Summer 1990 No.11 El .50 rssN 0954 3635

HALDANE SOCIETY OF SOCIALIST LAWYERS

Stephen Sedley 0C on the Judges' Role in Public Law A Revolution in Soviet Law? The Union Struggle in South Africa The Victims of FBI Frame Ups v

HALDANE SOCIETY OF SOCIALIST LAYUYERS HALDANE NEWS

PRESIDENT: John Platts-Mills QC Haldane News 1 AGM VICE PRESIDENTS: Kader Asmal; Fennis Augustine; Jack The Society held its AGM on 3 March 1990. Although attendance was disappointing, a number ofimportant reso- Gaster; Tony Gifford QC; Tess GilI;Jack Despatches 2 Hendy; Helena Kennedy; Dr?aul O'Higgins; lutions were passed. The Society reaffirmed its beliefin the government Albie Sachs; Stephen Sedley QC; Michael 'right to silence'and called on the to withdraw proposals Seifert; David T\rrner-Samuels QC; to limit it. The Society has done a considerable Professor Lord Wedderburn QC amount of work on electronic tagging, monitoring its use in Tower Bridge Magistrates Court. It called on the govern- Featute$ ment to abandon the scheme and to implement more con- CHAIR Bill Bowring Revolutionary Developments structive measures to reduce prison overcrowding. Resolu- tions on the Guildford Four and Birmingham Six cases were SECRETARY: Keir Starmer in Soviet Law passed, as was a proposal to campaign to amend the Human Fertilisation and Embryology Bill. The Society committed TREASURER: Robin Oppenheim Bill Bowring 4 itself to providing a forum for discussion of the issues of pornography and censorship. Two resolutions on mental MEMBERSHIP Unisex Pensions and lnsurance - health underlined our increasing work in this freld. Inter- Tony Metzer LucyAnderson nationally, the shoot to kill policy was condemned and the SEGTRETARY: and Risk Assessing the standards ofthe International Labour Organisation were Lucy Anderson 6 endorsed. Other issues upon which policy was adopted were PANTHERHOUSE 38 MOUNTPLEASANT LONDON WClXOAP the Employment Bill 1989, SouthAfrica, Sudan, the death penalty and Eastern Europe. The texts ofall resolutions are At the Sharp End - Labour Law available for inspection at the Haldane ofÏìce. in South Africa The postal ballot to change the rules for AGM meetings and to institute standing orders produced an overwhelming Hannah van der Merve majority in favour of change. These will now be incorpo- s0clALlsT rated in the rule-book which will be reprinted. The proposal to change the name of the Society was lost. Skating Bears in a Circus LAWYER David Geer and Debbi King ... Executive Committee The executive committee for the coming year comprises: Editorial Committee KatyArmstrong-Myers, Penny Barrett, Tim Hidden Agendas: the Growth of Public Bill Bowring (chair), Keir Starmer (secretary), Kate Kerr, Mary McKeone, Tony Metzer, Keir Markus (vice chair), Robin Oppenheim (treasurer), Starmer, June TWeedie, Heather Williams Law in Britain and Canada Heather Williams, John Wadham, Katy Armstrong-Myers, Stephen Sedley QC...... ,...... 12 Debbie Tripley, Sally Hatfreld, Steve Cragg, Tony Metzer, Contributions from members are very welcome. lf you are interested in Damian Brown, Clare Wade, David Geer and Piers Mostyn. writing articles or book reviews please contact TIM KERR at: 15 Old Square, Lincoln's lnn, London WC2A 3UH Framed by the FBI: Political NLIM Inquiry

Prisoners in the US In early March the Haldane society was consulted by a five Advertising rates Arlette Piercy ...,...... 14 person subcommittee ofthe NUM National Executive about the appointment of an eminent QC to investigate allega- Socialist Lawyer welcomes advertising. The rates are: tions made by Central television and the Mirror Group of Newspapers concerning Full page î200 Ouarter Page 150 Sentencing Reforms - Will the monies which allegedly came from Libya. Half page Ê100 Eighth Page î25 Punishments Fit the Crimes? After several meetings between representatives of the Society and the NUM subcommittee, Gavin Lightman The rate for classified advertising is 25p per word. We can distribute insert Debbie Weich 16 QC was appointed. adverts at Ê75 for voluntary organisations and at t200 for commercial undertak- Miscarriages of Justice rngs. Homeless People Batted About Concessionary rates are available if advertising on an annual basis. Conference Please contact KATY ARMSTRONG-MYERS at: Like Shuttlecocks 4 Verulam Buildings, Gray's lnn, London WCl R sLW This conference was held inYork during the weekend of 28l Ashley Underwood 19 29 April 1990. It was very successful with over 60 partici- pants. Conference papers are available from Keir Starmer. Subscriptions The 1990's For 3 issues (inclusive of p&p); The executive committee is currently discussing various t8.00 per annum for institutions and organisations; ReYiett$ proposals about the role the Societyinthe 1990's. Anyviews 15.50 per annum for individuals. Book Reviews 20 on the subject will be gratefully received. Finally the executive committee would like to express its thanks to Joanna Dodson who retired this year as chair Cover photo: NIJM rally, Soweto, March 1986 - IDAF Noticeboard ,.,.. 24 of the Society for all her work in that role.

1 Memorial Trust and by Sweet and Maxwell. A great deal anti-amendment campaign. We have also been requested DESPATCHES more needs to be raised. to assist in the inquiry into the events of 31 March 1990. The Project aims to expand its membership to represent The group has attracted a signifrcant amount of media a wide range oforganisations and potential users ofserv- attention and it obviously has a function to perform in ices. It is also considering the options for development in raising the Society's profrle in both the media and larger Scotland and Northern lreland. labour movement. We welcome any views about the Project, or other For details of meetings contact Julia Dick on 071 405 expressions ofinterest and will try to respond to aìl corre- 8828. HALDANE IN THE HEADLINES PTA REPEAL CAMPAIGN spondence. Further information can be obtained by writing Damian Brown Despite the Haldane's long and often glorious history, the On 27 March the first anniversary of the Prevention of to the Public Law Project at the Institute ofAdvanced Legal welfare of the Society has not generally been a matter of Terrorism Act 1989, a campaign was launched calìing for its Studies, Charles Clore House, 17 Russell Square, London national public interest. repeal. The number of individuals and groups involved in WClB 5DR. Please sendanA4s.a.e. ifyouwouldlike either TANZANIA'S BOOK STARVATION On 19 March 1990 the Independent newspaper took this issue has steadily grown and now includes the Labour the general prospectus or the academic prospectus. Tanzania, one of the world's poorest countries, is suffering steps to rectify this myopic view by devoting half of its Party and all the main organisations of the Irish commu- Kate Markus an educational crisis. Despite a phenomenal increase in leader column to advising the Society upon the NUM's nity. This is the frrst national campaign to draw them all literacy since independence in the early 60's from less request for help over the appointment of an eminent QC to under one umbrella. The breadth of support was reflected - l}ean IÙVo to 90Vo plus efforts to maintain and increase investigate the Libyan money allegations. at the House of Commons launch, chaired by Clare Short IADL: NO AGREEMENT ON CHANGE - educational opportunities have been beset by a struggling Correctly recognising our'considerable moral authority' MP, with messages of support from Gerry Conlon of the Five members of the Society attended the thirteenth IADL economy and the rigours of IMF loan conditions. but less sure of our name (the Haldane Society of Labour Guildford Four and the Federation of Irish Societies, among Congress and General Assembly which took place in Barce- Progressive devaluation of the local currency, to in- Lawyers), th e Independenl advised us that 'The NUM needs others. The Haldane Society Northern Ireland subcommit- lona from \9 24 March 1990. crease Tanzania's export competetiveness, has had disas- the Haldane Societybut the Society has no need whatsoever tee was represented and is participating in the campaign. to We took part in four commissions: i¿úernational interde- trous domestic repercussions in areas reliant on imports. of the NUM'. All solicitors with experience ofor an interest in represent- pendence: consequences the møintenance of peace; the Further education, for example, depends largely on im- Although many members were touched by this concern ing and advising those who fall foul of the Act are asked to for peoples to deuelopment, the circumstønces of its ported text books; currently each copy costs more that the for our political health, S¿ will not be devoting its columns forward their details to the campaign. For more informa- right of denial under the present international economic order; the average monthly wage. to suggestions on how to improve the 1n dependent and pre- tion contact: Repeøl the PTA Campaign, PO Box 1340, right to a and just system of rules of law; the right Local publishers are unable to frll the gap. To decrease liminary soundings indicate that Andreas Whittam Smith London N22 4AT or telephone Fr Paddy Smyth on 081 993 fair of peoples huntan rights the runon scarce foreigncun:encyreserves, the government is unlikely to be co-opted onto the executive committee. 9823 or Mary Connolly on 081 862 2942. to self-determination - -irnplernenta- Heather Williams Piers Mostyn tion; andthe administrøtion of justice. denies import licences for paper. Internally, there is one We also participated in three working gronps on paper mill to supply the whole of Tanzania. Add to these women's .rights, trade union rights and the rights of the diffrculties the very small market for specialised text books KING SIZE BLUNDER BRANCHING OUT child and the copyrightproblems in reprinting overseas' editions. Individual contributions to these commissions and It is clear that Tanzanian further education is in an impos- Much work was done by the Haldane Society on the case of Lawyers at Southampton University have become increas- working groups were interesting, but the theme of each was sible situation. the Winchester Three. T}:re Gua,rdiøn printed our letter ingly involved in political issues at both national and local too broadly deflrned for any coherent discussion. More Ofrelevance to Str readers is the plight oflaw students shortly before the appeal and I observed the hearing ofthe levels. Unfortunately the Law Faculty's most recent contri- valuable were a number of fringe meetings with, among at the University of Dar es Salaam. Since his student days appeal on behalfofthe Society. The Court ofAppeal found bution to student politics was to furnish the Union with its others, the Nicaraguan, Palestinian and Soviet delega- in the 60's Issa Shi{i, Professor of Law at the University that statements madè'by Tom King during the trial in first Conservative President in living memory. Neverthe- tions, which were informative and provided a forum for has seen Tanzania's education budget cut from 20Vo to AVo which he equated silence with guilt created a serious risk of less, when the idea of establishing a branch of the Haldane debate on more specifrc issues. of national expenditure. For law students this has meant a prejudice to the fairness ofthe trial. The case is a glaring Society in the University was raised the support and inter- Disappointingly but not surprisingly the Congress was drastic decrease in funding so that many cannot study at all example of the miscarriages ofjustice that would result if est shown by students and members of staff was over- less well attended that in the past. Notable absentees wäre without private means. As Professor Shivji says,'Already, the government's proposals to limit the right to silence were whelming. delegations from a number ofEastern European countries. professional faculties at the University, like medicine, law carried into force and vindicates the campaign to retain the By the next academic year the branch aims to have at Afterrecoveringfrom the shock oflearningthatthe vice- and engineering, are having a gteater proportion ofcandi- right to silence ofwhich the Society has been a long sup- least 30 active members out of a student body of 300 and to presidents of both the USSR ønd the USA had been invited dates from the families oftop bureaucrats, state and party porter. Copies ofthe Haldane report ofthe appeal can be host regular public speaker meeting on areas of current to attend the Congress, the IADL Bureau met on 19 March leaders .... The sons and daughters ofworkers and peasants obtained from the offrce for a small fee. legal controversy. We are certain that an active branch of to set up an ad hoc committee to formulate proposed amend- are being squeezed out from education in socialist Tanza- Keir Starmer the Haldane Society will provide the stimulus to enable so- ments to the IA-DL's constitution. This was a response in nia!' cialist students to increase their awareness ofpolitics and part to the financial diffrculties the organisation now faces The materials available to students are pitiful: one text law. We are highly optimistic about the branch's potential with the loss of funding from the Eastern European affrli- book can use up to halfthe three year book allowance; paper and future possibilities. ates and in part to the widely felt need for a more democratic shortages rule out photocopying the few relevant texts in David Toube and Debbie Johansen structure. Unfortunately the General Assembly was un- the university library; periodicals are largely absent. The Haldane Society welcomes the formation of student able to agree the proposed amendments and a further By comparison, Britain's law students have access to branches. Any law students interested in following South- Bureau meeting on 24 March set up another committee books and materials beyond the wildest dreams of most ampton's example should contact Keir Størmer (see the charged with the same task. As a result the IADL constitu- Tanzanians. A¡d what happens to those piles oftext books insid,e front couer SLJ tion will almost certainly remain unchanged until the next at the end of the exams, or when new editions supercede Congress. them? Instead of being discarded or left to fester in their The GeneralAssembly did however manage to agree the obsolescence, they could be put to positive use by a univer- PUBLIC LAW INITIATIVE passing of no fewer that 40 resolutions on as many different sity struggling against the economic odds to produce indige- subjects in less than an hour; an enviable level ofproductiv- nous lawyers. (see Since the Public Law Project Str no.8) was launched in ity the Haldane Society's AGM only achieves in its last five Tanzania's legal system closely follows our own. Al- February it has been flooded with enquiries and support. minutes. though cases decided since independence are not strictly The need for the Project is apparent from the number of Joanna I)odson binding, they arq still considered and are of persuasive to take up issues, and requests for it and for information authority. Your books may not be 1007o up to date, but they will determine advice. The Project short and medium-term are l00Vo better than no books at all. so that it can use to best priorities, its limited resources LEGAL OBSERVERS GROUP June Tweedie effect. Project has now received to adver- The sufficient funds LOG is a joint HaldaneÆ.{CCl initiative to provide observ- Ifyou can help, whether with one booh or ø lorryload, pleøse for two employees, and is hoping a will follow tise that third ers for both union and general civil demonstrations/disobe- phone June Tweedie on 071 354 231. We will a,rcønge Money has been raised legaÌ profession shortly. through the dience campaigns. transportation to Tanzøniø; all we need you are the Long term from and a grant from the European Community' So far the group has been requested to attend both boohs. funding has so far been agreed by the Joseph Rowntree national and local anti-poll tax demonstrations and the

2 3 War Communism Bill Bowring To grasp what is so striking about the new formulation, it is essential to recall some historical background. Following Revolutionary Developments in the October 1917 Revolution, the Extraordinary 6th All- Russia Congress of Soviets in November 1918 adopted a resolution'On the Revolutionary Law'. But almost imme- Soviet Law diately the new Soviet Republic was wracked by civil war and foreign intervention, and, in order to survive, was ruled This article is impossible to Events are moving at used in the USSR to describe the legislative write. now commonly by decree. This was the period of so-called 'war commu- breakneck speed, notjust in Lithuania; the entire Soviet bodies). nism'. legal system, statute law and procedure, is undergoing The law permits the President to postpone the new The economy collapsed, and the Soviet government complete replacement surgery. In this article I will attempt signing ofa law passed by the Supreme Soviet and to return introducedthe new economic policy (NEP), inwhichforeign to illustrate by recent examples how law is central to the it to them for reconsideration. If the law is confirmed, the capitalinvestment and private commerce were encouraged. current changes and how the debates about law carry with President may sigrr the law, appeal to the Congress, or call A stable legal framework was required. On 22 May 7922 t}re them profound ideological implications. The nature and a referendum. The President may also dissolve the Su- Russian Federation enacted a decree on basic private prop- future ofsocialism is in issue. preme Soviet, and ask the Congress to elect a new Supreme erty rights and on 1 January 1923 the Civil Code of the Soviet (point 16 ofArticle 727 (2)). In turn, the President RSFSR, which drew on the German and Swiss Codes, came may be dismissed by decision of the Congress for'violation Is Gorbachev a Mafra Member? into force. of the USSR Constitution'(Article 727(5)). Formally the USSR has continued to the present day In January 1990, in Moscow with the Haldane delegation, with an ostensibly civil law system. But when Stalin seized I attended a quite extraordinary public meeting - with Capitalist Transforrnation? power in the late 1920's the NEP was dismantled, in favour diffrculty, since the hall was full to bursting. The speakers of 'command-administrative' methods of economic plan- were Gdlyan and Ivanov, the two procurators who led the On 12 March 1990, in the debate on the draft law, Deputy ning and the forced collectivisation of agriculture. Millions investigation into corruption in Uzbekistan. They have Afanasyev (Rector of the Moscow State Historical Archive starved. Under Stalin and later under Brezhnev massive since been removed from their posts amid allegations that Institute, and a leader of the Inter-Regional Group of principle of state policy. This was carried out through the repression took place outside any framework of law; and they obtained confessions by unlawful means. Many defen- Deputies and of t}:'e Democra,tic Platþrm which is effec- whole Stalinist period and created numerous victims, this civil and criminal laws were buried under a mass of admin- dants have been acquitted. However, their popularity is tively a separate party within the CPSU) said'...to look the went through the Brezhnev period when in a drunken istrative orders and decrees. such that they were both elected deputies. They were truth in the face means first of all the need to reject the stupor the national wealth was squandered wholesale and heroes of the recent mass demonstrations in Moscow, outlived communist idea .. . This is certainly not recognition retail. And it is proposed that the same thing is to be An Independent Judiciary? They accuse the whole of the present Politburo of in- of the necessity of or willingness to return to capitalism... continued according to tradition'. Gorbachev cut Afa- volvement in the 'maflra'- the organised crime of which the The question ofthe presidencyis being discussed in a period nasyev's speech short; there was quite a disturbance among It is not surprising, therefore, that arbitrary oflicial power policy Brezhnev élite were the most visible manifestation. On when there is a crisis in society, when the carried out the other deputies. is seen as the main enemy of change. For example, the another occasion, Gdlyan is reported as having said'As a by the present leadership is suffering a defeat. In these On 15 March 1990, inhis acceptance speech, inwhichhe lawyer, I demand that criminal proceedings be issued conditions a hope is returning that force will be used as a also called for a'full bloodied domestic market'and for the 3 against the President on the basis of Article 170, para2 ... means for resolving problems... If our leader and founder creation of commodity and stock markets, Gorbachev in- Increasingly, Soviet publicists are Ifthe conscience and the hands ofthe General Secret ary are (Lenin) created the foundations ofanything, it is the eleva- sisted: 'How, in general, do I see the role of President in the arguing that socialism is simply a clean, then he has nothing to be afraid of. The presidents of tion of the state policy of mass coercion and terror into a system ofbodies ofstate power and administration? Above generic term for the highest the USA, France, Latin America and others are subject to principle. And besides, he elevated lawlessness into a all, his most important task is to be guarantor of the achievements of human civilisation checks'. And Ivanov said'I can also confrrm this fact, which irreversibility of perestroika, firmly and strictly to lead to date. is indisputable to us. No one else but Gorbachev is the chief matters towards the formation of law-governed statehood, , patrol of the mafra in this country (Atgimirnas,the Søjudis of a self-governing socialist society.' paper, 28 February 1990).' A substantial part ofthe popu- notorious telephone law, whereby judges were give.n 'rec- larity of Gdlyan and Ivanov is due to their position in and State' ommendations'by the local authorities which elected them appeal to the law. The'Socialist Rule-of-Law and to which they were accountable, brought the whole legal system into disrepute. One of the most important So what is the law-governed state? What is said to be recent enactments was the Law on the Status of Judges in 'Impeach the President' socialist about the measures now being implemented? One the USSR, adopted in August 1989, which seeks to enhance place to look is the new draft CPSU Rules, published on 28 the authority ofelectedjudges, and to prevent administra- Such allegations were very much in the air during the March 1990. The preamble reads: 'The CPSU is a self- debate on the new post ofPresident ofthe the USSR. The tive bodies from influencingthem. There is also a new Law managing socio-political organisation, a voluntary associa- introduced on 27 February 1990 by Deputy on the Procedure ofAppealing in Court Against the Unlaw- draft law was tion of like-minded communists. Built on the creative de- ful Actions of Offrcials Infringing the Rights of Citizens Kudryavtsev, who is also Director of the Institute of State velopment of the ideas of Marx, Engels and Lenin and - and Law, and a member of the working party which pre- judicial review at all levels! operating on the basis of a communist perspective, it sets as pared the He said'...above all, we proceeded from the draft. its goal the creation of humane democratic socialism in the fact that the draft law is one of the elements of the complex country and the establishment of internationalism and Looks Familiar process law-governed state. The of forming a socialist, common human values.' decisive step was taken when the new legislative bodies Despite the repetition of 'communist', the key words It is already possible for enterprises to go out ofbusiness; were the Congress ofPeople's Deputies and the established: here areinternationalisrn,which indicates a wholly new at- and there were mass political strikes in 1988i89. The Law far from all laws have yet USSR Supreme Soviet... although titude to social democracy, and common humøn ualues. T}:.e on Ownership was adopted on 5 March 1990 and will come been adopted, this process is proceeding fairþ successfully. latter phrase (which encompasses non-violence, ecological into force on 1 July L990. According to the offrcial announce- be said of the implementation of Unfortunately, this cannot imperatives, justice, freedom etc.) has become the ideologi- ment it'recognises the diversity of the forms of ownership the laws', cal basis ofall the current changes, and differs sharply from and creates conditions for their equal development, thus party was guided by three main require- His working conceptions of class struggle or the incompatibility of differ- dismantling the monopoly on state property.' It allows functions of party and state: ments: first, to delimit the ent social systems. citizens to own some means of production in order to now separated second to harmonise the activities of the The starting-point was the 19th CPSU Conference in conduct individual economic activity. There will be more and judicial powers; and third, to legislative, executive 1988 which for the frrst time decreed the 'socialist rule-of- private enterprise and increasingly, industrial disputes as achieve stability and to resolve extraordinary situations ìl law state': the unconditional supremacy of the law; a well- in the West. The needed a sovereign and independent speedily. USSR developed system ofcitizens'rights and freedoms; and a The Law on the Procedures for Settling Colìective La- I post of head of state which would be distinct from the mechanism for protecting those rights. bour Disputes (Conflicts) - the Law on Strikes - was functions of leader of parliament. ('Parliament'is the term

4 5 adopted in late 1989. It provides that strikes are only lawful rectly at stake. The issues are particularly vital given the Breezes from Brussels after the final breakdown ofnegotiations, and only then if Lucy Anderson present government's active encouragement to opt out of a specifred procedure is followed Some categories of state schemes and take out personal pensions and private In the case ofoccupational pensions, the Social SecurityAct workers- such as those onthe railways, in civil aviation and insurance instead. 1989 enacted the provisions as to equal treatment con- telecommunications - may not strike. Strikes motivated by Unisex Pensions tained in the EC Occupational Social Security Directive 86/ demands to overthrow or change state on grounds is the and social sys- Source for the Goose? 378. But in general, discrimination actuarial tems of the Soviet Union are banned (clause 12). In any still permitted in occupational pension schemes governed event, the Supreme Soviet may postpone or stall a for and Insurance 1989 The draft EC third strike - EC law is not concerned with personal pension plans or by that Directive and the Act. up to two months (clause 9). Only strikers who abide by the insurance. However, the Sex Discrimination Act l'975 Social Security Directive, designed to complete the process law retain continuity of employment, and receive state Assessing the Risk makes any difference in treatment on the grounds of sex of achieving equal treatment in 'social security matters', benefrts (clause 13). Sounds familiar? generally unlawful. But section 45 of the Act exempts will not affect this position even if or when it ever goes different treatment in annuities, life assurance and other through. The Highest Achievements On the strength ofpresent actuarial information an aver- insurance matters based on risk assessment, where this is The gradual approach to equal treatment in occupa- age woman will outlive an aveÌage man by about three by reference to actuarial data' The data must be from a tional pensions may soon be blown away by recent and ECJ's Increasingly, Soviet publicists are arguing that socialism is years. But this is absurd when related to individual human source on which it is reasonable to rely, and the treatment pending ECJ cases. The change stems from the simply a generic term for the highest achievements of beings; there is no such thing as an'average'\ryoman or must be reasonable in regard to the data and any other interpretation of Article 119 of the Treaty of Rome, which pay human civilisation to date. They see modern American, man. Nonetheless, the generalisation is accepted in the life relevant factors provides that men and women must receive equal for 119 European, and particularly Scandinavian capitalism as insurance and occupational pensions business as a legiti- work of equal value. The concept of 'pay' under Article having provided the best possible combination of rising mate factor in assessing risk. Detailed actuarial tables, is given a very wide meaning and may include statutory standards ofliving and social security and welfare. There- based on statistical studies, are used in order to set contri- payment rights and not just 'pay' which is contractually fore, as in L92%23, Soviet legislators are avidly studying butions and beneflrts levels. This article examines the agreed. There is uncertainty surrounding the status of \ilestern legal systems and experience. Planeloads of present law which allows this form of sex discrimination pensions in this respect. If an occupational pension is 'pay' Western professors arrive almost daily to help them. and points to compelling reasons for reform - notably that within Article 119, then theie are no exceptions to the But as the two Haldane delegations have discovered, the social cost outweighs any actuarial usefulness. In principle ofequal treatment and no question ofany actuar- Soviet specialists often have a touching naivety about the addition, 1990, is likely to see potentially revolutionary ial exemptions. On the other hand, if this is not the case realities of Western capitalism (and tend to forget that developments in this area in the European Court of Justice then the Occupational Social Security Directive and the \üestern prosperity is conditional upon pillaging the (ECJ). Social Security Act 1989 apply and discrimination on the peoples ofthe South). Socialist lawyers whose outlook has basis of actuarial statistics will be permitted. been shaped by struggles against oppression, and for funda- Gender Differentiation mental rights and social justice, have a great deal to Once and for All contribute. The extent to which one sex or the other actually suffers a detriment because of this practice is often unclear. So while On 17 May of this year the ECJ is due to give judgment in life assurance premiums for women are generally cheaper the case of Barber u Guørdiøn Royal Exchønge Assurance than for men, they may pay more pension contributions (Cøse 26 I 88) which is expected to decide the issue once and and./or get a lower rate of beneflrt on retirement. Some say for all. The case concerns an occupational pension which it is all'swings and roundabouts'. In fact, other forms of sex was contracted out of the state earnings related pension ' discrimination blur the issues and exacerbate inequality, scheme. If the ECJ follows the opinion of the Advocate- womgn pension particularly unequal ages and survivor's benefrts, General and holds that such an arrarìgement is'pay', then which are still permitted by both UK and European Com- complete and immediate equality in occupational pension MNBUSINISS (EC) munity law. However, overall, women tend to pay schemes will ensue - throwing the pensions industry and TtlE DVERY1ryOMÁN DIREúTORY OF IVOI|EN'S more for less and this injustice is compounded by the fact employers into turmoil and costing it up to 330 billion. that schemes do not allow for career breaks to bring up CO-OPERÅTIVDS AND OTI|IR ENTIRPRISES ,, Actuarial discrimination is merely one of the discrimi- children. Since men are not encouraged to take such career OH! THAT EXPLAINS THE o The definitive culde to'r natory practices that will be affected. On statistical dis- the thrtving wo¡ñen's breaks they do not do so. It is consequently more diflicult DIFFERENCE IN OUR PE'VS'OruS'' crimination, the Advocate-General, Walter Van Gerven, buslness s€ctor ln Britaln: for women to maintain the same level of pension entitle- has clearly stated that any'swings and roundabouts'de- mofe than 750 buslnesses ment, especially most substantially when women still earn It is very diflicult to make use of this apparent safe- fence arguing for the continuing use of statistics on the and over 1ü) advice less than most men and are more likely to work part-time. agencles. guard in practice. In a 1985 unreported case, Pind,er u The grounds that 'overall' equality is thereby achieved will The technical argument to justify such gender differen- rWestminster o Products a¡rd seryices Friend.s Prouident Life Office, the County infringe Article 119. He said, in his written opinion for the tiation is that it is a convenient way to reduce costs and you can buy from women. Court refused to apply it in a case concerning a female self- ECJ, 'in my view the principle of equal pay implies equality o Is business ensure'equity' between different groups of individuals. the right It employed dentist discriminated against by choice for you? is very unusual for schemes to be unisex on this issue, having to pay higher health insurance premi' whereas upon occasions smokers and non-smokers The Directory is on sale in bookshops at 51,95, or can be ordered are ums. The court admitted that the statistics 9o torH sro6 àaË AôQ,€EO frgr¡ direct from us at f,4.50 (inc p*p). Oìerseas: f5.50 surface mail, combined into one risk group regardless ofthe statistics on --îfie used we¡e unsatisfactory but thought that the càN STt FfeD f6.50 air mail. the life expectancy of smokers. In addition, occupation, çEFrâut €þPtDYEE GgT for women: 1,20 insuranôe companyhad beenjustifred in using f social grouping and geographical area are generally ig- a . Subscriptions: them nonetheless. / nored when pricing life insurance and pension s7.50). schemes, The Equal Opportunities Commission although they statistically signifrcant. { are (EOC) has long called for section 45 to be of theWOMEN MEAN BUSINESS repealed, but to no avail. In fact, actuarial que/PO for f- Government Encouragement consultants Tillinghast, in an independent D magazine and enclose report prepared for the EOC say that, 'in our a (separate) cheque/po fo, sYo* The arguable inequity of using gender as the most impor- opinion, the introduction of a legislative re- tant risk factor is reinforced by the obvious fact that it is quirement for the unisex rating of life, disabil- impossible to isolate all non-genetic factors affecting risk. ity and annuity products will have little signifr- However, this article is not concerned with the validity of cant impact on the UK long term insurance actuarial data concerning life-expectancy. Such considera- market'. They also endorse the view of the E tions are eclipsed by the social necessity of eliminating a Institute and Faculty of Actuaries' working pernicious form of sexism perpetrated by a male-dominated party that the question of unisex rating is a industry for commercial reasons. This is not a matter of social issue; that'it is for society in general and Retufli ûo: Everywoman Sales, FREEPOST, london Nl 8BR. FJ. tokenism - the living standard of individual women is di- for other policy makers in particular to decide''

6 7 at the level of each component of remuneration. If it were otherwise, the enforceability of that principle would be Hannah van der Merve seriously jeopardised'. NEW SOCIATIST _ Anxious Moments F committed to ensuring At the Sharp End - Labour Law (t) that the next Labour It would be an understatement to say that the Barber in South Africa decision is anxiously awaited. Ifthis weren't enough for the government is fully pensions industry to cope with, there is also another case - prepared for power coming up in the ECJ later on this year concerning the same issues Clarke u Crøy Precision (Case F¡ - Engineering 2SS I In 1988 Phumlani, a young organiser from the National housed in the mining compounds. The accommodation 89). The EOC is hoping that these and other ECJ cases will Sparking off debate on all Union of Mineworkers of South Africa took refuge late one consists of large single-sex dormitories which offer no ( the major policy issues night in the union's head offrce in Johannesburg. He had comfort or privacy. The mines are usually located in - travelled all day and much of the previous night with only isolated sites far from the nearest towns or villages. Secu- education, industry, rity is intense, each mine being patrolled by the mine's own ... a pernicious form of sexism perpe- the clothes he was wearing and the money in his pockets. - the econoffiy, transport, The previous evening, working late in one of the union's armed security police. It is in this environment that the trated by a male-dominated industry NUM has had to organise and recruit. The union's 300,000 U health... regional oflices inNamaqualand ontheWest Coast ofSouth for commercial reasons. Africa in the Cape Province, he had witnessed a fellow union strong membership across the country is a tribute to the , offrcial being clubbed to death by attackers brandishing determination and courage of the very frrst activists in the axes. Realisingthattheyoungorganiserhad seenthem, the mines and to their successors who still have to operate in a have a knock on effect insurance o in and social security Tapping the expertise of brutal and repressive climate. generally. attackers had turned their attention to him. He escaped. (t) decision-makers of all Seeking sanctuary he undertook the'long journey to In these circumstances effective recruitment has to be Ofcourse, the ECJ cannot directlytackle in this way the COSATU house, the office block in Johannesburg which focused in the mining compound, either via recruiting appalling discrimination practised by the UK government political persuasions in housed not only the head offrce of the Congress of South facilities in the hostels or by a union offrce on site. Through in relation to state pension ages, survivor's benefits and industry, business and African Trade Unions but also that of the Nation Union of militancy and determination, the NUM has managed to social security generally. Until we have a legal system Mineworkers and the National Union of Metalworkers the negotiate agreements withthe ChamberofMines (the mine which treats adults as individual human beings and chil- government woddwide - two largest affrliates to COSATU. On his anival, the owners' federation representing six main mining houses) dren as their joint dependants, it will not be possible to F organiser settled down to a night of rest after his ordeal. At allowing the union to establish offrces in mining com- eliminate even formal discrimination against women. Analysing the headline four o'clock in the morning he was blasted from his sleep. A pounds. Much of the litigation in which the union offrce is On the issue of actuarial exemptions, it is instructive t¡¡ had exploded in COSATU house, the building was involved arises from the interpretation ofthis agreement. that the Race Relations Act 1976 contains no provision stories that bomb ablaze and crumbling around him. Phumlani managed to For example, a common ploy at some mines was to grant equivalent to section 45 of the Sex Discrimination Act 1g75, other magazines can only later he returned to the office facilities but to restrict their use to certain times when although there is strong evidence of differences in life z flee to the open street. A few days regional ofÏice to carry on his work. was virtually impossible for the workers to visit. A expectancy between races. Even in South Africa racially touch on it Two years later, the murder trial has only just been set dispute would then arise with the union challenging (suc- differentiated premium rating has largely ceased. Such down after police reluctantly bowed to pressure from the cessfully) the mine owner's claim to be following the letter overt race discrimination in the UK would be regarded as $. NUM and their attorneys to prosecute. The accused are ofthe agreement, on the ground that any interpretation of morally unacceptablè.and would certainly not be en- members of Inkatha. Violence has raged between Inkatha the agreement must be reasonable and that an interpreta- trenched by legislation it is therefore a scandal that On sale nou at all good - V) and groups aligned to the Mass Democratic Movement and tion which renders the entitlement to office facilities virtu- section 45 and the occupational pensions exemptions exist. newsagents. the United Democratic Front for many years (see SZ No.8). ally worthless must be unreasonable. In some other jurisdictions actuarial excuses are al- Complete ready legally recognised as unjustifiable sex discrimina- ) this form to be tion. The law is now clear, for example, in the United States; sure of a regular copy. A Daily Struggle according to Carin Clauss, Professor of law at the Univer- J sity ofWisconsin, 'recent rulings ofthe Supreme Court have Those responsible for bombing COSATU house have never confrrmed that all sex discrimination ty reference to statis- been found. The police claimed the explosion was caused by tics is unlalsful'. ) explosives which the trade unionists had been storing in the NAME lift from some future purpose. Independent experts con- ADDRESS frrmed COSATU's suspicions that the explosives used were of the type commonly employed by the South African police fr{ and military. Despite the severity ofindividual instances ofviolence, a true picture ofthe repression ofthe South African mines F Cheques payable to NEW SOCIALIST can only be gained by looking at the day-to-day struggle Please debit my Accessly'isa card facing black workers in South Africa. V) Number Expires Unemployment for black people is high. Matters are exacerbated by many black people being unskilled and Signature poorly educated. Government frgures reveal that the money spent to educate one white child would be used to educate six black children. È o I enclose î7.20 lor a year's UK subscription In the mines, much of the workforce is migrant labour. I' These workers come from Swaziland, Mozambique and in fl o I enclose Ê1 2.00 to become a supporting particular from the so-called homelands or bantustans f¡l subscriber where infertile and overcrowded lands often force the bÌack population to travel far afreld into South Africa to seek o I enclose a donation of € z work.

Please return to NEW SOCIALIST, Effective Recruitment 11 Dartmouth Street, London SW1H 9BN The workers are recruited on frxed term contracts usually for six to nine months. While working they are normally I

I 9 tion. But the court would always reject the union's argu- ment on urgency in retrenchment cases on the ground that Debbi King and David Geer even if the retrenchment procedures were broken compen- sation would be an adequate remedy and no injustice would be done if the workers had to wait a few months. Skating Bears in However, it would be naive to Iook at South African labour law without taking into account the extra legal en- vironment. For NUM members and ofliciald the disadvan- a Circus tages ofbeing black in South Africa are only compounded by their union activity. In the mines workers underground are A group of Haldane Society members visited Moscow and ( Leningrad in January. Apart from the excellent opportu- Many fear more repressive trade nity to visit the cities and for some to meet old friends, there union legislation will be enacted as was a busy programme of meetings with Soviet lawyers. a strategic counterweight to In Leningrad we visited a group oftrainee prosecutors. political liberalisation We had a wide ranging discussion on diverse topics includ- ing a defendant's right ofaccess to a lawyer from arrest (a , new departure in the USSR) and the proposed decriminali- subject to arbitrary beatings by white supervisors and well sation of homosexuality, for which there was considerable documented strike breaking methods have included trying support. to force workers underground at gun point. In the two At the Moscow Institute of State and Law, we discussed weeks leading up to the general election in September 1989, the changes effected by perestroika. Perestroika has led to eleven of the NUM's regional offrces were raided by state the acceptance ofa law-governed state. The state should be police and two thirds of the regional staff were anested, responsible to its citizens not vice versa. The courts will some under the notorious section 29 ofthe Internal Security have increasing importance and authority. The Institute Act which denies prisoners the right ofaccess to an attor- can now initiate legislation itself through a Member of Par- ney. liament. IDAF There are also more humorous examples of union-bash- ing, such as leaflets which are air-dropped on the mining The Most Progressive Reform No Offïcial Recognition quent subject of labour law litigation. Claims of unfair compounds from unidentifred helicopters. The leaflets are labour practices have included a complaint over minework- entitled 'NUM Titbits' and often relay scurrilous gossip The USSR has no specifrc laws on sexual harassment. It is notable that relations between the NUM and the ers wearing NUM T-shirts bearing slogans such as 'Organ- about leading NUM figures and their associations with General labour law is supposed to prevent its occurrence. Scottish sexual Chamber of Mines are generally governed by private agree- ise or die'which management deemed to be detrimental to Winnie Mandela. The content of the leaflets tends to Having listened to our account of a case, Porcelli, the Soviet lawyers seemed be- ments such as this access agreement. The reason for this is good industrial relations. On the other side, unions have display a vivid imagination, but they serve as an illustra- harrassment felt there was a need for largely historical. Up untiì 1979, trade unions open to black claimed that laborious procedures adopted by mineowners tion of the variety of methods to which some South African mused but interested that we problem. There are no members enjoyed no st4tutory recognition. In 1979 follow- to determine who is an NUM member (for'check-off pur- organisations are prepared to resort to discredit the unions. specifrc legislation to counteract this gener- ing the report of the Wiehan Commission, the labour rela- poses) have been abused in order to intimidate workers. laws on paternity rights but maternity leave is more tions statutes were deracialised. The aim was to institu- The Future Challenge ous, The Institute's lawyers were shocked by the UKs tionalise black militancy and to direct its energies into Urgent Relief archaic abortion laws. In the USSR abortion was consid- collective bargaining forums instead of wildcat strikes. The most severe repression in the mines arises not from ered a medical, not a legal issue. However by this time, a pattern of unoflicial recognition The most dramatic effect of the 1988 amendments was to trade union law as such but from institutionalised racism The USSR signed the Vienna Declaration on Human and negotiation between mine owners and mine workers extend the unfair labour practice concept to encompass affecting every aspect of workers' lives from wages to Rights in 1989. Domestic legislation will be needed to had developed. This pattern continued after 1979 through industrial action, which previously had been specihcally training, accomodation, sanitation and union facilities. implement it. Freedom of speech, conscience, movement force of habit, a reflection of the NUM's strength and a excluded. The amendments provided a mechanism by However, this is the one area in which the NUM may now and the right to distribute information should all be guar- desire on both sides to avoid the administrative and frnan- which'urgent interim relief could be sought to restrain an be able to mount creative legal challenges. Racial discrimi- anteed. There is a committee to supervise the fulfillment of cial burdens ofcourt proceedings. unfair labour practice. This relief can be compared to the nation at work has now been declared an unfair labour the Vienna document. This is felt to be the most progressive interim injunctions available in this country. It has been far practice. Endless racist incidents have been relayed to the reform that has happened under perestroika. Compulsory Conciliation more accessible to employers than to workers. Frequently, Chamber of Mines for its attention. The usual response is to the mine managements would go to court as soon as any argue that privileges to white minorities are bestowed not So Emotional However, statute law does now have an effect on relations unballoted industrial action had commenced (pre-strike on racial grounds but by virtue ofseniority. The concept of between the NUM and the mining houses, particularly in ballots being a statutory requirement) or as soon as balloted racial discrimination in SouthAfrican Labour Law needs to On of the most interesting meetings was at the Moscow the light of the amendments made in 1988 to the South industrial action had commenced without statutory concili- follow that adopted in England and the United States by College of Advocacy. The College maintains professional African Labour Relations Act of 1956. ation procedures having been exhausted. The mineowners encompassing indirect racial discrimination. standards amongst advocates. Women represented 53c/o of There are two basic tenets of South African Labour could establish a right to relief since the amended Labour It will'be for the NUM and other COSATU affrliated college members. College representatives felt that the legislation. The first is that conciliation and bargaining are Relations Act clearly states that industrial action in breach unions to monitor future legislative developments even involvement of women in the law had led to the court the solution to all industrial ills. After a dispute has been ofstatute is an unfair labour practice. Detailed plealings more vigourously than before. Black workers in South process becoming'more emotional'! declared both parties are obliged to go through compulsory of estimated profrt losses would always satisfy the require- Africa have not struggled for generations to have the politi- This session revealed the limits of glasnost. The College conciliation forums before resorting to either industrial ments ofurgency. However, it was far more difficult for the cal apartheid ofJohnVorster and P.W. Botha be replaced by questioned why there \¡¡ere so few prosecutions against action (for an economic dispute) or court proceedings for NUM to establish'urgency'to the court's satisfaction, al- the economic apartheid of F.W. de Klerk and the multina- perpetrators ofracial violence. Some had been charged and disputes usually relating to individual grievances. Either though in labour relations matters a legal victory is often tionals. only received symbolic sentences of 15 days imprisonment. party will be barred from going to court if the statutory phyrric unless gained expeditiously. I left South Africa before the implementation of the As in the UK, lawyers are not held in high esteem by the conciliation forums have not first been exhausted and radical changes introduced by F.W. de Klerk, namely the Soviet public. The public image of lawyers was that they premature industrial action is unlawful. The second basic Scurrilous Gossip unbanning of the ANC, the SACO and the release of several were puppets of the State; 'well trained, like skating bears tenet is that (since 1979) the courts have had a broad leading political prisoners. It remains to be seen whether in a circus'. equitable jurisdiction to determine that an act or omission A common example arose when mines were retrenching (or liberalisation will improve conditions for mineworkers and/ Potential emigrés should note there are only 1,200 population by employer, union or membersis anunfair løbour practice, making redundant) large numbers of workers. Frequently, or for the operation oftheir union. Certainly no benefrcial advocates in Moscow which has a of nine million where the conduct is unfair and is detrimental to good the mine management would breach either statutory or effects have been felt as yet. Indeed many fear more repres- people. There is a shortage of lawyers in the USSR, which governed industrial relations between the parties. agreed retrenchment procedures. The NUM would move to sive trade union legislation will be enacted as a strtegic could cause problems ifthe'law state'is to become Unfair labour practice determinations are the most fre- the industrial court for an unfairlabour practice determina- counterweight to political liberalisation. a reality.

10 11 Stephen Sedley QC the hands ofthe judges. whom application is made for leave to apply for judicial By the end ofthe 1960s thejudges had destroyed most review. Although this door is marked 'No busybodies',1a of the refuges of government in non-justiciability. Not only through it have come litigants like the public moralist was there to be no automatic exclusion of judicial review Ra¡'rnond Blackburn MP, 15 criticising the Commissioner of Hidden Agendas: The Growth of Public even ifsome other channel ofrecourse was available;8 even Metropolitan Police for not deploying enough oflicers to Parliament's explicit attempts to exclude it by privative or combat the trade in pornography. It is legitimate to wonder Law in Britain and Canada exclusionary clauses foundered on the assertion thatjudi- whether the doors would have welcomed equally a politi- cial control ofprocess was greater than statutory protection cian criticising the excessive use offorce by police officers in of decisions, and that Parliament could not readily take a current industrial dispute. But it is a matter ofrecord now This is thefirst part of an article originally published in 1988 by theWa,sedøUniuersity Press, Tokyo, onthe 30th anniuersøry away from judges and hand to administrators the power to of the Institute of Cornparøtiue Law øt Waseda Uniuersity. In this first pørt Stephen Sedley propounds a relationship be- interpret and declare law.e tweenjudicialcreøtiuityandpoliticaldeuelopmentinpost-warBritain. Thesecondønd,finølpørt,inwhichtheauthorlooks øt pørøllel deuelopments in Canad,a, will appear in the next issue of SL. Judicial Creativity

Everybody connected with the law in the United Kingdom were separately developed during the 1950s and 1960s in a Since then the judges, in a series of politically sensitive knows that it is a myth that judges do not make law. But in succession ofprivate law cases brought by members against cases 10, have established tightjudicial controls over elected a conservative and long-established system there was until trade unions for unfair expulsion or removal from office. local authorities, marginalising electoral mandates in fa- the present half-century very little room for movement or The great landmark case of Ridge u Baldwins was fought I vour of strictjudicial interpretation of statutory powers and growth at the instance of the judges. What changed the procedurally as a private law claim, in parallel with the i duties. The fact that effectively aìl the casualties of this situation was not a sudden flood ofjudicial creativity but trade union cases; but while its starting point was unfair process have been radical Labour administrations is taken the stimulus of major political changes, In Britain these dealing by an oflicial body, its culmination was the frrst I by the left as proof ofjudicial partiality; but from the stand- provoked a systematic and radicaljudicial response. The great reassertion of judicial control of offrcial decision- point of right-wing ideology in Britain, it simply confirms brilliance ofthe response has been that by and large it has making in the modern British state. Led by Lord Reid, the that municipal socialism is a threat to the rule of law - one not only respected but has actually derived protection from Law Lords stamped on the local state's claim to inviolability of the very premises from which the modern growth of the myth that judges do not make law. in wrongdoing and began to cut down the doctrinal thickets judicialreview originates. Onthis footingthere is no serious When in 1945 a Labour government, including a sub- which had till then made judicial review of administrative risk oflegal inconsistency: a single principle ofpublic law stantial left wing, was swept into power with a massive action a place ofterror for practising lawyers. is applied to all local authorities, even though it tends to be majority, many conseryative people in Britain - which the commitedly socialist ones who fall foul of it.1l included practically the whole of the judiciary - genuinely The Last Stronghold It was only when the process was safely established that thought the end had come for civilisation as they knew it. the judges felt able to admit that it had been their own that, however tenuously, a charitable public interest group Althoughin retrospect one can see little more in many areas It was from the mid-1960s, with a new Labour government conscious handiwork. In 1981 Lord Diplock, who never has been able to canvass a systematic misuse of power by a than an acceleration ofthe 19th-century drive to systema- in office, that the courts set about expanding and consoli- uttered a syllable without some carefully thought-out pur- government department which had withheld modest pay- tise and centralise under offrcial control the principal func- dating their powers to control local and executive govern- pose, went out of his way to say this: 'The rules as to ments due to a large number of poor people who could not be tions and enterprises of an advanced industrial economy, ment, this time encouraged by lawyers who had woken up "standing" for the purpose of applying for prerogative or- expected to bring their own proceedings.l6 there seemed to traditionalists to be nothing ofconsensus or to the existence ofthese powers and were offering the courts ders, like most of English public law, are not to be found in bipartisan policies in the nationalisation ofindustries and interesting cases in growing numbers. In 1967 a Divisional any statute. They were made by judges, by judges they can A Long List of Casualties the establishment of thè welfare state. It looked and felt Court of which the Chief Justice and Lord Diplock (then a be changed; and so they have been over the years to meet the like the arrival of an alien socialist creed. It taught that member ofthe Court ofAppeal) were members took the bold need to preserve the integrity of the rule of law despite So it is no longer heretical either to suggest that English democracy had put the commanding heights of power and unexpected step of holding that judicial review gov- changes in the social structure, methods of government and judges make law or, more contentiously, that they do so at within the reach of such forces. erned the exercise, domestically at least, ofthe prerogative the extent to which the activities of private citizens are times as a conscious response to political developments. The judges had not forgotten their centuries-old power power of the Crown.6 It is relevant to this article that for controlled by governmental authorities, that have been What is both more dangerous to articulate and more diffr- to control the acts and omissions ofinferior courts, and in nearly 20 years thereafter the judiciary, and hence most taking place, sometimes slowly, sometimes swiftly, since cult to identify is what their objectives are in this process. 1952 they'rediscovered'it in relation to statutory bodies. lawyers and academics, treated this case as marginal deci- the rules were originally propounded. Those changes have From the examples given above it is apparent that there is 1 The case in which they did so is introduced to law students sion. It was only when the major case concerning the been particularly rapid since World War II'. 12 no single crude characterisation that can be made ofthese for the principle to be extracted from it, but its signifrcance supposed use of prerogative powers to ban trade union The passage is worth re-reading. Diplock uses the objectives. Law continues to grow on a case-by-case basis, lies equally in its facts. It concerned the compensation membership at the government's principal intelligence- doctrine of standing as an illustration of the genesis of the which tends at least to divert ifnot to obstruct considered payable to the secretary ofa hospital board on the absorp- gathering establishment 7 reached the House of Lords that bulk of modern English public law. Finally acknowledging strategic development. There is no defensible simple equa- tion of his job into the National Health Service and it also it was at last proudly acknowledged that in Eø parte Lain the importance of judicial creativity, he envisages not a tion of conservative judges with conservative lawmaking. concerned a bureaucracy which admitted it had made a the courts had long before breached the final stronghold of frxed system but a future ofmore creativity. And he ascribes Indeed the radicalism ofmodern political conservatism in mistake but asserted that the courtwas powerless to correct government outside the Parliament chamber itself, sweep- both past and future creativity to the poìitical, social, eco- Britain has in many respects overtaken that of the judici- it. Nothing could have been better calculated to make the ing the last disputed prize ofthe constitutional conflict of nomic and ultimately constitutional changes taking place ary. One judge with almost unrivalled experience of court flrnd a way of intervening, and it did so by applying the the seventeenth century away from the Crown and its in Britain. His analysis is the thesis of this article. constitutional law has commented extra-judicially 1? on the old prerogative controls to the new despotism, as a former ministers, who had thought it was theirs to keep, and into I new tendency of government to ignore doubts about ChiefJustice 2 had called it, ofthe centralising state. u No Busybodies constitutional propriety in its administrative measures; and the casualty list of Mrs Thatcher's ministers since 1979 A Place of Terror In fact, standing is not simply a slim peg on which to hang in courts ofjudicial review has been considerable. Willingly a large proposition. The restrictive character ofstanding in or not, the judges have in some degree become conseryators Ironically, one ofthe biggest obstacles to the development of private law had meant that only the Attorney-General of of accepted norms of administrative and constitutional this doctrine in the years that followed was the conserva- the day, a member of the government, could authorise the behaviour in central government. tism ofthe legal profession, a product both oftraditionalism bringing of proceedings on an issue of sigrrifrcance to the and ofthe Bar's hostilityto academic or evenintellectual ap- public in which the plaintiffhad no special personal stake. Constitutional Crisis proaches to law. Although in 19473 it had been made This had been vigorously reaffrrmed two years earlier, to possible to sue the Crown in private law proceedings, it took the surprise of some, by a House of Lords containing a But in local government the imperatives have been much many years for practising lawyers to realise that a major former law olficer of the Crown, in a decision 13 which wisely clearer and stronger. The rise and entrenchment ofconser- new weapon not dependent on private law rights was at overrode short-term political sympathy in favour of vatism as the dominant politics of national life has been their disposal. Characteristically, it was almost entirely in constitutional rigour, preserving the political oversight and accompanied by repeated electoral victories for sometimes the freld of planning and property law that use was initially control of private litigation on public issues. Butinpublic radical left-wing administrations at local level in the great made ofthe right to challenge the procedures ofthe state law the judges have made the doors far wider, and the conurbations. These have come into legal as well as political either locally or centrally.a The doctrines ofnaturaljustice doorkeeper is not the Attorney-General but the judge to conflict with central government, and adjudication on chal-

12 13 - lenges by the one to the other has been a major role of the Arlette Piercy COINTELPRO and was singled out as a 'key black extrem- courts in the last decade. Whatever the short-term encour- ist.'2 agements might have been to reduce the vigour and ambit Shortly after a 1970 FBI memo announced plans to ofjudicial review in order to give central government freer 'neutralise'him, Pratt was arrested in connection with a play, equal and opposite imperatives have encouraged the Framed by the two year old murder case in which a woman had been robbed courts to retain the referee's whistle for use in contests and killed in a tennis court in Santa Monica, California.s It between central and local government. FBI: Political later emerged that Pratt was in Oakland, several hundred At one stage of the Thatcher administration, ministers miles away on the day of the crime, but the FBI inexplicably and senior civil servants were becoming so irate at repeated 'lost' their wire taps ofPanther HQ in Oakland which would judicial interference with their work that a high-level Prisoners in the have corroborated his alibi. At his trial i¡ 1972, Pratt and committee, answerable to the Cabinet, was set up to con- his defence counsel \ryere unaware that he had been tar- sider the abolition or restriction ofjudicial review.l8 Its US geted by the FBI. The chief prosecution witness was Julius existence was kept secret, and it is unsurprising that its Butler, a former BPP member who testified that Pratt had Freedom No¿¿, the US campaign for amnesty and human aborted, for the perceived usefulness of confessed to the murder. It has since been shown by work apparently rights for political prisoners, estimates that there are judicial review is now so great the minds both of the documents released under the Freedom of Information Act in nearly 100 political prisoners in the US. Although they judges and sections public that an open that Butler was an FBI informant, a fact he denied during of of the employ broad criteria for assessment a number of cases are have been provoked by any the trial. constitutional crisis would cause for grave concern. Amnesty International has proposal. Instead central After Pratt's conviction further evidence of FBI miscon- attempt to carry through the grasped the nettle and produced several critical reports government has opted for grudging acquiescence. The civil duct came to light. They had planted three informants in hightightingbothindividual cases andthe widerissue ofpo- on Sunday admits in private to his spiritual the defence team and had thus received advance notice of servant who litically motivated criminal convictions. Yet for diplomatic judge that he has left undone those things which he ought strategy and witness'testimony. Moreover, they had sup- reasons the world has been happy to accept the US govern- have done and had done those things which he ought not pressed the identification by the dead woman's husband to ment's claim that it holds no political prisoners. - from Monday to Friday asserts the opposite in an eyewitness to the crime of another man as one of the to.have done, Freedom Now aims to destroy that claim and expose the - public his temporal judges. TheWednesbury doctrine le killers. to US government to international scrutiny. Launched last has scriptural status, with all that that implies in Pratt was convicted and sentenced to life imprisonment. acquired year at the UN in Geneva, it is an umbrella organisation of the gap between what is practised and what is He has spent the last 20 years in top security prisons, terms which has brought together numerous smaller campaigns. preached. There could hardly be a higher tribute to the including five years in solitary conflrnement, and was only A tribunal of 10 international jurists was convene d on 27 - power of modern judicial activism. released into the general prison population after winning a ( civil rights action. Despite his excellent record as a peace- L, R v Northumberland Compensation Appeal Tlibunal, ex parte Shaw maker in racial disputes, a committed anti-drugs advocate t19521 1KB. 338. It is immaterial whether facts exist and a leader ofVietnam veterans organisations he has been 2. Sir Gordon (later Lord) Hewart, The New Despotism,1929. denied parole nine times. Act 1947. to substantiate the charge. 3. Crown Proceedings Appeals against his conviction have been dismissed by 4, E,g, Pyx Granite v Minister of Housing and Local Gouernment [19601 (FBI memo) all the courts who have so far reviewed his case. Amnesty A.C. 260. , 5. t19641 A.C. 40. Internøtional has expressed concern that Pratt was denied 6. R v Criminal Injuries Compensøtion Board., ex parte Lain t19671 2 Q.B. 29 April this year at New York University to hear evidence a fair trial because ofhis political activities and has called 864. concerning individual cases as well as assessing the wider for a full re-trial. 7. Council of Ciuil Seruice Unions u Minister thc Ciuil Service lÍ986) for repression ofcertain political groups. Their frndings will be A.C. 318, where Er pørte Ini¿ was described by Lord Scaman as 'a published as a report with a view to presentation at inter- A Willinglress To Fabricate landmark case comparable in its generation with the Proclamations suppressing evidence in order to tie radical political leaders Case'. national human rights forums. up in the courts and in prison. Wholesale abuse of the legal 8. See Pyr Granite u Minister of Housing ønd Local Gouerntnent 17960) Typically, the USA s political prisoners are activists on Leonard Peltier is probably the most well known of Amer- process began with FBI agents being encouraged to lie. One A.C. 260, 286; reaffirmed in R v Deputy Govemor of Parhhurst Prison, the political left. Black people are most often'targeted', in ica's political prisoners. He was targeted for prosecution FBI memo stated that: 'It is immaterial whether facts exist ex parte Lcech t19881 2 W.L.R. 290. particular members of radical organisations calling for because of his leading role in the American Indian Move- Anisminic u Foreign Compensøtion Commissio¿ 2 A.C. 147. Fo¡ to substantiate the charge. Iffacts are present, it aids in the 9. [1969] freedom and social justice for various minorities in the US, ment. In 1977 he was convicted of frrst degree murder for an account ofthe same judicial protectionism in the 19th century, see success of the proposal (ie to "ñeutralise" individuals including the American Indian Movement, the Puerto Ri- his alleged participation in the killings of two FBI agents on H.W. Arthurs, 'Jonah and the Whale: the appearance, disappearance throughout the courts) but disruption oftheir organisations law', (1980) 30 University of can Independence Movement and the now dissolved Black the Pine Ridge Indian Reservationin South Dakotain 1975. and reappearance of administ¡ative can be accompanied without facts to back it up'.1 Toronto Law Journaì 225. Panther Party. Peltier was extradited to the US from Canada, predomi- 10. The high point has been l? u Greater London Council, ex parte Bromley nantly on the basis of two purported'eyewitness' affrdavits London Borough Councíl 1 A. C. 768. For an overview see J.A.G. A Major Target ll983l the Radicals signed by a native American woman, Myrtle Poor Bear. The Th¿ third edition 1985, ch. 5 'Neutralising' Grifnth, Politics ofthe Judiciøry, affrdavits were signed after she had been held incommuni- 11. From Eoò¿rts u Hopwood t19251 A.C. õ78 (the Poplar councillors who The P. co-foundet of the late Huey Newton, Black Panther cado and intimidated by two FBI agents for over a month pay tn Lloyd u McMahon In the early 1960s at the instigation ofJ. Edgar Hoover, the in resolved to higher wages than $'as necessary) Party, was a major target of COINTELPRO. Up until his A.C. 625 (the Liverpool councillors who delayed setting a rate FBI began its infamous counter intelligence programme motels in Dakota and Nebraska. Peltier's defence counsel t19871 death in August 1989, a total of 42 different prosecutions becauee of government constraints). COINTELPRO against domestic political organisations. later acquired athird aflidavit swornbyherbefore the other had been brought against him including three trials on one 12, R u Inland Reuenue Commissioners, er parte National Federalion of Its stated aim was to: 'expose, disrupt, misdirect or other- two, which indicated that she had not been present at all on murder charge. Despite this he was only ever convicted of Self-Employed t19821 A.C. 617, 639-40. wise neutralise such groups'. the day in question. At the trial Poor Bear was called for the 13. Gourizt v Union of Post Office Workers [1987] A.C. 435. illegal possession ofa handgun. The FBI is alleged to have This programme was carried out by resort to two types defence after the government decided not to use her testi- 14. See E u Padd.íngtonValuation Officer, ex parte Peachey Property had over a million documents on Newton alone. of counter-intelligence activity. Firstly, the US government mony at the trial. On the viore dire to determine whether Corporation t19661 1 Q.B. 380, 401, A number of the USA's current political prisoners were ex parte Blackburn 1 repressed the activities ofgroups it saw as threatening, em- or not thejury should hear her evidence, she disclaimed the 15, R v Metropolitan Police Commissioner, [1976] direct victims of COINTELPRO, as documents released wR.L.550. ploying classic tactics such as infrltrating groups with afïidavits used in Canada and testifred she had been forced under the Freedom of Information Act have shown. More 16. R u Secretary of State for SociøI Seruices, ex parte Child' Poverty Action informers, using agent provocateurs, planting agitators at to sign them under threats of physical harm. The judge (unreportnd, point was recently the FBI has resumed this lapsed programme in Group 30th July 1984, lVoolf J); on appeal the demonstrations and putting out disinformation purporting ruled her evidence inadmissible ap collateral. lefìt open (The Times, 8th August 1985) spirit if not in name. The victim is still the radical left; the to be representative of these groups' politics. The US Court of Appeals later described the FBI's 17. Sir Harry Woolf, 'Public law private law: why the divide?', (1986) - the FBI strategy continues to be one of 'legalistic'smoke screens. conduct surrounding her evidence in the following terms: Public Law 220. Secondly, and perhaps more importantly, 18. Hugo Yòung inThe Guardian 9th March 1988. The final product sought the long term removal of radical political leaders. 'What happened happened is such a way that it gives some appears to have been the internal publication. 'The judge over your FBI offrcials said a principal way to neutralise individuals A'Key Black Extremist' credence to the claim ofthe ... Indian people that the United shoulder', giving advice on how to avoid judicial review. was to show they were violating federal, state or local States is willing to resort to any tactic in order to bring 79. Assocíated Prouincial Picture Houses u Wednesbury Corporation 11948) statutes (House Report to the Committee on the Judiciary, Geronimo Pratt, a black man, became leader of the Black somebody back to the United States from Canada... And if LK.B.223 'He must call his own attention to the matters which he is FBI Domestic Intelligence Operations Report). One main Panther Party after his return from Vietnam as a much they øre willing to do that, they must be willing to føbricøte bound to consider. He must exclude from hie consideration matterg was accomplished was by fabricating and decorated war hero in 1968. He became a target for other euidence (my italics)'.a which are irrelevant to what he has to consider'. way in which this

14 15 Í- --

At the trial three other important witnesses testifred Debbie Weich during cross-examination that the FBI had threatened, intimidated or physically abused them when they were questioned about the murders. The State then produced special agent Fred Coward to testify that he had identiflred Sentencing a a Peltier at a half mile distance, through a two times seven a power telescopic sight, running away from the scene ofthe Reforms \ryill the crime. The supposed'identifrcation', it was later revealed, - took place looking into the sun on a hot June day when the Punishments Fit mirage factor was high. Expert tests carried out for the defence showed recognition even of a close acquaintance (and Coward had never seen Peltier before) to be virtually the Crimes? impossible under these conditions. The trial judge declined an invitation to undergo a similar test and refused to allow The crisis afflicting Her Majesty's prisons has forced the il thejury to do so. government reassess function of custody our The all white jury returned a guilty verdict and the to the in criminal justice system. This exercise has yielded some con- judge impose d two consecutive life sentences. Peltier, with I recommendations the recent White Paper, no previous felony convictions, was sent directly to the structive in Crirte, Justice and Protecting the Public: Proposøls --Y l II lil federal super-maximum security prison at Marion, Illinois. for !- Legislation(February 1990, Cm 965, HMSO). However, the Marion has been condemnedby Arnnesty for violatinginter- I proposals are marred by fear of appearing 'soft' on crime. As national standards for the treatment of prisoners. The men a result there are reactionary recommendations for violent + {_ at Marion are under permanent lockdown and are some- offenders, and ill-thought out views on the role ofthe proba- I ti1nes chained to their beds for days at a time. tion service. The US Court of Appeals dismissed Peltier's appeal, a proposals principle of surprising decision in view of the soundings from the The common theme of the is the proportionality; is to ensure offenders Appeals bench cited earlier. The presiding judge was the aim of sentencing get deserts'. The severity ofthe penalty should be È William Webster who had already accepted a new job as their'just directly related to the seriousness ofthe offence. This is to director of the FBI. on prison and The defence tried again in 1985 when further docu- be achieved the one hand by shorter sentences an increased use of non-custodial sentences for property ments obtained from the Bureau's own flrles showed that the on by of impris- prosecution had suppressed exculpatory evidence at the offenders, and the other hand, longer terms for and sex offenders. time of the original trial. This included evidence that the onment violent gun alleged to have belonged to Peltier could not have been Ê6 â Dtnpr Ê¡-.rerurrnlE rÒ tMpßsoNMENT | ÊM lMfu6ncr R cof.,tM(Nmr sERvrcE Soft Options used in the killings. Arnnesty International suggested that oRÞq, oF 9ÆlþoRA,þ 6¡56p¡45! Pæ REm|RNG ÊT grRnN6A}JÐ6. this new evidence cast doubt on the fairness of the trial. æ Predictably however, the motion was denied. The proposals in the White Paper attempt to encourage the sentencer to take community penalties more seriously. Psychological Torture Probation, community service and curfew orders are to be used as graduated restrictions on liberty (each step must be at day centres for up to 60 days remain a possible probation justifred in terms of the seriousness of the offence), culmi- will service will have a much increased workload, and Obviously in an article of this length only the most out- condition of probation orders, but they will be renamed the more punitive nature of nating in custody as the severest form of restraint. Reasons their supervision may threaten standing political abuses of the criminal justice system probation centres. for the imposition ofa custodial sentence (except in respect the vital element oftrust between supervisor and offender. could be discussed. Other victims include Alejandrina This increased flexibility may well encourage sen- The proposal of offences triable only on indictment) will have to be given, to introduce a core curriculum and national Torres, an activist in the Puerto Rican Independence Move- tencers to make more use of non-custodial alternatives. promising, and a social inquiry report obtained. standards is but only ifthe probation service is ment, convicted in 1983 and sentenced to 38 years for There is, however, a danger ofnon-custodial penalties Proposed inducements for the sentencer to impose be- permitted a high degree of autonomy in setting realistic conspiracy to overthrow the US government. The case of community penalties include making a probation order a standards and demands. Susan Rosenberg exhibits two aspects common to all politi- The curfew 'sentence' so that it can be combined with frnes; introducing order is not a constructive form ofpunish- cal cases; a very long sentence and oppressive conditions in combined order probation coupled with community ( ment and particularly if tagging is introduced will turn the detention. Convicted on counts ofpossession ofweapons, a - and a new curfew order, to be monitored electroni- offender's home into a prieon. It is unlikely to be iàposed explosives and a false ID, Rosenberg, deeply involved in service; cally if the tagging experiments are successful. Attendance Protective sentencing is wrong in on those who would otherwise be imprisoned, and ethical movements for Puerto Rican Independence, black libera- prineiple, since by defTnition it issues arise, such as curfew-today-surveillance-tomorrow, sentenced to 58 years tion and women's liberation, was constitutes punishing someone invasion of privacy, and the appropriateness of private imprisonment, the longest ever given on these charges. for something they have not done. monitoring companies performing a law enforcement role Two years of her sentence were spent at the Lexington (see Fenella Morris' article in Str issue no g). Control Unit, which was closed down in 1988 by a Federal , judge after international outrage over psychological torture frony of Incarceration methods employed there, including sensory deprivation. The aim of Freedom No¿u and the April conference at coming as to oppressive. so demanding be If they are made The White Paper rightly draws attention to the bad condi- New York University is to bring pressure to bear on the US more arduous, more offenders may be imprisoned for fail- tions and overcrowding in prisons. Ex-convicts tend to be government to stop bogus imprisonment and mistreatment successfully. This S ing to complete the order can only be intensely bitter towards society and better educated in the of political activists. genuinely avoided if sentencers accept the concept of art of crime thanks to their fellow inmates. The irony of restrictions on and radically 'graduated liberty', alter their locking people up as a solutioir to the crime problem is cap- view that anything other than custody is a soft option. tI tured in the Justice report ,Justice in Prjso¿ (cited in Bricks !traÌ1, of Shøme, V Stern 1987): 'Condemned for L Agents of Rep¡ession Ward Churchill and Jim Vander page 287. infringing the Breakdown of Trust? law, prisoner 2. Arnnesty International: The Case of Elmer 'Geronimo' Pratt. AÌ Index: the finds himself in a society ruled not by law AIIIR 5Il27l88l May 1988 I but by arbitrary power. It is small wonder if at the time of 3. Amnesty Internationøl: Proposal for a Commission of Inquiry into the This attempt to make community penalties more punitive his release the contempt for law, justice and the rights of effects of Domestic Intelligence Actiuities on Criminal Trials in the coupled with the proposed tighteningup ofthe supervision others is greater than it was before he was in prison.' page United States of America. Al Index AMR ã1105/81. 21 ofex-prisoners on parole, puts those charged with running The flaw in the policy of differential treatment for 4, US u L Peltier Crim No 77 - 3003 Ross J page 73264 the community schemes in a very diflicult position. The violent and non-violent offenders is that the same argu-

16 17 Automatic Release Ashley Underwood ensure that the frnding of intention made by the referring borough was reached impeccably and that the decision to refer was reached fairly. That may provide lucrative work The White Paper proposes some radical changes in for the lawyers involved, but it diverts money which could the parole system. Remission is to be abolished Homeless People be far better spent on proper provision for housing. Fur- and replaced by a power to add days for miscon- T it creates uncertainty for applicants, whose duct. There is to be automatic release under thermore situ- t il ation was described by Lord Denning MR as that of a licence for those sentenced to under four years, BattedAbout Like shuttlecock. Not only are applicants uncertain who will Il after they have served halftheir sentence. house them; if the receiving authority obtains an order Automatic release is a good idea as it removes Shuttlecocks quashing the referring authority's decision as to uninten- the arbitrary nature of the current parole system. tional homelessness, no one will. These prisoners will be supervised for the third Part III ofthe HousingAct 1985 gives the homeless a series If it is that, as Lord Justice Watkins put it in a quarter of their sentence and liable to recall for of rights which, cumulatively, should operate so as to accepted recent case, there ought to be 'a reconsideration of provi- breach or for reoffending. They will also be subject provide housing for those whom Parliament feels should be sions which needlessly set two local authorities on a colli- to recall throughout the frnal quarter ofthe sen- protected. In short, they must be in priority need and sion course', there are two realistic alternatives. I ignore tence if they commit any further offence. This may unintentionally homeless. the only human course, that suffrcient housing stock be lead to an increase in the prison population. An applicant who meets the criteria must be housed by made available, because obviously not be, in the The parole system will remain for prisoners the housing authority to which sÀe applies, unless that it will foreseeable future. Firstly, applicants can be allowed to the sentencing of violent offenders. sentenced to four years or more, the earliest release date authority decides that s/he has no local connection but does ments apply equally to continue'forum shopping', and to make successive applica- precisely because the public are afraid of violent being raised from a third to halfway through the sentence. have such a connection with another authority, and further It is tions to different authorities, but no authority should be of dealing with them other than by They will be under supervision for the third quarter oftheir decides to refer him or her to that other authority. In those offenders that a means allowed to make a referral under the local connections be found. Motivations towards violence sentence and subject to recall for reoffending' circumstances the latter (the 'receiving authority') is incarceration must provision to an authority which has previously found the connected with property offences. Local review committees will be abolished, which should obliged to house the applicant, subject only to a right to are often similar to those applicant intentionally homeless. crimes stem from alcohol abuse: probation speed up the system and render decisions less susceptible to dispute the local connection frndings, either before a statu- Many violent Secondly, successive applications could simply be ruled of treatment is generally the appropriate influence by prison governors. The proposals include a tory tribunal or the Divisional Court. with a condition out. If at frrst sight that seems harsh, let it be remembered and anger arising out ofpoverty, power for the Home Secretary to delegate the frnal decision What if the receiving authority has previously enter- punishment. Frustration that the law is supposed to provide some certainty and it is and bad housing also breed violence. Incar- to the parole board we are told the Home Secretary's tained an application for housing by the applicant which it unemplo¡rment - supposed, in the case ofthe 1985 Act, to devolve responsibil- exacerbates these problems, and the brutal present intention is to retain control ofdecisions regarding has rejected on the grounds that s/he was intentionally ceration simply ity to local authorities. Successive applications directly is unlikely to have a pacifying influ- prisoners sentenced for seven years or more. The introduc- homeless? InR v Slough Borough Council ex parte Ealing prison environment challenge the exercise of that responsibility. ence. A community service order, providing an outlet for tion of a one-stop system of parole is a welcome one; it is London Borough Council t19811 1 QB 801 the Court of Secretary feels the need to Appeal held that the receiving authority could not chal- anger in manual labour and training to improve an of- unfortunate that the Home Fairer Alternatives? fender's life wouldbe a muchmore positive andconstructive retain control at all. lenge the referring authority's frnding on intention. The approach. The proposed statutory criteria for parole are predicta- Court found this'lamentable'and expressed the hope that Both alternatives would operate unfairly ifthe frrst author- Furthermore prison sentences for violent and sex of- bly vague. The decision is to be based primarily on risk of Parliament would revise it. It decided not to. ity acted unlawfully when it found the applicant intention- fenders are inconsistent with the principle ofproportional- reoffending, which is unsatisfactory because ofthe prob- ally homeless, but the applicant could then seek judicial ity. Non-violent offenders are to be brought out ofthe prison lems ofmaking accurqte predictions. The unit system to be Unfair and Undemocratic , review. It would be essential to make an allowance for a system or at least placed.there for shorter periods. Propor- introduced with regard to fines is a welcome proposal. It change in circumstances within either alternative. Plainly tionality would be maintained if sentences for violent of- links frnes more closely with ability to pay. The proposals In Slough the Court of Appeal drew some comfort from its ifan applicant frnds settled housing after being rejected by fenders were also reduced. should go further and forbid the use of imprisonment for view that it must be rare for a housing authority to frnd itself non-payment offines. Fine defaulters could be more appro- in this position. Unhappily that is not so. An applicant re- one authority, loses it through no fault of their own, and then seeks housing from another authority, the False Positives priately dealt with by non-custodial penalties such as jected by one authority will obviously be tempted to try earlier community service, or advice from a probation officer on other authorities. application and frnding should be disregarded. Otherwise, either alternative would be fairer than the present system. is to be replaced by a power to pass debt management. Given that many authorities, in London at least, provide The extended sentence If both are unpalatable, is it too much to ask that Parlia- sentence than isjustifred by the seriousness ofthe temporary accommodation for applicants outside the bor- a longer ment does something about the scandalous and degrading necessary to protect the public from serious Parents On Trial ough while they are deciding on their application, the offence 'ifthis is lack of housing instead? harm'. This is unsatisfactory. Dangerousness is notori- obvious next step for the rejected applicant is to apply to the ously difficult to predict. It will inevitably lead to people Juvenile courts are to be renamed youth courts' For authority where s/he is actually being put up. Such an being locked up who would not have offended again, i.e. children aged 10-15, they will be required to make an order authority, knowing that the consequence of flrnding the is unreasonable to do homeless will be false positives (Floud Repo rt,, Døngerousness and Criminøl for the parents'attendance unless it applicant unintentionally that it can refer ITY COUNCIL Young, Heinemann 1981; so. Also for this age group, frnes are to be assessed according them elsewhere because ofthe lack ofa local connection, is Justice, J E Floud and W OFFICE Radzinowicz and Hood, 1978 CLR 713, and 1981 CLR 756). to the parents'means, and the courts are to consider binding likely to be indulgent. When it then casts about to see who Furthermore, protective sentencing is wrong in principle, over parents in every case unless it would be unreasonable the applicant has got a local connection with, it is almost since by defrnition it constitutes punishing someone for in the circumstances to expect the parents to be able to bound to come up with the authority to whom the frrst something they have not done. exercise the requisite degree ofsupervision and control. application was made, Partly suspended sentences are to be abolished. Fully These measures are likely to have precisely the opposite The conflict then arises. The applicant has properly suspended sentences are to be passed only if the offence effect to that which is intended. Parents'authority over made use of the right to make further applications. The parents, justifres a custodial sentence but there are good reasons for their children and children's respect for their will receiving authority has made a frnding of intention which not imprisoning the offender immediately and community be undermined if the parent is publicly blamed for the has notbeen challenged as beingunreasonable or otherwise penalties are not suitable. They should normally be com- child's behaviour in court. The shift in responsibility for the unlawful. The referring authority has made a contrary de- bined with frnancial penalties so that the offender does not child's criminal behaviour will do nothing to teach the child cision which may be unimpeachable in public law terms, is an seem to go unpunished ifthe period ofsentence is success- to face the consequences ofhis or her actions. There and its discretion overmles that of the receiving authority, the fully completed. attendant danger that a child will be able to manipulate at the expense ofthe latter. Not only is that unfair and un- parent The basis for section 38 committals for sentence to the system to deliberately, though indirectly, punish the democratic, it defres the presumed intention of Parliament Crown Court is to be changed from character and antece- or guardian through crime. And the underlying implication in the 1985 Act that housing authorities are given wide crimi- dents to unforeseen seriousness of the offence. In accor- that parents are not concerned about their children's discretion within their area as to how to operate the Act. dance with the principle ofreducing sentences for property nal behaviour is patronising and unjust. is welcome, offenders, the maximum imprisonment for theft is to be The shift towards a policy of decarceration A Game of Badminton have the reduced from 10 years to seven years' and for non-domestic but other measures in the White Paper will burglary from 14 years to 10 years. The maximum for opposite effect. The test of success will be the impact of the This anomaly leads to resentment and increasingly, to on crime rates' residential burglary is to remain 14 years. proposals onthe prison population as well as expensive and complex litigation. The courts are anxious to

19 18 [-_ F_

APPLICATION REFUSED - EMPLOYMENT VETTING REVIEWS BY THE STATE

lan Linn The Civil Liberties Trust 1990 Ê3.95 ARCHER MY LEARNED FRIENDS: AN INSIDER'S VIEW OF THE JEFFREY People are often deniedjobs because oftheir char- CASE AND OTHER NOTORIOUS LIBEL ACTIONS acter, beliefs, affiliations or proclivities. Our law gives employers complete freedom to turn down Adam Raphael, W H Allen, Ê11.95 legal aid in defamation cases. Mr Brett is solicitor to Times applicants for good, bad or no reason - except on Newspapers, and it is hardly surprising to frnd that his grounds ofrace or sex. The latest Employment Bill fondness for a swift, fixed-damages arbitration system non-recruitment on the ground of The frrst legislative measure concerning defamation in will also outlaw leads him to conclude that'the answer to the defamation union membership or non-membership, but this is England was the 1275 Statute of Westminster (or Sco¿- conundrumis notto waste more public money through legal unlikely to hamper the activities of independent dølum Møgnøtum). Imprisonment in gaol or in the pillory aid funding of this archaic and enormously expensive gladi- bodies like the Economic League, whose secret were amongst the more liberal of its sanctions, which also torial ritual'. Trusty Geoffrey Bindman does not agree. He vetting ofprivate sectorjob applicants was docu- included ear-cropping, nose-slitting, the branding of the envisages a four-stage plan in which the provision oflegal mented a Liberty publication last year (The forehead and hanging, drawing and quartering. in aid is a key element. Economic League: The Silent McCarthyism by On the evidence of this new book, the distinguished It is a shame that this question is not given more space. Hollingworth and Tremayne). journalist Adam Raphael might, in an earlier age, have There can be few people who have ever studied our present Society cannot impose wholesale controls on been a prime candidate for such rough justice. It is his system who have not found themselves nodding sagely at recruitment. But if government is goingto prevent almost proud boast that he has been both a plaintiff and a the words of Robert Maxwell. 'Seeking redress for libel is certain people holding certain posts on grounds defendant in libel trials, though it is possibly for details of open only to those who can afford it ... Those who do not unrelated to their ability to do thejob, then, this ' his role as witness that this book will be most eagerly sought have resources oftheir own or the backing oftheir employ- book argues, it is not too much to ask that those out, for Raphael played a key role in the Jeffrey Archer'af- ers have to grin and bear any assassination oftheir charac- happened, fair'. turned down should be told what has ter'. how the decision is reached and that they can This role led to him being condemned by Stewart Ste- Adam Raphael has largely eschewed the 'historical appeal against it. ven, the editor of the Mail on Sunday, as a betrayer of summary'usually so beloved of authors of this sort of book. The author accepts that some vetting is necessary. He politics to religion to hobbies to overseas connections to sources. Raphael admits that in writing the book he was A little more research would have revealed that the Sc¿n- measures our security vetting procedures against the test sexuality and lifestyle. None of the resulting material is motivated largelyby the need to finance his own libel action dalum Magnøtum was directed against the 'devisers of adopted by a Canadian Royal Commission of Inquiry in shown to the subject. against the newspaper,'but the book also explains how tales whereby discord or occasion of discord have thence 1981: they should be 'sensitive to the requirements of The thrust of the authols criticism is that the'culture of Raphael came to give evidence against Archer, his former arisen between the King and his people or great men ofthis individual justice and fair treatment' and concludes that (see Hilary Kitchin's article in SZ No.8 on the friend. secrecy' Realm,' and that the Statute of Gloucester, which followed they fail to pass this test. Security Service Bill) endemic in our vetting procedures Raphael says that he was at the outset an unwilling it in 1378, ordained punishment for'every deviser of false Linn tells us that at least 66,000 jobs require positive goes further than necessary to protect the security ofthe participant who was soon forced to make the choice between news, ofhorrible false lyes, ofprelates, dukes, earls, barons vetting clearance, in government departments, British realm and creates the risk that suitable candidates are dishonour and criminal sanction. Whether you accept that and other notables of the Realm'. The sole motive of each Telecom and the BBC. Negative vetting differs in that the excluded from participation in government activities on this decision was as distasteful as Raphael claims may was to afford a remedy only to the eminent. It is frtting in individual is not normally told that the vetting is happen- illegitimate grounds. depend less upon how you feel about civil disobedience than this age ofnostalgiaforthe practices ofthe MiddleAges that ing. An estimated 750,000 to one million posts are subject The book also shows that positive vetting tends to upon how you feel about Jeffrey Archer. the present law of defamation should continue to fulfrll that to negative vetting, in defence contracting and telecom- confuse the personnel function of determining suitability Raphael writes lucidly and with a clear appreciation of purpose. munications as well as the public sector. for a job with the security function of vetting. Linn quotes what will interest the general reader but, evert when deal- The history and extent ofvetting, and the procedures a 1983 letter from the Cabinet Office to the First Division ing with technical matters, his touch remains sure. There David Hewitt followed, are explained. We frnd that negative vetting in Association arguing that membership of CND could put a are neat summaries of recent actions involving Derek contractors' employees is carried out by the loyalties'ofpersons with access to classifred Jameson, Charlotte Cornwell and Michael relation to defence 'strain upon a unit called CB within MI5, which keeps its own frles and information, given the nuclear deterrent policy of this Meacher, and an analysis of the case of the flea cross-checks with other divisions of MI5 and with Special country. The FDA retorted that the same conflict could which may or may not have irritated the Thatch- Branch frles to see ifanything is known about the subject. arise in every case where a civil servant disagreed with the ers in a Blackpool hotel bedroom. By this stage, The C3 branch officer responsible then makes an assess- policy of the department in which s/he works and added: however, it becomes diflicult to dispel the suspi- ment based on four categories from'A'('complete security rDepartments should be able to avoid putting square pegs cion that the book's main purpose has been ex- clearance') to 'D' ('not recommended for sensitive work'). into round holes without having to blight the career pros- hausted in its early chapters, and that most of The assessment is passed to the MOD's Defence Security pects of individuals, whose loyalty to the State is in no way what remains, though no doubt intriguing, is little Division which then decides whether the subject should in question, by denying them positive vetting.' more than flrller: more prurience than jurispru- have access to classifred information. A similar procedure Excessive secrecy in government creates unrepresenta- dence, is followed for applicants to sensitive civil service posts. The tive institutions ofstate and this book provides a valuable The book does, however, serve as a graphic subject is not told about any ofthis and cannot check the ac- insight into one of the ways in which this occurs. The broad illustration ofthe horrendous costs which can be curacy of the information used. issue raised by this book is why governments in th.is country sustained by even a successful libel litigant, and it Positive vetting, on the other hand, is carried out every (not just Conservative ones) cling so obsessively to the is almost worth its cover price solely for Tom frve years and consists ofa security questionnaire, scrutiny culture of secrecy lovingly nurtured in Whitehall. I hope Wolfe's suggestion that'in a civil case a Bronxjury frles, and a 'freld investigation' comprising extensive this book the is simply a vehicle for redistributing wealth'. of and others like it will continue to supply interviews with the subject and character referees. An antidote and make it easier for a post-Thatcher government Reflections on the question of damages frgure average of about 14 interviews per positive vet are con- to kick the habit. prominently in the book's final section, which is a ducted by offrcers who are virtually all male ex-police or useful summary of current reform proposals. 'ßnÞ Notv MEMBERS OF fHE truRy, WE @ne 1OTl'18 service offrcers in their 50s and 60s. Every detail of the Tim Kelr However, it is left to a Mr Brett to make the t ouEsrtoN oF Þñt'1âcEs subject's way oflife is considered potentially relevant, from frrst of only two comments about the availability of

20 21 I'[- 7-

BLACK MASK LOOKS BACK and deserves a wide audience - his books are èuperb. I don't PRIVATIZATION AND THE PENAL SYSTEM: know anything about his politics or personal circumstances THE AMERICAN EXPERIENCE AND THE DEBATE IN BRITAIN. but he always writes about ordinary people trying to make it in a culture offering tantalising riches just out of reach. I've been reading and rereading the classics. those pre-war wonder they turn to blackmail, murder, incest thrillers that inspired our generation ofwriters ofdetective No and worse. The hero of The P ost¡nøn Alw ay s frction. Ring s Tu:ice is a drifter thrown up by the Depression. We see it all from Eric Ambler has recently returned to live in his native his point of view all authority is alien to him. He feels used London after many years abroad. He comes from a working - Mick Ryan and Tony Ward by his own lawyer even when he gets him off. The class family, was a communist sympathiser and wrote story is so gripping, the atmosphere so tense that I won't disclose Open University Press 1989 many thrillers over a long career. I decided to read his best any of it. Apparently it inspired Camus to write Z'Etranger, known book The Møsk of Dímítríos because I had missed and was tried for obscenity in Boston. The style is elegant Have less likely that may pass to the state or stay with the lessor for other it in my years of thriller reading. A search of all the local recent events at Strangeways made it and spare. Most modern detective frction is too wordy, a lot in shares in pur:poses. Of course this kind of arrangement throws up bookshops proved fruitless but I managed to frnd an ancient the near future we will all be invited to buy of prose is needed to establish character and plot. Only British the answer is almost what, for me, is the most disturbing feature of privatisation. copy in the library. First published in 1939, the style seems Prisons PLC? In the short term Elmore Leonard comes near to these masters of the genre. the longer is precisely the The economics of private sector involvement in building and rather stilted and old fashioned, with a lot ofuntranslated certainly'yes'. But in term it In an earlier column I quoted a description of a medieval prison running prisons make sense in the context of an French which is flattering but unhelpful to ignorant types strains which lie behind the most recent series of only Chinese inquest. Here is Cain's description one in over- expanding prison population. No private prison company like me. The plot is contrived but very exciting at the end. of disturbances - an expanding, underfunded and California in about 1934. 'The coroner was back of a table, penal provide New Right wishing to attract investors is going to want to involve itself Some of the action takes place in Sofra and there are crowded estate - which the with with some kind of secretary guy beside him. Offto one side its strongestjustifrcation for greater private sector involve- with a government intent on reducing the prison popula- fascinating bits of information about the Balkans in the 20s were a half dozen guys acted pretty sore, with cops ment. The involvement of the private sector, so the argu- tion. which seem mostrelevant atthis point inEuropean history. that standing guard over them. They were the jury. There was ment runs, can both speed up the provision of additional Ward and Ryan are surely right in stressing that the I have so little knowledge of Eastern Europe between the a bunch ofother people, cops pushing prison places reduce government spending on the penal very different history and structure of the British prison wars that I don't know if Ambler is using facts or creating with them around to and the place where they ought to stand. The undertaker was system, thus fulfrlling both an ideological goal and a prac- system means that the American model of privatisation is fiction. Readers please help. If anyone can verify that the tip-toeing around, International Macedonian Revolutionary Organisation and every now and then he would shove tical necessity. a chair under somebody. Off to one side, on a table was The authors of Priuøtization and the Penal (IMRO) was a going concern in the 1920s a small prize will something under a sheet'. Sysúem, Mick Ryan and Tony Ward, are well placed come your way. And did you know that there were at that . to explore the arguments for and against prison time 'roughly 27 independent states in Europe. Each has an The Mask of Dimitrios, by Eric Ambler, Fontana, f2.95 privatisation. As active members of the pressure army and an airforce andmosthas some sort ofnavy as well. The Thin Man, by Dashiell Hammett, Penguin, group Radical Alternatives to Prison (RAP), they' For its own security each ... must know what each corre- f3.50 The Postman Always Rings Twice, and Double In- were part of the 1970s movement which welcomed sponding force in each ofthe other 26 countries is doing ... demnitybyJames M Cain are containedinThe Fiue Great the expansion of community based alternatives to That means spies, armies of them'. Pre-war Sofia sounds a Nouels of J M Cain,Picador, f5.95 imprisonment, by defrnition not run by state agen- jolly place with shops crammed with food and lots of night crawled clubs. cies. I frrst met them in 1980 when I Bla,ck Mashis Beth Prince and she like suggestions hole floor the Rising Free Ambler's politics are clear and his morality strong would through a in the of for books to review and answers to her competion. in Islington to be interviewed by the RAP throughout. The thriller genre can be seen as a way of bookshop policy group for the post ofcampaigrr co-ordinator. examining the enigma of evil; Ambler wonders if a person In those heady days we talked of the possibility of who is simply evil exists. Today I suppose we would say he abolishing prisons altogether and, as Ward and is describing a psychopath. Europe was of course in a Ryan point out, 'keeping the great Leviathan at terrible state when Ambler wrote this book 'The logic of - punishment to the community Michaelangelo's David, Beethoven's quartets and Ein- bay and returning one of the main objectives of most progres- stein's physics had been replaced by that of the Stock became groups penal lobby on both sides ofthe Exchange Year Book and Hitler's Mein Kampf. sive in the para- Dashiell Hammett is a completely different sort of Atlantic'. They are therefore sensitive to the dox that today the left tends to advocate the benign writer. rffe know he was a man of strong radical convictions. aspects in preference to the perceived He even went to prison for refusing to name names before ofleviathan privatisation. the Un-American Activities Committee. But you'd never evils of in great detail the American expe- know it from reading The Thin Møn. T}:e main pleasure By exploring rience of privatisation, Ward and Ryan indicate ofthis bookis reading about a decadent prohibition eralifes- parameters of the debate are likely to be tyle which contrasts with our clean living counter culture how the point values. The hero Nick Charles, marries Nora, a young framed in the UK. They make the that aside who argue that the state heiress, quits his job as a detective and spends his days from'anarcho-capitalists' ought to give up its monopoly over the allocation of having a good time and managing her money. While they punishment, privatisation debate really are celebratingxmas in ahotel inNewYorkin order to avoid the is concerned of punish- their families, old clients reappear and he gets drawn into with whether the delivery ment can legitimately private a murder hunt. Nick and Nora move in a world of room be entrusted to agencies in some form range from a going to be hard to sell in the One example of the dif- service, speakeasies where gangsters mix with socialites, or another. This might UK. private company building, stafflrng and then running a ficulty which the Home Ofïice would face is the implacable waking up at noon, no children, chicken livers for breakfast, prison at one extreme to the less ofcontract- opposition of the Prison Officers'Association. A POA dele- mixing cocktails, and taxis. Personally, I think it sounds radical option ing out to private companies certain services such as food or gation visited private prisons in the US in 1987 and deliv- like a lot of fun. medicine. Many prisoners in British prisons would regard ered a scathing verdict to the Home Affairs Select Commit- The Thin Man is a tremendous entertainment; sophis- option as highly tee ticated and witty with a clever fast moving plot, bright this latter desireable on the basis that who were looking into the issue. When the Tory major- nothing could be worse than what they currently endure. ity on the Committee came to deliver its (three page) report dialogue and funny characters. It's a classic which remains US the federal system has an in favour of'contract provision ofprisons', a model of the genre. In the thrown up it dismissed the range of schemes displaying POA evidence practice, government James M Cain's novels have been obscured by their enormous typical American as 'hostile'. In any In some states, lease would find brilliant movie versions. I happened to catch some of capitalist ingenuity. arrangements it extremely diflicult to ignore the full scale op- Companies like American Express and position of the POA, whereas in no Double Ind.emníty on television in the early hours of the are favoured. the US comparable body have put together deals to finance, design of prison is privatisation. morning, keeping my insomniac baby company. Edward G Merrill Lynch staff resisting prison which is then leased state Ward and not Robinson as the dogged ulcer ridden insurance inspector and construct a to the Ryan are dogmatic adherents to the view government. a period oftime,. ownership ofthe prison that state provision was perfection. But Cain is an important American writer After ofpunishment is inherently better than

22 23 l- that offered by private or community agencies. They also reject the monarchic argument which OF SOCIALIST LAYUYERS opposes private prisons on the basis that people HALDAilE SOCIETY are imprisoned by Her Majesty's courts and the n o t i c e b o a r d task ofholding them cannot be delegated to some other non-state agency for fear of undermining the essence ofthe liberal democratic state. They rest their opposition to private prisons on the SOCIALIST LAIilYER ground that as imprisonment involves the or- MANCHESTER BRANCH ganised use of force the consequent need for The Haldane Society was founded in 1930. It is an organisation which accountability and scrutiny should mean that provides a forum for the discussion and analysis oflaw and the legal The MANCHESTER BRANCH of the Haldane Society meets the idea ofprivate control becomes unacceptable system from a socialist perspective. It is independent ofany political on the 2nd Wednesday of every month at 6.30pm in the or meaningless. Certainly the debate about how party. Its membership consists of individuals who are lawyers, law Manchester Tbwn Hall, Albert Square, Manchester. and when to end the Strangeways disturbances teachers or students and legal workers and it also has trade union demonstrates the undesireability of leaving Contact the delegate for further details: and labour movement affrliates. such decisions to private agencies. Anthony Coombes The Woolf Inquiry into the prison system is c,/o John Pickering (Solicitors), The Subcommittees of the Haldane Society carry out the Society's most likely to lead to signifrcant changes in penal Old Exchange Building, 6 St. Anne's Passage, important work. They provide an opportunity for members to develop practice over the next decade. As I indicated at 29-31 Kings Street, Manchester. areas ofspecial interest and to work on specifrc projects within those the outset, the very nature of the prison crisis Tel:061 834L257 areas. All the Subcommittees are eager to attract new members so if will undoubtedly provide the Right with mate- you are interested in taking a more active part in the work of the Society rial to argue for greater private sector involve- please contact the Convenor and s/he will let you know the dates and ment as the solution. Ward and Ryan's impres- venues of the meetings. sive book does an excellent debunkingjob on the myths of the American private prison miracle NATIONAL POLL TAX and offers some important ideas on how a proper balance might be struck in the future between DEMONSTRATION - state and private involvement in the penal sys- SATURDAY 31 IIIARCH 1990 SUBCOMMITTEES: tem.

Tim Owen LEGAL OBSER\IERS GROUP CRIME Sally Hatfreld, 104 Lavender Hill, London SW1l In order to assist the reports of the Haldane Society's observers who were present at the events on Saturday 31 March it would EMPLOYMENT Damian Brown, Panther House, be appreciated if everyone who was present at the march, the 38 Mount Pleasant, London \ryC1X OAP rally and the aftermath could send written notes on their view of events and any incidents that they witnessed. These will, of course, be treated with the utmost confidence. The contact is GAY AND LESBIAN David Geer, 2 Plowden Buildings, Steve Gibbons: 071 226 4424 (h), 071 250 3434 (w), reports can RIGHTS Temple, London EC4 be sent to 70b Aubert Park, Highbury, N5 1TS. I HOUSING Annie Jessup, 7 Jennifer House, Reedworth Street, London SE11 dmcnt t (:t Iì r,lcs. \ t!'( Itrirr'; INTERNATIONAL Bill Bowring, 4 Verulam Buildings,

,ei I s 'f rson ¡ 964 !¡ l' Gray's Inn, London WC1R 5LW € {t ift. DELEGATION TO IREI..AI\D l;: llu LEGAL SERVICES Kate Markus, 96 Chichele Road, Following Kader Asmal's call for British lawyers to play a more )l1.lt London NW2 ll hc active role in highlighting human rights abuses in Northern I Ireland, a Haldane delegation to Belfast and Dublin is proposed ; "urtJcr Fenella Morris, 207 i ,rl' Rui for November this year. Exact details ofthe visit will be finalised MENTAL HEALTH Northwold Road, I Jfi'l over the coming months. The aim is for a balanced group London E5 8RA rc sh¡ll hc lr ll including all wings of the legal profession and those with both Wade, Flat ('. ¡l tì\ e-!lt more and less legal experience. Any Haldane member interested WOMEN Clare 52, Shad Thames, ¡nrnß in participating please write to the Northern lreland subcommit- London SElzYT r nl¿ rng thc tee at the Haldane offrce. NORTHERN Piers Mostyn, 24 Godwin Court,

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Í I cc i Jl(.'lt hilr,:.'J LIBEL READING The Morning Sfar is looking for lawyers willing to provide libel reading services on a voluntary basis. lf you are interested please contact Kate Markus,96 Chichele Road, London NW2

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