the powers it already has to fight terrorism. In so doing, she undermined the 800 years of protections for British people fought for by British people.</span><span>&nbsp;</span></p> <p>If Theresa May succeeds in removing human rights protections in Britain, it will be&nbsp;the&nbsp;most repressive&nbsp;and persecutory states that cheer the loudest. We hope that opposition MPs stand firmly against this threat. The Tory manifesto and its underpinning of previous government acts ring hollow and hypocritical when it comes to human rights.&nbsp;</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/amanda-shah/fate-of-children-from-jungle">The fate of the &#039;jungle&#039; children</a> </div> <div class="field-item even"> <a href="/uk/natalie-sedacca/civil-liberties-and-human-rights-what-s-at-stake-in-2017-general-election">Civil liberties and human rights – what’s at stake in the UK&#039;s 2017 General Election? </a> </div> <div class="field-item odd"> <a href="/openjustice/laura-janes/draconian-cuts-to-legal-aid-for-prisoners-found-to-be-unlawful-by-court-of-a">Draconian cuts to legal aid for prisoners found to be unlawful by Court of Appeal </a> </div> <div class="field-item even"> <a href="/openjustice/melissa-darnbrough-and-nadia-hussain/when-no-good-deed-goes-unpunished">When no good deed goes unpunished</a> </div> <div class="field-item odd"> <a href="/openjustice/ronagh-craddock/asylum-seekers-are-left-destitute-and-homeless-due-to-lack-of-legal-aid">Asylum seekers are left destitute and homeless due to a lack of legal aid </a> </div> <div class="field-item even"> <a href="/openjustice/children-in-custody-need-protection-not-cruelty-and-bullying">Children in custody need protection, not cruelty and bullying </a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Justice for the rich alone? (openJustice) Kirsty Brimelow QC and Jennifer Robinson Thu, 08 Jun 2017 09:48:01 +0000 Kirsty Brimelow QC and Jennifer Robinson 111512 at https://www.opendemocracy.net Do more police mean less crime? https://www.opendemocracy.net/openjustice/richard-garside/do-more-police-mean-less-crime <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Labour and the Liberal Democrats are both pledging an increase in police officer numbers. Are these plans a welcome investment or a symbolic bit of electioneering?</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/Tackling_anti-social_behaviour_on_patrol.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/Tackling_anti-social_behaviour_on_patrol.jpg" alt="" title="" width="460" height="307" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>A key policy challenge is not recruiting more police officers, but using the time of existing officers more effectively. Photo credit: Wikimedia Commons/West Midlands Police. Some rights reserved.</span></span></span></p><p>There are around 20,000 fewer police officers across England and Wales than there were in 2010. Does that make us less safe? Are our homes more likely to be burgled? Are we more at risk of assault, or worse?</p><p>Awful recent events in Manchester and South London have sharpened the debate about police officer numbers in relation to terrorism. But what about the more conventional and common victimisations that it is supposedly the job of the police to tackle?</p> <p>Both Labour and the Liberal Democrats have gone into the General Election promising more police officers. Labour claims that cuts in officer numbers “<em>endanger communities and endanger police officers</em>”. The Liberal Democrats pledge to “<em>increase community policing... to reverse the increase in violent crime</em>”.</p><p>Labour proposes to recruit “<em>10,000 more police officers to work on community beats, equivalent to at least one more for every neighbourhood in the country</em>”. The Liberal Democrats are pledging “<em>an additional £300 million a year to local police forces to reverse the increase in violent crime, boost community confidence and increase the flow of community intelligence</em>”. Are these plans a welcome investment in public safety, or a largely symbolic bit of electioneering?</p> <p>Back in 1984, two Home Office researchers – Ron Clarke and Mike Hough – wrote a paragraph that has gone down in policing studies folklore:</p> <p class="blockquote-new">“given present burglary rates and evenly distributed patrol coverage, a patrolling policeman (sic) in London could expect to pass within 100 yards of a burglary in progress roughly once every eight years – but not necessarily catch the burglar or even realise that the crime was taking place."</p> <p>Various echoes of this striking formulation have been heard down the years. In <em>The Times</em> in November 2009, for instance, the then President of the Association of Chief Police Officers, Sir Hugh Orde, wrote that it was “<em>quite scary if people who are claiming to represent communities see the solution simply as more cops on the street while all the evidence shows that if you’re a patrolling officer the chance of coming within half a mile of a burglary is about once every 150 years</em>”.</p><p class="mag-quote-center">An additional 10,000 police, costing £300 million a year, would equate to 20,000 fewer burglaries annually, or £15,000 for each burglary prevented.</p> <p>A review for the Inspectorate of Constabulary in 2011 found some evidence of an association between police officer numbers and property offences. It estimated that “<em>a 10 per cent increase in officers will lead to a reduction in crime of around 3 per cent</em>”. Labour estimates that the annual cost of its additional 10,000 police officers will be £300 million, equal to the Liberal Democrat proposal. The <em>Crime Survey for England and Wales</em> estimated that there were 664,000 domestic burglaries in the 12 months to December 2016. Putting these figures together, we might say that an additional 10,000 police, costing £300 million a year, would equate to 20,000 fewer burglaries annually, or £15,000 for each burglary prevented. That’s an expensive way of making a few houses across the country more secure.</p> <p>So what is to be done? A study by the College of Policing in 2015 found that 84% of calls to the police were related to non-crime incidents: notably concerns over an individual’s welfare. This suggests that a key policy challenge is not recruiting more police officers, but using the time of existing officers more effectively. As Theresa May told the Police Federation conference in May 2015, when she was still Home Secretary, police officers are "<em>not social workers... mental health nurses, or paramedics</em>".</p> <p>Rather than recruiting more police officers, whichever party or parties form the next government would be better advised to rebuild those social services – such as mental health, housing support, social work, youth work – that have been decimated by years of austerity. That way, a smaller police force could be left to concentrate on the 16% of calls they receive that are actually about law-breaking.</p> <p><em>Richard Garside’s assessment of the main crime and justice manifesto commitments can be read here: <a href="https://www.crimeandjustice.org.uk/publications/assessing-general-election-manifestos">https://www.crimeandjustice.org.uk/publications/assessing-general-election-manifestos</a></em></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/will-mcmahon/we-dont-need-more-police-we-need-shift-of-responsibilities">We don&#039;t need more police, we need a shift of responsibilities</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Richard Garside Tue, 30 May 2017 14:39:48 +0000 Richard Garside 111266 at https://www.opendemocracy.net The fate of the 'jungle' children https://www.opendemocracy.net/openjustice/amanda-shah/fate-of-children-from-jungle <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>A study of the experiences of children from the Calais 'jungle', now claiming asylum in the North West of England, shows why we must speak up for the rights of refugees.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/559248/PA-30410661.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/559248/PA-30410661.jpg" alt="" title="" width="460" height="295" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>The children in this study have all been in the transit camp in Calais – the caricatured ‘jungle’– living with up to 10,000 other people. They are all now dealing with the arbitrary bureaucracy of the Home Office, trying to make their asylum claims in the UK. Photo credit: Press Association/Chris Radburn. All rights reserved.</span></span></span></p><p>The door into <a href="http://www.gmiau.org" target="_blank">Greater Manchester Immigration Aid Unit</a> is on the corner of two busy roads near a hospital in north Manchester. Nestling between a barbers with a budgie in the window and a pharmacy, it is busy today. Lots of people go through our door. Inside the waiting room is full. Drinks and biscuits need topping up regularly as people sit and wait. There is something unusual about lots of the people waiting. They are children.</p> <p>Although they have different accents, clothes, haircuts and skin tones the children have something in common. They have come to the UK to claim asylum and they have walked through the door to meet their legal representative - someone who will work with them to try and make sense of the letters, the appointments, the officials and the uncertainty.&nbsp;</p><p class="mag-quote-center">The lack of legal routes to claim asylum in the UK has left them traumatised&nbsp;not just by the experiences that caused them to flee their counties of origin, but by Europe’s collective inability to provide them safe passage.</p> <p>They are far from a homogenous group, despite the tabloid headlines. But this group of children have all been in the transit camp in Calais – the caricatured ‘jungle’– living with up to 10,000 other people in a shanty town on the shores of the English Channel. They are all now dealing with the arbitrary bureaucracy of the Home Office, trying to make their asylum claims. Many have experienced sensitive, child-centred, compassionate interviews from Home Office caseworkers in Liverpool. Many have also been subject to a sudden, illogical Home Office decision earlier this year that meant instead of making their asylum claim in Greater Manchester they had to travel to Croydon. </p> <p>All of the children are dealing with the aftermath of precarious journeys. The lack of legal routes to claim asylum in the UK has left them traumatised not just by the experiences that caused them to flee their counties of origin, but by Europe’s collective inability to provide them safe passage. </p> <p>We studied the experiences of 40 children we represent who had all spent time in the Calais camp before coming to the North West of England. Many spent several months surviving in Calais on their own. Some experienced the <a href="http://www.bbc.co.uk/news/world-europe-37773848" target="_blank">French security operation in October 2016 to clear the camp</a> – proving in their minds that they could not safely claim asylum in France. Some have been street homeless in Paris. Five were accidentally separated from family members in the chaos of travelling across Europe, including one who became lost during police action to clear a train. One of our caseworkers described two brothers she is representing as "emotionally worn down" by their experiences in Calais which are "etched on their faces".</p><p class="mag-quote-center">Five of the children were accidently separated from family members in the chaos of travelling across Europe,&nbsp;including one who became lost during police action to clear a train.&nbsp;</p> <p>Now in the North West, the children’s experiences of life in the UK are proving quite different from one another:</p> <p>Hassan is claiming asylum in the UK because his sister lives in Greater Manchester with her British husband and their small child. An EU Regulation called ‘<a href="http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&amp;from=EN" target="_blank">Dublin III</a>’ meant he could ask the UK authorities to decide his asylum claim here rather than have it decided in France. He lives with his sister and her family, sleeping in the living room of their one bedroom flat.</p> <p>Helen was transferred to the UK from Calais as a ‘Dubs child’, so-called because of the work of Lord Alf Dubs to persuade the UK government to take in unaccompanied children stuck in France, Italy or Greece. Helen was transferred to the UK as the Calais camp was being cleared, and is living with a foster carer in Greater Manchester. She is one of around only 200 <a href="http://safepassage.org.uk/news_posts/citizens-uk-legal-action-forces-government-to-reveal-restrictions-on-children-who-qualify-for-sanctuary-under-dubs-amendment/" target="_blank">Dubs children in the UK, despite initial hopes that up to 3,000 children would be offered a way to avoid the people smugglers and traffickers.</a></p><p class="mag-quote-center">Like over a third of the children in our research who came from Calais on a lorry, Jamal's age was disbelieved by the Home Office.</p><p><a href="http://safepassage.org.uk/news_posts/citizens-uk-legal-action-forces-government-to-reveal-restrictions-on-children-who-qualify-for-sanctuary-under-dubs-amendment/" target="_blank"> </a></p><p>Jamal came to the UK from France hiding on a lorry through the Eurotunnel. Like over a third of the children in our research who came from Calais on a lorry, his age was disbelieved by the Home Office. In an atmosphere where <a href="http://www.telegraph.co.uk/news/2016/10/19/calais-child-migrants-pmqs-theresa-may-jeremy-corbyn-live/" target="_blank">MPs demand children’s teeth are x-rayed</a> to prove they are not adults, it is perhaps unsurprising that children are told they are lying about their ages. We see children housed with adults and subject to regular reporting with immigration enforcement (as happened to Jamal) or even locked up in adult detention centres. It took a community care solicitor to get the Home Office to accept an assessment by social workers that Jamal is a child. </p> <p>Helen and Jamal are both in the UK without family. They are ‘looked after’ by Greater Manchester local authorities with an allocated social worker to support them and access to <a href="https://www.gov.uk/legal-aid/overview" target="_blank">legal aid</a> to fund advice and representation for their asylum claim.</p> <p>Hassan and his sister have a different set of challenges. Because Hassan has a family member in the UK, unlike Helen and Jamal he is not automatically entitled to legal aid. In fact, because Hassan’s sister has been saving for years to go to college, her savings mean Hassan does not qualify. This was the case with nearly a fifth of the Dublin III families we looked at in our research. Without legal aid the children have to rely on newly reunited family paying thousands of pounds for private legal help, representing themselves or withdrawing their asylum claim.</p><p class="mag-quote-center">Financial strain was a primary concern for 44% of the Dublin III families in our research and clearly escalates the risk of the family breaking down.&nbsp;</p> <p>Hassan also doesn’t have an allocated social worker – social services decided that as he is living with family he is not in need. In fact his sister is struggling with her changing family dynamics, looking after her small son and navigating Hassan’s financial, immigration, education and medical needs. The lack of financial support she receives to cover the cost of caring for Hassan has been a shock and she is struggling to understand how the welfare benefits system applies to a child in Hassan’s situation. Financial strain was a primary concern for 44% of the Dublin III families in our research and clearly escalates the risk of the family breaking down. This has already happened in one of the families we work with and the child is now living in foster care.</p> <p>Some of the children in our research have walked back through our door in north Manchester to receive good news. Nearly 60% have been granted asylum, more still are awaiting a decision. Others have walked back in to prepare to appeal their asylum refusal – stuck with discretionary leave only until they are 17.5 years old. More uncertainty ahead.</p> <p>Our work with children from Calais has left us in no doubt of the need for children to be protected from harm and exploitation by <a href="http://gmiau.org/let-the-children-in/" target="_blank">safe and legal routes</a> to claim asylum in the UK. We also believe that all children claiming asylum in the UK need to be properly supported and have <a href="http://gmiau.org/calais-children-need-lawyer/" target="_blank">access to an experienced immigration lawyer</a> to make their asylum claim. Without these things, children will continue to arrive in the UK with their experiences "etched on their faces" and without the assistance they so badly need to help them recover.</p> <p><em><em>This article is based on research in a </em><a href="http://gmiau.org/briefing-paper-experiences-children-calais-camp-north-west-england/" target="_blank">Briefing paper on the experiences of children from the Calais camp in the North West of England</a></em><em> by Greater Manchester Immigration Aid Unit.&nbsp;</em></p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openjustice/ronagh-craddock/asylum-seekers-are-left-destitute-and-homeless-due-to-lack-of-legal-aid">Asylum seekers are left destitute and homeless due to a lack of legal aid </a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openJustice uk openJustice Amanda Shah Tue, 30 May 2017 06:03:04 +0000 Amanda Shah 111225 at https://www.opendemocracy.net