Lawyer SocialistMagazine of the Haldane Society of Socialist Lawyers I Number 54 G March 2010 £2.50

LAWYERS: CLIMATE HAVE WE THE TOOLS CHANGE TO HELP SAVE THE IN THE PLANET? COURTROOM Haldane Society PO Box 57055 London EC1P 1AF Website: www.haldane.org Contents Number 54 March 2010 ISSN 09 54 3635

News & comment ...... 4 with Yessika Hoyos Morales, Akmal Shaikh, Tzipi Livni and Binyam Mohamed

Regime change? ...... 12 Chris Loxton on the unravelling of the Government’s anti-terrorism legislation

Throttled ...... 14 Keith Ewing on the legal and industrial battle between BA and Unite

Brazil’s Indians win legal battle ...... 16 But, as Ana Naomi de Sousa argues, the Court decision is not all good news

A fair trial? ...... 18 Brian Richardson on how the new Supreme Court is leaving defendants in the dark

The Haldane Society was founded in 1930. It provides a forum for the discussion and analysis of law and the legal system, both nationally and internationally, from a socialist perspective. It holds frequent public meetings and conducts educational programmes. The Haldane Society is independent of any political party. Membership comprises lawyers, academics, students and legal workers as well as trade union and labour movement affiliates. President: Michael Mansfield QC Vice Presidents: Kader Asmal, Louise Christian, Tony Gifford QC, Tess Gill, John Hendy, Helena Kennedy QC, Imran Khan, Kate Markus, Gareth Peirce, Michael Seifert, David Turner-Samuels, Frances Webber and Professor Lord Wedderburn QC. Chair: Liz Davies ([email protected]) Vice-Chairs: Kat Craig (katherinec@ christiankhan.co.uk) and Anna Morris ([email protected]) Secretary: Chris Loxton ([email protected]) Socialist Lawyer Editor: Tim Potter / reportdigital.co.uk Jess Hurd Picture: ([email protected]) Treasurer: Declan Owens Climate Change in the Courtroom ...... 20 ([email protected]) Our special report with Richard Harvey, James Thornton and Polly Higgins Membership Secretary: Dave Renton ([email protected]) War crimes trial...... 34 International Secretary: Bill Bowring Clark Kingsley asks if human rights are in the balance in Sierra Leone ([email protected]) Executive Committee: Camille Warren, Reviews ...... 38 Catrin Lewis, Dale Brook, Hannah Rought- India and climate change, and films on Venezuela and ‘The Age of Stupid’ Brooks, John Hobson, Richard Harvey, Stephen Marsh, Azam Zia, Marcus Joyce, Rebekah Wilson, Rheian Davies, Margaret Gordon, Mike Editor: Kat Craig Printed by: Gould, Owen Greenhall, Carlos Orjuela, Ripon Assisted by: Liz Davies, The Russell Press Ray, Kezia Tobin, Marcela Navarette, Brian Declan Owens, Richardson, Russell Fraser, Marina Sergides, Tim Potter, Joe Williams Simon Behrman, Dirghayu Patel, Sophie Khan, Many thanks to all our other Majida Bashir, Yoshihiro Bartlett-Imadegawa, contributors, readers and Deborah Smith, Joanna Gilmore, Robert Atkins, Rathy Alkgaratnam and Martha Jean Baker. members who have helped with this issue.

2 n Socialist Lawyer l March 2010 from the chair

Courting disaster unless we act now

he international failure to reach any meaningful and tragedies of environmental law cases: from class actions against agreement at Copenhagen 2010 was a crime against the tobacco companies to record their role in promoting lung cancer, planet, its current occupants and future generations. Oil removing the tetraethyl component of petrol, to recent litigation brought companies will have been celebrating, whilst the rest of by indigenous people against multi-nationals’ incursions onto their us bemoan the failures of our leaders to tackle the most lands, and against the governments who are frequently hand-in-glove serious crisis humanity has ever faced. Nothing will be with those multi-nationals. As Richard notes, the record is a mixed one. Tachieved from a non-binding document to which no country has The example of Shell in Nigeria is instructive: despite a robust signed up. judgement against them, Shell has avoided drawing any real schemes At times of crisis, most lawyers’ thoughts turn to legislation and to avoid environmental damage. litigation. Can the tools of our trade help to save the planet? Legislation A real problem in environmental litigation is its expense. Conditional most certainly would. Since climate change is a global threat, our fee agreements may have enabled solicitors to represent claimants, response also has to be global. A Universal Declaration of Planetary but provide no protection against the risk of paying the other side’s Rights, as called for by Polly Higgins, could enshrine the right not to be costs. If you’re litigating against Shell, these will be huge. The polluted. Companies will howl, and rely on greenwashed adverts to traditional rule that the loser pays may be fine in disputes where there convince the rest of us that they care about the environment. But the is equality between the parties, but environmental cases pit David comparison with the slave trade is instructive. Slave-traders resisted against Goliath. Goliath has the resources to spin out litigation, to take abolition. They argued that Britain’s economic prosperity depended on spurious points, to overwhelm the Court with expensive expert it, and proposed voluntary capping of the numbers of slaves to evidence, and generally to throw money at the litigation. The Jackson be imported. But the world did not stop turning when the report fails to grapple with this problem, as James Thornton sets out. slave trade was abolished. Finally there are criminal cases, initiated by the state against The slavery example is a good one, but it also shows environmental activists. In Britain, we remain cheered by the the limits of legislation. It took decades for the institution Kingsnorth Six result, when the Court heard expert evidence that led it of slavery to be declared illegal by European and North to its conclusion that the Defendants’ actions (trying to paint ‘Gordon’ American governments. Freed slaves continued to down the side of a power plant chimney) were motivated by self- suffer the institutional effect of slavery: racism, defence and the urgency of preventing climate change. We wish our economic exploitation and assaults on their civil comrades from Greenpeace Japan the best of luck: in a travesty, their rights. Two hundred years after the abolition of the attempts to expose the illegal sale of whale meat have resulted in the slave trade, there is still some activists themselves being charged with its theft. effective slavery in the rich The Haldane Society is well aware that lawyers elsewhere in the North: trafficked sex-workers, world face far worse threats than the attacks of legal aid – important domestic workers, etc. though the campaign to Save Legal Aid is (for more details see Laura The crisis of climate Janes’s Young Legal Aid Lawyers column). We hosted a talk by change is so immediate that Yessika Hoyos Morales, a Colombian human rights lawyer, and Edre we cannot wait two hundred Olalai, from the National Union of Peoples’ Lawyers in the Philippines. years for attitudes to change. Both of them have had colleagues, friends or family members Can litigation help to prevent murdered by the state and lawyers can be considered legitimate climate change? We’re pleased targets, along with trade union activists, political activists and anyone to report on some successful else fighting for their own rights, and those of others. We will maintain litigation – indigenous groups in these links by sending an international delegation to Colombia to Brazil fought as far as the report further on human rights’ abuses, and by participating in election Supreme Court for the rights to monitoring in the Philippines in May. their ancestral land against Finally, the British Government’s assaults on civil liberties, in the large-scale rice growers and name of the war of terror, have taken a beating in the Courts recently. won. But their victory is Control orders can no longer be based entirely on secret evidence, clouded by reservations damages claims brought by those subject to control orders have not allowing for government been ruled out and secondary legislation freezing the assets of so- and defence industry called suspected terrorists (who are not given any opportunity to needs to take challenge that ruling) has been declared contrary to the Human Rights precedence. Richard Act. In addition, the Court of Appeal has released the earlier finding by Harvey surveys the High Court that British security services knew about the torture of some of the Binyam Mohamed and colluded in it. success G Liz Davies, chair of the Haldane Society of Socialist

stories Lawyers [email protected] / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer G March 2010 I 3 News&Comment

particularly closely with Unite Getting down Against Fascism to ensure that anti-fascist demonstrators are Defending the human not scapegoated or targeted by to business the police is a priority. Any Haldane member who wants to rights defenders he Haldane Society’s volunteer as a legal observer can AGM took place on contact Kezia at kezia.tobin@ 19th November, after googlemail.com. he Haldane Society worsened since the election of Tour President, Mike We plan an international welcomed a healthy President Alvaro Uribe in 2002. Mansfield QC, had spoken about delegation of lawyers and other crowd on 10th Lawyers who oppose his reforms his book Memoirs of a Radical human rights activists to TDecember for what was are deemed legitimate targets of Lawyer (see review in SL 53). Colombia in autumn/winter its final lecture of the year. Anna the Government’s counter- Mike’s political speech ranged 2010, in association with Justice Morris introduced the guests, narcotics programme. She spoke from the Prevent Agenda (the for Colombia, and we will also Yessika Hoyos Morales, a of the Justice and Peace Law Home Office encouraging spies in travel to Philippines to assist in Colombian human rights lawyer which is promoted as a protector educational institutions), New monitoring its general election in working for Corporación of those most at risk from Labour’s assault on civil liberties May 2010. Shortly after we had Colectivo de Abogados Jose criminal elements in Colombia with a warning not to trust the passed our motion, some of our Alvear Restrepo (CCAJAR) and but in reality protects only those Tories and his belief that ordinary comrades in the National Union Attorney Edre Olalia, the deputy who visit violence on opposition people care about politics, but of Peoples’ Lawyers in the general secretary for international and human rights organisations. don’t have any time for the Philippines were brutally solidarity work of the National Yessika and others have called mainstream political parties. murdered, along with election Union of Philippine Lawyers. for an investigation into the work We held a short and business- campaigners and journalists. Some 10,000 miles separates of paramilitaries but are thwarted like AGM immediately Haldane members interested in the industrial streets of Medellin by a congress which is intimately afterwards. We elected officers participating in either delegation in Colombia’s Aburrá valley to connected to those she wants and a much bigger executive should contact Liz Davies, Kat the shores of Manila Bay and the brought to justice. committee (see inside front page Craig or Anna Morris (email densely populated capital of the Yessika represents victims of for details). We passed three addresses on inside front page). Philippines, Manila. Yet, this the notorious DAS – in English, motions: agreeing to work with G Liz Davies lecture demonstrated so much the Administrative Department of and affiliate to Unite Against that draws the two countries Security – and Edre Olalia began Fascism, in solidarity with human close together. To be a human by reminding the audience of the rights defenders in Colombia and rights defender in Quezon City or Maguindanao Massacre which the Philippines, and re-affirming Quibdó is to be an enemy of the took place on 23rd November our commitment to campaign for state. Our guests’ description of 2009, perpetrated against the retention of publicly funded the challenges they faced were, of opposition activists who were on legal services. course, unique and localised in their way to file the candidacy of We’re undertaking some many respects but much of the a prospective challenger to the very practical activities as a language was identical: incumbent mayor’s son. It soon result of those motions. We surveillance, threats, violence, became abundantly plain that the now have a network of raids, ransackings, and extra- tactics so favoured by the volunteer legal observers who judicial murder. Colombian Government are also provide observation and Yessika Hoyos Morles was employed with impunity by the monitoring of the policing of first to speak. Addressing those authorities in the Philippines. demonstrations. We make assembled through her Lawyers who help those most that service available interpreter, Liam Craig-Best of disenfranchised in the Philippines generally to progressive Justice for Colombia, she – farmers and workers, urban demonstrations, but with described the declining status of poor, students, women, political the emergence of the BNP human rights in her country. activists are labelled as

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: and EDL, we are working The situation, she told us, had communists, threatened and October 16: The High Court rules that 17: A Government programme, 17: Figures from Scotland 19: The Government 23: Police recorded the Foreign Secretary, David ‘Preventing Violent Extremism’, Yard reveal that the number announces it is dropping its quarterly crime figures for Miliband, acted in a way that aimed at preventing Muslims from of reported homophobic proposals to retain the DNA England and Wales show was harmful to the rule of law by being lured into violent extremism, crimes in London has profiles of innocent people on a 4% fall in crime and suppressing evidence about is being used to gather intelligence increased by nearly a fifth the national database. The murders involving knives what the Government knew of about innocent people who are not over the past year – from Policing and Crime Bill is are down 35%, from 71 to the illegal treatment of Binyam suspected of involvement in 1,008 to 1,192. currently going through 46%. The largest falls Mohamed, a British resident terrorism. Liberty brands it an Parliament. were a 12% drop in car who was held in a secret prison affront to civil liberties. crime and a 10% fall in in Pakistan. fraud and forgery.

4 I Socialist Lawyer G March 2010 News&Comment

which read like a grim roll call agreement currently tabled of death. Featured were the between the European Union names and biographies of a and Colombia. It is, in Yessika’s number of his comrades who own words, more important to had been assassinated in their the Colombian Government fight to defend human rights. than their own people. Others had come close but had Edre Olalia simply asked that lived to continue their struggle, we tell others what he told us. including Romeo T Capulong, Afterwards he presented the a prominent and respected Haldane with DVD films human rights lawyer who had documenting the work and survived four assassination battles of the National Union of attempts. Edre’s final slide Philippine Lawyers and asked depicted himself as he, with that we make copies and remarkable calm, described distribute them to others. how he was subjected to Richard Harvey reminded us surveillance and false that we were assembled on the accusations of involvement in eve of Human Rights Defenders’ crime. Day and how disquieting it was Foremost in the minds of to note the similarities between Haldane members was how we the treatment of our Colombian could help our comrades in their and Filipino comrades and the endeavours to raise awareness of fates which befell Pat Finucane their situation. Yessika conceded and Rosemary Nelson much it was difficult but asked that we closer to home. campaign against the free trade G Russell Fraser Yule never walk alone

he Haldane Society’s But we all stopped in our tracks Christmas party this as we heard Yessika describe year was held jointly murders of trade unionists, Twith Justice for journalists and lawyers without Colombia as well as our any accountability. The Haldane Colombian human rights lawyer Yessika Hoyos Morales traditional party-partners, Young Society works with Justice for Picture: Ripon Ray Picture: Legal Aid Lawyers on 11th Colombia to provide solidarity attacked. Most chillingly of all, to protect victims of extra- December. As well as the usual for our comrades defending many have their names placed on judicial killings. The military can food, drink, music, dancing and human rights who are always the Order of Battle, a list be restrained from approaching relentless fund-raising, we were living with threats to them and compiled by the Government of certain individuals and families privileged to hear from Yessika their families. We participate in its perceived enemies, those who can apply to inspect any military Hoyos Morales, human rights Justice for Colombia’s regular are most at threat of extra- buildings. However, the lawyer from Colombia. Yessika fact-finding delegations to judicial killings. And as Colombia Government has abused it, had spoken with Edre Olalia from Colombia. We hope that Yessika’s misuses its Justice and Peace Law leading to the perverse sight of the Philippines the day before at presence will have inspired some so too does the Philippines the military applying for orders the College of Law (see left). lawyers and law students in the Government exploit legislation. against victims. Before and after Yessika’s UK to help with practical The ‘Writ of Amparo’ is intended Edre presented a slide show speech, there was plenty of jollity. solidarity. I November 26: The police are 31: A top Scotland Yard 5: Prospective judges will no 6: A parliamentary 6: The family of Ian 7: Figures reveal that the keeping the details of officer, Commander Moir longer have to declare if they committee draws Tomlinson, the man who Metropolitan Police’s thousands of activists Stewart, who was are Freemasons. Jack Straw, up a new criminal died at the G20 protest infamous riot squad – who attend political personally criticised for Justice Secretary, said that offence to outlaw after being attacked by the Territorial Support meetings and protests, failings in the Jean Charles there was no evidence of the practice of police, has been told that Group (TSG) – received and storing their data on de Menezes shooting, has impropriety or malpractice extraordinary it would be ‘inappropriate’ more than 5,000 a network of nationwide been appointed to the as a result of a judge being a rendition. for an official watchdog to complaints in the last intelligence databases leadership of the Freemason – so it would be consider whether police four years. But only nine even if they have not Independent Police ‘disproportionate’ to continue officers were involved in a (less than 0.18 per cent) committed a crime. Complaints Commission. with the ban. cover-up. were upheld!

Socialist Lawyer G March 2010 I 5 News&Comment

whoever they are, if there is good prima facie evidence of an Brown lets Israeli war offence. For Livni’s arrest warrant to be issued, a magistrate must have been satisfied that criminal off the hook there was a case to answer and that there was reasonable suspicion that an offence had n December, Westminster the suggestions is that the been committed. Magistrates’ Court issued an Attorney General will be asked to Attempts to change the law in arrest warrant for Israel’s approve warrants before the way suggested would pave Iformer foreign minister and suspected war criminals can be the way for selective application current opposition leader Tzipi arrested in the future. This will of the law to prevent the potential Livni. The arrest warrant was effectively provide the Attorney- embarrassment of the made in relation to war crimes General with a veto on subsequent Government. The fact that committed during the Gaza war crimes prosecutions. Government ministers have offensive in December 2008 Various human rights lawyers opposed the issuing of this arrest which killed about 1,400 in the UK have commented on warrant so vocally does not bode Palestinians, mostly civilians. the dangers of such changes to well for any future attempts to The warrant was withdrawn the law. The UK has obligations use universal jurisdiction for war once news emerged that Livni under international treaties to crimes or crimes against had cancelled her visit to London, seek out and prosecute war humanity if the law is changed. where she was due to attend a criminals, wherever and Baroness Scotland, the current conference. Attorney General, has already Following these events, added her voice to calls for members of the changes in the law requiring her Government openly consent. criticised the issuing of It was a former Attorney this arrest warrant, with General Lord Goldsmith, along Gordon Brown going so with Tony Blair, who put the far as to telephone Livni brakes on the Serious Fraud to state that he was Office investigations into BAE completely opposed to the Systems and allegations of issuing of the warrant. bribery. If the law changes, and David Miliband, the future arrests are deemed by the Foreign Secretary also Attorney General not to be in the telephoned Livni and the public interest, it will make it current Foreign Secretary, impossible to bring a case Avigdor Lieberman, to apologise. involving war crimes by invoking These acts showed a clear universal jurisdiction. These are disregard for the separation of cases often involving injured, powers and there have been tortured or bereaved people who strong calls for the Government have been unable to obtain to stay out of individual cases and Where is the redress in their domestic courts. legal decisions. justice in war They will now also be likely to There are also suggestions that criminals be denied remedies under the UK may consider changing its being let international law in the laws to curb any future attempt to free? UK. use universal jurisdiction to arrest G Marcela 29th January: Tony Blair gave evidence to suspected war criminals. One of Navarrete November December 10: Keir Starmer, DPP, 11: The Home Office 18: The Chief Inspector of 24: Home Office figures 14: The European considers whether to bring confirms that they want to Prisons, Anne Owers, says that a show a sharp drop in the Commission says that parts of charges against Territorial see the DNA profiles of building that houses 72 prisoners police use of counter-terror UK law, including provisions on Support Group officers involved innocent people kept on the at Portland young offenders stop and search powers, sexual orientation and in an assault on Babar Ahmed national database for six institution is ‘insanitary, unfit for following a public outcry disability, are inadequate in during his arrest at his home in years. The national use and should be closed’. More over their discriminatory protecting people from Tooting. The Met has already database is already the than 40% of Portland’s population use, but the statistics show discrimination at work. It could paid £60,000 in damages but a largest in the world with come from black or minority that only a tiny proportion, refer the situation to the Met investigation concluded no profiles of 4.5 million people ethnic backgrounds but almost 0.6%, of the searches led European Court of Justice. officer should be disciplined. already recorded. none of the staff do. to an arrest.

6 I Socialist Lawyer G March 2010 News&Comment

No reprieve for Akmal

he New Year began for Reprieve in the shadow of the tragic execution Tof Akmal Shaikh in China on 29th December 2009. Having only been informed about Akmal Shaikh Akmal’s execution date on 21st December, over the next eight The failure to allow the most days we did all we could to save basic due process in the face of his life. We were appalled that in overwhelming and unrebutted evi- the end no mercy was shown to a dence of Akmal’s mental illness is man who was clearly mentally ill. an appalling blot on China’s As sometimes happens when record. We are deeply disap- the hours are ticking down to pointed, but also enormously execution, the media coverage grateful for all the support from provoked impartial witnesses – in people that flowed in for Akmal. this case, six – to come forward Akmal’s family is now requesting at the last minute, each concerned a coroner’s inquest into the cir- that an injustice was about to cumstances of his death. To find take place. We passed statements out more and sign a petition to from each of them onto the support their request, see http:// Chinese authorities, all of which petitions.number10.gov.uk/ fell on deaf ears. Inquest4Akmal. Members of the Shaikh family Akmal’s execution has joined a respectful vigil outside strengthened our determination to the Chinese Embassy as the hours keep up the fight for our clients, as counted down towards well as the fight to attain the even- execution. They continued to beg tual worldwide abolition of the the Chinese authorities to show death penalty. Akmal Shaikh’s mercy by all avenues possible. death has also exposed serious This, too, elicited no compassion. flaws in the Chinese legal system, The last minute failure to which cannot be ignored. How allow a proper medical many vulnerable people like Ak- evaluation followed months of mal are wrongfully killed by intransigence by the Chinese China every day? authorities. Reprieve had We support the Shaikh family’s consistently asked for an request for answers about Akmal’s evaluation by a local expert and treatment in prison, in the courts flew out an independent expert, and at the time of his death. The whom we had been told would continued stonewalling by the be allowed to visit Akmal, but Chinese authorities is offensive, who was later refused access. inhumane and disrespectful. Repeated requests since that time G Sally Rowen Legal Director the Chilcot inquiry on Iraq. He said he had “no regrets...”

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: went ignored. (Death Penalty), Reprieve January 15: Prosecutors are reviewing the 22: Evidence emerges 30: Mordechai Vanunu, who 4: Warnings emerge that new plans 11: Five Crown Courts in three-decade-old case into the that the British Army served 18 years in prison after to slash the legal aid bill will deprive England and Wales begin death of Blair Peach, an anti- subjected prisoners in revealing Israel’s secret the public of a crucial way of charging people their own fascist campaigner widely Northern Ireland to nuclear programme, has been challenging Government policy in the legal fees. Lawyers say that believed to have been killed by a waterboarding during yet again placed under house courts. The challenge to prosecutions means testing in the courts police officer. The CPS has been interrogations in the arrest pending criminal for assisted suicide and the overhaul could affect one in four given a copy of a secret report 1970s, after one of the charges for allegedly of the DNA database, which went to defendants in serious into the death of Peach and alleged victims launched breaching the terms of his the European Court of Human Rights, criminal cases and have lawyers are to review it and advise an appeal against his release in 2004, which are among those that could get mounted a legal challenge on further investigations. conviction for murder. includes a ban on foreigners. caught out. against the scheme.

Socialist Lawyer G March 2010 I 7 News&Comment

EAT saw no reason why class of people are political beliefs should not be disadvantaged (Eweida v British On the picket line: protected. Airways Plc [2010] EWCA Civ His beliefs were based on 80) is likely to have particular science, the employer said, impact on the ‘unusual belief’ which was always opposed to cases. religion or belief? religion. The EAT saw no reason The best justification for why beliefs could not be outlawing discrimination on scientific in origin. grounds of religion or belief is f the six types of FDA Fudge), a patriotic If a person who believed in that some numerous groups of discrimination claims American wearing a ‘Stars and climate change was protected, people in Britain – Muslims that can be brought Stripes’ badge on his jacket the employer scoffed, a person and Hindus – are not protected Obefore Employment (Williams v South Central Ltd), who did not believe in climate by laws outlawing Tribunals, the ones with the and a person who had engaged change would also have to be discrimination on grounds of lowest chances of success are in acts of charity of a vaguely protected. The EAT had no race; and there are no those where the act was alleged religious origin (Devine v Home difficulty agreeing that they compelling reasons why others to have been done for reasons of Office). might well be. who are protected from race religion or belief. On average To the list of those who have Although you might have discrimination (for example only around one in seven of such succeeded can now be added – thought that the global warming Sikhs and Jews) should be claims are upheld. following a decision of the sceptics at the Daily Telegraph treated differently from them. Most religion or belief claims Employment Appeal Tribunal and in the tabloids would have And if people with a religion are brought by Muslims, Sikhs, (EAT) in November – a person been pleased that they too would are protected, then sensibly so Hindus or Jews. Such claimants who believes that we must now be protected from detriment must be those without. are in the relatively easy position urgently cut carbon emissions to at work, press comment focussed From this perspective, the that at least their beliefs are well- avoid catastrophic climate rather more predictably on the decision in Grainger v recognised. Yet few enough of change (Grainger Plc & Ors v. risk that claimants would bring Nicholson – far from making them succeed. Nicholson [2010] IRLR 4). claims in future relating to ever the law an ass – is in fact long Even more difficult are cases One matter which seems to more esoteric ideas. Indeed, in overdue. which concern belief-systems have influenced the Employment the same month as Grainger’s G David Renton which are not well-recognised Tribunal to decide in Mr appeal was heard against Mr religions. The employer will seek Nicholson’s favour was that his Nicholson, a spiritualist in a Pre-Hearing Review and beliefs affected how he lived his Manchester succeeded with a usually the case will be struck life. Mr Nicholson said that he Tribunal claim against the police. out. no longer travelled by airplane, Yet the decision in Grainger v Claimants who have he had eco-renovated his home, Nicholson needs to be placed in succeeded with what might be he tried to buy local produce and the right context. As of the end termed ‘atypical’ religion or had reduced his consumption of of March 2009, religion and belief claims have included a meat. belief claims were running at the non-Christian employed by a In a wide-ranging decision, rate of just 600 per year, Christian employer (Nicholson v the EAT agreed. Mr Nicholson’s compared to total Employment The Aspire Trust), a pagan beliefs only concerned a small Tribunal claims of around (Keeling v (1) Public Information part of human activity, the 150,000 per year. Even a Pillars Ltd, (2) Oakden and (3) employer complained. Beliefs few more belief claims will Oakden), and an individual can be specific, the Tribunal not still be very many. wrongly supposed by his found, declaring that protection Indeed, a decision of the employer to be Muslim (Mayet v would be given to the other Court of Appeal in HM Customs and Excise). ‘green’ beliefs of pacifism and February that indirect Other claimants who have vegetarianism. discrimination claims can failed have included a member of Mr Nicholson’s views were only succeed in religion and

Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures: a racist political party (Baggs v political, the employer said. The belief cases where a whole January 12: The first criminal trial without jury 12: The Islamist group Islam4UK and its ‘parent’ 12: Police admit that they 18: The Chief Constable of Kent, in more than 400 years begins after organisation al-Muhajiroun are banned under new conducted illegal stop and Mike Fuller, is accused of lawyers’ legal challenges were legislation outlawing the ‘glorification’ of terrorism. searches on 11-year-old undermining the public’s right to exhausted. Four men face trial over a The decision will have to be endorsed by twins and other activists at a protest after documents revealed he robbery at Heathrow airport in 2004. Parliament and will make it a criminal offence climate camp demonstration urged the owner of Kingsnorth The Court of Appeal examined punishable by a prison term of up to 10 years to be at Kingsnorth power station power station to do more to disrupt secret evidence and ruled that ‘the a member of either organisation or to attend or in Kent. environmental demonstrators, and danger of jury tampering and the address their meetings. told E.ON it was ‘grossly subversion of th process of trial by inappropriate’ for taxpayers to pay jury is very significant’. for policing.

8 I Socialist Lawyer G March 2010 News&Comment

Stop and search ‘abused’

even Judges at the power and could therefore not be in which might compound the European Court of accordance with the law. The Court seriousness of the interference Human Rights in January was struck by the evidence that because of an element of Sconsidered that the showed the extent to which police humiliation and embarrassment. powers of authorisation and officers resorted to the powers of The Home Secretary, Alan confirmation, as well as those of stop and search under section 44 Johnson, voiced his stop and search under sections 44 and found that there was a clear disappointment with the judgment, and 45 of the Terrorism Act 2000 risk of arbitrariness in granting stating in a short statement that Act, were neither sufficiently such a broad discretion to police ‘pending the outcome of the circumscribed nor subject to officers. The judges drew special appeal, the police will continue to adequate legal safeguards against attention to statistics showing that have these powers available to abuse and were in violation of black and Asian people were them’, but it is unlikely that the Article 8 of the European disproportionately affected by the appeal against the ruling will be Convention of Human Rights. powers. They also considered the upheld, and instead the judgment The case arose from the stop and public nature of the searches, with will force a welcome change in the search of both Kevin Gillian, a the discomfort of having personal law. student, and Pennie Quinton, a information exposed to public view, G Sophie Khan journalist, when they attended a protest against an Arms Fair being held at the Excel Centre in East intentions, but became involved in London. The Assistant Victimising public disorder outside the Israeli Commissioner of the Metropolitan Embassy. HHJ Dennis told the Police had given an authorisation defendants that the starting point under s 44(4) of the Act on 13th the young would only be departed from in August 2003, which allowed the exceptional circumstances, for whole of the Metropolitan Police udges at Isleworth Crown example where someone has mental District to be designated a stop and Court have handed out or physical health problems. search area for 28 days. There had ‘deterrent’ sentences of The ‘guidelines’ used by the been a rolling programme of Jimprisonment to those court meant that a university successive section 44 authorisations arrested at demonstrations against student of good character was sent since the Act came into force on 19th Israel’s attacks on Gaza. Joanne to prison for 12 months for February 2001. The authorisation Gilmore of Manchester University throwing a single bottle, which did allowed a police officer to stop and (and Haldane Executive member) not cause any injury or damage to search any person or vehicle without noted that, of the 119 people property. If the same student had the need to demonstrate the arrested in January 2009, 78 were been arrested outside his student existence of any reasonable charged with offences. Of that 78 union for throwing the same bottle, suspicion. all but two were young Muslims; a he would probably be cautioned, or The European Court of Human statistic which in no way reflects the at most fined. For combining that Rights held that the fact that the mixture of people at the demos. act with an expression of anger at decision to stop and search Lawyers for the defendants who genocide in Gaza, he will be was based exclusively on a have been sentenced after pleading wrenched from his degree and live police officer’s own hunch guilty have questioned the starting the next year of his life as a prisoner. meant that adequate legal point of two years imprisonment Is it any surprise that young safeguards were not in place for those who attended the Muslims feel victimised by the to prevent an abuse of that demonstration with peaceful police and the court system? I February 18: Mr Justice Silber gives 20: A new ‘premium service’ – 8: Ministry of Justice 9: An inquiry, headed by civil 9: A report by the Parliamentary High Court ruling that clears costing £15,000 – aimed at the complaints data shows that rights lawyer Helena Kennedy, Ombudsman finds that the UK the way for compensation to super-rich – avoids the delays prison officers are twice as is launched to investigate Border Agency’s failure to be paid to two unnamed ‘terror’ and humiliations that ordinary likely to be reported for allegations by the Equalities manage its workload is suspects whose control orders people have to suffer when racism than prisoners. and Human Rights Commission penalising individuals, draining were quashed after a ‘secret applying for visas and Alleged racist incidents that the police and immigration public funds and jeopardising evidence’ legal battle. The nationality applications to the across prisons have risen services may be illegally confidence in the asylum and prospect of damages being UK. The fees for migrants by a quarter between 2006 ignoring the human rights of immigration system. paid questions viability of the applying to bring elderly parents and 2008. foreign women who have been control order regime. from abroad are to double. forced into prostitution.

Socialist Lawyer G March 2010 I 9 News&Comment

Fighting for the real-life Avatars

n 18th February the had won the case, and some of Peter talked about Amnesty’s Haldane Society hosted them were able to return, but they campaign for multi-national a lecture on ‘holding are still litigating for the right to companies to respect human rights Omultinationals to hunt, fish and maintain their and for human rights to be part of account through litigation’, at subsistence. He also spoke about any balance sheet or due diligence which the speakers were Gordon the indigenous community of analysis. International Bennett, barrister for Survival Dongria Kondh in Orissa, India, organisations, such as the UN, International, and Peter Frankental, whose experience is similar to the OECD and the World Bank have, from Amnesty International. fictional Na’vi in James Cameron’s over the last decade, started to Gordon told us about the Court Avatar. They face displacement include human rights amongst struggles of various indigenous from their lands, which include an their guidelines to companies, peoples being assisted by Survival important religious site for them, although often using the weakest International. He was counsel for by the multinational Vedanta. possible formulation. But policing the Kalahari Bushmen, who had Vedanta plans to mine bauxite and even those weak standards is taken the Botswana Government to to expand an existing alumina remarkably difficult: the court after they had been displaced refinery. The local state is hand-in- multinational company often Peter Frankental

Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures: from their ancestral lands. They glove with Vedanta. subtracts the controversial work

R v (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs

hree senior Court of Appeal judges dismissed the Government’s Targument for secrecy over the publication of seven paragraphs summarising the treatment of Binyam Mohamed when he was detained by the US ([2010] EWCA Civ 65). The judges on 10th February decided that as the information had already been disclosed by the US Courts in a judgment de-classified to the Appeal judges to persuade whether to include the redacted The seven redacted paragraphs: last month, the US-UK intelligence them to amend their draft paragraphs in the open version of 1. It was reported that a new series sharing relations would not be judgement and remove the the High Court judgment was a of interviews was conducted by the damaged by the UK Courts sweeping criticisms of MI5. This matter for judicial, not executive, United States authorities prior to publishing the information and news added to the criticism of the determination. Lord Judge stated 17th May 2002 as part of a new that the ‘control principle’ should Government’s open and flagrant that the paragraphs ‘vindicated strategy designed by an expert not be applied in this case. The disregard for the Public Interest Mr Mohamed’s assertion that the interviewer. Government will not be appealing Immunity system, which the UK authorities had been involved 2. It was reported that at some the judgment but it emerged that judges indicated was not to be in and facilitated the ill treatment stage during that further interview on 8th February, Jonathan used to hide embarrassing and torture to which he was process by the United States Sumption QC, representing David information from the public. They subjected’. authorities, Binyam Mohamed Miliband, had sent a secret letter held that the ultimate decision G Sophie Khan (BM) had been intentionally February 16: Children’s Commissioner 18: Government asks Israeli 22: Justice Secretary Jack Straw 25: Advisory Panel on Judicial Sir Al Aynsley-Green writes ambassador to explain the announces that the prison service’s Diversity reports that a lack of damning report on the Yarl’s use of faked British passports early release scheme will end by diversity amongst judges is Wood immigration detention by a Mossad hit squad who 10th April. There are 86,000 people affecting the experience of people centre, saying children face murdered a Hamas official in in jails in England and Wales, but who use the courts and limiting ‘extremely distressing’ arrest Dubai. Some of the assassins the end of the scheme will add judicial perspectives on critical and transportation procedures used fake identities stolen between 1,000 and 1,200 inmates legal issues. Chair of the report, and are subjected to from six British people. every day to an already Lady Neuberger, called for prolonged and sometimes Imagine if Iran had done the overcrowded prison positive action to draw minority repeated periods of detention. same thing... population. candidates.

10 I Socialist Lawyer G March 2010 Young LegalAidLawyers

This regular column is written by Laura Janes of YLAL. If you are interested in joining or supporting their work, please visit their website www.younglegalaidlawyers.org

and is usually acting with the approval of the local state. The bottom line for shareholders and Sex and drugs directors is the profit margin, not concern for human rights. However, gradually multinationals are being embarrassed into paying and legal aid... more attention to human rights, quite simply because they fear the bad publicity. Where litigation has been started, or threatened, here is a limit to how from a children’s prison. companies are quick to settle. interesting a quarterly To try and get the message For more information, go to column on legal aid can across, YLAL has joined forces www.survivalinternational.org and Tbe – even to an audience with a number of legal aid www.amnesty.org.uk (corporate of socialist lawyers. Getting the interest groups, including the accountability section). Survival public interested is another Legal Action Group and the International is asking for universe. Rifling through some Legal Aid Practitioners’ Group, postcards to be sent to James old boxes recently, I found a love to launch a public campaign to Cameron, calling for his support letter from an ex-boyfriend. It ‘Save Legal Aid’. The plan is to for the Dongria Kondh people. was more of an apologia really, raise awareness of legal aid and Gordon Bennett GLiz Davies reading something like, ‘Please why it is worth saving. take me back… I am sorry I said Getting away from the legalese you were boring because you of ‘matter starts’ and ‘contracts’, shackled in his interviews. always go on about law… it’s the campaign is designed to 5. It was clear not only from the actually really interesting’. It illustrate in ordinary language reports of the content of the didn’t work. why ordinary people should care interviews but also from the report Still, it was a cutting reminder about legal aid. The aim is to that he was being kept under self- that for most people the law, let divert attention from tabloid harm observation, that the alone banging on about how it is sensations about apparently interviews were having a marked funded, is pretty boring. Perhaps trivial cases which waste public effect upon him and causing him that is why it is so difficult to get funds, and to peel away the tired, mental stress and suffering. the public on side in the battle to fat cat-lawyer-gravy-train claims 6. We... have to conclude that the save legal aid and hard to to reveal the stories about how reports provide to the Security persuade our politicians that legal legal aid has helped save homes, Service made clear to anyone aid is worth saving. access to health and social care, reading them that BM was being But why should it be so hard? and in some cases, even lives. subjected to the treatment that we The tabloids are crammed with If people can be made to see have described and the effect upon tales of crime and crisis – the stuff what legal aid can do for them, subjected to continuous sleep him of that intentional treatment. at the very heart of most legal aid then it will be easier to make the deprivation. The effects... were 7. The treatment reported, if it had cases. Isn’t there also a part of the economic and political case for it. carefully observed. been administered on behalf of the ordinary person in the street, as But time is of the essence. As 3. It was reported that combined United Kingdom, would clearly opposed to the Clapham financial pressure mounts on all with the sleep deprivation, threats have been in breach of the omnibus, that feels passionately public bodies during the and inducements were made to him. undertakings given in 1972. about the values legal aid recession, they are more and His fears of being removed from Although it is not necessary for us to champions: fairness, dignity and more likely to make decisions United States custody and categorise the treatment reported, it justice? that impact adversely on ‘disappearing’ were played upon. could readily be contended to be at If lawyers could learn to vulnerable members of society. 4. It was reported that the stress the very least cruel, inhuman and communicate the essence of our Legal aid will be more important brought about by these deliberate degrading treatment by the United work in a way that the general than ever in this economic tactics was increased by him being States authorities. public could understand and climate to ensure vulnerable identify with, saving legal aid people do not lose out unfairly as might be something that everyone corners are cut. March would sign up to. At the end of a If legal aid is not to be a 3: Justice Secretary Jack 4: The Digital Economy 5: A British soldier who case I have often been told by casualty of election campaigns Straw says the Legal Bill could become law refused to return to duty in clients how grateful they are that competing to be tough on law Services Commission, before Parliament is Afghanistan and legal aid has been able to help and order or public spending, we the body which dissolved at the subsequently spoke at anti- them; how they never thought it all need to join in with the ‘Save distributes the £2.1billion beginning of April, war rallies, Lance Corporal would happen to them or that Legal Aid’ campaign now. civil and criminal legal aid enabling rights owners Joe Glenton, receives a G budget, is to be to cut off or restrict nine-month jail sentence. you could even get legal aid for Laura Janes abolished after 10 years. internet access for Messages of support to things like being protected from a For more information visit It will be replaced by an users who download defendjoeglenton violent husband or getting www.younglegalaidlawyers.org ‘executive agency’. films and music illegally. @gmail.com somewhere safe to live on release and www.savelegalaid.org

Socialist Lawyer G March 2010 I 11 Over the last year we have seen the systematic unravelling of the Government’s so-called anti- terrorism laws. Chris Loxton asks if this is... REGIME CHANGE? he British Government has faced a involved in terrorism prior to his arrival in the full-frontal assault on the legality of UK, but throughout his detention and in the two its anti-terror laws, most recently and a half years since his release – initially on through challenges to the use of Special Immigration Appeals Commission control orders and asset freezing (SIAC) bail and then under a control order – orders. Since the House of Lords’ there was nothing of substance giving rise to rea- Tseminal ruling on the application of control sonable suspicion of his re-engagement in ter- orders in June 2009 (Secretary of State for the rorism-related activity. Home Department v F, E and N [2009] UKHL Arriving at his conclusion, Mr Justice Wilkie 28), the High Court has seen a slew of chal- drew particular attention to the evidence given lenges to the legality of their use. Nine law lords by a Home Office civil servant and a member of held unanimously that the procedural and evi- the Security Services. When asked for their dential basis upon which control orders were views of Al Saadi being allowed to leave the UK applied for – in particular the use of secret evi- (under the control order he could only do so dence – violated the accused’s right to a fair with the permission of the SSHD), both wit- hearing under Article 6 of the European Con- nesses’ answers were described by the judge as vention on Human Rights (ECHR). Their lord- ‘indicative of a relaxed view’ even were Al Saadi ships gave deference to the recent decision of to be fully at liberty abroad. No evidence was the Strasbourg Court in A v United Kingdom put forward that the SSHD would require any (Application No.3455/05) that ‘the controlee kind of assurance from a foreign country that must be given sufficient information about the Al Saadi would be subject to supervision or con- allegations against him to enable him to give trol. These were telling indications in the judge’s effective instructions to those allegations’. view as to the seriousness, or lack thereof, with The ruling now means that if the Secretary of which both the SSHD and the Security Services State for the Home Department (SSHD) refuses viewed the prospective activity of Al Saadi. to disclose material which the Courts considers Although Al Saadi remained disaffected ought to be disclosed under Article 6, such evi- from the state and mainstream UK society and dence cannot be relied on by the SSHD in con- adhered to a view of Islam with which many trol order proceedings. would feel uncomfortable, Mr Justice Wilkie Thus far, five controlees have had their emphasised such views fell ‘some way short’ of orders quashed or revoked following the judg- being sufficient evidence of engagement in ter- ment, including two of the appellants in the case rorist related activity so as to ‘necessitate the before the House of Lords – referred to as ‘AE’ onerous intrusion into his life represented by a and ‘AF’ in proceedings – and most recently a control order’. Libyan national, Faraj Hasan Al Saadi (referred Speaking after the ruling, Al Saadi admon- to as ‘AS’). ished control orders as ‘Apartheid-style house Mr Justice Wilkie, passing judgment in Al arrest’, their intended use being to ‘break you Saadi’s case, emphasised that mere suspicion and make you want to leave the country’. could not suffice for considering that a person was or had been involved in terrorism and Remedying wrongs whether it was necessary to subject that person to In Secretary of State for the Home Department a control order for the purposes of protecting the v AF and AE [2010] EWHC 42 (Admin), two public. Reasonable suspicion meant a genuine of the original appellants in the case before the suspicion had to be formed such that a reasonable House of Lords sought to determine whether man, having regard to all the circumstances, claims for damages could be brought against would regard the grounds as reasonable. The the SSHD for being subject to orders that were judge cautioned against the dangers of guilt by subsequently revoked in the light of the law association, quoting Mr Justice Collins in SSHD lords’ ruling. v Bullivant [2008] EWHC B2 (Admin) that Both applicants had been subject to control ‘expressions of support for Islamic extremists... orders for over three years. Following the law [and]...the sharing of extremist views or keeping lords’ decision their orders had been revoked by company with extremists will not suffice’. the SSHD on the basis that he was unwilling to The judge concluded that there were grounds make disclosure of closed evidence relied upon for reasonably suspecting Al Saadi had been in proceedings.

12 I Socialist Lawyer G March 2010 Home Secretary What these cases surely reflect is that the use of Alan Johnson MP: “disappointed”. control orders are ‘a hopeless device in a modern democracy’ and ‘a small gasp of defeat’

Mr Justice Silber described the applicants’ The thawing of asset orders case as an attempt to obtain a remedy for seri- In Ahmed & others v HM Treasury ([2010] ous wrongs imposed on them in the form of UKSC 2), the Supreme Court allowed a challenge substantial restrictions on their ability to lead brought by five men who had their assets frozen normal lives in breach of their Article 6 rights. under two Orders-in-Council, made in response In justifying the basis for claiming damages, to UN Security Council resolutions calling for reference was made to Lord Justice Sedley’s action to halt the financing of international ter- view in R (K) v Camden and Islington Health rorism. The Court found that the effect of asset Authority [2002] QB 198 that ‘an effective freezing on the individuals and their families was remedy for violations of Convention rights severe. To take the example of one of the appel- reflects the long-standing principle of our law lants, the whole of his assets were frozen. He was that where there is a right there should be a dependent for subsistence on welfare benefits remedy’. Compliance with this principle clearly claimed by his wife. She, in turn, was only al- meant in this case that the applicants could be lowed to spend her benefits on ‘basic expenses’ entitled to compensation for the serious and, until recently, had been required to report wrongs imposed upon them under the control every item of expenditure, no matter how small, orders. to the Treasury, including any money spent by The principle of equality of arms was also of her children. Given that she and her children primary importance to adjudicating disputes were not the subject of any asset freezing orders, between individuals and the state. The appli- this was an extraordinary invasion of her privacy. cation of the principle to control orders meant The Court directed itself that, the greater the that a party could not be ‘doomed to lose his level of interference with fundamental rights, the case’ by reason of not knowing the full extent more Parliamentary scrutiny should be given to of the case against him. Unless the controlees the measures before they become law. In the cases knew the case against them, they would almost of the two Orders, no Parliamentary scrutiny had certainly either lose their rights to clear their been given to them at all. They had simply been names or at the very least have great difficulties laid before Parliament as Orders in Council. in enforcing those rights. Orders laid in that fashion are therefore only In Mr Justice Silber’s opinion, the fact that legitimate when the interference with fundamen- current (and potential) controlees could now tal rights to which the Orders give rise is no demand to know the full extent of the case greater than that required by the UN’s regime. If against them would likely mean disclosure in the Government considered such far-reaching future should either take its ordinary form or measures to be necessary or expedient in com- procedures would have to be adopted to pro- bating terrorism or honouring the UK’s interna- vide for hearings in camera with controlees and tional obligations, it must first obtain the their legal representatives giving undertakings approval of Parliament. of secrecy. Lord Hope, in an agreed judgment with Lord Despite concluding that the applicants were Walker and Lady Hale, condemned the Terrorism entitled in principle to damages, the judge took (United Nations Measures) Order 2006 (TO) the view that any such awards would likely be and the Al-Qaida and Taliban (United Measures) small in light of the Strasbourg Court’s view of Order 2006 (AQO) as clear examples of ‘an compensation available to the foreign con- attempt to adversely affect the basic rights of the trolees in A v United Kingdom. In the Euro- citizen without the clear authority of Parliament’. pean case, the Strasbourg judges had concluded The justices stated that those affected by the that the foreign controlees who had all been orders had not had the opportunity to challenge detained for over three years and who, together the grounds on which they were suspected (but with their families, had suffered mental illness not charged) of financing terrorism. It had not and distress, should only be entitled to damages been the intention of Parliament to give the Trea- of several thousand euros each. The Court took sury power to make orders without parliamentary account of the fact that ‘the detention scrutiny that interfered so profoundly with indi- scheme…was devised in good faith, as an viduals’ fundamental rights. attempt to reconcile the need to prevent the The following day, 5th February 2010, the commission of acts of terrorism with the oblig- Treasury published a Terrorist Asset-Freezing ation under Article 3 of the Convention not to (Temporary Provisions) Bill, which then came remove or deport any person to any country into force on 10th February. The Act re-enacts the where he could face a real risk of ill-treatment’. TO that was struck down by the Court, on a tem- Responding to the decision, the SSHD, Alan porary basis until 31st December 2010. The idea, Johnson, made his expected disappointment presumably, is that Parliament will debate a per- clear, emphasising his intentions to appeal ‘in manent replacement after the general election. the strongest possible terms’, while insisting Individuals who had their assets frozen under the that the payment of damages to former con- AQO find that their assets remain frozen because trolees would be robustly resisted. European Union has enacted directly effective What these cases surely reflect is that the use legislation, which has the same effect. of control orders are, in the words of the former DPP, Ken Macdonald QC, ‘a hopeless device in G Chris Loxton is a Bar school graduate, a modern democracy’ and ‘a small gasp of Secretary of the Haldane Society and a member

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: defeat’ in the face of actual Islamic terrorism. of the Society’s Executive

Socialist Lawyer G March 2010 I 13 UNION RIGHT TH

In the week before Christmas, the union Unite was banned, by an injunction, from taking industrial action following the breakdown of negotiations with British Airways. Keith Ewing looks at this extraordinary decision...

he company had proposed to Court (beginning with the unani- reduce the size of crews on a mous ruling of 17 Grand Chamber number of flights – a proposal judges in Demir and Baykara v which the union claimed was Turkey, on 12 November 2008) are unlawful. It is a striking feature nothing short of extraordinary. Apart of the injunction (no pun from explicitly turning its back on 30 Tintended) that it was granted despite the years of jurisprudence to say that core fact that the European Court of Human labour rights must be read into the Con- Rights has recently opened up Article 11 vention, the Court said that these rights of the European Convention on Human are to be defined in accordance with the Rights (ECHR). These freedom of associ- treaties (Conventions 87 and 98) and ation guarantees have now been read to jurisprudence of the International Labour include the right to bargain collectively Organisation. and, subsequently, the right to organise Not only that: the Demir and Baykara court and take part in collective action. emphasised further that the scope and content It is striking also that the injunction was of the newly expanded Article 11 of the ECHR granted, despite the fact that the Human Rights are to be read in accordance with the Council Act 1998 was supposed to incorporate Con- of Europe’s Social Charter of 1961, and the vention rights into domestic law, not in a form jurisprudence of the Social Rights Committee fossilised on the date the Act was brought into established there-under. This is good news for force, but in a way (per section 2 of the Act) British unions, given that the latter Committee that takes account of the evolving jurispru- has consistently held that British anti-strike law dence of the Strasbourg Court. The latter is breaches the Charter, as have equivalent Inter- supposed to guide the English courts in their national Labour Organisation supervisory duty to construe domestic law consistently with bodies (notably the Committee of Experts) in Convention rights. relation to International Labour Organisation The recent decisions of the Strasbourg (ILO) Convention 87. Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures:

14 I Socialist Lawyer G March 2010 TO STRIKE ROTTLED BY APPEAL COURT

The jurisprudence of the Strasbourg Court of trade union rights to freedom of association, a number of people who had taken voluntary has been contemptuously disregarded by the with the HRA inhibiting that process with its redundancy and so would not be participating Court of Appeal in London, in another case introduction of new temporal and financial in the action, an oversight causing problems involving Unite. This was the occasion of an obstacles. also for other provisions of the legislation that injunction granted to Metrobus, in the course of This conclusion brings us back to the cabin require the union to give details to the employer a dispute by London bus workers, seeking to crew injunction, which illustrates just how wide of pre-ballot notice and pre-strike notice of establish London-wide collective bargaining the gap is between domestic legislation and affected employees; a term that does not include arrangements. According to the Court of Convention rights. The announcement by Unite those who had left the service of the employer. Appeal, the ILO and Council of Europe mater- of intended industrial action was made follow- It was immaterial that the oversight on the part ial on labour rights was to be treated as being no ing a ballot in which the cabin crew voted over- of the union was ‘unlikely to affect the result of more than ‘part of the context’ of the Stras- whelmingly in favour. According to Cox J, the ballot’. bourg decisions. before whom the case was heard, 10,286 In light of the Demir and Baycara decision, This is a conclusion confounded by even the it is particularly galling that the injunction in most cursory reading of Demir. However, in this case was granted by Cox J, even if she could diminishing the importance of the Strasbourg plausibly claim to have been constrained by the jurisprudence, Metrobus permitted an injunc- Court of Appeal in Metrobus. It is particularly tion to be maintained on the flimsiest grounds, galling because Cox J happens to be a member undermining action that had the support of a of the ILO Committee of Experts, to which ref- majority of workers voting in a ballot. For erence has already been made. As she pointed example, the action was ruled unlawful because out, however, ‘sooner or later, the extent to the union had failed to tell the employees that which the current statutory regime [on the right the information it provided about the ballot had to strike in the UK] is in compliance with those been produced from its computerised member- international obligations and with relevant ship records, information of no consequence international jurisprudence will fall to be care- whatsoever. fully reconsidered’. Flimsy or not, Metrobus was followed in a In the light of the developing jurisprudence case involving energy company EDF in a dis- of the European Court of Human Rights, the pute with the National Union of Rail, Maritime reconsideration to which Cox J refers needs and Transport Workers. Here, Blake J granted urgently to take place in Strasbourg. The recent an injunction because the union had failed to employees voted in the ballot, of whom 9,514 Strasbourg jurisprudence holds open the possi- give adequate information to the employer – in (‘that is 92.49 per cent of those voting, on a bility that many of the current restrictions on a notice of intent to hold a strike ballot – about turnout of 80 per cent’) were in favour of strike trade union freedom in British law will have to the category of workers to be balloted. The cat- action. be removed, with far-reaching implications for egory of ‘engineer/technician’ members was So how could it possibly be that action whichever party wins the 2010 general election. held to be too imprecise, even though it was the demonstrating such intense levels of support for This sorry tale also has implications for the best the union could do, it was a categorisation industrial action could be stopped in the courts? Human Rights Act 1998, to the extent that widely used in the industry and the employer In their panic to have the action banned, the there is a compelling need for the debate on the suffered no prejudice as a result of its use. employers stumbled across a provision of the Left about its future to be grounded more in It is thus crystal clear that incorporation of Trade Union and Labour Relations (Consoli- reality, and rather less on iconography. Convention rights by the Human Rights Act dation) Act 1992 which says that when ballot- 1998 (HRA) is of little consequence for British ing for industrial action, the union must include GK D Ewing is Professor of Public Law at Kings trade unions, for whom it is business as usual in in the ballot those ‘who it is reasonable at the College London and President of the Institute of the domestic courts, raising wider questions time of the ballot for the union to believe will be Employment Rights. His forthcoming book, Bon- about why they should lend their weight to the induced by the union to take part . . . in the fire of the Liberties – New Labour, Human Rights retention of the Act. The road to Strasbourg industrial action’, and ‘no others’. and the Rule of Law, will be published by Oxford continues to be the only route for the protection In this case, Unite had included in the ballot University Press.

Socialist Lawyer G March 2010 I 15 Brazilian Indians win legal battle

They have won their ancestral land but, Ana Naomi de Sousa reports,

n 19th March 2009, the Wapixana, Ingarikó, Taurepang and Pata- The rice-growers, or rizicultores, who sell Supreme Court of Brazil finally mona peoples, and includes around 150 set- their produce primarily in the Amazonian cap- put an end to three decades of tlements. ital of Manaus, have been present in the dis- struggle for the rights of five in- Recognised by FUNAI, the National In- puted region of Roraima since the 1970s and digenous groups to their ances- digenous Foundation (under the Ministry of on a larger scale since the mid-1990s. Yet in tral land in the state of Justice) and the National Institute for Agrarian the case of Raposa/Serra do Sol reserve, they ORoraima, in Brazil’s Amazon region. Reform in 1993, the Raposa/Serra do Sol re- have operated without the land deeds, títulos Four years after President Lula signed a serve was demarcated in 1998 under the gov- de propriedade, required under Brazilian law. decree guaranteeing the rights of the Indians to ernment of then-President Fernando Henrique Rice is one of the most important sectors of the 1.7 million-hectare Raposa/Serra do Sol re- Cardoso. It was to include 1.7 million hectares the state’s economy, and the growers have long serve, the opposing rice-growers – and their of land. Lamentably, the declaration was never enjoyed the support of local politicians – a political allies – were finally forced to accept ratified and incursions by non-indigenous state of affairs replicated in many of Brazil’s the decision of the Brazilian judiciary and to groups continued for over a decade. land battles. leave the area definitively. The large-scale rice growers who have However, despite the temporary victory, come to symbolise the opposition to the President Lula ratifies the reservations attached to the decision pose a Raposa/Serra do Sol reserve are only the latest demarcation of the reserve threat to the future of indigenous people not intruders. In the past Spanish, Portuguese, The election of President Luiz Inacio ‘Lula’ da just in Roraima, but all over Brazil, where the Dutch and English explorers all vied after the Silva in 2002 heralded a new era for land fight for the rights of native communities con- mineral wealth of the region, and since in the struggles in Brazil. From the outset, Lula was tinues. twentieth century cattle-ranchers, wood-cut- quick to voice his support for the country’s ters and wildcat miners prospecting for gold three million landless farmers, who have tra- Roraima and the history of the and diamonds have sought the riches of lands ditionally struggled against the so-called lati- Raposa/Serra do Sol reserve which indigenous groups inhabited for hun- fundios: large land-owners who possess over In the far-northern Amazon region of Brazil, in dreds of years before them. 40 per cent of the national territory, with ap- an area bordering Venezuela and Guayana, lies Bringing disease and often resorting to vio- proximately half of their vast estates situated the state of Roraima. Home to 44,000 native lence to seize land, the practices of non-in- in the Amazon region. In 2005, Lula approved Brazilians, it is the state with the largest in- digenous settlers have also caused the demarcation of the Raposa/Serra do Sol digenous population in the country, and deforestation and the contamination of local reserve, and a deadline of one year was set for almost half its territory is divided into a series soil and water, for example with mercury, used all non-indigenous settlers in the area to leave. of protected reserves. by gold miners, and pesticides employed by Raposa/Serra do Sol, one of 32 reserves in rice growers; facts recognised by the Inter- Resistance and struggle in 2008 the state, is home to between 17,000 and American Commission on Human Rights in More than three years later, the rizicultores re- 20,000 members of the indigenous Makuxi, 1997 in their report on Raposa/Serra do Sol. mained, and the situation became critical.

16 I Socialist Lawyer G March 2010 restrictions on the Court decison could endanger the future of their reserves

A military and police operation – dubbed Op- indigenous people were shot whilst they con- Mendes, one of the Supreme Court judges eration Upatakon, meaning ‘our land’ in the structed houses on previously occupied land. pointing out that they had ‘established a Macuxi language – to oversee the removals of In August that year, the case came to the statute that has to be applied not only in the non-indigenous settlers proved the catalyst for Supreme Court, with Joenia Batista de Car- Raposa Serra do Sol case, but also in other a new wave of resistance, and the rice-growers valho, a Wapichana lawyer and head of the In- cases of demarcation’, there is still reason to be refused to leave. digenous Council of Roraima’s legal concerned for the future of indigenous land As local indigenous communities appealed department defending the reserve, becoming rights in Brazil. for their removal, the Roraima state govern- the first indigenous lawyer to defend her The nineteen reservations attached to the ment rushed to the aide of the rice producers people in Brazil’s Supreme Court. ‘We are ac- case allow for military installations, road net- and lodged an appeal at the Supreme Court, cused of being thieves on our own land,’ she works, alternative energy exploration, and questioning the demarcation of the reserve as told the court. ‘We are defamed and discrimi- ‘projects’ and ‘works’ to be undertaken with- unconstitutional and requesting it be reduced nated against, and this must end.’ out the need for consent from the local in- in size. Such a decision would have left the In- According to Brazilian law, ten judges of digenous community. In effect, the dians in a series of isolated islands and would the Supreme Tribunal must each vote for or reservations limit the security of indigenous have had severe consequences for the future of against the decision of an eleventh, the rap- communities in their reserves and provide a other indigenous reserves in Brazil. porteur, who is the first to review the case. legal basis for the Government to infringe their Playing on old fears, the state government Minister Ayres Britto’s decision in the Serra do rights as guaranteed in the Brazilian constitu- claimed that the demarcation of the reserve Sol case was in favour of the continued de- tion, which stipulates that: ‘Indians shall have posed a threat to national security, owing to its marcation of the reserve, and of the removal of … their original rights to the lands they tradi- proximity to the borders with Venezuela and non-indigenous settlers, though he attached a tionally occupy, it being incumbent upon the Guyana. They also alleged that the state’s in- series of reservations to his decision. After Union to demarcate them, protect and ensure digenous reserves hamper the development of three judges delayed their decisions, the final respect for all of their property.’ Roraima and impede economic activities; ar- judgment was further postponed until early The residents of the Raposa/Serra do Sol guments that have been heard often in Brazil 2009. reserve may have succeeded in evicting the ag- over the course of its history. gressive rice producers and even defeating their In a bid to appease them, President Lula of- Resolution in 2009 powerful political allies, but if government fered five million hectares of federal land to Eventually, however, the remaining Supreme needs and defence interests can still take prece- Roraima state on which the rice farmers could Court judges returned with a majority verdict dence over those of indigenous communities resettle, as compensation. This did little to ease in March 2009, ruling that the demarcation of in the future, the case of the Raposa/Serra do tensions. Violence flared in April 2008, with the reserve was constitutional and ordering the Sol reserve was indeed a muted victory. the perpetrators burning bridges, targeting vacation of the area by all non-indigenous set- community centres and roads, and assembling tlers. Initially hailed as victory for indigenous G Ana Naomi de Sousa is a freelance journalist home-made bombs. The following month, ten rights all over the county, with Gilmer specialising in Portuguese speaking countries.

Socialist Lawyer G March 2010 I 17 18 T confront theiraccusers andchallengetheaccu- unfair todenydefendantstheopportunity to hearsay evidenceisself-evident. Itismanifestly respectively. dence fromabsentandanonymous witnesses issues addressedweretheadmissibility ofevi- tion ofHumanRights(ECHR), and thespecific trial underArticle6oftheEuropeanConven- ciple raisedinbothcasesistherighttoafair dants incriminaltrials.Thefundamentalprin- conclusions havemajorimplicationsfordefen- in thedark is leavingdefendants new Supreme Court reports onhowthe Brian Richardson I The importanceoftheruleagainst so-called Socialist Court ([2009]UKSC14),whose and Human Rights((2009)49EHRR1) Tahery two judgments:AlKhawajaand he year2009wasbookendedby Lawyer Horncastle in theEuropeanCourtof G March 2010

in thenewSupreme A FAIR addressed byCJA 2003,butitneverthelesscame cross-examination isrenderedanullity. best effortsofdefencecounsel, in manycases, reveal theirtrueidentity. Consequently, despitethe precluded fromaskinganyquestions thatmight recognition andthedefendant’s counselwillbe screen. Theirvoicesmaybemodulated beyond room itselfthewitnesseswillbehiddenbehinda are likelytobeheavilyredacted.Within thecourt- statements madebythesewitnessesbeforethetrial that thedefendantisunabletoidentify. Written hearsay hurdlebut,bydefinition,itisfromsources given orallyintheproceedingssoclears raises aslightlydifferentconcern.Itisevidence hearsay evidenceshouldbeconsidered. given bytheJudgeaboutcautionwithwhich the requirementthatanappropriatedirectionis rights ofdefendantsaresupposedlyprotectedby give) oralevidenceintheproceedings…’.The person doesnotgive(orcontinueto circumstances where‘throughfeartherelevant ‘was notreasonablypracticabletosecure’andin who havedied,fromthosewhoseattendanceit evidence fromabsentwitnessesincludingthose ditions thatwouldallowfortheadmissionof tion ofwitnessesandtheinterestsjustice. a fairtrialmustbebalancedagainsttheprotec- evidence. Thus,itisargued,adefendant’s rightto cumstances whichjustifytheadmissionofsuch ment’s positionisthatthereareexceptionalcir- use ofhearsayevidenceinEnglishlaw. Parlia- TRIAL?in actualfact,beenanabsoluteprohibitiononthe Convention rights.Forexampletherehasnever, jurisdictions whenconsideringandapplying and necessarymeasuresestablishedbydomestic Chamber failedtotakeaccountofthespecific we awaitStrasbourg’s judgement. case ofHorncastle sion untiltheSupremeCourthaddecidedon Grand Chamber. Strasbourgadjourneditsdeci- therefore soughtadefinitivejudgmentfromthe the EuropeanCourtsittingasaChamber, and by thisdecision,madethefourthsectionof such evidence. justify anyconvictionssecuredonthebasisof ceive ofanycounterbalancingfactorsthatmight lenge. Cruciallytherulingwasunabletocon- dant isunabletoproperlyexamineandchal- upon statementsfromwitnessesthatthedefen- him orherisbased‘solelytoadecisivedegree’ irretrievably compromisedifthecaseagainst grounds thatadefendant’s righttoafairtrialis Act 2003(CJA2003). pursuant tos116(2)(e)oftheCriminalJustice through fearofreprisals.Hisevidencewasread The witnesslaterrefusedtogiveevidence police thathehadseenTahery stabthevictim. him includedthatofamanwhoinformedthe victed ofGBHwithintent.Theevidenceagainst 1988. Tahery, thesecondapplicant,wascon- suant toss23-28oftheCriminalJusticeAct came totrial.Herstatementwasadmittedpur- subsequently committedsuicidebeforethecase complainant madeastatementtothepolicebut indecent assaultonfemalepatients.Thefirst credibility ofthosewitnesses. racy andhonestyoftheiraccountsaswellthe This typeofevidencewasnot explicitly The evidenceofanonymouseyewitnesses S116 oftheCJA2003codifiedasetcon- The basisoftheobjectionisabeliefthat The UKGovernmentwasdeeplydisturbed Strasbourg upheldbothapplicationsonthe Al Khawajawasconvictedontwocountsof and so,atthetimeofwriting,

Pictures: Jess Hurd / reportdigital.co.uk as something of a shock to politicians and address the provisions of the European Con- observers when the House of Lords upheld the vention of Human Rights’. This confident asser- appeal of Iain Davis on 18th June 2008 ([2008] tion was, however called into question by the 1 AC 1128, CA). The appellant had been con- decision in Al Khawaja and Tahery. victed of a particularly macabre offence in which Following that pronouncement, Horncastle a single bullet fired at a New Year’s Eve party was considered by the Court of Appeal ([2009] had fatally wounded one person then passed EWCA Crim 964, CA). That judgment in March through a partition wall and killed a second last year was dismissive of Strasbourg’s ‘sole and guest. Seven witnesses who gave evidence at the decisive’ evidence test, suggesting both that it is trial did so anonymously. Moreover it was simply one of the factors courts must consider accepted by the Law Lords that without the tes- and that the safeguards required by Strasbourg timony of three of these witnesses Davis would are already established in English law. not have been convicted. The Supreme Court’s later ruling fully adopts Their Lordships clearly accepted that there the decision of the lower court. Indeed, in their may be circumstances in which the admission of judgment their Lordships indicate that their dec- evidence from anonymous witnesses was justi- laration should be read in conjunction with that fied. Nevertheless they acknowledged that, of the Court of Appeal. Giving the lead opinion, despite the increasingly widespread practice by Lord Phillips, its President, made three very spe- trial judges, there was no power to admit it cific points: under the common law and that any change to (i) The common law hearsay rule addressed the this long-established principle would have to be aspect of a fair trial covered by Article 6(3) (d), and introduced by Parliament. Parliament had enacted exceptions to the hearsay Practitioners and students of criminal law may rule in a regime which contained safeguards that recall the hue and cry whipped up by the Govern- rendered the ‘sole and decisive’ rule unnecessary. ment, police, Crown Prosecution Service and (ii) Strasbourg had recognised that exceptions media in the immediate aftermath of that deci- to Article 6(3) (d) were required in the interests of sion. The then head of Scotland Yard’s Counter justice, but the jurisprudence on the exceptions Terrorist Command, Bob Quick, described the lacked clarity and had introduced a ‘sole and deci- ruling as ‘catastrophic’ and suggested that ‘[t]here sive’ rule without discussion of the principle under- is too much principle and not enough pragmatism lying it or full consideration of whether it was jus- in the criminal justice system’. tified to impose it equally on common law and Justice Secretary Jack Straw’s response was continental jurisdictions. slightly more measured. He acknowledged that (iii) The ‘sole and decisive’ rule would create ‘[i]t is fundamental that defendants should be severe practical difficulties if applied to English able, literally to see and hear the evidence before criminal procedure. them’. However he added ‘[b]ut you have got to In fact, the Supreme Court decision goes balance that against what actually happens in real slightly further than the Court of Appeal as, life these days where you’ve got very serious gun unlike the lower court, it also addressed the and drug crime and there is a high level of fear’. question of anonymous witnesses. In so doing, The opportunism of Government ministers in it recognised that ‘whether evidence is or is likely such circumstances is breathtaking. Barely paus- to be sole or decisive is relevant to the question ing for thought, successive Home and Justice Sec- of whether the court should permit it to be given retaries have casually flitted from boasting about anonymously but…’ it added ‘there is no their administration’s record on cutting crime to mandatory rule prohibiting the admission of claiming that society faces an unprecedented such evidence’. threat unless their increasingly draconian mea- As we begin a new decade, these new rules sures are passed into law. are becoming increasingly entrenched. From the It was suggested that the implications of the 1st January 2010, new witness anonymity pro- ruling in Davis would lead to the collapse of visions contained within Chapter 2 of Part 3 of dozens of pending trials, including the emotive the Coroners and Justice Act 2009 have replaced case of the youths charged with killing 11-year- the defunct CE (WA) Act 2008. A Ministry of old Rhys Jones in Liverpool. In addition, it was Justice circular dated 17th December 2009 argued that a whole series of convictions would announced that the new scheme is very similar have to be quashed. Notable among these would to that of the 2008 Act. The provisions have sim- be that of the men jailed for killing two teenagers, ply been ‘fleshed out’ to expand upon those Charlene Ellis and Letitia Shakespeare, in 2003 areas which were not fully considered when the at a New Year party in Birmingham. original measures were passed. It was in this atmosphere of hysteria that Par- The original assertion in the wake of Davis liament passed the Criminal Evidence (Witness that so many convictions and trials would be Anonymity) Act 2008 (CE (WA) Act 2008). This placed in jeopardy is somewhat telling. It sug- addressed their Lordships’ concerns and estab- gests that, far from being an exceptional measure lished a set of conditions for the admission of evi- deployed only after all other safeguards have dence from such witnesses. It received its Royal been considered as the legislation requires, Assent on 21st July 2008, barely a month after anonymity is being routinely offered in return for the Davis ruling. Any concern about the haste a witness’s agreement to give evidence. Defen- with which it was drafted, debated and dants were already at a distinct disadvantage in approved was, supposedly, allayed by the inclu- criminal proceedings, battling as they must sion of a so-called ‘sunset clause’, which would against the might of the state. These rulings and see the legislation lapse at the end of 2009. provisions mark a further erosion of the ancient, The Court of Appeal considered the compat- if illusory, principle of the equality of arms. ibility of the CE (WA) Act in Mayers ([2008] EWCA Crim 2989, CA) and happily concluded GBrian Richardson is a pupil barrister at Garden that it ‘provided a comprehensive structure to Court Chambers and a member of the Haldane deal with witness anonymity and sought to Society Executive.

Socialist Lawyer G March 2010 I 19 CLIMATE C IN THE COU

20 I Socialist Lawyer G March 2010 CHANGE URTROOM

Copenhagen failed to tackle the most serious crisis humanity has ever faced. Can the tools of the lawyer’s trade help save the planet?

Socialist Lawyer G March 2010 I 21 s early as the 1950s, the first law suits were filed in response to the first major study to show a causal by Richard Harvey link between smoking and lung cancer, but it took almost half a century before ‘big tobacco’ was G Help to confront and punish a notorious polluter; A G forced by juries in the United States to pay big awards. Protect campaigners facing criminal charges or civil suits, In the 1970s, in the days before tetraethyl lead (TEL) while causing embarrassment to the targets of their cam- levels in petrol were regulated, a client of the North Kens- paigns; and ington Neighbourhood Law Centre in London lived next to G It can be used tactically, to bring parties to the negotiat- a recently-constructed flyover. His children began doing ing table with the aim of settling out of court. poorly in school. They were tested at the local hospital and found to have dangerously high levels of lead in their blood. The Kivalina Case The Law Centre brought a High Court action against the The native Iñupiat village of Kivalina in North Alaska is leading petrol companies. The companies moved successfully beginning to fall into the ocean. Ice, formerly a wave bar- to strike out the claim as having no basis in law and the Law rier, is melting because of Greenhouse Gas (GHG) emis- Centre was lucky not to be hit with a crippling costs award. sions. The 400 villagers will have to be relocated at a cost Just over a decade later, the World Health Organisation of up to $400 million. However, they are not going quietly; labelled TEL ‘the mistake of the 20th Century’. It is now they are taking some of the most powerful corporations on scientifically accepted that TEL retards the mental devel- earth to court. Kivalina v. ExxonMobil Corp., et al., (2008) opment of children and petrol companies have removed constitutes an important development in rights-based liti- TEL from their product. gation against those principally responsible for climate Climate change litigation has increased exponentially in change. The suit claims damages related to climate change the new century. The Center for Climate Change Law against nine oil companies (including ExxonMobil, BP and shows that only five climate change actions were brought Royal Dutch Shell) as well as fourteen power companies in the US in the whole of the 1990s. Eleven came before the and one coal company. courts between 2000 and 2005. Following the entry into Their complaint echoes the rights guaranteed under the force of the Kyoto Protocol in 2005, 11 suits were filed in Universal Declaration of Human Rights (UDHR) and In- 2006, rising to 31 in 2007 and 71 in 2008. ternational Covenant on Economic Social and Cultural The human rights approach has been used in different Rights (ICESCR) in asserting that ‘Defendants’ emissions of jurisdictions and litigation can achieve more than one pur- carbon dioxide and other greenhouse gases, by contribut- pose. As the cases below show, it can: ing to global warming, constitute a substantial and unrea- G Force governments or corporations to disclose informa- sonable interference with public rights’. tion which may help to educate the public about the po- Historically, climate change nuisance claims have been tential environmental impact of a given project, for rejected by courts. The main problem has been showing example, by using the rules of disclosure in criminal or civil that individual polluters’ emissions were the proximate cases or by employing freedom of information legislation; cause of the plaintiffs’ harm. It is also hard to prove the Climate change litigation has increased exponentially in the 21

22 I Socialist Lawyer G March 2010 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

degree to which the harm was increased owing to an indi- The Inuits’ approach was to avoid taking on the wealthy vidual defendant’s emissions. The Kivalina suit ingeniously transnational corporations in protracted and costly court attempts to circumvent these problems by including claims battles. Instead, they seek a form of international equitable for civil conspiracy. relief in a cooperative approach to resolving the problems The complaint cites the Arctic Climate Impact Assess- caused by climate change. The case remains under review. ment (ACIA) to show that defendants ‘conspired to create false scientific debate about global warming in order to de- The Niger Delta ceive the public.’ The plaintiffs accuse ExxonMobil, AEP, In 2005, eight Nigerian communities in the Niger Delta BP America Inc, Chevron Corporation, ConocoPhillips filed a case in the Federal High Court of Nigeria against Company, Duke Energy, Peabody, and Southern of engag- Shell, ExxonMobil, ChevronTexaco, TotalFinaElf and Agip ing in ‘… an agreement with each other to mislead the joint venture companies, the Nigerian National Petroleum public with respect to the science of global warming and to Corporation and the Nigerian Government, to stop a prac- delay public awareness of the issue’.’. tice known as gas flaring. In bringing the Kivalina suit, the San Francisco-based Refining companies are only interested in the oil and not Center on Race, Poverty and the Environment, together the gas, so they burn off the gas by ‘flaring.’ Refined, that with the Native American Rights Fund in Anchorage, have gas could be worth $15 million each day to Nigeria’s econ- drawn on the experience of tobacco litigation where plain- omy. Flaring causes mercury, benzene and lead to be re- tiffs used civil conspiracy to target corporations’ fraudulent leased if the gas is flared at too low a temperature. This campaigns to mislead the public about the effects of their cocktail of chemicals causes cancers, respiratory diseases products. and blood disorders in humans. Flaring also releases nitro- gen oxide and sulphur dioxide, creating acid rain. The Inuit Circumpolar Conference For human rights litigators, the good news came in No- A similar case on behalf of indigenous peoples in the Arctic vember 2005 when, in Gbemre v Shell et al., Justice Nwoko- was filed in December 2005, citing many of the same ar- rie in the High Court of Nigeria issued a landmark guments and scientific research as the Kivalina case. The declaration and held flaring to be a violation of the consti- tactical approach was different. Instead of targeting the pol- tutionally-guaranteed right to life. He ordered the Respon- luters themselves, the Inuit Circumpolar Conference took dents to cease flaring immediately and found they had the US Government to task for its failure to protect the Inu- violated the law by failing to carry out an environmental its’ human rights. They petitioned the Inter-American Com- impact assessment in the Applicants’ community. He ordered mission on Human Rights for ‘relief from human rights them to ‘take immediate steps to stop the further flaring of violations resulting from global warming and climate gas.’ He also ordered Nigeria’s Attorney General and Min- change caused by … the United States.’ istry of Justice to amend the law so as to remove from the The petition asserts that the US is obligated to protect statute book all provisions purporting to permit gas flaring.

the rights of the Inuit by its acceptance of the American De- However, a year later Justice Nwokorie was removed L claration of the Rights and Duties of Man. from the case and transferred to the far north of the country. st century, from five actions in all the 1990s to 71 in 2008 alone

Socialist Lawyer G March 2010 I 23 Since the Kingsnorth acquittals, new coal-powered plants will L When attempts were made to hold Shell in contempt for amount of CO2 as the 30 least polluting countries in the failing to comply with the court order, Shell were instead world combined. granted a further year within which to file and implement The acquittal of the ‘Kingsnorth Six’ is the first case a detailed scheme to phase out flaring. When the Plaintiffs’ where preventing property damage from climate change lawyer went to the courthouse in April 2007 to request a has been invoked successfully as a lawful excuse in any copy of the scheme, not only was there no scheme on file, court. The Defendants’ vindication came just over six but the court file itself was mysteriously unavailable. months later, when the UK’s new Department for Energy Shell and the Nigerian National Petroleum Corporation and Climate Change ruled that it will not allow any new continue to violate the human rights and to pollute the en- coal-powered plants to be built in Britain without carbon vironment of the people of the Niger Delta in a case that is capture and storage (CCS). Any new plants will have to far from over. However, where the rule of law is weak and guarantee 25 per cent CO2 capture immediately, with 100 corruption rife, climate change litigation in Nigeria seems per cent capture by 2025. to be winning the battle but losing the war. The Tokyo Two Greenpeace v GM International human rights law is being cited in the case of Another potential litigation strategy in seeking account- the Tokyo Two: an important environmental case in Japan, ability for climate change is the justification defence. This offering a new twist to the defence of necessity. In January has been used successfully in a number of cases by Green- 2008, Greenpeace Japan began to investigate claims by a peace activists and other environmental campaigners as well whistle-blower that crewmembers in Japan’s whaling fleet as anti-war protestors. Campaigners provoke the state into have for years been embezzling valuable whale meat and prosecuting them, with the aim of using the ensuing pub- selling it for personal gain. licity to persuade governments and transnational compa- In April 2008, Greenpeace investigators delivered to the nies to change policies and practices which damage the Tokyo District Prosecutor a box they had taken from a environment. courier depot. It was addressed to a crewmember from the The tactic was pioneered by Lord Melchett, as director whaling fleet and contained black market whale meat. In- of Greenpeace UK, in 1999 when he and 27 other activists stead of an investigation into embezzlement and high-level were acquitted of criminal damage after destroying an ex- cover-up, it was Junichi Sato and Toru Suzuki, two Green- perimental field of genetically modified crops in Norfolk. peace investigators, who were arrested and charged with Their carefully calculated legal tactics wrong-footed the theft of a box of whale meat and trespass. prosecutors, while the Defendants’ obvious sincerity and The defence has invoked Article 19 of the International desire to act in the public good even caused the officer who Covenant on Civil and Political Rights, the freedom to arrested them to decide to join Greenpeace. ‘seek, receive and impart’ information, in support of their justification defence, arguing that the Defendants’ actions The Kingsnorth Case were intended to expose official corruption and to stir The defence strategy was also used when six Greenpeace ac- debate about government-subsidised ‘research’ whaling. tivists admitted trying to shut down the Kingsnorth power This is Japan’s first ‘necessity’ defence, and lawyers for plant in October 2007 by occupying its smokestack and the Tokyo Two plan to call international human rights ex- painting the word ‘Gordon’ on its chimney. Their justifica- perts to demonstrate that this concept is also recognised in tion defence was based on the proposition that they were the European Court of Human Rights where, under Arti- trying to prevent climate change causing infinitely greater cle 10, the duty of a journalist or campaigner to gather and damage to property around the world. impart information to the public may in certain circum- Professor James Hansen, director of NASA’s Goddard stances override other duties and responsibilities, even the Institute for Space Studies, testified that there is an imme- duty to obey certain criminal laws. diate need to protect property endangered by rising sea levels. He and other witnesses cited areas at serious risk, UNESCO’s environmental mandate including parts of Kent, the Pacific island state of Tuvalu, Another field of creative lawyering is that pioneered by Cli- parts of Greenland, China’s Yellow River region, the Larsen mate Justice and a coalition of environmental organisations, B ice shelf in Antarctica, coastal areas of Bangladesh and the who have petitioned UNESCO’s World Heritage Commit- city of New Orleans. tee in 2004 to place a number of environmentally endan- Hansen said this one power station emits the same gered localities on their List of World Heritage Sites in

24 I Socialist Lawyer G March 2010 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: not be built in this country without carbon capture and storage

Danger owing to the threats posed to the sites by climate Marching in August to fossil fuel projects over a ten year period without as- change. 2008 against the sessing whether the projects contributed to global warm- In 2004 the Belize Institute of Environmental Law and building of ing or impacted the US environment, as they were required Policy petitioned UNESCO about the impact of climate Kingsnorth coal to do under the National Environmental Policy Act fired electricity change on the Belize Barrier Reef Reserve System, the largest station in (NEPA). barrier reef in the northern hemisphere, comprising offshore Rochester, Kent. Fossil fuel projects financed by the two agencies from atolls, several hundred sand cays, mangrove forests, coastal 1990 to 2003 produced cumulative emissions equivalent to lagoons and estuaries. The system’s seven sites illustrate the nearly 8% of the world’s annual CO2 emissions. In August evolutionary history of reef development and are a signifi- 2005, a federal judge found that US cities suffering eco- cant habitat for threatened species, including marine turtles, nomic and other damages from climate change had stand- manatees and the American marine crocodile. ing to sue under NEPA, opening up the courthouse doors Citing UNESCO’s Intergovernmental Oceanic Com- to those injured by climate change. Testimony from the mission, petitioners demonstrated the threats to the Reef case, which successfully asserted that climate change is real from rising sea levels; changes in sea currents resulting in and caused by human activities, later informed the Mass- interference with ecosystems and increased temperature achusetts v EPA decision, where the US Supreme Court and precipitation levels; collapse of fishing industry; coral held that carbon dioxide and other GHGs are pollutants bleaching; cholera and seafood poisoning, increasingly that can be regulated under the Clean Air Act. likely because of the warming of the oceans; and also the In February 2009, the case was settled; the Export- impacts on marine and human life of harmful algal Import Bank agreeing to take carbon dioxide emissions blooms. into account in evaluating fossil fuel projects and to create Major conservation operations are necessary to make the an organisation-wide carbon policy. OPIC has set a goal of reef system more resilient to global climate change and to reducing GHGs associated with projects by 20 per cent reduce GHGs. Petitioners ask that a Coral Bleaching Re- over the next ten years. Both agencies have committed to sponse Programme be set up to provide early warning of increasing financing for renewable energy. In an encour- major bleaching events, to monitor their spatial scope and aging note for other climate change litigators, the settle- impact, and to evaluate management policies and strategies ment awarded $100,000 in Plaintiffs’ attorneys’ fees and for dealing with mass bleaching events. They emphasise that costs pursuant to the Equal Access to Justice Act, (28 sustaining coral reefs requires a plan to reduce GHG emis- U.S.C. § 2412). sions and lessen the future impacts of climate change. Stud- The ‘Greenpeace defence,’ of goading governments and ies suggest that 40 per cent of the world’s coral reefs will transnational corporations into taking legal action that can have been lost by 2010, and another 20 per cent in the next produce a reasonably quick result in the courtroom offers two decades unless urgent management action is imple- one useful model for campaigners and litigators. Going mented. down the ‘Tobacco Road’ and taking the climate change A report by the Sydney Centre for International and fight into the halls of government and boardrooms of big Global Law on Australia’s responsibilities under interna- business can produce worthwhile negotiated settlements, tional law for the Great Barrier Reef World Heritage area as in the Friends of the Earth case. It also has the risk of highlighted many of the same problems as those cited in re- being time-consuming and costly, but it can also force di- lation to Belize. This report was considered by the WHC rectors and shareholders in the world’s greatest polluters to together with the rest of the petitions. rethink their policies. Already some oil companies are showing concern about their public image in this regard. Climate Change in the US Courtroom Shell’s climate-friendly pop-up ads all but obliterated One further case merits inclusion as an example of a suc- recent internet reports from Copenhagen, while BP’s new cessful negotiating strategy resulting from a problematic corporate logo is calculated to look as if our cars are pow- courtroom tactic. In 2002, Friends of the Earth USA, ered by organically grown sunflowers. Lawyers have a Greenpeace USA, and the City of Boulder, Colorado filed major part to play in the struggle to get the big polluters to a lawsuit in which they were later joined by the California change their policies, not just their PR. cities of Arcata, Santa Monica and Oakland. They alleged that the Export-Import Bank of the United States and the G Richard Harvey is a barrister at Garden Court Chambers, Overseas Private Investment Corporation (OPIC) illegally consultant to Greenpeace International on the Tokyo Two provided more than $32 billion in financing and insurance case and a member of the Haldane Executive Committee.

Socialist Lawyer G March 2010 I 25 he COP 15 Climate negotiations were a disaster. The end result was a three page document, now named the Copenhagen Accord (not a treaty because it is Tnon-binding, merely stating principles of which to Collapse (‘take note’)) which no country has signed up to in any event. It has no lawful authority or standing at all, it is a mere statement of vague intent. This is a sin of omission. The collective failure to act is a crime against the planet and of the all those who live within, upon and on it. Here are some simple suggestions on what to do next:

1. Shift the focus from commodity to responsibility bad cop a) Instead of market provision agreements, implement bind- ing international public trust doctrine law. Planetary pro- tection then takes pre-eminence, with direct responsibility and protection provisions setting out specific duties and Polly Higgins sets out obligations. Restorative and ecological justice becomes an- swerable in a court of law; how it should have been b) Cut the damaging subsidies and replace with emergency clean energy subsidies; done in Copenhagen

26 I Socialist Lawyer G March 2010 c) Replace the word sustainability with responsibility in all 4. Provide for, listen to and act upon the documents. voice of the people a) Those who come with wisdom, the indigenous voice, the 2. Change the procedure from hidden to activists, those who have travelled to the negotiations out transparent of the personal agenda that they care for the planet and Transparency and accountability procedures be imple- want to find an equitable solution. All voices be fully ac- mented at all levels, with legal onus to give full and frank knowledged and embraced, not marginalised; disclosure of all proceedings. Closed door meetings are b) All negotiators to be under the age of 40 – they are the banned and all negotiations be filmed in real-time and ones who are going to have to live through the outcome; streamed on TV, radio and online for general public access. c) Set up real-time public voting on issues as they arise.

3. Narrow the gap between people and 5. Listen to our mothers politicians Get a good night’s sleep and eat well. Decisions made on 48 a) All leaders to make themselves available to their people hours worth of concentrated sleep deprived negotiations at some point during the COP to account for their progress; fuelled by biscuits and caffeine lead to desperate and mis- b) Decriminalise the process. Cancel the extended police placed outcomes. As COP 15 so sadly demonstrated. powers of arrest which serve only to breed a culture of fear; c) Ensure gender balance at all levels – 51% of the world is G Polly Higgins participated in the re-drafting of the female, but 96% of the negotiators at top level are male. Copenhagen Treaty on behalf of the People’s Climate With more female input we would have a better balance of Summit. None of the people’s proposals were included in proposed solutions. the final Accord. Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer G March 2010 I 27 Will the Jackson Review deliver access to justice in environmental cases?

by James Thornton

would like to explore why environmental cases in the citizens to play a role in the balance of power. When gov- public interest are a distinctive kind of case, why the ernment cannot or will not act to protect public interests, English costs rule is a barrier to these cases that must be citizens can themselves do so where they can act as private Iremoved, why the Jackson Review does not do this, and attorneys general. how an American style rule on one way cost shifting could grant the access to justice that the UK is obliged to provide The costs barrier under the Aarhus Convention. For private attorneys general to protect the public interest, Over the last half century, a distinctly new kind of liti- the system must give them useful access to justice. Four gation has emerged globally: cases brought in the interest of conditions ensure such access: locus standi must be easy to the public. From time immemorial civil cases were about establish, costs must not be prohibitive, the scope of review private interests. But a modern conception of human rights must be broad, and remedies must be adequate. and environmental interests has led to cases that seek to In the England and Wales legal system, standing is lib- prevent or redress public harms. In the civil rights era in erally granted. This is not the case in all mature democra- the United States, cases that asserted the rights of black cit- cies. In Germany, for example, standing is very restrictive. izens to be treated equally were a central pillar on which But while the courtroom door is open in the UK, the re- change was built. Similarly, in the United States, environ- maining three conditions are problematic: costs, scope of mental protection has depended on cases to force govern- review and remedies. These three barriers mean that the ment and industry to fulfil legal duties to regulate or reduce courts in the UK are not providing the democratic oppor- pollution. tunity that they currently provide in the United States and These public interest cases assert interests that are most other EU member states. broad rather than individuated. The successful plaintiff I will focus primarily on the problem of costs here. The enjoys no benefit greater than other citizens. In effect, such English rule of ‘costs follow the event’ grew up centuries a plaintiff has brought the case not on her own ago. It makes no provision for the modern class of public behalf but on behalf of the public, to protect interest cases. an interest that is going unpro- The normal use of the English rule in environmental tected by government cases gives results in which losing plaintiffs can be actors. In such cases liable for tens of thousands of pounds, and there there is always a govern- is no barrier to being liable for a million mental entity that could pounds or more. In a recent case, the respon- have protected the interest dents in an environmental public interest case but failed to do so. When have claimed £88,100 for a three day a private citizen or a non- hearing against a woman governmental organisation who would have to sell picks up the cudgel and her house to pay. goes to battle, they do so as The costs in a private attorney general. that case have This private attorney general concept is not yet been de- distinctly modern. It is an advance in ju- termined at the risprudence we should be proud of. It is a time of writing, marker of mature civil society, and key feature but the Supreme

of modern participatory democracy. It allows Court has already said that it / reportdigital.co.uk Jess Hurd Pictures:

28 I Socialist Lawyer G March 2010 is ‘difficult to imagine circumstances in which it would be appropriate ... to allow less than £25,000 if the Respon- dents’ costs would otherwise reasonably exceed that sum’. English courts casually impose such costs every day. In doing so they are entirely out of line with the rest of the EU and with the United States. Such punitive costs act as an ef- fective barrier to justice. Indeed, they were intended to do so. Over the centuries, common law judges worked to keep private litigants from suing unless they were either so sure of victory they were willing to risk paying the other side’s costs, or so wealthy it did not matter. The result is well captured in the old line, “Her Majesty’s courts are open to all members of the public – just like the Ritz.” This old rule is entirely unsuited to the modern concept of public interest cases. Individuals or NGOs bringing such cases never have a financial interest in the outcome, and cannot afford the loss. This is evident regarding private citizens, but applies even to environmental organizations. The rule freezes them from bringing cases asserting the in- terests of the public.

The Jackson Review Lord Justice Jackson announced in January the results of his study of civil costs in England and Wales. The report’s conclusions have been widely praised. I demur. When look- ing at environmental cases, it appears that the views an- nounced in the report, if adopted, will not improve the costs problem, and may even make it worse. The final report differs from the Preliminary Report, issued in May 2009. There, it was recognised that envi- ronmental cases required special cost rules. And it appeared to favour one way cost shifting. In true one way cost shift- ing, a plaintiff who loses bears his own costs only, but a plaintiff who wins can recover costs from the other side. The final report pulls back from the idea of true one way cost shifting and instead recommends ‘qualified’ one way cost shifting in all civil cases. Under ‘qualified’ one way cost shifting, the basic pre- sumption is that the losing plaintiff still pays, as he would under the normal English rule, but his liability for costs may be qualified. The problem arises in the qualification. For the report takes the view that ‘the financial resources available to the parties may justify there being two way costs shifting in particular cases’. This effectively means that private individuals and NGOs would be in the same position as they are now. It is true that the report contains rhetoric suggesting that only the wealthy should pay. But when we consider how the system would work in practice, it seems to come down to this: losing plaintiffs would be shielded from costs only if they are poor enough to obtain legal aid. That amounts to the poorest third or so of the population of the UK and never applies to NGOs. So under the proposed costs rule, only the poorest third of the population would have access to justice. Everyone else would pay based on a reasonableness test. And we have copious evidence about what English judges think is reasonable, e.g. a minimum of £25,000 for a three day hearing in the Lords.

The Aarhus Convention The unfairness of the UK costs system is no longer entirely a domestic affair. The UK is bound by the Aarhus Con- vention, which requires that in environmental cases costs shall not be prohibitive. A point in favour of the Jackson Review is its implicit admission that the UK cost rules are not in compliance with Aarhus. The unfortunate thing is that the Review’s proposal would not put the UK in com- “When government cannot or will not pliance. The ‘qualified’ one way cost shifting leaves most act to protect public interests, citizens citizens, and almost certainly all NGOs, liable to high costs that are not knowable in advance. Indeed the one protec- can themselves do so where they tion against such costs in environmental cases – protective costs orders – could be eliminated. While protective costs L can act as private attorneys general” orders are themselves not enough to comply with Aarhus,

Socialist Lawyer G March 2010 I 29 L they did provide some costs insulation. If qualified one way costs shifting gets rid of them without moving to true one way cost shifting, plaintiffs who bring environmental cases in the public interest may well wind up worse under the proposed reforms than under the current rule.

Genuine one way cost shifting The problem with the Jackson Review’s view of costs, when it comes to environmental cases, is the qualification on the shifting of costs. I’d like to outline how genuine one way cost shifting works in environmental cases by looking at the system in the United States. The private attorneys general concept began in the United States with some of the landmark modern environ- mental legislation, the Clean Air Act and the Clean Water Act in the early 1970s. In each, members of the public are given the statutory right to step into the shoes of a govern- ment prosecutor and bring civil actions in federal courts against polluters. The successful citizen plaintiff is allowed to recover costs including legal fees against the defendant. This one way cost shifting was an invention of the ide- alistic moment in history when the environmental move- ment was new, public interest cases were first being conceived, and even Richard Nixon was happy to sign the landmark bills into law. One way cost shifting in environ- mental cases is a variant on the standard American rule. The American rule on costs in civil cases generally is that each side bears their own costs. This provides far greater access to justice than the English rule. But the one way cost shifting provided greater access yet, in that it gave private citizens and NGOs an incentive to bring cases. The incentive is justified under the theory that to re- cover costs, the citizen must show that that defendant has violated environmental law. Because this is a public harm, redress of the harm is a public good. The one way cost shifting rule has been included by one count in around 150 “When it comes to American environmental laws, making it the general rule environmental cases, in environmental cases. It applies in cases both against the Government and against legal individuals. Because one the Jackson Review is way cost shifting has proved such a useful invention of civil society, it has survived conservative governments to a missed opportunity become a fixture of the law. to provide the access A Case Study in One Way Cost Shifting Genuine one way cost shifting is effective in delivering to justice the UK is good environmental outcomes. It may be useful to illus- trate this with an example. bound to provide” In 1984, I joined an American environmental law non- profit group called The Natural Resources Defense Coun- cil (NRDC). My goal was to set up a program to enforce the Clean Water Act nationally. The Ronald Reagan ad- ministration had been in power for three years, and had worked systematically to dismantle federal enforcement of environmental laws. From a normal annual caseload of around 350 enforcement actions under the Clean Water Act for the country, the number dropped by 1984 to zero. With a team consisting primarily of a chemist a secre- tary and myself, we researched violations of water dis- charge permits, and used the private attorney general provision of the Act to bring civil enforcement actions in federal court. Within six months we had 60 cases pending, and the program went on to more than double that number of cases. We won all the cases. We got injunctions that ordered the polluting companies to comply with the law, and penalties that we used to set up charities that worked for clean water in the polluted areas. We also got costs and fees in all the cases. This was vital, for the NRDC is a charity. We had a loan from a trustee to fund the first cases. From the fees we were able to repay the loan and fund the subsequent cases. The result was not only enhanced compliance in the com- panies we took to court. The message went wider. A national industry newsletter with a high subscription fee was set up that just tracked our cases. Companies paid attention.

30 I Socialist Lawyer G March 2010 role in making the system work. They can protect the in- terests of the environment, when others cannot or will not. This story shows the power of genuine one way cost shifting in environmental cases. It was only because we could get costs and fees that we could take such effective action. I should make clear that one way cost shifting in the US system applies to cases against the Government as well. When a plaintiff convinces the court that the Government has acted illegally or has failed to fulfil a mandatory duty, it will grant an injunction ordering the Government to comply, and award costs including fees to the plaintiff. Long experience shows that governments – even ones ap- parently favourable to the environment – often fail to per- form their duties. Cases by citizens are frequently what forces governments to fulfil their duty. And in the cases of governments that actively oppose environmental benefit, such as the Bush administration, it is only the power of citizen litigation that can prevent the dismantling of work that took decades to build. Sadly, the ‘qualified’ cost shifting proposed in the Jack- son Review is so diluted that it will not improve access to justice in the UK. If the Jackson reforms were adopted in the way that seems most likely, the UK would still fail to comply with the Aarhus Convention, because the costs of using the courts would still be prohibitively expensive. It is worth noting that in the UK, it is not only costs that keeps citizens from bringing cases like those against Bethlehem Steel. In the UK, there are several other barri- ers. First, judicial review does not permit cases against pri- vate persons including corporations, so citizens cannot effectively enforce. Second, looking more widely at envi- ronmental cases, judicial review is overly narrow in scope. It does not allow the court to determine whether a decision / reportdigital.co.uk Jess Hurd Picture: One of the major cases was against Bethlehem Steel, for maker (say the finder of fact in a planning matter) has violations at its Sparrows Point plant on the Chesapeake made an erroneous decision, but only whether he has fol- Bay. At that time the Sparrows Point plant was the world’s lowed proper procedures. Third, injunctive relief is rarely largest steel plant, and the damage of its pollution was con- available against the Government. This is due to the fiction siderable. After three years of litigation, when we signed that the sovereign can do no wrong. Life proves otherwise, the settlement agreement, a senior vice president of Beth- and without the power of the court to order governments lehem Steel said to me, ‘You know, son, we didn’t know to fulfil its duties, citizens are often deprived of effective you were out there. We thought when we had a deal with remedies. the Government we were safe.’ Each of these barriers is important, as they each prevent It is in the nature of governments to make deals like the courts from delivering justice to citizens in environmen- that. Only citizen vigilance can make sure that environ- tal cases. We at ClientEarth have therefore brought a case mental laws are enforced. And only when the courts against the UK before the Aarhus Compliance Committee in give access, give effective remedies and use true one way Geneva. The Committee has the power to review whether cost shifting can citizens turn vigilance into successful the legal systems of signatory countries meet the require- redress. ments of access to justice guaranteed by the Convention. We After we won dozens of cases, Bill Ruckelshaus, the are presently awaiting the finding of the Committee. Re- Director of the Environmental Protection Agency (EPA) turning to the issue of costs, because the UK is so out of line called me down to Washington D.C. for a noon meeting. with other countries, we hope for a positive outcome. The EPA is the entity charged with enforcing environ- When it comes to environmental cases, the Jackson mental law at federal level. When I arrived I was told it Review is a missed opportunity to provide the access to was to be a lunch meeting, and I expected a sandwich justice the UK is bound to provide. The Aarhus Compli- with the Director. Instead I was shown into a large con- ance Committee has the power to direct the UK to take ference room, with the EPA’s enforcement lawyers waiting the right steps. for me. At the head of the vast room was Bill Ruckelshaus. There is no solution to the costs problem so good as As I sat down to my sandwich, he said, ‘Mr. Thornton, I’d genuine one way cost shifting. Only this way of dealing like you to give us a seminar on how you develop and win with costs gives genuine access to citizens, who, when they your enforcement cases. We want to know. We seem to raise environmental interests against government and in- have forgotten how to do it, but you have kept the torch dustry, are necessarily in the position of David against Go- burning.’ liath. Genuine one way cost shifting puts them in the What followed at that lunch was a positive dialogue. position to gain David’s outcome. What happened later was that the EPA got back into the enforcement business. A few years later we were able to G James Thornton is a member of the bars of New York, end our own citizen enforcement project, because the Gov- California and the Supreme Court of the United States ernment had taken the job back up. and a solicitor of England and Wales. He founded the It was because we embarrassed the Government that it Citizens' Enforcement Project at the Natural Resources started to fulfil its duty again. A small group of people had Defense Council in New York where he brought and won done what large government teams were not doing. This some 80 federal lawsuits against corporations to enforce spirited competition to make the laws work is just the kind the Clean Water Act. He is CEO of Client Earth, an of experiment in democracy that access to justice allows. organization of activist lawyers committed to securing a When citizens have access to justice, they can play a vital healthy planet www.clientearth.org

Socialist Lawyer G March 2010 I 31 Planetary slavery

by Polly Higgins

his law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all ‘Tthe globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their au- thority, mediately or immediately, from this original’. Sir William Blackstone, English judge and jurist, Natural Law Theory, 1761

The case for a legal framework for Planetary Rights Sixty years ago the Universal Declaration of Human Rights (UDHR) was signed on the back of the humanitarian in- justices of the Second World War. That was a potent docu- ment that led to the implementation of human rights internationally. While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words ‘fundamental freedoms’ and ‘human rights’ appearing in the United Nations Charter, which is binding on all member states. For this reason, the Univer- sal Declaration is a fundamental constitutive document of the United Nations. It provides the tools, nationally and in- “One country acting in ternationally, for lawyers seeking justice for those whose human rights are breached. isolation to uphold the Just as the UDHR was born of a humanitarian crisis, so now we have a planetary crisis. The need to protect and laws of nature does prevent further abuse to planet Earth is already translating into legislation in pockets of the world where extreme en- not go far enough. vironmental crisis has paved the way for new initiatives such as Ecuador’s recent Bill of Nature’s Rights. But one Climate change – a country acting in isolation to uphold the laws of nature does not go far enough. Climate change – a symptom of the symptom of the crisis crisis we face – is trans-boundary in nature and affects us all. That is why a Universal Declaration of Planetary Rights we face – is trans- is called for. One of the proposed planetary rights would be the right boundary in nature not to be polluted. Such a right, applying equally to the and affects us all” soils, the seas, the atmosphere as well as to humanity, has enormous implications. Hard-hitting international legisla- tion such as this is necessary if we are to drastically curb mate change legislation. The EPA declared that excess GHG that which is so damaging. In a world where 78% of the emissions are to be now termed as ‘pollutants, which are a world’s excess greenhouse gases come from the creation of danger to public health’. fossil fuel, rendering the excess creation of such greenhouse EPA action to regulate emissions will affect the US econ- gases illegal will inevitably target the corporations who omy more directly, and certainly more quickly, than any trade in fossil fuel first. global deal arising out of the ashes of the recently collapsed climate negotiations. In effect, the right not to be polluted Causality is taking shape. Extension of that right as a planetary right Encouraging steps are being taken. A recent ‘endangerment’ would, in the case of the atmosphere, pave the way for finding by the US Environmental Protection Agency (EPA) better regulation of airborne pollutants – and provide a could pave the way for the US Government to require busi- better tool with which to hang a breach. It is after all far nesses that emit carbon dioxide and five other greenhouse easier to take an air sample to establish whether there is an gases to make costly changes in machinery to reduce emis- excess of pollutants than it is to establish conclusively the sions – regardless of whether Congress passes pending cli- causal link to poor public health.

32 I Socialist Lawyer G March 2010 business as usual. Likewise, to address the problem by using market mechanisms to restrict the emissions, or by simply implementing energy efficiency measures will not resolve the problem. Protection on the enormous scale that is re- quired is not afforded by merely damaging a little less. Two hundred years ago merchants howled at proposals to abolish their profitable slave trade. Industry bewailed that stopping the trade would lead to economic catastro- phe, with huge job losses and widespread public discon- tent. Alternative proposals were aired: leave it to market forces to determine the numbers, self-regulation to ensure improved conditions, introduce permit auctions, and if all that was not sufficient a capping of slaves imported could be imposed with levied fines for breaches. Slaves, they said, were a necessity. Sound familiar? Two hundred years later and the only difference between then and now is that in- stead of outlawing damaging polluting practices, they are allowed to flourish. Where human slavery was rendered il- legal, planetary slavery continues. Prime Minister William Pitt speaking in the House of Commons in 1783 bemoaned the fact that ‘necessity is the plea for every infringement of human freedom: it is the argument of tyrants, it is the creed of slaves’. Change but one word, and his lament rings all too true today.

The power of legislation Legislation as we know has enormous power to generate re- markable transformation. Within a year of abolition slave traders began trading in other commodities such as tea and china. A more recent example of such swift transformation came during the Second World War in the US, when the automobile industry was asked to apply their skills to the making of planes for the war effort. Industry refused. Emer- gency legislation was thus passed overnight rendering the production of cars illegal; generous subsidies were given and a short transition period was granted (a matter of months). Engineering training was reduced from five years to just seven weeks, and hundreds of planes were expected by the end of the first year. The number of planes ready to fly by December was ten times the initial specification. Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: There are lessons to be learned here from history, and yet The Planet as a Commodity we repeat the same mistakes. The collapse of the COP 15 Corporations react well to legislative restrictions – it pro- climate negotiations in Copenhagen may just have been the vides them with the framework within which to work: they best outcome of all. A powerful wake up call for individual are forced to reinvent their wheels rapidly and it affords nation action. The question is, will nations now stop trad- the opportunity to call for (and receive) new subsidies to ing and determine to act swiftly and decisively? ensure reinvention and compliance. The energy companies of today have their eyes on the horizon. It is well recog- G Polly Higgins is a barrister, earth jurisprudence expert and nized that the time is coming where international laws will advocate of planetary rights, who addressed the United prevent profiteering from that which is polluting. Sir Nations on the call for a Universal Declaration of Planetary Nicholas Stern recently berated governments for pander- Rights in November 2008. Bolivia has taken up the mantle ing to companies’ demands for self-regulating (and lengthy) and is proposing such a declaration to the General transition periods, when in reality firm and legislatively de- Assembly. Polly is also the initiator of the People’s terminative action is required. History clearly demonstrates Declaration and the Planet Earth Trust. For more information, that voluntary business guidelines produce little more than go to www.treeshaverightstoo.com

Socialist Lawyer G March 2010 I 33 HUMAN RIGHTS IN THE RUF CASE AT THE SPECIA by Clark Kingsley

n 26th October 2009, the espouse, they are a curiously modern phenom- ‘Joint criminal enterprise’ and the Appeals Chamber of the Special enon. They seem to have quickly captured the spectre of collective responsibility Court for Sierra Leone (SCSL) imagination as lone bringers of justice in an Almost all of the convictions in the RUF case upheld the convictions of three international wilderness of brutality – until the were rendered on the basis of ‘joint criminal members of Sierra Leone’s Revo- latter half of the last century, no more than a enterprise’ (JCE). While JCE is often described lutionary United Front (RUF). utopian dream. Such institutions have been as particular to international tribunals, the OFormer RUF interim leader, Issa Hassan Sesay, lauded as a step forward of gargantuan pro- accompanying issues are of profound relevance and RUF Commander, Morris Kallon, were each portions in the protection and promotion of elsewhere – not least in the criminal law of Eng- convicted in February 2009 of 16 counts of war human rights. land and Wales and its resurgent use of joint crimes and crimes against humanity for atrocities These benefits are perceived to be reinforced enterprise liability in dealing with gangs. committed during the decade-long civil war. For- by the innovations in the RUF judgments, In its essence, the concept of JCE is simple. mer RUF Security Chief Augustine Gbao was including the first ever convictions by an inter- It applies where an accused participated in a convicted on 14 counts. In April 2009, Sesay was national tribunal for forced marriage as a crime plan, common to a plurality of persons, which sentenced to 52 years’ imprisonment, Kallon to against humanity and for attacks against UN amounted to or involved the commission of a 40 years, and Gbao to 25 years. The Appeals peacekeepers. The Appeals Chamber also crime. The accused is held liable, as if having Chamber unanimously upheld the total terms of upheld convictions for the recruitment and use committed the crime, for the acts of others imprisonment, although it overturned Gbao’s of child soldiers – another of the ‘firsts’ achieved which fall within the joint enterprise. conviction for collective punishments and found by the SCSL. There is a familiar and pressing concern that he was not responsible for one of the two That deals, in large part, with what the here: collective criminal responsibility, and the attacks against UN peacekeepers for which he SCSL, and the RUF judgment in particular, has arbitrary treatment it inflicts by punishing in had been convicted. done. The convictions rendered and the pun- the absence of clear individual culpability. The SCSL is one of a generation of tribunals ishment meted out are the most visible of a Quite simply, in the words of a teenager on the prosecuting crimes against humanity and war court’s activities, but the innovation that char- BBC’s Panorama: ‘Why are you responsible for crimes in the name of the international com- acterises the SCSL does not end there. This arti- someone else’s actions?’ Indeed, until the SCSL munity. Others include the International Crim- cle deals with how an international tribunal began its innovations, established JCE jurispru- inal Tribunals for the Former Yugoslavia and which is small and relatively modest has exerted dence rigorously demanded individual culpa- for Rwanda (ICTY and ICTR). Like the idea of such an impact – and considers the effects of its bility through two requirements. First, the an internationally shared morality that they endeavours. mens rea requirement that the accused

34 I Socialist Lawyer G March 2010 NTHEBALANCE? AL COURT FOR SIERRA LEONE

caption to go here

intended the commission of the crime and Where, by contrast, the joint enterprise is intended to participate in a common plan alleged to have operated not just in one village aimed as such. Second, the accused contributed but across Sierra Leone and throughout the significantly to realisation of the common pur- chaos of its civil war, there are more difficulties pose. These two requirements seek to ensure in applying JCE. But the challenges do not end that the attribution of responsibility to a person there. The RUF was a highly fragmented for a criminal outcome is done in a meaningful, organisation such that – as the Trial Chamber fair manner. heard – it was not, in any plausible sense, a sin- In any event, JCE was not originally about gle entity. In addition, membership of the joint collective responsibility at all. The paradigm of enterprise was said to include members of the its application is the Tadic case at the ICTY. Armed Forces Revolutionary Council (AFRC), Here, a group of armed men entered Jaskici vil- against whom the RUF fought directly at times. lage in the Prijedor region of Bosnia, sum- One would surely expect, then, great emphasis moned residents from their homes, and sepa- upon JCE’s well-established attribution rated the men from the women and children. requirements in the SCSL’s reasoning. The men were beaten and removed from the Not so. In a judgment which has potentially village. After the group left, five men were revolutionised JCE law, liability was imposed found dead. Although several witnesses identi- in the absence of any finding that a defendant fied Dusko Tadic as one of the group who had shared the intent of the other members of the entered Jaskici, none could personally link him joint enterprise to commit the crimes deemed to to these killings. Nonetheless, it was held that be within the common purpose. Let us not for- Tadic was criminally responsible for the deaths get that liability through JCE is considered a of these five men. In that case, the joint enter- form of commission – thus rendering it more prise operated in a relatively small area, so that Former RUF interim culpable than other forms of liability. For the leader Issa Hassan the Court could be sure that it was indeed a Sesay and former first time, JCE liability could arise for crimes in joint enterprise, and JCE’s attribution require- RUF Security Chief the absence of any agreement by the accused –

ments required proof that Tadic was individu- Augustine Gbao explicit or implicit – with the intentions of the L ally culpable before convicting him. pictured in court. perpetrators. The position is similarly novel as

Socialist Lawyer G March 2010 I 35 L regards the ‘significant contribution’ require- deficiencies in the pleading of material facts did ‘Ending impunity’ – or reinforcing its ment. In the view of the SCSL, JCE liability not matter. This, combined with the late dis- causes? arises even for an accused who had no influ- closure of charges through witness statements, Underpinning verdict, reasoning and process, is ence in areas of the country where most of the would fatally undermine the preparation of a philosophy based on ending impunity. crimes were committed. Equally irrelevant, it any defence. The Sesay Defence, for example, Dragged along by the emotional current of seems, is the lack of contribution to the crimes. listed at appeal hundreds of lost opportunities potentially realising such a weighty and noble Ensuring that punishment is meted out only for cross-examination. The Appeals Chamber cause, many are drawn to ask how important where there is individual culpability is as fun- simply dismissed them for being over a page strict adherence to human rights is. damental as the rule of law itself. This has limit. No one could possibly diminish the immense always been the pressing concern about collec- Next, it became clear, in part from admis- and incomprehensible suffering caused by the tive responsibility – and is perhaps the key rea- sions in the Charles Taylor case in The Hague atrocities with which international tribunals son why ‘collective punishment’ is an interna- (which is also part of the Special Court), that deal. If the process is somewhat less than ideal, tional crime. We must not lose sight of this in the Prosecution was paying many of the pros- the argument goes, surely it is worth it for the attempting to redress harms caused by collec- ecution witnesses. Any benefits provided by the ‘greater good’ – a greater good which is often, tive action – whether labelled ‘terrorist’, ‘gang’, court to witnesses ought strictly to be admin- itself, dressed in the language of human rights. ‘rebel’ or otherwise. Failure to demand indi- istered from the Victims and Witnesses Section, Foregone conclusion is an idea that dogs vidual culpability before we punish means arbi- which is independent of both Prosecution and international justice. At Nuremberg, this was trary treatment of the accused for an utterly Defence. Nevertheless, the issue was dismissed due to the clear ‘victors’ justice’ aspect of pro- illusory ‘greater good’, and ultimately, the without substantive examination by the Trial ceedings. Nowadays, a number of factors con- deeper entrenchment of human rights viola- and Appeal Chamber. Apparently the Defence tribute: horrific events and the concomitant tions. failed to raise the point early enough or clearly desire to punish, inordinately expensive tri- enough. bunals and a small number of persons tried. A fair trial? At the same time, the Trial Chamber heard But the utopian dream of ending impunity Some might think that the point is overstated. robust examination of Prosecution witnesses, carries greater dangers. We must look beyond Courts are not infallible: has the SCSL not sim- many of whom were ex-rebels and perpetrators the outcome of these crimes: death, depredation ply made a mistake? Further analysis reveals of horrific crimes. Their evidence, unsurpris- and horror. In fact, the very thing that distin- that the explanation for the RUF judgment’s ingly, was exposed as tainted by the influence guishes crimes against humanity and other novelties is more insidious and systemic, and of a plethora of extraneous motivations, not international crimes is that they are, in the view follows from the erosion of basic procedural least attempts to exculpate themselves. of the perpetrators, political acts done in service safeguards. Nonetheless, the Trial Chamber unquestion- of a utopia – acts done in order to be rid of ene- First, the indictment. Lead Counsel for ingly accepted it, and provided no reasons for mies. This willingness to get rid of enemies Sesay, Wayne Jordash, called the RUF indict- doing so, and the Appeals Chamber reaffirmed through any means necessary reveals an unex- ment the ‘least specified indictment at any tri- this. In a judgment of 800 pages, the entire pected, and shocking, link between indifference bunal’. The lack of detail was, however, Sesay Defence case of 60 witnesses and seven about fairness in international justice and the accepted by the Trial Chamber and reaffirmed months of in-court testimony was dismissed in perpetration of atrocities that it seeks to punish. by the Appeals Chamber. It contains no more 16 paragraphs. And a criminal trial which uses the accused as than a bare assertion of responsibility pursuant Perhaps it is not surprising that a judgement no more than a means to an end bears many of to every mode of responsibility known to inter- that, in substance, violated the rights of the the hallmarks – not of addressing human rights national law. The details of the ‘joint enterprise’ accused arose from a process that did likewise. violations, but of those violations themselves. in the indictment were essentially an assertion Why, then, did such a process arise? Some In other words, right process – with that there occurred a campaign of violence, argue for more transparency and scrutiny. entrenched human rights guarantees for the with no obvious unifying feature other than the Indeed, there are clear differences in the quality accused – is not just obscure technicality and a aim to gain power in Sierra Leone. This, in of the process in those tribunals at which inter- means to a valuable end, but is the very essence itself, is not a crime. The indictment revealed national attention is focused – notably the of what we seek from international courts. It is little about the nature and scope of the alleged ICTY. Practical improvements might include, time to re-assess our dream of ending impunity, common purpose. And as for the link between for example, institutional separation of the trial before it becomes entrenched in the process of accused persons and crime, the de jure status of and appellate jurisdictions, perhaps by creating the International Criminal Court. Cases set the accused, in relation to an army of thou- an ‘International Criminal Appeals Court’, precedents – and can change them. sands, was the sole pleaded nexus to thousands common to all of the various tribunals. There of crimes. appears to be, however, a more fundamental GClark Kingsley is a member of the Haldane The Appeals Chamber determined that the explanation. Society of Socialist Lawyers.

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the Indus River, which rises in National Action Plan on Climate Tibet and flows through Kashmir, Change (2008) did not reflect that No market solution is a frightening one. approach. Save for a useful target Praful Bidwai is a well-known of making solar energy 10 to 12 Indian columnist, environmental per cent of total electricity to climate change activist and prominent anti- generation, it showed a continued nuclear campaigner. An India reliance on large-scale dam and That Can Say Yes was written canal projects, and a frightening An India That parties to blame for the overall before Copenhagen, and makes belief that existing rivers can be Can Say Yes: failure. the case for a climate change interlinked. The plan displayed no A Climate- There are two big problems strategy that is not market-based, sense that the Government had Responsible with the ‘per capita emissions’ but founded on principles of grasped the gravity of the climate Development argument. The first is that we in equity, democracy and crisis or the urgency with which it Agenda For the North are over-consuming and sustainability. A well-designed should be acting. Most Copenhagen have to change our own life-styles, ‘Climate Transition Programme’ disappointingly of all, there was And Beyond so pegging Indian emissions to our would encourage energy no commitment to equity or by Praful Bidwai. Henrich Boll over-consuming lifestyles is efficiency, investigate methods of redistribution. The plan took for Stiftung, The Green Political unsustainable. The second is that reducing the consumption of the granted that existing consumption Foundation, www.prafulbidwai. the figures for per capita emissions rich, and develop sustainable patterns and elite lifestyles would org/index.php?pages/Books in India are not equitably technology in agriculture and remain. distributed. India’s rich, the top other areas. It would be based on A second edition is expected, ndia has a vital stake in tenth of the population, are the principle that the poor have updated to include reflections on combating climate change responsible for a yearly 3.5 per the right to sustainable Copenhagen. The publication is Ibecause it is especially vulnerable cent rise in emissions, more than development and that the rich – free, at least in India, and can be to its effects. With its 7,500 km- the global average of 2 per cent. both the rich North and India’s found at www.prafulbidwai.org/ long coastline, many large flood- They consume cars, white goods, own rich – have a responsibility index.php?pages/Books. It is well plains of monsoon-fed rivers and electronic equipment, fridges, air both to cut our emissions and to worth reading for a view from the high dependence on agriculture, conditioners etc. Meanwhile half undertake a significantly higher global South that rejects market India will be heavily affected by of India’s poor have no access to a proprietor of the global costs of solutions and places responsibility cyclones, coastal storms, erratic reliable electricity supply. India’s remedial action. It would be for action on its own government rainfall patterns and by the approach reflects the view of the democratic and driven from the as well as on the governments of increased frequency and severity rich that they can buy themselves grass-roots. the North. of floods and droughts. In the out of the effects of climate change. The Indian Government’s G Liz Davies Himalayas (described as the Even if such a view were earth’s ‘Third Pole’ because they equitable, it’s not deliverable. Just store the largest volume of as the North cannot escape the Inside the By February 2009 Hugo Chavez had freshwater after the Arctic and effects of climate change by buying Revolution: A been in power for 10 years. The Antarctic regions) glaciers are up unused carbon emissions from Journey into director does not shy away from retreating, the snow season is poorer countries, so too the rich the Heart of criticism. The film opens by stating shortening, the snow-line moving cannot live entirely insulated lives. Venezuela that ‘...Chavez’s revolution has been up and average temperatures They can wall themselves off from 65mins; 2009; unable to deal with some of rising at a rate four times higher the poor by living in gated Director: Pablo Venezuela’s long standing problems than the global average communities and travelling in Navarrete; such as poor public services, temperature rise. The effect will be private cars. But they still live in Alborada Films corruption and crime which has a huge diminution in the supply of heavily polluted and congested caused increasing frustration freshwater into the Indian sub- cities and the potential ecent research conducted by amongst his supporters and those continent, affecting food consequences of climate change the University of the West of sympathetic to his government.’ production and every aspect of threaten us all. REngland on the BBC’s Institutional corruption is a point daily life. 1.5 billion people live in For the poor in India, the reporting on Venezuela over the repeated later in the film through the basins of rivers that rise in the effects of climate change are last 10 years has pointed toward footage of a hip-hop concert Greater Himalayas. already being felt. There has been the larger issue of an imbalanced screened on the weekly Presidential The Indian Government’s a sharp decrease in lentil- picture of Venezuela emerging broadcast ‘Aló Presidente.’ behaviour at Copenhagen could production and so significant from mainstream news sources. The film charts the rise of not have been more wilfully blind inflation in the price of food As the research suggests, this Chavez to power including the to the urgency of tackling climate staples. Plastic litter is everywhere reportage rarely focuses on social failed army coup attempt in 1992 change. It went into Copenhagen in India. Water scarcity has led to progress within Venezuela under in which Chavez was one of the bearing only a promise to ensure violent conflicts, whilst Chavez. Re-addressing some of leaders. The interview Chavez that its per capita emissions relationships between regions over this imbalance is Pablo Navarrete’s gave following the failed coup would never exceed per capita the sharing of river waters can thoughtful documentary ‘Inside attempt was broadcast by the emissions in the rich become unsettled. The thought of the Revolution’. Venezuelan national media at his industrialised North, and came a conflict between Pakistan and The film was shot in November behest. It lasted only a minute but out of the Summit as one of the India over the water resources of 2008 on the eve of regional elections. coined the phrase ‘por ahora’, ‘for

38 I Socialist Lawyer G March 2010 Reviews

Pete Postlethwaite in ‘The Age of Stupid’: superb. now’, which is credited with giving and their mountain guide’s impetus to Venezuela’s left to experiences of increasing ablation mobilise for change in a country in the French Alps, to the debilitated by harsh economic horrendous human plight in the reforms. Chavez was imprisoned oil-ravaged region of the Niger from 1992 – 1994 for his part in Delta, to the heroic actions of a the coup. He emerged with a petroleum bioengineer in the commitment to social progress awake of Hurricane Katrina. through the electoral process. A major difficulty with the film When he was elected as President is the segment about the invasion in 1998 just 3% of Venezuela’s of Iraq and its aftermath. It focuses landowners controlled 70% of the principally on the lives of children country’s agricultural land. made fatherless by the conflict. By the end of 2006 Chavez had The overarching theme is that survived a failed coup attempt in Man’s hunger for oil was the cause 2002, been re-elected as President of the invasion. However, the and won a referendum triggered film’s portrayal of the conflict is by the opposition in 2004. The misleadingly simplistic and intention of the 2004 referendum distracts from the environmental was to oust him from office via the message that it tries to convey. ballot box. As the film points out, The film also falls sadly short the 2004 vote was his seventh The Age of Stupid on advancing solutions to the crisis consecutive election victory since 90 mins; 2008; UK Cert 12A; current opulence of the Western we face. An international cap on coming to power in 1998. Director: Franny Armstrong; Cast: lifestyle, we are all doomed. carbon emissions is proposed The film raises the pertinent Pete Postlethwaite The docu-film is centred upon haphazardly, while a fleeting question as to whether the this message and four other glance is given to the idea of Bolivarian revolution can survive his film begins with an personal stories (interspersed with personal carbon allowances. once Chavez departs from ominous countdown ending real news coverage) to make the Personal action is certainly the government. Javier Biardeau, Tin the year 2055, at a time worst case scenario seem scarily message put forward by the British Professor of Sociology at the when Man’s impact has wrought believable. This is of course the family on their return from the Central University of Venezuela, is catastrophic environmental impact the filmmakers are hoping Alps as they endeavour to address interviewed in the film and destruction upon the planet. for, but for all the shocking images their environmentally unfriendly emphasises the need to prevent London is submerged by and neat graphics, there is very lifestyles, while campaigning for any shift to authoritarianism: floodwater, the Alps are reduced little instructive science. clean energy in the face of local ‘When a process of transition to to bare rock, Las Vegas is While there can be no serious opposition. There is a brilliant socialism implies a greater level of desertified, and Delhi is devoid of argument against the proposition revelatory segment on the democratisation in the movement, all but carrions and decay. It is a that climate change is occurring as monopoly that plastic – an oil- or in classic terms, in the vanguard grim future to which the film’s a result of Man’s activities, there is based material – has on our daily driving the process of change, this writer and director, Franny still much to be scientifically lives. This will cause the users of vanguard should be far more Armstrong, places the protagonist determined in relation to the water bottles intense guilt. democratic than it has been of the story, played by the superb extent and time sequence of such Postlethwaite ends the film by historically because that was one Pete Postlethwaite. change. However, the viewer is left considering why the destiny of of the mistakes that one can An archivist at the Global with no alternative but to conclude humanity is a scorched earth identify from an evaluation of Archive – a huge platform in the that contemporary events such as rather than a planetary paradise. socialism in the 20th century.’ barren Arctic containing all the Hurricane Katrina are by-products Why did we not save ourselves Navarrete first screened the world’s national museum of Man’s actions. when we had the chance? What film earlier in 2009 to packed collections and all specimens of The only portion of the film that kind of species continues to audiences at SOAS. Since then the extinct species – Postlethwaite’s weaves in any scientific research is facilitate its own destruction? The director has taken the film on tour character acts as our guide to the a rolling interview with Mark veracity of the questions posed is around the UK and most recently unfolding events of the not-too- Lynas. A renowned expert on truly haunting. ‘Surprising that the to the US. ‘Inside the Revolution’ distant future. climate change issues, he was an final act of our existence should be is a fascinating addition to the Through the prism of an adviser to the President of the suicide’, he remarks. discourse on Venezuelan politics. interactive display, the archivist Maldives at Copenhagen and now In summary, the McLibel It is a valuable companion to two begins the story in the year 2005 assists in that country’s effort to be director has made a deeply other recent documentaries on with an enthusiastic young Indian the first carbon-neutral country by thought-provoking film that Venezuela – ‘The Revolution Will entrepreneur hell-bent on being 2019. However, he is not a climate deserves an audience far larger Not be Televised’ (2002) and John the Subcontinent’s answer to scientist. than it is likely to receive. The Pilger’s ‘The War on Democracy’ Easyjet. This is the only section of Of the film’s six personal message is overwhelmingly clear: (2008). For those interested, the the film that comes anything close stories, five are brilliant in their let us act now to ensure that this film can be purchased direct from to being comic, but a serious mini-explorations of the plight of cautionary tale does not predict www.alborada.net/alboradafilms/ message underlies it: if the entire the planet and humankind. These our own future. G Tim Potter world’s population is to adopt the stories range from a British family G Chris Loxton

Socialist Lawyer G March 2010 I 39 Haldane Society of Socialist Lawyers Human Rights Lecture Protecting the environment: the legal challenges Speakers to be confirmed Thursday 22nd April 2010 6.30–8.30pm College of Law, 14 Store Street London WC1E 7DE (nearest tube Goodge Street) Admission free. £10 charge for practitioners wanting CPD points. The Law versus the Trade Unions: Reflections on the Past and Strategies for the Future Lord Wedderburn and Jim Mortimer in conversation with John Hendy QC Thursday 27th May 2010, 6.30pm at Congress House, Great Russell Street, London WC1 The speakers will discuss the trade unions' relationship with the law and legal strategies, including thoughts on the 1984 – 1985 miners' strike, legal assaults on the right to strike and other forms of collective action, along with the growing emphasis on individual redress through employment tribunals. In the present context of a severe economic crisis and increased attacks on workers, this meeting aims to equip a new generation with lessons learnt on how to both use and confront the law in the struggles ahead.

Further information from www.haldane.org